APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER B 32/2023 GIVEN ON 11 APRIL 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2025 WAIRC 00172

DELIVERED : TUESDAY, 18 MARCH 2025

FILE NO. : FBA 14 OF 2024

Appellant

AND

Alain Trabelsi

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : COMMISSIONER T KUCERA

Citation : [2024] WAIRC 00153

File No : B 32 OF 2023

Catchwords : Industrial Law (WA) – Claim for denied contractual benefits – Procedural fairness and bias – Assistance to unrepresented parties – Relevant principles – Absence of evidence before the Commission to establish contractual payments conditional on achievement of performance measures – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 22B, s 23, s 23(1), s 26, s 26(3), s 29(1)(b)

Result : Appeal dismissed

Appearances:

Appellant : Mr B Hughes

Respondent : In person

Case(s) referred to in reasons:

Director‑General Department of Justice v The Civil Service Association of WA (Inc.) [2025] WAIRC 00146

Jones v Dunkel [1959] HCA 8

Kiosses v Presidian Management Services Pty Ltd [2018] WAIRC 00330; (2018) 98 WAIG 295

Mak Industrial Water Solutions Pty Ltd v Doherty (No2) [2023] WASC 279

Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129

Reasons for Decision

THE FULL BENCH:

Brief background

1         The respondent was initially employed as the Advertising Manager for the appellant, commencing employment in August 2019.  The appellant operated an online meal supply business which business was conducted on a subscription service basis.  The respondent is a French national, and was employed under a Temporary Skill Shortage 482 Visa.  At the time of his initial employment, the respondent was employed on a base salary of $70,000 per annum exclusive of superannuation.  In April 2021 the respondent’s salary increased from $70,000 to $100,000 per annum exclusive of superannuation.  Later, in October 2021, the respondent obtained a promotion to a new position of Director of Business Development.

2         As a result, the respondent maintained that there was an agreement for his salary to increase to $140,000 per annum, exclusive of superannuation.  The respondent maintained that at the time however, an agreement was reached between himself and the Chief Executive Officer of the appellant, Mrs Hughes, that the additional remuneration would be payable in increments of $10,000 every three months.  The respondent maintained that these additional amounts were not linked to performance based KPI targets or other incentives to be achieved.

3         In May 2022, the first quarterly payment of $10,000 for the March 2022 quarter was paid by the appellant to the respondent.  This was reflected in a letter from Mrs Hughes to the respondent dated 31 May 2022 (exhibit A1).  It was common ground that the letter mistakenly referred to the respondent’s former position of Advertising Manager and not his new position of Director of Business Development.  The letter relevantly provided as follows:

Dear Alain,

Congradulations (sic) on completing 3 months of the Advertising Manager role.

While the role remains probationary you are entitled to a payment equivalent of AUD $10,000 every three months served as discussed with Mai & Bryan Hughes.

Please accept this letter as formal notice the payment for the period 1st Jan 2022 to 31st March 2022 will be paid into your nominated account on the 31st May 2022.

4         In August 2022, the respondent obtained permanent residency in Australia.  He then went on a period of annual leave.  On his return from annual leave in September 2022, he was informed by Mrs Hughes that there had been a change to his duties with a number of them, including his managerial duties, being transferred to another employee.  The respondent maintained that there was no explanation provided to him for this change.

5         In November 2022, the respondent tendered his resignation by the giving of eight weeks’ notice. The respondent ceased employment with the appellant on 30 December 2022.

Claim at first instance

6         The respondent commenced a claim for denied contractual benefits alleging that the appellant had failed to pay him his quarterly payments of $10,000 for the second quarter of 2022 and had failed to pay him a pro rata amount for the third quarter of 2022. The respondent’s total claim was in the sum of $17,692.30.

7         The appellant’s response to the respondent’s claim was to the effect that whilst not denying there had been an agreement to remunerate the respondent by way of additional payments of $10,000 per quarter, those payments were made conditional upon the respondent achieving performance benchmarks by way of measurable KPIs, which he failed to do.  The appellant maintained therefore, that it had not denied the respondent any entitlements under his contract of employment.

Decision of the Commission

8         The Commission heard and determined the matter and declared that the respondent had been denied a benefit under his contract of employment in the amount of $10,000 for the April to June quarter 2022.  The Commission was not satisfied that the respondent had established a pro rata entitlement for the July to September quarter 2022 and that claim was dismissed. In doing so, the learned Commissioner found and concluded as follows:

(a) In terms of relevant principles of law, the determination of rights and liabilities under a contract are to be considered objectively having regard to what a reasonable person in the position of the parties would have intended to apply.  The text, context and purpose of a contract are to be considered, in determining the parties’ common intentions.  Relevant principles set out in Mak Industrial Water Solutions Pty Ltd v Doherty [No2] [2023] WASC 279 at [53] per Quinlan CJ were stated and relied upon;

(b) That except in the case of a variation, the conduct of the parties to a contract after it is formed cannot be taken into account to ascertain the meaning of the terms of the contract;

(c) As to the evidence of both the respondent and Mrs Hughes, the only witnesses called to give evidence in the matter, a preference was given to each of them as to certain matters arising on the proceedings, and that the overall truth of the witnesses as to the matters in question ‘fell somewhere in the middle’ (reasons at [106]). The failure by the appellant to call Mr Hughes, to corroborate aspects of Mrs Hughes’ evidence led to a Jones v Dunkel [1959] HCA 8, inference;

(d) The respondent’s initial contract as Advertising Manager did not contain any express term for performance based on KPIs;

(e) That in August 2021, a second written contract of employment was entered into between the parties.  This was prepared to assist the respondent with his visa application.  This second contract incorporated an increase in the respondent’s salary from $70,000 to $100,000 effective from April 2021;

(f) In about October 2021, there was an agreement to change the respondent’s duties and retitle it to Director of Business Development. To reflect the increase in responsibilities, the respondent would be paid an additional amount of $40,000 per annum, payable at $10,000 per quarter;

(g) In relation to the agreed additional amount of $10,000 per quarter, there was no evidence to support a finding that those additional payments were payable conditional upon the respondent meeting KPIs or other performance targets; and

(h) On this basis, the respondent was entitled to be paid for the April to June quarter 2022 in the sum of $10,000.  As to the respondent’s pro rata claim, there was no evidence that the contract contained a term for pro rata payments and this was refused.

The appeal

9         The appellant did not articulate discrete grounds of appeal. The appeal filed is more in the nature of a narrative in relation to various aspects of the learned Commissioner’s reasons for decision. Particular paragraphs of the reasons for decision are challenged. Whilst the appellant made broad ranging submissions before the Full Bench on the hearing of the appeal, it is the appeal notice and the appeal grounds that mark out what the Full Bench must consider. For ease of reference we have numbered each of the relevant paragraphs in the notice of appeal. The appeal notice contains the following:

The Commissioner was biased and it is reflected in his attitude and decision. He then rejected or overlooked important evidence.

We make the following comments on his decision

1 Paragraph 25 refers to the Respondents non‑compliance with programming orders but does not acknowledge the valid reasons for any non‑compliance.

2 Paragraph 26 fails to acknowledge that the Applicant did not make his request for documents until 7.08pm on 21 September. The request was voluminous and required the Respondent to find and provide substantial documentation. This could not be done in one day. We initially provided some of the information by 27 September with the balance on 2 October. It could not be done any faster than that.

3 Paragraph 27 is not correct. The Respondent supplied substantial documents in the discovery process. 25 documents related to KPI’s.

4 Paragraph 30 is not correct. The Associate did telephone Mr Hughes but at no time were the words “commensurate extension” used or implied. Mr Hughes was also not advised at any time, let alone on that call, that any request was required before 3 November. The Associate was a lovely man and he gave the Respondent the strong impression that an extension of time was not a problem.

5 Paragraph 31 denies the bleeding obvious. Mai Hughes had attended mediation and programming hearings at the Commission and at that time we advised the Commission of her obvious pregnancy (she is a small lady who was huge with twins) and that it may have an impact on the process, although we could not predict what that may be. We never realised this process does not have common sense and that a medical certificate would be needed given we were in the hospital from 6am on 6 November, getting one would not have been hard. Surely there is some presumption of honesty and that we would not be lying about to the birth of twins. Please see my attached annexure 1, complaint to the Minister who oversees this process (but has subsequently changed). I note I am still seeking a response to my complaint.

6 Paragraph 34 defies believe (sic). Because we receive the Applicants request for documents at 7.08pm on 21 September it is our fault he is then delayed when we don’t provide the mountain of documents he requested the very next day.

