APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER U 17/2024 GIVEN ON 25 FEBRUARY 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2025 WAIRC 00923

DELIVERED : TUESDAY, 11 NOVEMBER 2025

FILE NO. : FBA 2 OF 2025

Appellant

AND

Carl Anthony House

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : COMMISSIONER T B WALKINGTON

Citation : [2025] WAIRC 00118

File No : U 17 OF 2024

Catchwords : Industrial Law (WA) – Appeal against decision of Commission – Unfair dismissal – Application to dismiss application under s 27(1)(a) due to misconduct by party – Improper conduct towards potential witness – Approach to appellate review – Whether conduct constituted ‘improper conduct of any kind’ – Whether conduct had tendency or capacity to interfere with the administration of justice – Error established – Appeal upheld - Full Bench re-exercise of discretion – Improper conduct established – Application to dismiss upheld – Substantive application dismissed

Legislation : Industrial Relations Act 1979 (WA) s 7, s 26(1)(a), s 27(1)(a), s 49(2a), s 49(6a) 

Result : Appeal upheld

Representation:

Counsel:

Appellant : Mr J Carroll of counsel

Respondent : Mr S Maré of counsel

Solicitors:

Appellant : State Solicitor’s Office

Respondent : Workwise Employment Lawyers

Case(s) referred to in reasons:

Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) WAIG 1393

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

Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104

Meissner v R [1995] HCA 41; (1995) 184 CLR 132

Palaloi v Director General, Department of Education [2024] WAIRC 00991; (2024) 104 WAIG 2481

R v Taffs [1991] 1 NZLR 69; (1990) 6 CRNZ 274

R v Toney (1993) 2 All ER 409

Reasons for Decision

THE FULL BENCH:

Background and claim at first instance

1         The respondent was employed by the appellant in 1999 as an ‘overseer/crew header’. He was based in the Wellington District of the State. Following allegations of breaches of discipline, the respondent was dismissed on 1 February 2024. The respondent commenced an unfair dismissal claim before the Commission on 27 February 2024.

2         As part of preparation for the substantive unfair dismissal claim proceedings, some documents came to light that suggested that the respondent may have sought to influence a person likely to be called as a witness in the substantive proceedings, Mr Porter.  Mr Porter was a work colleague of the respondent.  As a result of this, on 9 July 2024 the appellant made an application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) that the proceedings be dismissed.

Application to dismiss under s 27(1)(a) of the Act

Documents relied on

3         The appellant relied on agreed documents filed in the proceedings, comprising three letters from the appellant to the respondent in relation to the disciplinary proceedings, dated 2 June 2023, 4 January 2024 and 1 February 2024. The appellant also relied on two other documents, they being copies of text messages from the respondent to Mr Porter and Mr Porter’s wife, and an outline of evidence of the respondent.

4         The text messages from the respondent were sent both prior to and following the commencement of the respondent’s unfair dismissal claim.  The messages sent to Mr Porter by the respondent, prior to 27 February 2024, and Mr Porter’s responses, were set out in the learned Commissioner’s reasons at [11]–[20] as follows (see AB 66‑67):

11 The respondent relied on a series of text messages sent by the applicant to Mr Porter:

26 August 2023, 9:09 am : I’m told me and Peter are not to be listened to don’t talk behind my back it could be confused for bullying ring me I doubt you will.

26 August 2023, 8:57 am: You know people who come from your crew to mine tell me they learn more from me in a week than you in a year yet you don’t think they should listen to me.

12 Mr Porter’s response to this message, on the same day, was:

Hi Carl. I am not sure what is going on or what people are saying. But I will say this. I am trying my best to stay out of the work drama. I have nothing but respect for you. This whole situation is really hard on me as well. I just want to go to work do a good job have some fun and a few laughs. I in no way shit talk you to anyone. I just can’t engage in the drama or I go in a hole that is hard to get out from.

13 The applicant responded:

You need to talk to me your name is plastered all over the letter h r gave me they are trying to sac me over statements made by you about bullying you.

