AppealS against decisions of the Commission in matter nos U 146 of 2015 and u 147 of 2015 given on 21 April 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00862

DELIVERED : THURSDAY, 3 NOVEMBER 2016

FILE NO : FBA 5 OF 2016

Appellant

AND

Mr William Paul Brooks T/AS Bayview Motel Esperance, WA

Respondent

AND

FILE NO : FBA 6 OF 2016

Appellant

AND

Mr William Paul Brooks T/AS Bayview Motel Esperance, WA

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner D J Matthews

Citation : [2016] WAIRC 00276; (2016) 96 waig 509 and

[2016] WAIRC 00278; (2016) 96 WAIG 510

File Nos : U 146 of 2015 and U 147 of 2015

CatchWords : Industrial Law (WA) - Appeals against decisions of Commission - Harsh, oppressive or unfair dismissal referred - Dismissals lawful but found to be unfair - Remedy - Discretion conferred by s 23A of the Industrial Relations Act 1979 (WA) to make an award of compensation considered - No error demonstrated

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 23A(6), s 23A(7), s 23A(7)(a), s 23A(7)(b), s 23A(7)(c), s 23A(8), s 23A(9), s 26, s 26(1), s 26(1)(a), s 26(1)(c), s 26(1)(d), s 49(2)

Labour Relations Reform Act 2002 (WA) s 138(1) 

Result : Appeals dismissed

Representation:

Appellants : Mr J M Nicholas (of counsel)

Respondent : Mr W P Brooks, in person

Solicitors:

Appellants : Nicholas Legal

Case(s) referred to in reasons:

Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733

AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015; (2001) 81 WAIG 2849

Bogunovich v Bayside Western Australia Pty Ltd [No 1] (1998) 78 WAIG 3635

Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8

Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299

Curtis v Ausdrill Ltd [2006] WAIRC 05656; (2006) 86 WAIG 3133

Epath WA Pty Ltd v Adriansz [2003] WASCA 175; (2003) 83 WAIG 3048

Federated Engine Drivers' and Firemen's Union of Workers of Western Australia v Robe River Iron Associates (1987) 67 WAIG 763

Fisher & Paykel Australia Pty Ltd v Skinner [2006] WAIRC 05839; (2006) 87 WAIG 1

Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270

Gilmore v Cecil Bros (1996) 76 WAIG 4434

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513

Helm v Hansley Holdings Pty Ltd (In Liq) [1999] WASCA 71; (1999) 118 IR 126; (1999) 79 WAIG 1860

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152

Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Q-Vis Ltd v Gordon [2001] WAIRC 03671; (2001) 81 WAIG 2537

R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582

Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363

Case(s) also cited:

Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

SMITH AP AND SCOTT CC:

Introduction

1         These appeals are instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the Act) against decisions made by the Commission in U 146 of 2015 and U 147 of 2015:  [2016] WAIRC 00276; (2016) 96 WAIG 509 and [2016] WAIRC 00278; (2016) 96 WAIG 510.

2         By direction of the Commission made on 10 February 2016, U 146 of 2015 and U 147 of 2015 were consolidated and heard together:  [2016] WAIRC 00078; (2016) 96 WAIG 392.

3         Mr Alan Scicluna and Mrs Trixie Scicluna were employed by Mr William Brooks as managers of the Bayview Motel in Esperance.  Both Mr and Mrs Scicluna's employment was terminated by Mr Brooks by one month's notice in writing on 2 July 2015.  In accordance with the notice, their employment ended on 2 August 2015.  There was no dispute in the proceedings at first instance that it was lawful for Mr Brooks to have terminated the employment of Mr and Mrs Scicluna by the giving of one month's notice.  The question before the Commission at first instance was whether the termination of Mr and Mrs Scicluna's employment was harsh, oppressive or unfair.

4         After hearing the applications, findings were made in reasons for decision that the dismissals were unfair and orders were made that Mr Brooks pay compensation to Mr Scicluna in the sum of $9,961.54 and to Mrs Scicluna in the sum of $11,461.54.  Compensation in each case was calculated as eight weeks' salary, being an amount of $8,461.54 each.  Mrs Scicluna was awarded an additional sum of $3,000 for injury and Mr Scicluna the sum of $1,500 for injury.

Background

5         From 29 March 2013, Mr and Mrs Scicluna were employed by Mr Brooks as a husband and wife team to manage the motel.  Initially Mr and Mrs Scicluna were each engaged on a one‑year fixed term contract which was terminable after a trial period by either party by four weeks' notice (exhibit 2, AB 56).

6         In early 2015, Mr Brooks sent Mr and Mrs Scicluna proposed new contracts of employment, but they did not sign them because there were some conditions they were not happy with.  It was common ground that after that time there was no fixed term contract in place.

7         Whilst Mr and Mrs Scicluna were employed Mr Brooks mentioned to them on several occasions that he was looking to sell or lease the property and asked if they wanted to lease the business.  They, however, declined.  Mr Scicluna said this was mainly due to their age.

8         In April 2015, Mr and Mrs Scicluna planned to take an overseas holiday.  Before they left Mr Brooks again told them that he wanted to sell or lease the motel.  At least by that time there was agreement between Mr and Mrs Scicluna and Mr Brooks that, if in the event he sold or leased the property, their employment would end upon the giving of one month's notice.

9         In an email Mr and Mrs Scicluna sent to Mr Brooks on 24 May 2015, Mr and Mrs Scicluna informed Mr Brooks they were leaving the next day for their holiday in Malta and that 'Jeanette (Ms Dall) will be operating in our absence and will only get staff in as required'.  They also stated in the email that they understood that Mr Brooks had put the property on the market and that their intention was to manage the property until he found someone (exhibit 5, AB 60).  Ms Dall was employed at the motel as a receptionist and had in the past carried out Mr and Mrs Scicluna's duties when they were on leave or on days off.

10      Mr Brooks was at the time overseas.  He responded to the email on the same day and stated words to the effect that:

(a) he had not listed the property with anyone, but it was on the market only by word of mouth;

(b) he had only shown the figures to one party so far; and

(c) it could be a while before anything happens, whilst he was away (exhibit 5, AB 60).

11      On 3 June 2015, Mr Brooks sent an email to Mr Scicluna advising them that he was following up the party that had shown some interest on the lease (exhibit 6, AB 62).

12      On 11 June 2015, Mr Brooks sent an email to Mr Scicluna in which he stated that he was now back in discussions with a potential lease holder who was suggesting mid to late July may suit them and he thought that he was 90% there.  He asked Mr Scicluna what were their thoughts on doing a hand over at that time (exhibit 7, AB 63).