7 The Commissioner then makes some completely ignorant and uninformed comment based on virtually no information, and without any enquiry of us, that “it is apparent the respondent has been able to actively meet its obligations to the ASX under the Corporations Act 2001 (Cth) in the period the directions applied.” This seems to imply that we have been able to comply with others requirements so we can comply with his. For starters his comment is not true, not to mention wrong. The company has been suspended from trading on the ASX since 2 October 2023 and remains suspended due to non‑compliance. The comment is representative of the bias shown by the Commissioner on numerous occasions throughout this process.

8 Mr Kucera used the above uninformed analysis to then make some programming orders which completely prejudiced the Respondents. The other witness statements needed to be prepared after Mai Hughes’ witness statement as she is the principal party in this. Other witness statements would be in support of her, not the other way around. So requiring other witness statements to be lodged before hers was not a practical or workable outcome for the Respondent. Furthermore, at all times this minimal extension was provided, Mai was in hospital dealing with a significant number of medical issues that arise from the premature birth of twins. This should be a special moment in a mother’s life, and certainly one when she is afforded the respect to be able to focus on her babies whilst she is in hospital. Can you believe I am even having to say this?

9 Paragraph 36 is telling. At the commencement of this process, we were advised to not be too concerned about the legalities of the process, and to treat this more informally. He acknowledged neither party has legal representation or legal background, which must be commonplace for small claims like this. With that as the backdrop you would expect the Commissioner should be providing important information to the parties about how the matter is conducted. It was only in the week leading up to the hearing that both parties were informed that any witnesses whose statements we wished to rely on, must attend the Court for the full duration of the hearing. It also would have been good to know before organising those witness statements. Important information contained in their statements would have been added to Mai Hughes’ statement if this information was known. This led to important information not being admitted. This prejudiced our case but made no difference to the Applicant’s case.

10 Paragraph 63. The Applicant acknowledges he is on Probation in the new position. To state the obvious, probation is a period under which you are being monitored closely to ensure you are adequate to the role. That monitoring is assessed next to expectations which in this case included, not unusually, KPI’s. The Applicant was the senior management member responsible for reporting the KPI’s to the senior management meeting each week. Senior management, including the Applicant, were assessed with regard to those KPI’s. This is all very standard in many/most businesses.

11 As stated in the decision of the Commission, “The applicant stated that Mrs Hughes had agreed not to roll the salary increase into his base salary during his probation period in the new position.” In his own words he effectively acknowledges that this additional (bonus) payment is tied to the probation.  If he does not perform he does not get it and he does not retain the new position, which he did not because he did not perform.

12 Paragraph 67 is representative of the bias regularly shown throughout this process. The applicant said he emailed Mrs Hughes but he could not provide evidence of this. No email was ever received as we mistakenly believed Alain was still awaiting a decision on his permanent residency. We kept him employed because of that because we did not want to risk his application for permanent residency to be rejected because he was terminated due to the impact it would have on his family.

13 Paragraph 68. Who gets demoted and doesn’t understand why? It was made crystal clear to Alain that he was not performing and someone was brought in over the top of him to try and save the situation. As it turns out, Alain was trying to be made redundant, when that didn’t work he tried giving 10 weeks notice over Christmas, when our business closes down. We obviously did not accept that and it was agreed he would finish 30 December 2022.

14 Clause 72 is further evidence of the bias encountered by the Respondent. The Applicant accused the Respondent of perjury and fraud. These are very serious allegations which should have been withdrawn. All the evidence clearly shows the Applicant applied his digital signature to the document in question, as he had done before and as we have on file. Nothing supports the outrageous allegations that we made up this document many months later and forged his signature.  The fact that this matter was not addressed forthrightly by the Commissioner is telling of his state of mind and bias towards the applicant and against the respondent. We will provide details in the appeal book from the transcript. The Commissioner writes in his decision how accommodating he was of our 8 week old twins, like we should be grateful, but his treatment of our family, and the fact we even had to be there on that date when we had no other option for our twins, is so misogynistic as to be alarming.

15 Paragraph 99. This important matter was ignored.

16 Paragraph 100 does not accurately reflect the questions and answers as contained in the transcript.  In the transcript the Respondent (Appellant here) clearly says there is a KPI document which shows the quarterly targets that needed to be met. The Respondent then says “but the Commissioner mentioned that I was not able to provide that evidence anymore.” This is the evidence the Commissioner previously did not admit because he said it would be “ambushing” the Applicant. This is despite this information being contained in the discovery documents and in witness statements that the Applicant had received months earlier, and this information was actually updated each week by the Applicant as part of his role, so he was the person responsible for ensuring the senior management team received this updated KPI dashboard each week so performance could be monitored. How this can be ambushing him is impossible for us to understand, he knew this information intimately.

17 It is worthy of pointing out that when reviewing the transcript the level of coaching and assistance the Commissioner provided the applicant is extraordinary and not balanced by a similar level of assistance to the respondent.

18 Paragraph 107 is inaccurate. The lack of guidance on some basic matters did not assist anyone. We consider that non lawyers should be told that witness statements can only be admitted as evidence if the witness is present during the hearing. We would have put the KPI information, some of which was contained in the witness statement of our CFO, in Mai’s statement. Having said that, we also believe the Applicant was not “ambushed” if that evidence had of been allowed given his intimate knowledge of that report.

19 The key performance indicator for Alain was Active Subscribers, targets of which were set for the quarter and the year. Alain even had performance options which only vested if this KPI was met.  KPI’s are how his performance was measured, and he knew it. KPI’s on cost of acquisition per customer, ROI of marketing campaigns, Active Subscriber numbers, etc are completely standard in this sector and Alain was responsible for monitoring and reporting those results, together with projecting for budgets.

20 The decision was based on there being no evidence of KPI’s and we believe the flawed findings throughout the process, together with the lack of appropriate guidance during the process, led to the omission of critical evidence that completely changes the outcome. This evidence was provided during discovery and referred to in Mai’s witness statement together with specific evidence of these KPI’s that the Commissioner has not acknowledged. It is evidence the Applicant knows intimately and cannot deny.

Relevant principles

10      Before considering the specific complaints of the appellant, we will turn to some matters of principle first.

Procedural fairness and bias

11      At various points in the notice of appeal narrative, the appellant contended that the learned Commissioner did not afford the appellant procedural fairness and was biased in his hearing and determination of the respondent’s claim.  It was also submitted by the appellant that the learned Commissioner demonstrated undue leniency to the respondent in the conduct of his case.  Recently, the Full Bench of the Commission set out the relevant principles applicable to procedural fairness to be afforded to a party to proceedings. In Director‑General Department of Justice v The Civil Service Association of WA (Inc.) [2025] WAIRC 00146, the Full Bench observed at [36]‑[38] as follows:

[36] A party to proceedings before the Commission is entitled to procedural fairness in the conduct of their case. This requires a party being given a reasonable opportunity to present their respective cases and to respond to issues that may be adverse to them.  As Le Miere J observed in BHP Billiton Iron Ore v CFMEU [2006] WASCA 49; (2006) 151 IR 362 at [33]‑[34]:

BHPB was denied right to be heard

[33] The second step is whether BHPB was denied the right to be heard in relation to those findings.  Procedural fairness does not normally require a Judge to disclose his thinking processes or proposed conclusions.  However, a party may be denied procedural fairness if a Judge departs from the basis upon which the case has been argued by the parties without notice to the parties.

[34] The right to be heard includes a proper opportunity to present submissions seeking to persuade a court or tribunal that the evidence and inferences from it support or fail to support any fact necessary to be established.  A restriction upon the opportunity afforded to one of the parties through their counsel to make submissions upon the facts that are said to be established by the evidence deprives a party of their right to be heard.

[37] Recently, the Court of Appeal in Davie considered the relevant principles in relation to procedural fairness.  The Court (Buss P, Vaughan JA and Seaward J) said at [86]‑[91] as follows:

[86] The principles relating to procedural fairness are well settled and were recently outlined by this court in Defendi v Szigligeti and approved in Frigger v Frigger.

[87] It is axiomatic that a court is obliged to accord procedural fairness to a litigant.  However, to say that a court is obliged to afford procedural fairness is only the first step of analysis.  The second step (and usually the more critical step) is to identify the content of the requirements of procedural fairness.

[88] Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.  However, the requirements of procedural fairness are not fixed or immutable.  Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.

[89] Generally speaking, in litigation the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated.  Any gap in the evidence on an issue will generally operate to the detriment of the party carrying the burden of proof on that issue.