14 Mr Porter’s response to this was:

What the fuck! I don’t know about any letter or any formal complaint put by me. Fuck this job.

15 Mr House responded:

Yeah I’m happy to show you the letter you have accused me of bullying you it’s what they are trying to get rid of me over.

16 Mr Porter responded with:

Fuck this!

17 Mr House then said:

You give me a time I’ll show you. By the way it’s all over Pete’s to [sic].

18 Then on 30 August 2023, Mr House sent a ‘message2Text’ to Mr Porter, saying:

Yeah Roge it’s Carl really like to talk to you if I can. Yeah sorry you got dragged up and all this it’s not something I wanted to do.

19 On 5 September 2023, Mr House sent another text after having no response from Mr Porter:

Look I know you don’t want to be involved in the crap but they included you weather. [sic] You like it or not I need to talk to you please ring me.

20 On 8 September 2023, Mr House sent another message:

What’s the problem don’t you want to talk to me anymore.

5         Subsequently, the respondent made two attempts to contact Mr Porter’s wife by telephone on 9 and 14 March 2024, and then sent a text message to her on 14 March 2024.  These communications are recorded at [21]–[22] of the learned Commissioner’s reasons as follows (see AB 67):

21 On 9 March 2024, Mr House unsuccessfully attempted to call Mr Porter’s wife, and did not leave a message.

22 On 14 March 2024 at 9:46 am, Mr House again tried to call Mrs Porter, then left her this message:

Sorry for getting in touch with you I don’t have Rogers number I need to talk to him as I am taking this to court and he is a witness weather [sic] he likes it or not so he can talk to me now or in court where will have to answer some embarrassing questions get him to ring me.

Contentions

6         The appellant contended that the text message exchanges between the respondent and Mr Porter in August and September 2023, as a matter of context, demonstrated that the respondent was aware that Mr Porter was a likely witness in relation to the allegations against the respondent.  Furthermore, that they revealed that Mr Porter did not want to engage with the respondent in relation to these matters (see AB 82‑84).

7         Once the unfair dismissal proceedings commenced, as noted above, the respondent made attempts to contact Mr Porter’s wife.  It was the text message sent on 14 March 2024, set out at [5] above, that the appellant contended, in the context of the prior exchanges between the respondent and Mr Porter, was an attempt by the respondent to bring pressure to bear on Mr Porter, as a person likely to be called as a witness in the unfair dismissal proceedings.  The appellant contended that such an attempt was improper and had the tendency or capacity to interfere with the administration of justice and the proper processes of the Commission.

8         On the other hand, the respondent contended that he did not seek to improperly influence Mr Porter as a potential witness.  He contended that the text messages passing between him and Mr Porter reflected the longstanding friendship between the two of them of about 10 years’ standing.

Relevant evidence

9         There was some limited witness evidence given in the proceedings at first instance.  In a witness statement tendered as his evidence in chief, the respondent contended that the reason he sent the 14 March 2024 text message to Mr Porter’s wife, was to ‘confirm Mr Porter (sic) availability as a witness, particularly in relation to the case management considerations’ (see AB 88).  The learned Commissioner did not accept this evidence.  She found that the ‘applicant was bluntly informing Mr Porter that he would be a witness, possibly because the applicant would be calling him to give evidence, and that if he did not speak to him, he may need to answer some questions in that court that may be embarrassing for him’ (see [35] reasons at first instance at AB 71).  This was plainly a credibility finding against the respondent.

10      That it was likely that Mr Porter would be a witness in the unfair dismissal proceedings stemmed from the fact that he was a witness to relevant events in the workplace, leading to the respondent’s dismissal. This included that the respondent engaged in aggressive and offensive behaviour towards Mr Porter and another employee (see letter 4 January 2024 at AB 78).  The respondent in cross‑examination confirmed that this was one matter in particular, that he wished to speak to Mr Porter about (see AB 106).  Although he denied in cross‑examination that it was clear for this reason, that it was likely Mr Porter would be called as a witness.  The submission was subsequently put that the respondent’s denial in this respect was false, given his inconsistent evidence in chief as to his explanation for the 14 March 2024 text message to Mr Porter’s wife, being to confirm Mr Porter’s availability as a witness.