13      On 20 June 2015, Mr Brooks sent an email advising Mr and Mrs Scicluna that he thought the people he had for the lease had taken on another property.  He told Mr and Mrs Scicluna in the email to 'not pack your bags just yet' and he also said if they had it in their mind to leave he had a manager who would fill in (exhibit 8, AB 64).

14      When Mr Brooks gave evidence he stated that he had been in discussions with a Ben and Diane who had previously worked at the hotel, but they had contacted him and told him that they had in fact purchased another property so they would not be proceeding with leasing the motel.

15      On 24 June 2015, Mr Scicluna replied to Mr Brooks by email and in that email stated that they would be staying on for a while yet.  Mr Brooks responded by email saying, thanks, that he had no one else in the pipeline (exhibit 9, AB 65).

16      Mr and Mrs Scicluna arrived back at the motel from their holiday on 30 June 2015.  Ms Dall came to see them in the morning on 1 July 2015 and told them that she had had discussions with Mr Brooks about taking over the lease (ts 10).  Mr Brooks telephoned Mr and Mrs Scicluna that evening and told them that Ms Dall was taking over the lease of the motel and that they were going to be given one month's notice.

17      On the following day, Mr Brooks sent an email to Mr and Mrs Scicluna in which he stated (exhibit 10, AB 66):

Alan and Trixie

I would like to thank you for your time at the Bayview Motel Esperance.

I am giving you both 1 month notice as of today.

As we have discussed Jeanette Dall will be taking over the motel from that time and I should expect an easy handover.

Should you wish to leave any days sooner please discuss with Jeanette.

I wish you the very best in the future and should you want a resume, please contact me any time.

Enjoy being Grandparents in K1W1 land.

Bill Brooks

18      On the same day, Mr Scicluna replied by email as follows (exhibit 10, AB 66):

No problems bill we were expecting it.

We will be out on the 3 august as we need time for packing etc

Please make sure that joy pays us correctly.

We would appreciate a resume as one never knows when one would need it.

Couple of questions

When is Jeanette taking over the property?

What handover is required from us and how long or will Jason be handling it?

Hope you have a great time in Greece and fix the economy and who knows we could meet again sometime.

Alan & Trixie

19      Mr Brooks' son, Jason Brooks, sent an email on 7 July 2015 to Mr Scicluna advising him that Ms Dall had received her paperwork and would be managing the motel as a general manager and not leasing it for now.  Jason Brooks also stated in the email:

(a) it had been decided that because of the work required and the fact that Mr Brooks was away;

(b) that will all happen after he (Mr Brooks) is back; and

(c) it would be a normal handover (exhibit 11, AB 68).

20      Mr Scicluna sent an email to Jason Brooks in reply and stated that as Ms Dall was now not leasing the motel but taking over the management this meant that they were being dismissed for no reason at all and he regarded this as an unfair dismissal (exhibit 11, AB 67).

21      Mr Scicluna then spoke to Ms Dall.  He asked her why was she stabbing him in the back coming in to manage the motel without leasing it. She told him she was going to manage the property first and see how it went and then sign the lease (ts, hearing 30 March 2016 11).

22      Mr and Mrs Scicluna continued to work at the motel until 2 August 2015.  Mr Brooks employed Ms Dall as manager and her partner, Keith, as co-manager from 3 August 2015.

23      When Mr Brooks gave evidence he said that he had a conversation with Ms Dall towards the middle of 2015 and that she was very keen on leasing the property and their discussions resulted in him giving her some financial figures in June or July 2015.  At that point in time he understood that she was processing the data with her accountants and she would manage the motel until she viewed the opinion of leasing the motel through her financial adviser (ts 72).  Mr Brooks said that his other prospects of being able to lease the hotel to anybody else were very slim as there was not a lot of interest in Esperance.  He also said he wanted to move the motel on at that time because he was 60 years of age, retired, and did not need to work.

24      At the time of the hearing at first instance in March 2016, Ms Dall had not taken over the lease of the motel.  Mr Brooks said the last time he spoke to Ms Dall she was talking to her financial advisers and waiting for her taxation returns to be completed (ts 73).  When Mr Brooks was asked what was the connection between Ms Dall as a prospective lessee and her appointment as manager in 2015, he said it was to give her time for due diligence to form an opinion whether she should lease the motel or not (ts 74).

25      When cross-examined, Mr Brooks maintained that at the time the email was sent to Mr Scicluna from Jason Brooks on 7 July 2015 negotiations for a lease was happening, but that Ms Dall had asked to put matters on hold until she had sorted out her financial situation (ts 86).

26      When Ms Dall gave evidence she said that while Mr and Mrs Scicluna were still on leave she had a discussion towards the end of June 2015 with Mr Brooks about taking over the lease of the motel.  She said she told Mr Brooks that she would look into it and see what sort of figures she could come up with and she would get back to him.  She made a phone call to her financial adviser and was told there was nothing they could do until her tax returns were complete.  She explained that she had to get tax returns done before she could look at where the finance was coming from.  She suggested to Mr Brooks that she manage the motel until such time as the lease was signed (ts 95).  She had no further discussion with Mr Brooks about the lease after June 2015.  When she took over the management of the hotel in early August 2015 it was her intention to take over the lease.  At the time of giving evidence in March 2016 she stated it was still her intention to proceed with the lease of the motel but she had only just received her tax returns and her next step was to pay a big tax bill and then get into talks with her financial adviser and accountant to raise the finance to lease the motel.

The Commissioner's reasons for decision

27      The learned Commissioner set out the position of the parties as follows:

(a) Mr and Mrs Scicluna maintained that it was unfair for Mr Brooks to terminate their employment because, as the motel had not been leased out or sold at that time, there was no valid reason for the termination.  In the circumstances present at the time of the termination of the employment of Mr and Mrs Scicluna the termination was simply 'convenient' for Mr Brooks rather than necessary.  Thus, it was argued that a decision to terminate for the mere convenience of the employer and others is an abuse of the lawful right to terminate.  Further, they argued that it was unfair for Mr Brooks to lead them to believe their employment was ending because the motel had been leased when in fact that was not the case.