[90] A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.  However, a decision maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision maker’s mental processes, provisional views or proposed conclusions before a final decision is made.  The position may be different when the decision‑maker’s evaluation or conclusion is one that could not have reasonably been anticipated.  In this context, the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, are relevant:

Within the bounds of rationality a decision‑maker is generally not obliged to invite comment on the evaluation of the subject’s case …

The general propositions set out above may be subject to qualifications in particular cases.  Two such qualifications were enunciated by Jenkinson J in Somaghi at 108‑109:

1 The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

2 The subject is entitled to respond to any adverse conclusion drawn by the decision‑maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

[91] This statement of principles was referred to with approval by this court in Apache Northwest Pty Ltd v Agostino [No 2] and McKay v Commissioner of Main Roads.

[38] The above general principles find expression in the Act in s 26(3) which provides:

(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.

12      Also in Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129 the Full Bench commented on the right to a fair hearing in proceedings before the Commission.  In that case Smith AP and Beech CC said at [73]:

[73] In considering the nature of proceedings in the Commission and the rules under which the Commission is required to act, it is important that the nature of the jurisdiction and the powers of the Commission to enquire into and deal with any industrial matter under s 23 by an application brought under s 29(1)(b) of the Act are such that the dispute ought to be arbitrated with reasonable expedition:  MRTA of WA Inc v Tsakisiris [2007] WAIRC 01121; (2007) 87 WAIG 2795.  The Commission is not a court of pleadings.  It is required by s 26 of the Act to act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal form.  However, the nature of an enquiry under s 23(1) of the Act is not inquisitorial in the sense that the Commission can undertake an enquiry outside the bounds of particulars.  Particulars of a claim and corresponding particulars of defence to a claim are necessary to avoid a trial by ambush.  Such particulars need not be drafted with any finesse or to the same extent as required in a court of pleadings but must leave the opposing party in no doubt as to what is alleged so as to enable the opposing party to know what case he or she is required to meet.  Proceedings brought by an employee under s 29(1)(b) of the Act are adversial in nature and as such, once particulars are given each party is entitled to run their case on the basis that the particulars set the boundaries of relevant issues in dispute.  Unless an application to amend particulars is granted, a party should be bound by the particulars they have provided.

13      Additionally, the Full Bench in Palermo made some observations in relation to bias and the duty of judicial officers to conduct proceedings free from bias or the appearance of bias.  In relation to these issues, Smith AP and Beech CC observed as follows at [120]‑[127]:

[120] The obligation on a member of the Commission when hearing a matter is to observe procedural fairness.  This obligation includes the duty to hear and decide matters without bias or the appearance of bias.  Bias means some preponderating disposition or tendency, a propensity, predisposition towards, predilection, prejudice.  It may be occasioned by interest in the outcome, by affection, enmity or prejudgment:  Minister for Immigration v Jia [2001] HCA 17; (2001) 205 CLR 507, 563 (Hayne J).

[121] Grounds 1 and 10 raise the issue whether the appellant was denied procedural fairness on grounds of actual bias or apprehended bias by prejudgment.  The test of whether the state of mind of a decision maker is affected by bias in the form of prejudgment is as Gleeson CJ and Gummow J described in Jia [74]:

is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

[122] Actual bias is rarely raised as a ground to impugn a decision, as it is ordinarily sufficient to establish apprehended bias of a decision maker.  The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide:  Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (492); R v Lusink; Ex parte Shaw (1980) 32 ALR 47; (1980) 55 ALJR 12; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; and Webb v The Queen (1994) 181 CLR 41.  The test is objective.

[123] Actual bias usually arises in the form of prejudgment.  The distinction between actual bias and apprehended bias was explained by North J in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 as follows (134 ‑ 135):

Actual bias exists where the decision‑maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision‑maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG 451/1994, 24 June 1996) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O’Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances.

…

[P]roof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision‑maker which, when taken together, form a whole picture leading to the conclusion of pre‑judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

[124] The appellant also raises an issue in grounds 1 and 10 that the hearing was not fairly conducted.  This raises the issue whether the appellant has had a proper opportunity to advance his defence to the applicant’s claims.  In Michael v The State of Western Australia [2007] WASCA 100 Steytler P with whom McLure JA and Miller AJA observed [63]:

When the contention is one of an unfair trial, the test to be applied, according to Kirby A‑CJ and Meagher JA (who agreed with Kirby A‑CJ), is whether the impugned behaviour has “created a real danger that the trial was unfair”: Galea at 281. If so, the judgment must be set aside: Galea at 281; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146. In R v Mawson [1967] VR 205, in which there had been excessive involvement or interference by the trial judge in the conduct of the case, the Court (Winneke CJ, Adam and Barber JJ) regarded the test as being whether there had been “such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice”.

[125] However, when considering the responsibilities of a judicial decision maker, it is important to bear in mind the tension between the need to control the proceedings, on the one hand, and to be, and be seen to be, dispassionate and impartial, on the other, with the result that the line between acceptable and unacceptable behaviour can be difficult to draw.  This is compounded when one of the litigants is self‑represented:  Michael (Steytler P) [55].  Whilst the appellant was not self‑represented he was and is represented by a lay agent.  In Michael Steytler P said in relation to acceptable conduct [65]‑[66]:

[I]t will often be necessary, particularly with self represented litigants, for a trial judge to intervene in order to stop irrelevant matters being raised (Love (1983) 9 A Crim R 1 at 26) and to prevent unnecessary delays or disruptions: R v Morley [1988] 2 WLR 963; Galea at 279; Lars (1994) 73 A Crim R 91 at 125. In Johnson at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

‘At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.’

Indeed, a trial judge who does not intervene to prevent undue delay and to ensure that the parties focus on the crucial issues may be criticised by an appellate court: R v Wilson and Grimwade [1995] 1 VR 163; Thompson at [39].

Next, a judge is entitled to ask questions of a witness, not only for the purpose of clarifying evidence, but also to test that evidence (R v Gardiner [1981] Qd R 394 at 406, 415; R v Senior [2001] QCA 346 at [36] per McMurdo P, Davies and Thomas JJA), although he or she should do no more than is absolutely necessary in that respect and should be careful not to take on the role of counsel.

[126] As to conduct by a decision maker that oversteps the mark of acceptable conduct Steytler P said [71]‑[72]:

Every judge knows that it is his or her duty to proceed in accordance with due process, independently, impartially and fairly. While judges are human, and can be expected to react with impatience or irritation from time to time, they are not expected to be rude: Lars at 133 (where the Court said that, while judges may be strong and forceful when necessary, they should, no matter what the provocation, always comport themselves with dignity). In Love, at 3, Wickham J said (in what might be a counsel of perfection) that:

‘… [F]ortunately the time has passed in the administration of the law in this State when a litigant, a witness or counsel is expected to put up with impatience or rudeness from the trial judge. Such conduct on the part of the judge may be understandable because of illness or provocation or stress due to the difficulties of the case, but it can never be excused. It is professional misconduct and should be roundly condemned. Such conduct does not necessarily lead to a miscarriage of justice but it might do so particularly where the trial is a trial by jury. Justice however will not often miscarry on that ground alone; usually other factors will be present to lead to that result.’

There is, in this respect, an important distinction between conduct that might be regarded only as discourteous or impatient or even rude (in the sense that it leads to no other consequence), on the one hand, and conduct which (whether or not discourteous, impatient or rude) obstructs counsel in the doing of his or her work (R v Hircock [1970] 1 QB 67 at 72 per Widgery LJ; Love, at 11) or which invites the jury to disbelieve the accused or his or her witnesses, on the other. A judge’s interventions should not be such as to create the impression that he or she has identified himself or herself with one of the parties: Tousek v Bernat (1959) 61 SR (NSW) 203 at 209; Galea at 280.

[127] When assessing whether the conduct of a decision maker amounts to actual bias, apprehended bias or results in an unfair trial the conduct is to be assessed in the context of the whole of a hearing:  Michael [77] (Steytler P); see also Galea v Galea [1990] 19 NSWLR 263 (279 ‑ 280) (Kirby ACJ).  Judges and arbitrators are human and from time do react to provocation.  As Steytler J in Michael points out [79]:

It is important, also, to evaluate the conduct of a trial judge in the light of any provocation offered to him or her. Judges are not superhuman. While they are expected to exercise restraint and, in the vast majority of cases, to resist anything other than a measured reaction to provocation, there will be occasions (hopefully, very rare) when this is extremely difficult or even impossible. In such circumstances an isolated outburst, or even a few isolated outbursts, will not necessarily result in a mistrial. So, for example, in Love the appellant was told by the trial Judge, on more than one occasion, that he was “sick and tired of him” (at 10). However, the appellant in that case “broke all the rules of fair combat” despite the trial Judge’s efforts to maintain order (at 11, per Wallace J) and had defied the trial Judge. He had also taken advantage of the position that had arisen (at 26, per Pidgeon J). The Court was not persuaded that there was any miscarriage in those circumstances.