11      The respondent was taken in cross‑examination to the 2023 text messages between himself and Mr Porter.  There was no dispute that he sent them.  Mr Porter, who also gave evidence, confirmed this was the case.  Mr Porter also testified that after the text message from the respondent to him of 30 August 2023, he blocked the respondent’s phone number, as he wasn’t interested in communicating with the respondent any further (see AB 94).  This was consistent with the evidence in the text message trail above that after this date, Mr Porter did not respond to any further messages from the respondent.  It is also consistent with the messages leading up to it, with Mr Porter’s emerging reluctance to be involved in the matter. 

12      Evidence was given regarding the texts and phone calls to Mr Porter’s wife, after the respondent was dismissed, and following the commencement of the unfair dismissal proceedings.  Mr Porter’s evidence was he assumed that they were from the respondent, given their content.  The respondent did not deny they were from him in his cross‑examination (see AB 106). Importantly, as to the text of 14 March 2024, in his cross‑examination, Mr Porter regarded the message as unsettling, a veiled threat, and it was confrontational (see AB 100; 101‑102).  This was particularly in the context of the messages leading up to the 14 March 2024 message, and his earlier blocking of the respondent’s telephone number (see AB 101‑102; 103). The respondent also, once pressed in cross‑examination, conceded the message of 14 March 2024 did contain an ultimatum (see AB 110).

Decision of the Commission

13      The learned Commissioner dismissed the appellant’s s 27(1)(a) application.  In doing so, she made the following findings:

(a)              That relevant principles to apply were set out in Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) WAIG 1393 adopting and applying Librizzi v Western Australia [2006] WASCA 237; (2006) 33 WAR 104.  Additionally, reference was made to the recent decision of the Full Bench in Palaloi v Director General, Department of Education [2024] WAIRC 00991; (2024) 104 WAIG 2481;

(b)             That the respondent’s assertion that he was endeavouring to ascertain Mr Porter’s availability as a witness was rejected.  It was found that the respondent was ‘bluntly’ informing Mr Porter that he would be a witness, that he wished to speak with him and if he did not, he may need to answer embarrassing questions in court;

(c)              That even if (b) was so, the circumstances were distinguishable from those in Brown; in this case, there was only a single text message from the respondent and despite the lack of response, the respondent did not pursue the matter further;

(d)             That the earlier text messages did not alter the context as to how the March 2024 message should be viewed; and

(e)              In applying the abovementioned principles, the message sent by the respondent to Mr Porter’s wife on 14 March 2024, was not an attempt to change any evidence Mr Porter may have given in the substantive proceedings by coercion or intimidation.

The Appeal

14      The appellant now appeals against the decision of the Commission. The appellant advanced two grounds of appeal as follows:

Grounds of appeal:

In making the decision to dismiss the appellant's application to dismiss the proceedings under 27(1)(a) of the Industrial Relations Act 1979 (WA) the Commissioner:

1. Erred in law by failing to consider a relevant consideration, namely, whether the respondent's conduct amounted to an attempt to induce a witness to give false evidence or refrain from speaking the truth.

2. Erred in fact and law in finding that the text message sent by the respondent did not bring illegitimate pressure to bear on the witness and did not have the tendency to interfere in the Commission determining the matter justly.

Particulars

(a) Any attempt to induce a witness to give false evidence or refrain from speaking the truth amounts to an attempt to pervert the course of justice, has a tendency to interfere in the Commission determining the matter justly, and is illegitimate; and

(b) the respondent's conduct in sending the text message to the witness' wife, understood in the context of his knowledge of the witness and what the witness might say in evidence, amounted to an attempt to induce the witness to give false evidence or refrain from speaking the truth for fear he might be embarrassed in court or be asked embarrassing questions in court.