(b) Mr Brooks' position was the termination was not motivated by mere convenience but was part of a strategy to 'move on' the business and that this intention was known to Mr and Mrs Scicluna.  Mr Brooks' circumstances are that he wished to retire, that he was having difficulty in leasing the motel, that Ms Dall was his 'best prospect' and it was legitimate to do what he could to pursue that prospect.  When all of these circumstances are considered, Mr Brooks' reason for bringing the employment of Mr and Mrs Scicluna to an end was a valid one and the decision a fair one.  Given it was accepted by Mr and Mrs Scicluna that their employment would end on the giving of one month's notice in the event the motel was leased, there was nothing unfair about their employment ending if that event was directly related to a genuine attempt to lease the motel.

28      When regard is had to the findings made by the learned Commissioner, it is clear that he accepted in part the submission made on behalf of Mr Brooks.  He did not, however, entirely reject the submission made on behalf of Mr and Mrs Scicluna.

29      The learned Commissioner found that the communication to Mr and Mrs Scicluna that Ms Dall would be taking over the motel, connoted an inference that Mr Brooks was leasing the motel to Ms Dall and it was unfair in all of the circumstances for Mr Brooks to have treated Mr and Mrs Scicluna in the way he did.  In particular, it was unfair to terminate their employment in different circumstances.

30      The learned Commissioner observed that Mr and Mrs Scicluna had been managing the motel as at July 2015 for over two years and no issues with their conduct or performance had been raised with them during this time.  In the face of Mr Brooks' stated intention to cease operating the motel they had been realistic and reasonable, telling Mr Brooks they realised if this occurred it would mean the end of their employment upon the giving of one month's notice.  Their reasonable attitude is revealed in the email in exhibit 10, which was Mr Scicluna's initial response to the written notice of termination.

31      In these circumstances, the learned Commissioner found that Mr and Mrs Scicluna were not given a fair go.  He found that Mr Brooks should have been candid with them about the strategy involving Ms Dall and listened to what they had to say about it in relation to their employment.  He also found that given Mr and Mrs Scicluna's attitude until this time some mutually acceptable arrangement may have been arrived at.  If not, at that point in time, Mr Brooks could have considered further options.  The learned Commissioner qualified this finding by observing that he did not mean to say that fairness meant that Mr Brooks could not have terminated the employment of Mr and Mrs Scicluna until the motel was leased or sold or that termination of their employment could only fairly have been achieved by agreement.

32      The learned Commissioner then made the following finding in respect of remedy:

(a) Reinstatement or re-employment was not sought on behalf of Mr and Mrs Scicluna.  In any event, it would be impracticable because Mr and Mrs Scicluna have resumed their lives in New Zealand, the business concerned is a small one, and such orders would disturb Mr Brooks' continuing plans to lease the motel to Ms Dall.

(b) The evidence establishes that the loss of each of Mr and Mrs Scicluna would exceed six months' remuneration.  It was accepted that the cap for both is an amount of $27,500 as their annual salary was $55,000 each as at the date of their termination.

(c) In making an award of compensation under s 23A of the Act regard must be had to s 26 of the Act.  The Commission is to act according to equity, good conscience and the substantial merits of the case with regard for the interests of all persons immediately concerned whether directly affected or not (s 26(1)(a) and s 26(1)(c)).

(d) Section 23A(7)(c) also requires, in deciding the amount of compensation, to have regard to any other matter the Commissioner considers relevant.

(e) It is allowable and appropriate in light of s 23A(7)(c) and s 26(1) to consider whether the employment of Mr and Mrs Scicluna might have been fairly brought to an end by Mr Brooks in circumstances that would have seen him paying to Mr and Mrs Scicluna an amount less than six months' remuneration.

(f) Looking at what Mr Brooks could have fairly done in the situation in which he found himself as at July 2015 and taking into account the interests of not only Mr and Mrs Scicluna but also those of Mr Brooks, and to a lesser extent those of Ms Dall, and giving proper attention to overall equity and the substantial merits, it would have been fair for Mr Brooks, in the circumstances that presented themselves as at 2 July 2015, to have brought Mr and Mrs Scicluna's employment at the motel to an end by giving them three months' notice if, after discussion with them, no different arrangement had been arrived at.  In particular, Mr Brooks could have told Mr and Mrs Scicluna that, due to the difficulties he was having in finding a lessee for the motel, he was adopting a new strategy of having Ms Dall manage the motel for a period to see whether she wanted to lease it and, if so, to arrange finance and that at the end of a period of three months (if the motel had not been sold or leased in the meantime) that strategy would take effect.  If Mr and Mrs Scicluna did not agree to that Mr Brooks could have given them three months' notice.

33      The basis for why the learned Commissioner formed the view that this strategy was fair is that the learned Commissioner found that Mr and Mrs Scicluna were, as at July 2015, well aware that Mr Brooks was looking to lease the motel and that process would affect their employment at some time.  In all of the circumstances, the primary one being the difficulty in leasing a motel in a regional centre, Mr and Mrs Scicluna could not have complained that Mr Brook's new strategy was unfair, so long as they had good notice of it coming into effect.   Three months would have given them a fair opportunity to plan the next stage of their lives while remaining in gainful employment.  Given the difficulty that would have been involved in finding alternative work in Esperance or of a similar nature elsewhere a shorter period would not have been fair.

34      The learned Commissioner also found that there would have been no unfairness to Mr Brooks in having to give three months' notice as it was clear that Ms Dall was in no position to lease the motel as at 2 July 2015, a matter that Mr Brooks could have easily discovered.  It was not as if Mr Brooks was at risk of losing a potential lessee if Ms Dall had to wait three months to commence managing the motel.  On the other hand, even though Ms Dall was not ready to lease the motel, it was a reasonable strategy to have her commence managing the motel after three months as part of a strategy to lease the motel.  Mr Brooks could have continued to try and sell or lease the motel in the meantime and if successful, the original understanding with Mr and Mrs Scicluna, that their employment would end on the giving of one month's notice, would come into play.

35      After making these findings, the learned Commissioner had regard to the fact that Mr and Mrs Scicluna were paid one month's notice and determined that an award should be made by way of compensation to each of them to a sum equating to eight weeks' salary, being an amount of $8,461.54 each.  The learned Commissioner then went on to make an award to each by way of compensation for injury in the amount of $3,000 to Mrs Scicluna and $1,500 to Mr Scicluna.  The awards made for injury are not challenged in these appeals.

Grounds of appeal

36      The grounds of appeal in each appeal are the same.  These grounds are as follows:

1. The learned Commissioner erred in law and in fact in coming to the conclusion that it would have been fair for the Respondent to have terminated the Applicant with 3 months notice and have Mrs Dall commence managing the motel as a part of a strategy to lease the motel: RFD [41], [42],43],[44].