Assistance to unrepresented parties

14      In this case both the appellant and the respondent were unrepresented in the proceedings at first instance, and on the appeal.  The respondent represented himself and the appellant was represented by Mr Hughes on the appeal and by both Mrs Hughes and Mr Hughes at first instance.  This is not a case where one party had representation by a solicitor or agent and the other did not.  In this sense, it is fair to observe that both the appellant and the respondent were equally at some disadvantage. In these circumstances, both parties were entitled to receive some assistance from the Commission in the conduct of their respective cases.

15      We would make the initial observation that Mr Hughes, who appeared before the Full Bench on behalf of the appellant,  Mrs Hughes and the respondent, were obviously intelligent individuals. Both Mr and Mrs Hughes operated a substantial business.  As referred to below, these are relevant considerations in assessing the level of assistance to be provided to unrepresented parties, by a court or tribunal in the conduct of a case.

16      The approach to the issue of assistance to unrepresented parties was considered by the Full Bench in Kiosses v Presidian Management Services Pty Ltd [2018] WAIRC 00330; (2018) 98 WAIG 295.  In this case, Smith AP (Scott CC and Emmanuel C agreeing) observed at [43]‑[46] as follows:

[43] In Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197, Smith AP and Beech CC (Harrison C agreeing) observed [28]:

As Bell J in Tomasevic v Travaglini [2007] VSC 337 recently observed, it is the function of a judicial decision‑maker to find facts on the basis of the evidence and in doing so is to ensure trial fairness and to elicit relevant evidence [127]‑[128]. At [139]‑[141] he explained:

[139] Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR [International Covenant on Civil and Political Rights]. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

[140] Most self‑represented persons lack two qualities that competent lawyers possess ‑ legal skill and ability, and objectivity. Self‑represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self‑represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

[141] The matters regarding which the judge must assist a self‑represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

[44] The right to a fair hearing does not entitle an unrepresented litigant to unconfined assistance.  As Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) remarked (14):

(a) The absence of legal representation on one side ought not to induce a court (or a tribunal) to deprive the other side of one jot of its lawful entitlement.

(b) An unrepresented party is as much subject to the rules as any other litigant.  The court (or tribunal) must be patient in explaining them and may be lenient in the standard of compliance which it exacts.  But it must see that the rules are obeyed, subject to any proper exceptions.  To do otherwise, or to regard a litigant in person as enjoying a privileged status would be unfair to the represented opponent.

[45] The aforementioned principles in Rajski were considered by E M Heenan J (Murray J and Le Miere J agreeing) in Tobin v Dodd [2004] WASCA 288 [14].  E M Heenan J considered the observations of the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129.  In Minogue, the Full Court had regard to the general principles in Rajski and also relevantly observed [27].

27 In Abram v Bank of New Zealand (1996) ATPR 41‑507 at 42,347, a Full Federal Court, faced with an unrepresented litigant’s claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

‘What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.’

We respectfully agree with this observation.  Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented:  cf MacPherson v R (1981) 147 CLR 512; 37 ALR 81; D A Ipp, ‘Judicial Intervention in the Trial Process’ (1995) 69 ALG 365, at 369‑70.

[46] It is elementary that a court (and a tribunal) ought to ensure that a self‑represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of these rights.  Notwithstanding this, the court (and a tribunal) should refrain from advising a litigant as to how or when he or she should exercise these rights: Trkulja v Markovic [2015] VSCA 298 [39]; Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308 [27]‑[28].

Consideration

Grounds 1 ‑ 8

17      We will deal with these grounds together as they raise broadly similar issues.  They were dealt with by the learned Commissioner under the heading ‘Compliance with the Programming Order’.  He observed at [25] that there were issues with both parties’ compliance with the directions made in the matter, and ‘the respondent’s non‑compliance was more pronounced’. On 8 September 2023, the Commission issued directions in relation to the conduct of the matter: [2023] WAIRC 000739.  Those directions were as follows:

1. THAT the parties are to provide informal discovery by 22 September 2023;

2. THAT the evidence in chief in this matter is to be adduced by way of signed witness statements which will stand as the evidence in chief of their maker. Evidence in chief other than that contained in the witness statements may only be adduced by leave of the Commission;

3. THAT the applicant file his evidence in chief in the form of witness statements in the manner required by practice note 9 of 2021 together with any documents upon which he intends to rely by 13 October 2023;

4. THAT the respondent file its evidence in chief in the form of witness statements in the manner required by practice note 9 of 2021, together with any documents upon which it intends to rely on by 3 November 2023;

5. THAT the matter be listed for a further conciliation conference not before 3 November 2023;

6. THAT there be liberty to apply on short notice.

18      As to the request for production of documents, the appellant contended that the respondent did not request documents of the appellant until 7.08 pm on 21 September 2023. It was submitted that the request was for a voluminous amount of material to be produced.  In relation to this material, the appellant contended that the learned Commissioner’s observations at [27] of his reasons that the appellant did not disclose documents relating to KPIs was incorrect.  It was submitted that some 25 documents relating to KPIs were provided to the respondent.

19      A bundle of materials commencing at AB315‑376, was described in the appeal book as ‘informal discovery documents’.  Whilst a body of this material referred to performance data for the business as a whole, and various documents referred to ‘KPIs’, none of the material referred to specific performance obligations imposed on the respondent as a term of his contract of employment.  It is not entirely clear what the learned Commissioner was referring to at [27] of his reasons. However, given the conclusions that he reached in relation to the respondent’s claim at first instance, the most likely was the absence of material referring specifically to the respondent’s contract of employment containing any reference to the achievement of performance objectives or KPIs as a precondition for the $10,000 quarterly payments under his contract of employment.

20      It should also be observed that when the nature of this material was raised with Mr Hughes in the course of argument in the appeal, especially the ‘KPI Dashboard’ document, the appellant conceded that none of this material contained any documents that directly linked the respondent’s quarterly payments to the achievement of individual performance targets by the respondent (see appeal transcript p 14).

21      As to [30] of the learned Commissioner’s reasons, reference is made to contact between the Associate and Mr Hughes on 19 October 2023, to the effect that given the delay in the respondent filing his witness statements, that a similar period of additional time could be afforded to the appellant to file their witness statements.

22      By way of background to this request, in accordance with the programming directions, the appellant’s witness statements were due to be filed on 3 November 2023.  Given the pregnancy of Mrs Hughes, and what Mr Hughes contended were medical issues in relation to the birth of twins on 6 November 2023, the appellant made a request on 6 November 2023, after the time the witness statements were due, to extend the time for filing by a further three weeks (see AB62).

23      On the same day the Associate, on the learned Commissioner’s direction, informed the parties that in light of:

(a) The respondent not providing discovery by 22 September but rather 2 October 2023;

(b) That the respondent filed his witness statement four days late on 17 October 2023;

(c) That the request for an extension of time was made after the date on which the witness statements were due;

(d) That the extension of time was opposed by the respondent; and

(e) That the appellant produced no medical evidence in support of the extension of time, that the respondent would be provided until 10 November 2023 to file its witness statements.

24      A further request by the appellant on the same day, for further time of at least a week beyond 10 November 2023, was refused (see AB61).

25      On 10 November 2023, the appellant again requested an extension of time to provide the outstanding information to 24 November 2023. A letter from Mrs Hughes’ obstetrician/gynaecologist Dr Love, dated 9 November 2023 (see AB65) accompanied the request.  Dr Love’s letter referred to the delivery of twins on 6 November 2023 and that Mrs Hughes would be ‘fit and able to commence work from 20 November 2023’.  This further request by the appellant was opposed by the respondent.

26      In an email on 10 November 2023 (see AB58‑59) the respondent referred to a letter to shareholders from the appellant dated 17 October 2023 and its annual report published on 3 November 2023, stating ‘the company is in advanced discussions regarding a potential management buyout, with the buyer purchasing 100% of the business’.  The respondent also referred to the initial programming directions being made on 8 September 2023, and that both parties had had ample time to comply.