15      As the decision of the Commission did not ‘finally decide, determine or dispose of the matter to which the proceedings relate’ for the purposes of the definition of a ‘finding’ in s 7 of the Act, by s 49(2a), the appellant needs to establish to the satisfaction of the Full Bench that the subject matter of the appeal ‘is of such importance, in the public interest, an appeal should lie’.  As to this requirement, the appellant contended in its notice of appeal:

Public Interest:

The appellant contends that the matter is of such importance that in the public interest an appeal should lie on the following bases:

(a) The decision at first instance misunderstands recent Full Bench authority (Palaloi v Director General, Department of Education [2024] WAIRC 991), by assuming that there can only be an attempt to pervert the course of justice when there is coercion or intimidation of a witness, whereas in truth any attempt to induce a witness to give false evidence or refrain from speaking the truth amounts to an attempt to pervert the course of justice (Meissner v R (1995) 184 CLR 132, 158 (Dawson J)), meaning that conduct falling short of coercion or intimidation is still improper if it is an attempt to induce a witness to give false evidence or refrain from speaking the truth.

(b) If the appellant is correct in his appeal, there is a strong public interest in the proceedings being dismissed on an interlocutory basis for fear that the appellant cannot receive a fair hearing at trial due to the improper conduct of the respondent.

(c) There is a strong public interest in the Full Bench policing the proper standards of conduct of litigants before the WAIRC.

16      The appellant seeks orders that the appeal be upheld, that the finding of the learned Commissioner be quashed and that the substantive unfair dismissal claim brought by the respondent be dismissed.

Is the appeal in the public interest?

17      We can deal with the public interest requirement shortly.  The conduct of parties to proceedings before the Commission is an important matter.  The approach of the Commission in relation to the tests to apply in cases of allegations of improper conduct by a party, and the application of the relevant authorities, is important to the integrity of Commission proceedings.  As contended by the appellant, a fair hearing being afforded to the appellant is at risk, if it makes good its allegations of improper conduct, but the substantive matter proceeds to be heard, nonetheless.

18      We are therefore of the view that the subject matter of the appeal is of such importance that in the public interest the appeal should lie.

Approach to the appeal

19      It was common ground in this matter that the decision at first instance was a discretionary decision.  Accordingly, the approach to appellate review set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 applies.  This requires the appellant to establish error by the learned Commissioner at first instance, such that she erred in law, acted on a wrong principle, took into account irrelevant matters or failed to take into account relevant matters, or otherwise the decision at first instance was plainly unjust.  Appropriate restraint should be adopted in appellate review of a discretionary decision.

Ground 1

Contentions

20      As to this ground, the appellant contended that the learned Commissioner erred in not considering whether the conduct of the respondent constituted an attempt to induce Mr Porter to either give false evidence or to refrain from speaking the truth. It was submitted that whilst at [40] of her reasons the learned Commissioner concluded that the respondent’s text message of 14 March 2024 was not an attempt to have Mr Porter change any evidence he may give by coercion or intimidation, the law required the learned Commissioner to consider whether the respondent’s conduct, irrespective of coercion or intimidation, constituted ‘improper conduct of any kind’ to have Mr Porter either refrain from giving evidence or to give false evidence.

21      It was contended by the appellant that the learned Commissioner’s failure to consider this matter constituted an error because she did not fully engage with the issue to be determined.

22      For the respondent, it was contended that the learned Commissioner did not err in her conclusion that the 14 March 2024 text message from the respondent to Mr Porter’s wife did not have the effect of bringing illegitimate pressure to bear on the witness, or to coerce or intimidate Mr Porter.  The respondent submitted that taken in the context of the prior communications, it was not established that the message of 14 March 2024 was intended to have the effect as asserted by the appellant.

Relevant legal principles

23      As noted above, the learned Commissioner in her reasons, referred to Brown, Librizzi and Palaloi.  This is in the context of the learned Commissioner coming to the conclusion that the text message from the respondent to Mr Porter, via his wife, of 14 March 2024, did not constitute coercion or intimidation.  We set out below the relevant principles arising on the cases, and further explain them as discussed and recently applied by the Full Bench in Palaloi.