Particulars

Contrary to the requirements of s.26(1) of the of the [sic] Industrial Relations Act 1979 (WA) (the Act):

(a) failing to give proper consideration to the finding that Mrs Dall was in no position to lease the motel as at 2 July 2015 [44];

(b) failing to consider or give proper consideration to the evidence that Mrs Dall:

(i) in June 2015 asked to put negotiations for any lease 'on hold' until she had sorted out her financial situation;

(ii) in June 2015, and at all times up until the hearing of the matter only had the intention to lease the motel 'in the long term' and subject to her being in a financial position to do so;

(iii) the evidence to the effect that Mrs Dall was in no position to lease the motel at any time prior to the hearing of the matter, or indeed after that time until she had paid off a 'big tax debt';

(iv) had not discussed the lease of the motel with the Respondent at any time since June 2015;

(c) failing to consider or give proper consideration to the fact that there was no evidence of any detriment to the Respondent or any risk of losing Mrs Dall as a potential lessee if Mrs Dall had to wait until she commenced leasing the motel before replacing the Applicant;

(d) failing to give proper consideration to the finding that there was no detriment to Mrs Dall if she had to wait: RFD [45];

(e) failing to consider or give proper consideration to the interests of the Applicant, including in maintaining employment, remuneration, accommodation and connections within the Esperance community.

(f) giving primary status, in considering fairness, to what was described by the learned Commissioner as 'the difficulty in leasing a motel in a regional centre' (RFD [43]), in circumstances where:

(i) when proper regard is had to all the circumstances of the matter, the privileging of that proposition was contrary to equity, good conscience and the substantial merits of the case;

(ii) the learned Commissioner was in error in failing to give any or proper consideration to the interests of the Applicant;

(iii) the learned Commissioner was in error in privileging that proposition without any or sufficient relevant findings of fact;

(iv) the learned Commissioner was in error in privileging that proposition in the absence sufficient evidence that supported doing so over the interests of the Applicant;

(v) the learned Commissioner was error in treating that proposition as a fact in the absence of any evidence that it was particularly more or less difficult to lease a motel in Esperance and, despite the Respondent not making any particularly significant efforts to lease the motel there was evidence that the Respondent had received other genuine interest in leasing the motel in 2015;

(g) the decision was manifestly unreasonable.

2. The Commissioner erred in law and fact in failing to find that Applicant should be paid compensation in a sum equating to 6 months remuneration.

Particulars

(a) the particulars referred to in paragraph 1;

(b) the learned Commissioner's finding that it if there were no other factor affecting the amount of compensation to be awarded, the loss of the Applicant would exceed 6 months remuneration.

The appellants' submissions

37      Both appellants, Mr and Mrs Scicluna, contend that the learned Commissioner erred in law and in fact in coming to the conclusion that it would have been fair for Mr Brooks to have terminated their employment with three months' notice and have Ms Dall commence managing the motel as a part of a strategy to lease the motel.  By making this finding, Mr and Mrs Scicluna say that the learned Commissioner was making a finding of procedural unfairness.  However, they say that the termination of their employment resulted in substantive unfairness to them.

38      In reaching the three months' notice finding, Mr and Mrs Scicluna say the learned Commissioner erred by failing to consider the following matters:

(a) There was no strategy or connection between the lease of the motel to Mrs Dall and her taking over from Mr and Mrs Scicluna;

(b) Mrs Dall had asked to put the negotiations for any lease 'on hold' - prior to Mr Brooks giving notice to Mr and Mrs Scicluna;

(c) Mrs Dall's evidence was that at all relevant times she intended to lease the motel 'in the long term' and the only impediment from her perspective was securing finance;

(d) Mrs Dall was not in any position to lease the motel after 3 months, or at any time up to and after the hearing at first instance, because she needed to pay off 'a big tax bill' before talking to her accountant about any finance;

(e) Mrs Dall had not discussed the lease of the motel with Mr Brooks at any time since June 2015;

(f) There was no evidence of any detriment to Mr Brooks, or risk of losing Mrs Dall as a potential lessee if Mrs Dall had to wait until she commenced leasing the motel before she and her partner replaced Mr and Mrs Scicluna;

(g) The legitimate interests of Mr and Mrs Scicluna, including maintaining employment, remuneration, accommodation and connections within the Esperance community.

39      They also say the three months' notice finding was manifestly unreasonable (and plainly wrong) because:

(a) It was based on a false premise;

(b) Mrs Dall was in no position to lease the motel as at 2 July 2015;

(c) She had asked to put the negotiations for any lease 'on hold';

(d) Mrs Dall's evidence was that at all relevant times she intended to lease the motel 'in the long term' and the only impediment from her perspective was securing finance;

(e) She was not in any position to lease the motel after 3 months, or at any time up to and after the hearing at first instance, because she needed to pay off 'a big tax bill' before talking to her accountant about any finance;

(f) Mrs Dall had not discussed the lease of the motel with Mr Brooks at any time since June 2015;

(g) There was no evidence of any detriment to Mr Brooks, or risk of losing Mrs Dall as a potential lessee if Mrs Dall had to wait until she commenced leasing the motel before she and her partner replaced Mr and Mrs Scicluna;

(h) It plainly failed to give sufficient, or any, weight to the legitimate interests of Mr and Mrs Scicluna, including maintaining employment, remuneration, accommodation and connections within the Esperence [sic] community;

(i) it was plainly wrong and contrary to equity, good conscience and the substantial merits of the case to elevate what was described as 'the difficulty in leasing a motel in a regional centre' to the 'primary' circumstance in considering fairness to Mr and Mrs Scicluna. That elevation unreasonably and (plainly incorrectly) placed Mr Brooks interests over and above Mr and Mrs Scicluna's interests;

(j) Further, the evidence did not support a finding of any particular 'difficulty in leasing a motel in a regional centre'.

40      Mr and Mrs Scicluna say that the three months' notice finding was based on a false premise that Mr Brooks had an intention or need to adopt a new strategy of having Ms Dall manage the motel for a period to see whether she wanted to lease it.  They also point out that Mr Brooks was not seeking at first instance for the Commission to make any such findings.  In particular, Mr Brooks did not submit in his evidence or through his counsel that there was any 'try before you buy' arrangement with Ms Dall.  In particular, counsel for Mr Brooks, Mr Davies, rejected that proposition when it was put to him by the learned Commissioner when counsel was making their final submissions after the conclusion of evidence (ts 111 - 112, hearing on 30 March 2016).  It is also pointed out on behalf of Mr and Mrs Scicluna that Ms Dall also did not give evidence in support of such a strategy or 'try before you buy' arrangement.