27      The learned Commissioner reconsidered the further requests by the appellant and the matters raised by the respondent in reply.  On 10 November 2023, in an email from his Associate (see AB55‑57), the parties were told that the Commission had an obligation under s 22B of the Industrial Relations Act 1979 (WA) to deal with matters with all due speed.  Reference was made to the directions issued on 8 September 2023, the four day delay in the respondent filing his witness statements and, that further time could be provided to the appellant accordingly.

28      It was noted in the 10 November email from the Associate, that three days after the due date for the appellant’s witness statements to be filed, which were due on 3 November, on 6 November 2023, a request for a 21 day extension was made by the appellant.  Given the additional time afforded to the respondent, it was noted that the appellant was given until 10 November 2023 to file its witness statements.

29      The email further noted the directions issued in September 2023 were issued in the knowledge of Mrs Hughes’ advanced pregnancy, which may have an impact on her capacity to meet programming directions. The financial position of the appellant was also noted, as referred to above.  Reference was made to the parties’ discovery obligations and, whilst noting that the appellant’s provision of documents after 22 September 2023 was not intentional, it did have an impact on the respondent’s capacity to file his witness statements on time.

30      Taking all of these matters into account, the learned Commissioner extended the time for Mrs Hughes to file her witness statement to 20 November 2023, and other witness statements from the appellant to be filed by 13 November 2023.

31      Whilst the appellant complained about the timetable ultimately imposed, the reality is that the Commission had to take into account not only the appellant’s interests, but also the interests of the respondent. The respondent raised a legitimate issue that the business was for sale (which was not contested), which may have impacted his capacity to bring his claim.  It must also be noted that both parties had from 8 September 2023 to commence preparing the material they intended to rely on in the hearing of the matter.  Coupled with the obligation on the Commission to deal with matters with all due speed under s 22B of the Act, we are not persuaded that the additional time granted to the appellant to file its witness statements, which was 17 days for Mrs Hughes and 10 days for other witnesses, was unfair or unreasonable.  We are not persuaded that any of these grounds are made out.

32      As to the point raised at ground 7, regarding the reference to the ASX compliance in the email of 10 November 2023, we accept it may have been an unnecessary observation and potentially misleading without full knowledge of the circumstances.  However, we do not consider it evidences bias as alleged by the appellant, in the light of our conclusions below in relation to other grounds containing allegations of a similar nature.

33      We are not persuaded that any of these grounds are made out.

Ground 9

34      As to this ground, the appellant complained that the parties were only informed one week or so prior to the date of the hearing, that for the parties’ witness statements to be relied upon, those making the statements must be present in the Commission to be cross examined. The appellant complained that this was late notice and it prejudiced the preparation of their case.  The learned Commissioner dealt with this at [36] and [47] of his reasons.

35      The week prior to the date of hearing, on 12 January 2024, the appellant sent an email to the Associate requesting information about the procedure for the hearing the following week (see AB18‑19).  In it, the appellant noted that one witness resided interstate and would be required to appear via video‑link and another witness was currently overseas and unavailable on the hearing date. There seemed to have been no advice to this effect to the learned Commissioner’s Chambers at any time prior to this. The appellant queried what procedure should apply.  The Associate responded shortly after and informed the appellant that the parties’ witnesses will be required to attend at the Commission in order that they may be cross‑examined (see AB18).

36      It was further stated by the Associate that if a party did not wish to cross‑examine the other party’s witnesses, they and the Commission should be informed of this to determine whether witness statements could be tendered in evidence by agreement. As to the request for a witness to give evidence by video‑link, the appellant was informed of the need to make an application on a Form 1A, setting out the reasons for such a request and that the application needed to be filed in advance of the hearing and served on the other party, so that they may be heard on the application.

37      At the outset of the hearing, the learned Commissioner enquired of the parties as to whether those who filed witness statements were present at the proceedings.  He informed the parties that if witnesses are not present and available to be cross‑examined, the witness statements could be tendered, but only if both parties agreed to that course. Neither party did. Accordingly, the only witness statements tendered and relied upon where of the respondent and Mrs Hughes (see AB265).

38      We are not persuaded that there is any basis to the appellant’s complaints in this regard.  At the outset of the matter, when programming directions were made, the parties were provided with guidance material including relevant fact sheets and Practice Notes in relation to matters of evidence and procedure in proceedings before the Commission.  The evidence fact sheet refers to witness evidence and in particular, the preparation of outlines of evidence and documents.  It refers to the need for witnesses to be present when giving their evidence.  Furthermore, we note that the programming directions were made by the Commission a significant period of time before the hearing date, in September 2023.

39      Both parties had more than adequate time to make any enquiries in relation to the matters that the appellant now complains of. Whilst the Commission does provide procedural advice and assistance, there is an onus on parties to acquaint themselves with the practice and procedure of the Commission, in relation to which, there is an abundance of material available to parties on the Commission’s website.  We note also, that on 13 November 2023, in response to the appellant’s requests for various amendments to the programming directions, the Associate to the learned Commissioner provided information to the appellant regarding the John Curtin Law Clinic, which provides free pro bono legal services to eligible small business owners, to assist in matters of procedure and assessing legal issues etc.

40      This ground is not made out.

Grounds 10 and 11

41      These grounds refer to [63] of the learned Commissioner’s reasons, where he noted the respondent’s evidence that Mrs Hughes agreed with the respondent not to incorporate his salary increase into his base salary, when the respondent initially assumed the new position of Director of Business Development, from 1 November 2021. The learned Commissioner referred to the respondent’s evidence that it was agreed with Mrs Hughes that he would receive a $10,000 additional payment, every three months. Paragraph 63 of the learned Commissioner’s reasons are as follows:

The applicant stated that Mrs Hughes had agreed not to roll the salary increase into his base salary during his probation period in the new position. He said he had agreed with Mrs Hughes that a payment of $10,000 would be made every three months.

42      The appellant contended that being on probation, ‘[t]o state the obvious’, it was a period where the respondent would be closely monitored to ensure his performance, which involved performance expectations under KPIs. It was submitted that as a senior member of the appellant’s management team, who was himself responsible for reporting all KPIs every week, he was well aware of this.

43      There are a number of difficulties with this ground.  The first is that [63] of the learned Commissioner’s reasons was not a specific finding but rather, it was a description of the respondent’s evidence.  Furthermore, and in any event, the issue raised by the appellant in this regard, being an inference that being on probation necessarily meant that the respondent’s performance would be assessed in accordance with KPIs, necessitated the establishment on the evidence, by the appellant, that it was a term of the respondent’s contract of employment that the quarterly $10,000 payments were linked to his achievement of performance measures including KPIs. This was the central issue to be determined in the matter at first instance.  For the reasons which we will develop further below, there was no such evidence.  These grounds are not established.

Ground 12

44      As to [67] of the learned Commissioner’s reasons, the appellant contended that this was evidence of bias shown throughout the proceedings.  Paragraph 67 of the learned Commissioner’s reasons was again a narration of the respondent’s evidence and was not a finding.  It was in  the following terms:

The applicant stated that on 19 August 2022 his permanent residency was granted. The applicant said he sent an email to Mrs Hughes to confirm this. The applicant also said that he went on annual leave at or around this time.

45      It refers to the respondent’s evidence that on 19 August 2022 he received permanent residency.  His evidence was that he sent an email to Mrs Hughes to advise her of this and then went on annual leave at about that time.  It is unclear as to how the appellant contends this demonstrates any bias.  Firstly, as we have said, it is simply a narration of the respondent’s evidence and was not a finding.  No such finding was made in the learned Commissioner’s decision.

46      In any event, the matter of permanent residency, and whether or not the respondent informed Mrs Hughes of this fact, was not a matter relevant to whether it was a term of the respondent’s contract of employment that he receive quarterly $10,000 payments subject to meeting all KPIs.  This ground is not made out.

Ground 13 

47      Paragraph 68 of the learned Commissioner’s reasons referred to the respondent’s evidence that when he returned from annual leave on 12 September 2022, he had a telephone call with Mrs Hughes to inform her of his permanent residency.  The paragraph is as follows:

The applicant stated that upon his return from annual leave on 12 September 2022, he told Mrs Hughes during a telephone call that he had been granted permanent residency. He also said that during this same phone call, Mrs Hughes said that a number his duties including his management responsibilities had been passed on to his colleague Samuel David.