24      In R v Toney (1993) 2 All ER 409, the facts were the appellant’s brother was charged with robbery.  Just before the criminal trial, the appellant went to the house of a person he had known since his school days, who was to be a witness in the trial, Mr May.  He told Mr May he wanted to talk to him about evidence he was going to give at the trial.  The appellant said that his brother had not been at the scene of the crime.  The appellant did not threaten or attempt to bribe Mr May.  Mr May did not wish to discuss the matter with the appellant and walked away.  The appellant’s brother was convicted. Subsequently, the appellant was charged with perverting the course of justice.  He was convicted and he appealed to the Court of Appeal.  The Court of Appeal held that whilst most cases of perverting the course of justice would involve threats, bribes, undue pressure or other unlawful means, this was not essential to establish the offence.  On the facts of that case, Lloyd LJ observed at 414 as follows:

Mr Wheeler’s second ground of appeal is that there was no evidence to go to the jury that the appellant intended to pervert the course of justice. It was, he said, significant that there were no raised voices in the course of conversation. It is further suggested that the appellant's only purpose in going to Mr May's house was to find out the truth about what Mr May was going to say at the trial and not to persuade him to change his evidence.

The adverse indications are much stronger. The appellant comes late at night to Mr May's house, having spent much of Sunday looking for Mr May's address. He believes that his brother's trial for robbery in which Mr May is the principal identifying witness is to start the following day. It further appears that he knows very little about the circumstances of the alleged offence. There was here ample evidence on which the jury could find that the appellant's intention was to pervert the course of justice by persuading Mr May to change his evidence and that he was not just engaged as a disinterested seeker after truth.

25      In Meissner v R [1995] HCA 41; (1995) 184 CLR 132, Dawson J referred to Toney at 414, and his Honour stated at 158 (citations omitted):

Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper. However, in R v Kellett the Court of Appeal held that it would not necessarily be an attempt to pervert the course of justice for a person to endeavour to persuade a false witness, or even a witness that person believed to be false, to speak the truth or to refrain from giving false evidence. But the use of improper means for those purposes will always amount to that offence for however proper the end, the means must not be improper. As the Court in R v Kellett, in speaking of improper means, put it :

“Threats and bribery are the [improper] means used by offenders in the cases, and any pressure by those means ‑ or by force, as for example by actually assaulting or detaining a witness ‑ would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it 'through affection, fear, gain, reward, or the hope or promise thereof' (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.”

26      As was set out by the Full Bench in Palaloi at [28]‑[30], the above authorities were considered in some detail in Librizzi. We need not repeat what was discussed in Librizzi, save to say that whilst, as referred to in Toney, most cases involving a perversion of the course of justice or interference with Commission proceedings will involve threats, intimidation, or other unlawful conduct, as was so on the facts in Palaloi, this is not essential.  As Buss JA observed in Librizzi, it is ‘improper conduct of any kind’, that has the relevant tendency, that must be established: at [141].

27      Thus, any attempt to have a witness refrain from speaking the truth, or to refrain from giving evidence, regardless of the means used, will constitute an interference with the proper processes of the Commission, as the end would be improper.  The use of improper pressure, threats or intimidation to achieve this purpose, would constitute an interference with proceedings before the Commission.  It will be for the Commission to make findings of fact, as to what was said or done in a particular case, in order to determine whether there existed improper conduct: R v Taffs [1991] 1 NZLR 69; (1990) 6 CRNZ 274 per Cooke P at 73 (cited and applied by Buss JA in Librizzi at [144]).

Consideration

28      As discussed above at [24]‑[26], it is ‘improper conduct of any kind’, that may have the tendency to induce a potential witness to give false evidence or to not give evidence at all, which is the issue to be determined.  Thus, the issue at first instance was whether the conduct of the respondent, regardless of how it may be characterised, may have had the relevant tendency.  In confining herself to whether there was coercion or intimidation, the learned Commissioner did not fully engage with the issue she had to determine, as discussed in the authorities referred to above.  As we have mentioned, whilst most cases of interfering with the proper processes and proceedings before the Commission will involve threats or intimidation, as was the case in Palaloi, this is not necessary.  There were no threats or intimidation found to have been used in Toney, despite which, the accused was found guilty of attempting to pervert the course of justice.  There is a necessity in determining such cases, to make findings as to whether the relevant party’s conduct was improper, by whatever means.  In this case, it was necessary for the learned Commissioner, as dealt with below in relation to ground 2, despite finding no intimidation or coercion, to consider whether the respondent’s conduct was otherwise improper. 