41      They argue that when one analyses the evidence given by Ms Dall, her evidence was at the highest that she had an intention from June 2015 in the long term to lease the motel which was contingent on her sorting out her taxation affairs, ultimately paying off a tax bill and then obtaining finance.  In particular, the evidence clearly established that she was in no position in June 2015 to enter into a lease.  Consequently, they say there was no evidence upon which an inference could be drawn that Ms Dall would only consider entering into a lease and negotiating a lease with Mr Brooks if she managed the motel.  Her evidence was that she put discussions on hold until she sorted out her finances.  Thus, there was no evidential basis on which it could be said that there was a strategy of her managing the motel that was connected with her entering into a lease of the motel or was for a period of due diligence.

42      Further, it is argued that the period of three months' notice is an arbitrary period and no assessment was made that there was a probability that Ms Dall would have been in a position to enter into a lease within this period of time and, in any event, there was no evidence upon which such a finding could have been made.

43      Consequently, they say there was no connection between the lease of the motel to Ms Dall and her taking over from Mr and Mrs Scicluna.  As there was no such connection therefore it was irrelevant to consider whether Mr and Mrs Scicluna's employment could have been terminated by providing more notice than they were (by three months' notice) and, in any event, such notice did not render the termination of their employment fair.  Thus, to the extent that the learned Commissioner found that there was such a strategy or connection it represents a mistake of fact.

44      It is also argued that by elevating the circumstance of the strategy to lease the motel was to give such a circumstance the most weight and that was a fundamental error by not only according such weight to a particular factor, but a factor that was not substantially founded upon any evidence.

45      It is, however, conceded on behalf of Mr and Mrs Scicluna that they did not have an understanding that their employment would be indefinite.  However, their understanding was that until the motel was leased or sold they had security of employment and that their access to wages should not have been subrogated to the notion that Mr Brooks wanted to move the motel on so that his desire to do so should not be preferred over their circumstances.  In particular, they say that there was no pressing need for Mr Brooks to move the motel on.  Mr Brooks' evidence was that he had become a director of a ski resort and spent time in Japan and had passed on the running of motel to other people.  Consequently, it is argued that the desire of an employer to move a business on should not be elevated above the interests of employees.  This is particularly so in the context of the surrounding circumstances where negotiations had been put on hold for the lease and there was no prospect of Ms Dall entering into a lease when Mr and Mrs Scicluna were given notice to terminate their employment.  The difficulty to lease a motel in a regional centre was wrongly given more weight than Mr and Mrs Scicluna's fundamental job security.  In the circumstances they say there was no justification for preferring Mr Brooks' interests by making any difficulty of leasing the motel a primary consideration.

46      Mr and Mrs Scicluna say ultimately there has been an error in the sense required by House v The King [1936] HCA 40; (1936) 55 CLR 499.  They say the only reasonable conclusion that a fair mind could reach in this matter was that there was no valid reason for termination of their employment.  Further, that their terminations were not just procedurally unfair in a way that could be cured by the giving of further notice.

47      In respect of ground 2 of the grounds of appeal, the submissions made in relation to ground 1 are repeated with the submission that there was no basis for reducing the award of compensation below the six-month remuneration cap in s 23A(8) of the Act.

48      Consequently, Mr and Mrs Scicluna seek to have the orders made at first instance varied and seek orders that the consolidated appeals be upheld and that the decisionss be varied to make an award for compensation of an amount of $27,500 each.

Assessment of compensation - principles

(a) Exercise of discretion

49      The making of an award of compensation pursuant to s 23A of the Act is a discretionary decision.  Consequently, the Full Bench cannot interfere with the learned Commissioner's decision and substitute its own decision unless the appellant establishes on grounds set out in House v The King that there was an error in the exercise of the discretion at first instance.  In House v The King, Dixon, Evatt and McTiernan JJ observed (504 - 505):

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

(b) The nature of a harsh, oppressive or unfair dismissal

50      A lawful dismissal can be harsh, oppressive or unfair in some circumstances.  For example, even if notice is given that complies with an express term of the contract a dismissal may be harsh, oppressive or unfair.  Similarly, some unlawful dismissals such as notice that is given that is in breach of a condition of a contract, such as being too short, may also be harsh, oppressive or unfair:  see R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582, (586) (Bray CJ) and Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270 [104] (EM Heenan J)

(c) Discretion conferred by s 23A to make an award of compensation

51      Pursuant to s 23A(6) of the Act if the Commission considers reinstatement or re-employment would be impracticable, it may, subject to s 23A(7) and s 23A(8), order the employer to pay the employee an amount of compensation for loss or injury caused by the dismissal.  Section 23A(8) provides an award of compensation is not to exceed six months' remuneration of the employee.

52      Pursuant to s 23A(7), in making an award, the Commission is required to have regard to:

(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal; and

(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

(c) any other matter that the Commission considers relevant.

53      Of importance in these appeals, s 23A(7)(c) of the Act requires the Commission to have regard to any matter it considers relevant.

54      In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, French CJ observed that every statutory discretion, however broad, is constrained by law [23].  His Honour then went on to say:

As Dixon J said in Shrimpton v The Commonwealth ((1945) 69 CLR 613 at 629-630):

'[C]omplete freedom from legal control, is a quality which cannot … be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.'

Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; O'Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at 84 [31] per Gaudron and Gummow JJ). Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then (Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 per Dixon CJ, McTiernan and Windeyer JJ agreeing at 473-474) 'the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case'. That view, however, must be reached by a process of reasoning.

55      Where a statutory provision does not identify specific relevant considerations, it is largely for the decision maker at first instance to determine which matters he or she regards as relevant and the comparative importance to be accorded to matters which he or she so regards:  Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375 (Deane J).  This passage was applied by the Full Bench in Q-Vis Ltd v Gordon [2001] WAIRC 03671; (2001) 81 WAIG 2537 [44] to the principles to be applied to an exercise of discretion of an assessment of loss and compensation under s 23A of the Act.  At the time the matters in contention in Q-Vis Ltd were determined, s 23A of the Act prohibited the Commission from making an order requiring the employer to pay compensation to the employee for loss or injury unless:

(a) it is satisfied that reinstatement or re-employment is impracticable; or

(b) the employer has agreed to pay compensation instead of reinstating or re-employing the employee.