48      In the same conversation, it was the respondent’s evidence that Mrs Hughes informed him that his managerial responsibilities, and a number of other duties, had been transferred to another colleague, Mr David.  The appellant asserted in relation to this ground, that it should have been clear to the respondent that a demotion occurred because he was failing to perform in the position, and another employee was required to undertake his management duties. Whilst it was not entirely clear, the inference sought to be drawn seems to be that the respondent was demoted because he was not meeting his (contractually binding, according the appellant) performance benchmarks.

49      However, the learned Commissioner dealt with this issue in part, at [147] ‑ [154] of his reasons.  This was in connection with the respondent’s claim for a $10,000 payment for the July‑September quarter 2022. The learned Commissioner concluded that the effect of the change to the respondent’s position whilst he was on annual leave, in about August 2022, effected a return to his previous position as Advertising Manager.  The learned Commissioner found that this occurred before the completion of the July‑September quarter 2022.

50      On the basis of these findings, the learned Commissioner concluded that the respondent’s contract of employment made no provision for partial payment in the event of employment only for an incomplete quarter.  He found that for the respondent to be entitled to the $10,000 payment for the July‑September quarter 2022, then the contract would have to have provided for this and it did not.  It was on this basis, that the respondent’s claim for the July‑September quarter 2022 payment failed.

51      Viewed in this light, the issue raised by the appellant in relation to this ground actually worked to the advantage to the appellant, as it supported the Commission’s finding that the respondent was not entitled to a further payment that he claimed.  This ground is not established.

Ground 14

52      The appellant referred to [72] of the learned Commissioner’s reasons when referring to the cross‑examination of the respondent.  This related to the ‘New Job Guideline’ for the promotion to the position of Director of Business Development from 1 November 2021.  The paragraph is as follows:

The applicant initially denied signing the New Job Role, following which Mrs Hughes provided the applicant with a copy. The applicant then said he could not recall signing the document. He said the New Job Role contained a digital signature and that he did not usually sign official documents in this way.

53      The issue raised was whether the respondent had signed the document. The learned Commissioner referred to the respondent’s evidence where he initially denied signing the Guideline document.  When presented with a copy of it in cross‑examination, the respondent could not recall signing it and, as it contained a digital signature, his evidence was that he would not usually sign documents in this manner.

54      Whilst it was not entirely clear how, the appellant contended that reference to this evidence demonstrated further bias by the Commission. As we understood the argument, it was submitted that the effect of the respondent’s evidence in this respect, was an allegation by the respondent that the appellant had fraudulently produced a document with the respondent’s signature on it.  The appellant said that the learned Commissioner should have addressed this matter, although it is unclear as to how this could have occurred.  There are also difficulties with this contention. Firstly, the paragraph referred to at [72], is a narration of the respondent’s evidence when being cross‑examined by Mrs Hughes.  It was not a specific finding.

55      However, later in his reasons, the learned Commissioner under the heading ‘Observations about the evidence’ made comments as to his view of both the respondent’s and Mrs Hughes’ evidence.  The learned Commissioner stated as follows at [105]‑[107]:

[105] On some matters, I opted to prefer the evidence Mrs Hughes gave instead of the applicant’s because it was more plausible and because the applicant had no recollection of the matter that was being asserted. An example of this was in the applicant’s acceptance of the New Job Role which I will deal with the findings below. I also accepted the applicant held concerns about his immigration status which affected the way in which the parties agreed to vary the applicant’s contract of employment.  (Our emphasis)

[106] There were instances where I opted to prefer the applicant’s testimony ahead of the respondent’s evidence, particularly where the applicant’s evidence was supported by documentary evidence. From my assessment of the witnesses and the evidence they gave, this case was very much a matter where it was reasonable to conclude the truth of what the witnesses said fell somewhere in the middle.

[107] It is worth noting the respondent was given ample opportunity to provide evidence in support of its case, including by way of documents that established the payment of the quarterly amounts in issue, were either subject to or conditional upon, the applicant meeting particular KPIs. Despite the programming directions that I referred to earlier, the respondent did not discover any documents of this type. Such material could have also been included as attachments to Mrs Hughes’ witness statement but were not.

56      Further, the learned Commissioner specifically dealt with the issue of the respondent’s change in job role and title. At [124]‑[125], he referred to this change and that it was a variation to the second contract between the parties, which second contract had been made in April 2021.  Specifically in relation to the issue the appellant now complains about, the learned Commissioner said at [125]:

I accept the applicant agreed to the change in duties and position even though in cross‑examination he said he could not recall signing the New Job Role with an electronic signature or being a party to the email exchange with Mrs Hughes that I have referred to at paragraph [73] as exhibit R2.

57      Therefore, contrary to the assertion of the appellant in this ground, the learned Commissioner found in the appellant’s favour, that the respondent had signed the New Job Role document with an electronic signature or by way of email exchange with Mrs Hughes, referred to in exhibit R2 and dealt with at [73] of the learned Commissioner’s reasons.  This ground is not made out.

Ground 15

58      In relation to this matter, the appellant referred to [99] of the learned Commissioner’s reasons, which referred to the respondent’s cross‑examination of Mrs Hughes.  It is as follows:

The applicant cross‑examined Mrs Hughes. He asked Mrs Hughes about KPIs and whether there was a document that outlined the quarterly targets that he was required to meet to receive a quarterly payment. Mrs Hughes said there was a document that contained this information.

59      Questions were asked of Mrs Hughes in relation to KPIs and the existence of any documents referring to the respondent’s quarterly targets that he was required to achieve, so as to receive his $10,000 quarterly payment. In response, Mrs Hughes said there was such a document (see AB291).  The appellant submitted that this matter was ignored. That is incorrect. The learned Commissioner did not ignore the issue.  He considered the issue of whether the respondent’s quarterly payment claims were subject to KPIs in some detail in his reasons at [137]‑[146].  In particular, when dealing with the evidence of both the respondent and Mrs Hughes, the learned Commissioner made the following findings at [137]‑[143]:

[137] The first of these consequences was in relation to whether the payment of the quarterly amounts was subject to the applicant meeting particular KPIs. This consequence was borne by the respondent.

[138] As indicated, it is reasonable to find the change in remuneration the applicant agreed to with Mrs Hughes was as simple as an agreement the applicant would, in exchange for a payment of $10,000 per quarter, take on the New Job Role.

[139] Proof of this variation to the applicant’s contract of employment was in part established with the May 2022 letter. It is reasonable to conclude the May 2022 letter is post contractual conduct of a type that established the applicant’s contract of employment was varied. However, the extent to which this letter may be relied upon is limited because it was drafted after the applicant had agreed to take on the New Job Role and would have been influenced by the subjective views that Mr and Mrs Hughes held on what they thought they had agreed to.

[140] While I accept the May 2022 letter may have been prepared for auditing purposes, a reasonable person would expect that an explanation for expenditure a CEO provides to an auditor, will be good for all purposes, meaning that any payments to the applicant would have to be justified by reference to agreed contractual terms. The evidence is that Mr Gundry prepared the May 2022 letter on the information and instructions Mrs Hughes gave him. She also signed the letter.

[141] There was no evidence before the Commission, whether documentary or otherwise that supported the respondent’s claim the payment of the quarterly amounts would be conditional upon the applicant meeting KPIs or other performance targets.

[142] Although the May 2022 letter is badly worded and it incorrectly describes the applicant’s job title (which was changed when the applicant accepted the New Job Role) the May 2022 letter does state the applicant is entitled to a $10,000 payment, every three months served, as discussed with Mai and Bryan Hughes.

[143] It is reasonable to conclude that what was intended by the words ‘as discussed with Mai and Bryan Hughes’ is what Mr Gundry had confirmed with Mr and Mrs Hughes; the applicant would be paid $10,000 every three months served. If the respondent had intended the quarterly amounts would be conditional upon the applicant meeting KPIs, Mrs Hughes would have told Mr Gundry to include this information in the May 2023[sic] letter which she signed.

60      The learned Commissioner further found at [145], that Mrs Hughes’ evidence about discussions with Mr Hughes, and whether the respondent was entitled to receive the first quarterly payment for January‑March 2022, as not being relevant.  This was on the basis that it was the subjective views of the appellant as to the meaning of the contract and secondly, in any event, it was evidence as to conduct that post‑dated the variation of the respondent’s contract of employment and on legal principle, it could not be taken into account.

61      In particular, the learned Commissioner did not accept Mrs Hughes’ evidence that the payment of the $10,000 per quarter incorporated a contractual obligation on the respondent to meet any KPI performance indicators, in the absence of any reference to it in the 22 May 2022 letter, which we have set out at [3] above.