29      Accordingly, we would uphold this ground of appeal.  Having reached this view, and rather than remitting the matter back to the Commission for further hearing and determination, we are of the opinion that given the evidence before the Commission at first instance, and the relatively narrow issue to be determined, the Full Bench, having regard to s 49(6a) of the Act, should re‑exercise the discretion itself.  Whilst ground 2 of the appeal was advanced on a somewhat different basis, and is not framed as an alternative to ground 1, the issues arising for consideration on ground 2, relate to matters to be taken into account in the re‑exercise of the discretion by the Full Bench, and we will approach that ground accordingly.

Ground 2

Contentions

30      As to this ground, and the conclusion on the merits, the appellant contended that the learned Commissioner erred in fact and law in concluding that the text message of 14 March 2024 from the respondent to Mr Porter’s wife, did not bring ‘illegitimate pressure to bear on the witness and had the tendency to interfere in the Commission determining a matter justly’ (reasons at first instance at [41] at AB 72).  It was contended that this conclusion did not reveal what the learned Commissioner meant by ‘illegitimate pressure’, in the context of the relevant cases referring to ‘threats or improper pressure’ (see appellant’s written submissions at [31]).  It was submitted that based on the cases, the respondent’s conduct could only be reasonably concluded to have constituted ‘improper pressure’.

31      As to the characterisation of the respondent’s conduct, the appellant contended that the 14 March 2024 text message could only reasonably be described as a threat to Mr Porter, that he would face ‘embarrassing questions’ in the public forum of a courtroom if he did not speak to the respondent.  It was submitted that the relevant conduct was a ‘negative consequence’, that would follow, if Mr Porter did not agree to the respondent’s demand.  That the communication was made to Mr Porter’s wife, was, on the appellant’s submissions, an aggravating factor.  It was contended that Mr Porter would have to answer to his wife, as to why Mr Porter would face ‘embarrassing questions in court’, if he did not speak to the respondent as he demanded.

32      The contention of the appellant was that the conduct of the respondent could not be regarded as ‘reasoned persuasion’, in an attempt to get Mr Porter to not give false evidence.

33      On the other hand, as to this ground of appeal, the respondent contended that the learned Commissioner’s conclusions, in the context of all of the evidence, were reasonably open.  It was submitted that the learned Commissioner considered the context of the 14 March 2024 message, in light of the relevant legal principles.  The respondent submitted that the conclusion was reached by the learned Commissioner, as a finding of fact and degree, and, consistent with the restraint to be exercised on an appeal adopting the House v King approach to appellate review, the Full Bench should not interfere with the Commission’s findings at first instance.

34      In particular, as part of the context, the respondent contended that the earlier text messages passing between the respondent and Mr Porter on the evidence, were part of a longstanding workplace relationship.  Also, it was contended that the learned Commissioner’s conclusion that the 14 March 2024 text message, in the context of the earlier messages, correctly identified it as seeking to confirm whether Mr Porter did complain in the workplace about the respondent’s conduct.  In this respect the communications were ‘frank and blunt’, as the learned Commissioner found.

35      Other matters of relevance raised by the respondent on his submissions were that unlike in the situation in Brown, as found by the learned Commissioner, the alleged improper conduct was confined to only one message.  Furthermore, that after 14 March 2024, there was no further attempt by the respondent to contact Mr Porter.  It was submitted that the purpose of the communications from the respondent to Mr Porter, were based on ‘observable workplace events’, and the respondent’s ‘desire to clarify the basis of the allegations against him’ (see respondent’s written submissions at [20] and [24]).