56      The Commission was also at that time empowered to make an order for compensation if an employer had failed to comply with an order for compensation or reinstatement.  There are, however, no substantial differences between what is required to be considered in an assessment of compensation under the repealed s 23A and the s 23A enacted by s 138(1) of the Labour Relations Reform Act 2002 (WA):  see observations in Epath WA Pty Ltd v Adriansz [2003] WASCA 175; (2003) 83 WAIG 3048 [19] (Scott J), [30] (Parker J), [31] (Pullin J); Fisher & Paykel Australia Pty Ltd v Skinner [2006] WAIRC 05839; (2006) 87 WAIG 1 [3] (Ritter AP), [77] (Kenner C).

57      Section 23A of the Act was amended by s 138(1) of the Labour Relations Reform Act.  Section 138(1) inserted a new s 23A which made three changes to the preconditions to the power to make an award of compensation.  Firstly, the option of an employer to agree to pay compensation instead of reinstating or re-employing an unfairly dismissed employee was repealed.  Secondly, s 23A(7) was enacted to specify the matters the Commission must have regard to in deciding an amount of compensation.  Thirdly, the power to make an order for compensation if an employer had failed to reinstate or re-employ an unfairly dismissed employee was repealed.

58      Whilst it is now a statutory command that the Commission is required under s 23A(7)(a) in deciding an amount of compensation to have regard to the steps if any of the employer and employee to mitigate, whether an employee had taken steps to mitigate is a matter that was taken into account in assessments of compensation prior to the 2002 amendments:  Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8, 11 (Sharkey P), (13) (Kenner C).

59      Section 23A(7)(b) is an issue that is not likely to be raised in many matters.

60      The requirement in s 23A(7)(c) to have regard to any matter that the Commission thinks is relevant is, in our opinion, simply a restatement of the principle that previously applied that the Commission is conferred with a broad discretion to consider all relevant facts and circumstances that are raised in a particular matter as facts and circumstances will inevitably vary widely from case to case.

61      The principles for an assessment of compensation were comprehensively set out in Bogunovich [No 2].  Bogunovich [No 2] was decided prior to the amendments to s 23A in 2002.  The principles set out in Bogunovich [No 2] and subsequent decisions of the Full Bench and the Industrial Appeal Court which are referred to below, together with the matters set out in s 23A(7) of the Act which are relevant to the disposition of this appeal, are as follows:

(a) The powers conferred under s 23A to order payment of compensation must be for a demonstrated loss or injury caused by the dismissal.

(b) Such payments are not a means for punishing an employer:  Garbett [85] (EM Heenan J).  However, an award of compensation is not restricted to the damages which might be recovered at law for wrongful dismissal:  Garbett [85] (EM Heenan J).  It is a statutory remedy that is different from the species of relief which may be available under the contract of employment:  Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152 [60] - [61] (EM Heenan J).

(c) In determining whether an employee has been unfairly dismissed, and in considering whether pursuant to s 23A it should order the employer to pay any, and what amount of compensation to the employee for loss and injury caused by the dismissal, the Commission acts judicially:  Helm v Hansley Holdings Pty Ltd (In Liq) [1999] WASCA 71; (1999) 118 IR 126; (1999) 79 WAIG 1860 [9] (Kennedy J).

(d) Like the assessment of an award for general damages, the assessment of compensation under s 23A is not an exact science:  Gilmore v Cecil Bros (1996) 76 WAIG 4434, 4447 (Sharkey P), (4449) (Gifford C).

(e) The first step is to assess the total amount of compensation that can be awarded; that is the amount of the remuneration of the employee that would be payable in a period not exceeding six months (see s 23A(8) and s 23A(9) of the Act).

(f) The employee is to establish his or her loss and/or injury on the balance of probabilities.  This involves a finding of fact or mixed law and fact, as to what is the loss and injury established on the evidence:  Bogunovich [No 2] (9) (Sharkey P), (13) (Kenner C).

(g) The onus of proof of failure to mitigate rests upon the employer.  If it is established that an employee has failed to mitigate his or her loss, then it may be that there has not been a loss of remuneration caused by the dismissal.  A finding that an employee has a duty or is required to mitigate his or her loss is a misstatement of the law:  see the discussion in Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239 [99] - [104]; applied in Curtis v Ausdrill Ltd [2006] WAIRC 05656; (2006) 86 WAIG 3133 [35] - [38] (Ritter AP and Gregor SC).

(h) Regard is also to be had to any efforts of the employer to mitigate the loss suffered by the employee as a result of the dismissal (s 23A(7)(a)).

(i) The Commission must assess the proper amount of compensation for loss and/or injury in light of all the relevant circumstances, but disregarding the cap prescribed by s 23A(8).  If the amount is in excess of the cap, the amount to be awarded is the permissible maximum:  Bogunovich [No 2] (8) (Sharkey P).

(j) The assessment of compensation:

(i) is to be made in light of all relevant circumstances;

(ii) must not be arbitrary;

(iii) must have regard to whether the employee has taken reasonable steps to find alternative employment:  Curtis [36] - [38], [43] (Ritter AP and Gregor SC);

(iv) is a determination pursuant to s 26(1)(a) made according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.  This legislative direction does not enable the Commission to determine the matter without resort to established legal principles, where those principles are established.  However, as Beech CC observed in Curtis, when considering an award of compensation made pursuant to s 23A [64]:

The Commission should be slow to fetter its own wide discretion under s26(1) to produce an outcome which is just and equitable and not simply lawful. It is not irrelevant to note that the power given to the Commission is to order compensation, not damages; what might be a correct outcome in a court of law may nevertheless be unacceptable according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. There may well be good reason for the inclusion of s23A(7)(c) if it thereby allows the Commission to have regard to any other matter believed to be crucial to achieving a fair go all round to be taken into account in the overall assessment of any compensation ordered in lieu of reinstatement (Sprigg v. Paul's Licensed Festival Supermarket (1998) 88 IR 21 at 31).

(k) The Commission is also bound pursuant to s 26(1)(c) to have regard for the interests of the persons immediately concerned whether directly affected or not.

(l) To the extent that it is relevant, the Commission is directed to take into account the matters set out in s 26(1)(d) of the Act:  Gilmore (4447) (Sharkey P), (4449) (Gifford C).  Section 26(1)(d) provides:

In the exercise of its jurisdiction under this Act the Commission —

(d) shall take into consideration to the extent that it is relevant —

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

It is notable, however, that it is unlikely that the matters set out in s 26(1)(d) will be raised on the facts as a relevant consideration when determining an assessment of compensation.