62      The learned Commissioner dealt with this issue based upon the evidence that was before him.  As noted above, he concluded at [141] of his reasons that there ‘was no evidence before the Commission, whether documentary or otherwise that supported the respondent’s claim the payment of the quarterly amounts would be conditional upon the applicant meeting KPIs or other performance targets’.

63      Given that on the evidence, the May 2022 letter was prepared by a senior employee of the appellant on the instructions of Mr and Mrs Hughes, and that it was signed by Mrs Hughes, the letter was the ideal opportunity to confirm that the respondent’s increase in remuneration by way of the $10,000 quarterly payments, was subject to him achieving performance targets, including KPIs.  It did not.

64      It was clearly open therefore, in the context of the evidence as a whole, for the learned Commissioner to conclude that the respondent’s contract of employment did not provide for the respondent to personally meet KPIs, to be entitled to receive the $10,000 quarterly payments. 

65      It is important to observe that proceedings before the Commission are adversarial in nature. That is, it is not for the Commission to conduct a wide ranging investigation of claims and to follow up and require parties to produce documents to prove or to disprove, as the case may be, a particular contention of a party.  It is for the parties to make out their particular cases, whether advancing or defending a claim, and the Commission can only proceed on the evidence and subject to limited exceptions, matters raised before it in the proceedings.

66      This ground is not made out.

Ground 16

67      The appellant referred to [100] of the learned Commissioner’s reasons where he comments on the cross‑examination of Mrs Hughes. Paragraph [100] is as follows:

The applicant then asked Mrs Hughes whether the document had been provided to the Commission, to which Mrs Hughes responded that it had not been provided because the applicant had not requested the document.

68      In this particular paragraph he referred to the respondent asking Mrs Hughes whether a document confirming that his quarterly payments were linked to the achievement of quarterly targets, had been provided to the Commission. The learned Commissioner records that Mrs Hughes replied that it had not, because the respondent had not requested it.

69      The appellant contended that this reference to Mrs Hughes’ evidence was not complete and that Mrs Hughes also said that the Commission informed her that that evidence would not be able to be provided.  The appellant submitted that this was a reference to the learned Commissioner earlier indicating that it was not open to the parties to ‘ambush’ each other with material provided at the last minute.

70      The exchange between the respondent when cross‑examining Mrs Hughes appears at AB291 as follows:

TRABELSI, MR: Yeah. My point is that there is no document.

KUCERA C: I see. All right. So are you going to put that to the witness?

TRABELSI, MR: The document?

KUCERA C: Yes. Are you going to put that as a question to the witness?

TRABELSI, MR: Oh, yeah. I did. Um ‑ ‑ ‑

KUCERA C: So put it so that it’s on the transcript clearly.

TRABELSI, MR: Is there a document that outline the alleged quarterly targets that I was under in order to receive my quarterly payment?‑‑‑Yes, there is.

KUCERA C: Okay.

TRABELSI, MR: Has this document been provided to the Commission?‑‑‑No. Because it hasn’t been requested by the applicant.

Paragraph 13 ‑ ‑ ‑

KUCERA C: Yes. But ‑ so her answer is it hasn’t been requested. Where do you want to go, now that ‑ ‑ ‑

TRABELSI, MR: Oh, I didn’t want ‑ ‑ ‑

KUCERA C: ‑ ‑ ‑ that’s her ‑ ‑ ‑

TRABELSI, MR: ‑ ‑ ‑ to make a ‑ ‑ ‑

KUCERA C: ‑ ‑ ‑ answer?

TRABELSI, MR: ‑ ‑ ‑ comment. But I did ‑ I don’t have to request document. If she wants to clarify something or make a point or provide evidence ‑ ‑ ‑

KUCERA C: Yes.

TRABELSI, MR: ‑ ‑ ‑ it’s not upon my request.

71      However, earlier at AB290, when questioned by the respondent whether a document existed that outlined KPI’s to be met for the quarterly payments to be made, the following exchange took place between the respondent and Mrs Hughes:

‑ ‑ ‑ sorry, in a situation of on‑target earnings, an employee would have their targets changing every single week?‑‑‑No. Again, the two KPIs that you’re referring to are different. So you’ve got KPIs that you had to meet that was going to be based on a quarterly basis, and there was a KPI for the team to meet, which was also discussed on a weekly basis.

I think we can agree on that. Is there a document that would outline the KPIs they would need to meet on a quarterly basis in order to allegedly receive my quarterly payment?‑‑‑Yes. Um, but the Commissioner mentioned that I was not able to provide that evidence anymore.

72      The summary of Mrs Hughes’ evidence recorded by the learned Commissioner at [100] was correct.  It referred to the exchange above at [70].  It did not include the further evidence of Mrs Hughes immediately above at [71].  But the central issue was whether such a document was in evidence before the Commission, and it was not.  Furthermore, and in any event, simply because a document was not requested by the respondent, did not mean that if such a document existed, the appellant could not have tendered it in evidence itself, including by annexing any relevant documents to the witness statement of Mrs Hughes.

73      In relation to the ‘ambush’, this arose during the earlier cross‑examination of the respondent by Mrs Hughes. At AB278‑279, Mrs Hughes was asking the respondent questions about a ‘KPI Dashboard’ that was used at the business as a part of monitoring the overall performance of the business.  These matters were discussed at a weekly senior management meeting.  The respondent was asked about this and said he did not previously deny there were KPIs for the business, but staff did not have individual targets. The respondent said that he was responsible for ‘filling’ the KPI Dashboard.

74      However, when Mrs Hughes requested to tender a copy of the ‘KPI Dashboard’, the learned Commissioner refused the request because it had not been previously disclosed, despite the earlier programming directions, and he considered it was too late to raise this as a new issue in the course of the hearing. Given the sequence of the evidence referred to above, it is very likely that the document referred to by Mrs Hughes at [71] above, that she said she was not able to provide, was the same ‘KPI Dashboard’ material.

75      It is clear on the evidence however, that this ‘KPI Dashboard’ document, was not a document that evidenced that the respondent’s entitlement to a $10,000 quarterly payment, was conditional upon him achieving individual performance targets, as a term of his contract of employment.  This was a document that was used by the business as a whole, to assess the overall business performance.  The learned Commissioner rightly noted that the material had not been disclosed and provided as an annexure to filed witness statements, in accordance with the earlier programming directions. The learned Commissioner was correct to conclude that to this extent, it would involve a degree of ‘ambush’ of the witness.

76      In any event however, the appellant’s complaint as to this issue underscores the central difficulty that the appellant had in the proceedings at first instance.  The continual reference to these sorts of documents, which refer to the appellant’s overall business performance measures and progress, are not the same thing by any means, as evidence of the appellant and respondent agreeing to a term in the respondent’s contract of employment, that any additional payments he would receive, were contingent upon the respondent achieving specified targets as a term of his contract.  The appellant has conflated the issue of overall business performance with individual KPI and performance targets, as a term of the respondent’s contract of employment.  There was simply no evidence of the latter before the Commission, to support the appellant’s contention that the respondent failed to achieve what was required of him, to deny him the contractual entitlement of the quarterly payment.

77      This ground is not established.

Ground 17

78      This ground advanced by the appellant was a general assertion that when reviewing the transcript, the learned Commissioner provided coaching and assistance to the respondent in a manner which was ‘extraordinary and not balanced’, compared to any assistance provided to the appellant. We have already indicated above, the information and assistance provided to the parties by the learned Commissioner. Whilst the ground does not contain any particularity, dealing with it requires a review of the transcript of the proceedings, in terms of interactions between the Commission and the parties.

79      The following references to the appeal book are to the transcript at first instance.  At AB264 the learned Commissioner explained the respondent’s claim to both parties.  At AB265 he explained the use of witness statements for both parties and the need for the presence of witnesses for cross‑examination, failing which, the witness statements could be tendered by consent.  We have already commented on these observations set out above, and the earlier correspondence between the appellant and the Associate.

80      Further, also at AB265, the learned Commissioner made a separate conference room available to accommodate the appellant’s infant children and informed them they could request a break at any time in the proceedings.  At AB266, the Commission outlined the procedure to be followed during the course of the hearing.  A little further on at AB269, the learned Commissioner offered the appellant some additional time for preparation for cross‑examination of the respondent.  At AB271, the Commission ensured that the respondent had a copy of Mrs Hughes’ witness statement, in order that he was able to respond to questions.  At AB274‑275, the learned Commissioner requested Mrs Hughes to put questions rather than statements to the respondent. This is a common request of unrepresented parties.