Consideration

36      For the following reasons, we consider that the appellant’s approach is to be preferred and that the respondent’s conduct, taken in context, did amount to improper conduct, and was intended to induce Mr Porter to either give false evidence or to not give evidence at all.  First, the statement itself, to Mr Porter through Mr Porter’s wife, in the text message of 14 March 2024, had a clear ‘talk to me or else’ message and tone.  It was, as the respondent himself conceded, an ultimatum.  It was a threat to Mr Porter that he would be embarrassed if he gave evidence in court in the unfair dismissal proceedings.  Mr Porter certainly took the message of 14 March 2024, in the context of the earlier communications between himself and the respondent, as a veiled threat.  Mr Porter described them, as we have noted above, as unsettling and confrontational.

37      Second, the fact that the 14 March 2024 text message was communicated to Mr Porter via his wife, added to the improper pressure. On the evidence, Mr Porter’s wife had nothing to do with the circumstances of the respondent’s dismissal.  Issuing a threat to Mr Porter in this way, which Mr Porter’s wife received and clearly read, was an aggravating circumstance.  In effect, Mr Porter was being put in the position of having to explain to his wife, why the respondent would ask him embarrassing questions in court.  This obviously would call for speculation as to whether Mr Porter may have engaged in some improper conduct himself of some specific, but unstated kind.

38      Third, the prior conduct of the respondent, leading up to the 14 March 2024 text message, was important context, as to how the ultimate message on 14 March 2024 should be viewed.  The messages in 2023, all of which are set out above, from the respondent to Mr Porter had an increasingly belligerent and aggressive tone.  It was clear from the first exchanges on 26 August 2023, that Mr Porter did not want to be involved. Despite this however, the respondent persisted.  Mr Porter’s desire to distance himself from the whole situation was made plain by his decision to block the respondent’s telephone number. This was why Mr Porter did not respond to the respondent from 30 August 2023, onwards.

39      Tellingly, after commencing his unfair dismissal proceedings, the respondent then turned his attention to attempts to contact Mr Porter, through Mr Porter’s wife.  Two telephone calls from the respondent to Mr Porter’s wife were made on 9 and 14 March 2024 respectively.  Both were not returned.  The final text message was then sent on 14 March 2024.

40      While, with respect, the learned Commissioner considered the text message of 14 March 2024 as only one communication, it is not a question of how many times a person may attempt to contact a potential witness that is decisive.  It is the nature of the communication itself, and the surrounding circumstances in which it was made.  For example, in Toney, set out at [24] above, whilst there was only one communication between the appellant and Mr May, there was a degree of persistence.  The appellant spent most of the day trying to find Mr May’s address and went late at night to Mr May’s house; in this case the respondent spent some time communicating with Mr Porter and when he could not reach him after early September 2023, he attempted to do so through Mr Porter’s wife; in this case, Mr Porter made it clear that he did not want to get involved and blocked the respondent’s telephone number; in Toney, Mr May walked away from the appellant and did not want to be involved.  In Toney, no actual threat was made by the appellant; in this case there was a threat.

41      Whilst it is not a requirement for there to be similarities, one case with another, this simple comparison illustrates circumstances where a court will find improper conduct to exist, to lead a potential witness to change their proposed evidence or to not give evidence, arising from only one encounter, when taken in context.  In Toney, whilst no actual threatening words were used, the full circumstances were seen as sufficient to make out the offence of perverting the course of justice.

Conclusions

42      In our view for all the foregoing reasons the appeal should be upheld.  We would quash the finding of the Commission made on 25 February 2025.  For the reasons set out above, the conduct of the respondent, in sending the text message he did to Mr Porter’s wife on 14 March 2024, in the context of the previous communications between the respondent and Mr Porter, was improper conduct and an attempt to interfere with the proper processes and proceedings of the Commission.  It had the potential to interfere with the Commission determining the matter justly and in accordance with s 26(1)(a) of the Act.

43      Accordingly, we would make orders that the appeal be and is hereby upheld; that the finding of the Commission made on 25 February 2025 ([2025] WAIRC 00118) be quashed and that the substantive proceedings in application U 17 of 2024 be dismissed.