(m) When deciding questions of future loss, assistance can be derived from Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 in which it was held by Deane, Gaudron and McHugh JJ that a court must assess the degree of probability that an event would have occurred or might occur, and adjust its award to reflect the degree of probability.  Unless the chance is so low as to be regarded as speculative or so high as to be practically certain, the chance is to be taken into account in assessing compensation:  Bogunovich [No 2] (8) (Sharkey P).

(n) How long an employee would have remained employed by the employer is a matter that is relevant to an assessment of loss causally connected to an unfair dismissal.  In particular, it may be open to find on the evidence that an unfairly dismissed employee could have been fairly dismissed by the employer at a time post the dismissal:  Bogunovich [No 2] (13) (Kenner C).  It may also be open on the evidence that an employee may have left the employer's employment voluntarily at some point in the future following the dismissal:  Bogunovich [No 2] (13) (Kenner C).  However, there would need to be evidence capable of characterisation as more than mere speculation and that there was a real prospect of the employment being terminated fairly at some point thereafter (the dismissal):  Fisher & Paykel Australia Pty Ltd [79] (Kenner C), [2] (Ritter AP).

(o) It has been found that unconscionable or culpable conduct on the part of the employer and employee in the employment relationship and the issues that went to the determination of whether the termination of employment was unfair are not relevant in assessing loss and injury; that is, loss or injury is not to be assessed by reference to fault:  Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299, 302 (Sharkey P), (305) (Coleman CC); Bogunovich [No 2] (8) (Sharkey P), (13) (Kenner C).  This principle must be qualified by the observation made by Kenner C in Bogunovich [No 2] at (13), that this principle does not prohibit a finding by the Commission on the evidence that the employment may not have continued for a long period.  To this qualification we would add the observation that it is well established by the authorities, in particular Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986 [56] - [58] and AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015; (2001) 81 WAIG 2849 [200] (Coleman CC and Smith C) in which it was accepted that the circumstances in which the dismissal from employment has been effected, such as callous treatment, may be sufficient to demonstrate the injury which is experienced.  However, it is the injury itself, not the actual conduct of the employer, including callous treatment, which is the condition precedent for compensation for injury.  There may be unreasonable conduct but it may not necessarily lead to the employee suffering an injury.  That is a question of fact.  For example, in Lynam, the evidence was of the stress and injury suffered by Mr Lynam including grinding his teeth at night, feeling hard done by and upset.  It was the 'callous, oppressive and humiliating course of conduct culminating in a dismissal and injury to Mr Lynam' [58]. (emphasis added)

62      The appellant's counsel put forward a submission that to consider whether the unfairly dismissed employee could have been fairly dismissed some time after the dismissal is only open when there has been a finding that the dismissal was procedurally unfair and not where a dismissal is substantively unfair.  This submission appears to be drawn as an inference from the following observations made by Kenner C in Bogunovich [No 2] (13):

All the circumstances of the case need to be considered. For example, it well may be that despite the Commission's finding that the dismissal was harsh, oppressive and unfair, it was characterised as such by reason of the manner or process leading to the dismissal rather than the substantive reasons for the dismissal itself, in the sense in which that principle is referred to in Shire of Esperance v Mouritz (1991) 71 WAIG 891. In such a case, it may be open to find as a fact on the evidence, that the unfairly dismissed employee could have been fairly dismissed by the employer shortly after the actual dismissal in any event. In a case such as this, it would be open for the Commission to find that the unfairly dismissed employee's loss is limited to that period between the date of the employee's actual dismissal, and when he or she could have been fairly dismissed in any event.

63      We do not agree that Kenner C's observations in this passage gives rise to a principle that an assessment of loss calculated by regard to how long the employees' employment would have continued only applies to dismissals that are procedurally unfair.  An assessment of how long employment could have continued but for the unfair dismissal, if the dismissal had been fair, cannot be said to be confined to matters of procedural unfairness.  This was an issue that could be said to be squarely raised in Bogunovich [No 2].  Mr Bogunovich was employed as a state manager of a national recruitment group.  The termination of his employment was found to be both substantively and procedurally unfair:  (11) (Sharkey P), (13) (Kenner C).  Mr Bogunovich was told he was being dismissed because of underperforming business resulting in substantial losses:  Bogunovich v Bayside Western Australia Pty Ltd [No 1] (1998) 78 WAIG 3635, 3638.  President Sharkey found:

(a) that the dismissal of Mr Bogunovich was harsh, oppressive and unfair because he was not warned of any alleged poor performance issues and was not given sufficient notice to terminate his employment (3647).  In particular, it was found that any financial difficulties of the employer were not attributable to Mr Bogunovich:  (3645) (Sharkey P), (3647) (Kenner C).

(b) it would have been reasonable to terminate Mr Bogunovich's contract of employment by giving him nine to 12 months' notice:  (3646) (Sharkey P); see also Bogunovich [No 2] (12) (Coleman CC), (13) (Kenner C).

(c) the fact that a period of nine to 12 months' notice was not given contributed an element of substantial industrial unfairness to the dismissal (3643).

(d) Consideration - exercise of discretion at first instance

64      We do not agree that the learned Commissioner found the termination of employment of Mr and Mrs Scicluna unfair on grounds of procedural fairness.  Matters of procedure which can be characterised as unfair in the industrial sense are a failure to follow a proper procedure, such as a failure to provide an employee with a right to be heard prior to dismissing the employee on grounds of serious misconduct.  Such a failure could, in any event, lead to substantive unfairness depending upon the circumstances of the case.

65      In these matters, the learned Commissioner found Mr Brooks misled Mr and Mrs Scicluna when giving them notice by email on 2 July 2015 that their employment was terminated.  Whilst he found that Mr Brooks did not discuss with Mr and Mrs Scicluna the matters he wished to put in place with Ms Dall and give them an opportunity to respond could be characterised as finding of a denial of procedural fairness, the learned Commissioner also found that the words used in the email Mr Brooks sent on 2 July 2015 unfairly raised an inference that Ms Dall was leasing the motel.  The latter finding goes not to procedural unfairness but raises a matter of substantive unfairness.  Further, the finding that the giving of one month's notice was in the circumstances unfair is also a finding that raises a matter of substantial unfairness.  It is not a matter that raises any procedural unfairness as pursuant to the terms of contract the notice given by Mr Brooks to Mr and Mrs Scicluna was lawful (AB 46 - 47, [29] - [31] reasons for decision [2016] WAIRC 00237; (2016) 96 WAIG 505).