81      Further, at AB278, the Commission made a ruling on the ‘KPI Dashboard’ that we have referred to above, consistent with the programming directions earlier made.  There is nothing at all unusual about this.  A little later at AB280‑281, the learned Commissioner provided Mrs Hughes with assistance in framing her questions, again a matter not unusual with unrepresented parties. At AB282, at the conclusion of the respondent’s cross‑examination, the learned Commissioner invited the respondent to say anything further arising from the questions that he was asked by Mrs Hughes.  Again, with unrepresented parties, as there is no re‑examination by the parties’ representatives which would normally follow cross‑examination, in which a witness can clarify or expand upon matters raised in cross‑examination, the Commission’s invitation to the respondent was entirely conventional.

82      A little later in the evidence, at AB284, the appellant was granted a request for an early lunch break.  At AB285, on resumption after the luncheon adjournment, the learned Commissioner asked Mrs Hughes whether she needed any more time before recommencing.  She remained seated at the bar table for the presentation of the appellant’s case and the giving of her evidence.  At AB289‑290, and also later in the cross‑examination, the learned Commissioner had to request Mr Hughes to stop speaking to Mrs Hughes while she was giving her evidence, as in effect, he was attempting to coach the witness.

83      At AB293, the respondent was prevented, as was the appellant, from producing documents and seeking to tender them, that had not been previously disclosed.  In doing so, the learned Commissioner observed that ‘the rules in relation to both parties regarding documents that were not put on pursuant to the directions apply equally’.  At AB296‑297, the respondent, when cross‑examining Mrs Hughes, confused her.  The learned Commissioner assisted by asking the respondent to put the question a different way, which he did.  Furthermore, at AB299 in the respondent’s cross‑examination of Mrs Hughes, the learned Commissioner prevented the respondent from making submissions rather than asking questions. At AB303, the respondent was prevented from asking questions because they were not relevant.

84      Before making final submissions, the learned Commissioner asked Mrs Hughes whether she wished to have a break before doing so and asked her how much time she needed. She requested and was granted a 30 minute break and was invited to direct any request for further time to the Associate (see AB304).  Ultimately, it was Mr Hughes who asked and was permitted to close the appellant’s case (see AB305).

85      Nothing in the above exchanges between the learned Commissioner and the parties reveals in any way an unbalanced or inappropriate level of assistance to the respondent.  On the contrary, the appellant’s requests for time and assistance were granted on every occasion a request was made.  There is nothing revealed in the transcript that shows the proceedings took place in other than an orderly and balanced way.  In particular, given unrepresented parties were appearing before the Commission, the nature of the interactions between the Commission and the parties was entirely unexceptional.

86      The appellant’s contention that the ‘level of coaching and assistance the Commissioner provided the applicant is extraordinary and not balanced by a similar level of assistance to the respondent’, as set out in this ground, is without foundation.

Ground 18

87      This ground relates to the observations by the learned Commissioner at [107] to the effect that the appellant was given ample opportunity to provide evidence in support of its case including documents, to establish its assertion that the respondent’s payments were conditional upon meeting performance targets.  The appellant complained that these observations were inaccurate and also complained about a lack of guidance.  In our view, for all of the foregoing reasons, there is no substance to this ground of appeal.

Ground 19

88      This ground was a general comment by way of a statement that the respondent had a key performance indicator in relation to ‘Active Subscribers’ amongst others.  It was submitted these are standard in the appellant’s industry sector and that the respondent was responsible for monitoring those on behalf of the company.  No specific error is identified.  We do not repeat what we have said above about the appellant’s conflation of the overall performance of the business, and performance measures relevant to that, and the terms of the respondent’s contract of employment. This applies with equal force to the matter raised in this ground which is not made out.

Ground 20

89      Whilst in similar terms to ground 19 above, the appellant complained of the loss of an opportunity to adduce critical evidence in the case.  It was asserted that this was due to flawed findings and inappropriate guidance during the proceedings.  In our view, as with the above grounds, there was no lack of opportunity given to the appellant to advance its case. Furthermore, regarding the asserted lack of opportunity to tender material in relation to KPIs and performance measurement, documents of the kind referred to by the appellant, such as the ‘KPI Dashboard’ used as a measure of overall business performance, and other similar material contained in the appeal book (see AB319‑376), would not have assisted the appellant at first instance. It was not evidence supporting the existence of a specific term in the respondent’s contract of employment, to the effect that his quarterly payments were linked to individual performance criteria being satisfied.

90      This ground is not made out.

Overall difficulty with the appellant’s case

91      We have already noted above, a fundamental difficulty with the appellant’s case at first instance was the absence of any evidence before the Commission, which established that it was a term of the respondent’s contract of employment that the additional $10,000 quarterly payments reflected in exhibit A1, the May 2022 letter, were conditional upon the respondent achieving performance targets set out in KPIs for him personally.  During the course of argument on the appeal, to his credit, Mr Hughes, when members of the Full Bench raised this with him, conceded that there was no document in existence that established this (see transcript of appeal at pp 30‑41). In particular, in response to questions about these matters, the following exchange took place at pp40‑41 of the appeal transcript:

KENNER CC: But is there anything in either Ms Hughes’ witness statement or the oral evidence given before Commissioner Kucera directly about Ms Hughes’ discussion with the respondent, Mr Trabelsi, and what was discussed and what she says was agreed? That’s the critical thing.

HUGHES, MR: Well, I think that, yes, I accept that, sir. The respondent is saying that this letter reflects that discussion. We’re saying ‑ well, you’re saying it just reflects this discussion in that it’s an amendment to his contract, as agreed at that time, increasing his salary. We’re saying that this letter was never for that purpose, should not be taken in the context of that, and should ‑ no weight should have been put on this letter at all. It was just incorrect from the beginning. So ‑ ‑ ‑

EMMANUEL C: But the Chief Commissioner’s question is a bit different. He’s putting to you, or asking you, where’s the evidence you point to about the discussion between Ms Hughes and the then‑applicant in relation to that 31 October discussion? So there’s a line in there, in the paragraph you pointed to. Those discussions were all about this being performance‑based. But what is the other evidence that My Foodie Box put on about that 31 October discussion between Ms Hughes?

HUGHES, MR: Fair enough. Exactly, and I think we sort of alluded to that. It’s all inferred and circumstantial evidence surrounding the overall performance of the position, what the position was for, the general commercial nature of that, and how this is ordinarily structured in these ways for such positions, that you don’t, you know, you ‑ to be probationary and to be provided with a quarterly payment, there had to be some catalyst for why that was like that. And all of that is inferred from the thing. But is there any other direct evidence? No, I can’t think we can point to anything that’s been put forward.

92      There was nothing specific in Mrs Hughes’ witness statement to this effect, other than a general comment in response to the respondent’s witness statement, about ‘discussions’ between Mr and Mrs Hughes and the respondent and those discussions being ‘performance based’ (see AB72).  However, as was noted by the learned Commissioner at [144] of his reasons, the evidence was Mr Hughes did not take part in the October 2021 meeting with the respondent regarding his appointment to the Director of Business Development position (see AB277).  Accordingly, the reference in the letter of May 2022, confirming the quarterly payment (albeit that the letter was written well after the event), to these ‘discussions’ between the three of them, did not support the appellant’s contentions.

93      This is also despite the letter of May 2022 being the ideal opportunity to document the alleged link between the respondent’s quarterly payments and the need for him to achieve specific targets, as a condition to be met in order to receive any payments.  The absence of any reference to such a link in the letter, weighs heavily against the appellant’s contentions in this regard.  The reference in the letter, to the additional payments, as the learned Commission found at [89] of his reasons, was entirely consistent with additional remuneration being payable to the respondent for the increased responsibility and scope of the new position he was appointed to from 1 November 2021.

94      Additionally, there was no oral evidence from Mrs Hughes referring specifically to an agreement that the respondent’s quarterly payments were conditional on him meeting individual and specified KPI or other performance measures.  Generalised statements by the appellant that the respondent’s new job was ‘performance based’, were insufficient to establish the appellant’s contentions at first instance.  They blurred the important distinction between an employee’s job responsibilities being for an aspect of a business’ overall performance, on the one hand, and an employee being entitled under their contract of employment, to receive part of their remuneration, only conditional on the achievement of particular performance measures of the business, on the other.  In the absence of any oral or documentary evidence of this kind, the learned Commissioner’s conclusions at [141] of his reasons, set out above, were entirely open to him and indeed, were the only conclusions that the Commission could have reached on the evidence.

Conclusion

95      For the foregoing reasons, the appeal should be dismissed.