66      In any event, whether a termination of employment is found to be harsh, oppressive or unfair on grounds of procedural or substantive unfairness is, in our opinion, immaterial to an assessment of loss and/or injury made pursuant to the power conferred by s 23A of the Act.  What may be relevantly raised in one matter may be entirely irrelevant in another.  Each assessment will turn on its own facts and requires an assessment of the loss or injury caused by the dismissal.  Depending upon the circumstances of each matter the loss or injury, if any, that flows will be different and will not necessarily relate to or be connected with any finding whether a dismissal was procedurally or substantively unfair.

67      In these matters, the factual circumstance that was given considerable weight by the learned Commissioner was the uncontroverted fact that Mr Brooks wished to divest himself from the business of the motel.  It is not argued on behalf of Mr and Mrs Scicluna that this circumstance is irrelevant, but that this was a matter that was given too much weight by the learned Commissioner.

68      However, the Full Bench is required to accord a discretionary decision with significant deference:  Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 [139] (Ritter AP).  In Michael, Ritter AP observed [141] - [142]

As there stated, an appeal against a discretionary decision cannot be allowed simply because the appellate court would not have made the same decision. The reason why this is so was explained in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]-[21]. At [19] their Honours explained by reference to the reasons of Gaudron J in Jago v District Court (NSW) (1989) 168 CLR 23 at 76, that a discretionary decision results from a 'decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result"'. Instead 'the decision-maker is allowed some latitude as to the choice of the decision to be made'. At [21] their Honours said that because 'a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process'. Their Honours then quoted part of the passage of House v King which I have quoted above.

Similarly, Kirby J in Coal and Allied at [72] said that in considering appeals against discretionary decisions, the appellate body is to proceed with 'caution and restraint'. His Honour said this is 'because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions. It is rare that there will only be one admissible point of view'. (See also Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 and Wilson and Dawson JJ at 535).

69      In Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 (approved in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 - 535 (Aickin J)), Latham CJ said at 519:

[W]hen the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield ([1891] A.C. 173, at p. 179)) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal.

70      Consequently, unless the matters considered by the learned Commissioner were based upon a mistaken fact or the weight given to a particular circumstance or circumstances is unreasonable or plainly unjust within the criteria specified in House v The King, it is not open to the Full Bench to interfere in a decision at first instance.

71      It is well established that an employer has the prerogative to organise their business in a way they see fit and the Commission should not interfere in such a decision unless the decision can be said to be industrially unfair:  Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733.  However, as the Commission in Court Session observed in Federated Engine Drivers' and Firemen's Union of Workers of Western Australia v Robe River Iron Associates (1987) 67 WAIG 763, 766:

Managerial prerogative is not a sword which can be wielded in wanton disregard of the industrial consequences nor is it a shield to hide behind. An employer has a responsibility to manage fairly.

72      The fact that Mr Brooks wanted to divest himself of the business of the motel was a relevant circumstance.  Further, it was a matter the Commission could properly have regard to as an interest the Commission was bound to have regard to pursuant to s 26(1)(c) of the Act.  This is not a proposition that Mr and Mrs Scicluna appear to cavil with.  Mr and Mrs Scicluna do, however, take issue with 'the strategy' the learned Commissioner found that Mr Brooks should have implemented to divest himself of the business.  This was:

(a) discussing a strategy of engaging Ms Dall to manage the motel until she was in a position to enter into a lease with Mr and Mrs Scicluna and giving them an opportunity to comment on such a strategy; and

(b) in the event there was no agreement Mr Brooks could inform them that he intended to implement this strategy after three months' notice terminating their employment took effect.

73      In effect, their argument appears to be simply that this strategy:

(a) was not in fact considered by Mr Brooks and his counsel at first instance expressly rejected that such a strategy was open; and

(b) is speculative and arbitrary.

74      Whilst another member of the Commission may have reached a different result, we do not agree that an error in the reasoning of the learned Commissioner can be demonstrated.

75      Whilst the evidence establishes that Ms Dall had asked Mr Brooks for the negotiations for a lease to be put on hold prior to notice being given to terminate the employment of Mr and Mrs Scicluna, it was open to the learned Commissioner to have regard to and give primary weight to the fact that Mr Brooks was facing difficulties of leasing the motel in a regional centre.  He had regard to the circumstance that Mr and Mrs Scicluna were well aware that their employment could be terminated if Mr Brooks did lease the motel and, if so, their employment would be lawfully terminated (and conceded by them to constitute circumstances of fair termination if given one month's notice).  It is clear from the email exchange in exhibits between the parties that termination of Mr and Mrs Scicluna's employment by one month's notice, if Mr Brooks entered into a lease of the motel, could occur at any time.

76      The learned Commissioner determined that it would have been fair for Mr Brooks to engage in a frank discussion with Mr and Mrs Scicluna about his discussions with Ms Dall and his plan to place Ms Dall in the position of manager prior to her entering into a lease.  The evidence was clear Ms Dall intended to lease the motel.  The fact that it could not be found that she could do so within a three-month period was not material to the reasoning of the learned Commissioner.  To the contrary, when the reasoning of the learned Commissioner is carefully considered it is clear that he made no finding that Ms Dall could have entered into a lease within a three-month period.  No such finding or inference can be drawn from his reasons.

77      The learned Commissioner found that when regard was had to the personal circumstances of Mr and Mrs Scicluna, a three-month period would have given them a fair opportunity to plan the next stage of their lives whilst remaining in gainful employment.  This period of notice was found by the learned Commissioner not to have caused unfairness to Mr Brooks and would have been no detriment to Ms Dall if she had to wait to manage the motel as part of the strategy to ultimately lease the motel.

78      Thus, it was clear that the three-month notice itself was a period that was struck by regard to the circumstances of Mr and Mrs Scicluna, not by the circumstance whether it was open to find on the evidence that Mr Brooks and Ms Dall could enter into a lease in that period or whether Mr Brooks could lease the motel to any other person in that period.  It was a mechanism to compensate for the loss due to the dismissal being managed unfairly.  That unfairness was that they were misled.  Had Mr Brooks taken the approach suggested by the learned Commissioner, they could have been fairly dismissed.  It compensated them for the loss suffered as a consequence of the unfairness.  This was in the circumstance where they knew their employment could terminate on an associated event, the sale or leasing of the motel.

79      For these reasons, we are of the opinion that the grounds of appeal have not been made out and that orders should be made to dismiss the appeals.

EMMANUEL C

80      I have had the benefit of reading the draft reasons for decision of Smith AP and Scott CC.  I agree and have nothing to add.