TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1)(b) Appeal against an Order

Omega Computer Industries Pty Ltd
(T11445 of 2004)

and

Garth Eric Walker

Appeal against a decision handed down by Commissioner Abey arising out of Matter T11296 of 2004 - Appeal dismissed - original Order confirmed

REASONS FOR DECISION

[1] This is an appeal against a decision of Commissioner Abey in T11296 of 2004. The Commissioner ordered that Omega Computer Industries Pty Ltd pay to the applicant in the matter before him, Garth Eric Walker:

"1. A redundancy payment (which includes payment in lieu of notice) of two thousand, three hundred and eight dollars ($2308.00); and

2. An amount of $230.80 representing wages owed."

[2] Omega Computer Industries Pty Ltd (the appellant) lodged an appeal against the decision of the Commissioner and cited the following grounds of appeal:

"1. The Commissioner in awarding the Respondent, Garth Eric Walker, two (2) weeks pay as a redundancy payment gave insufficient weight to the fact that the Respondent in breach of a term of his employment entitling him to purchase computer equipment at near cost price on condition that the same was paid for within a short period of time of the purchase, purchased goods between June and December 2003 to the value of $2,812.48 and failed to pay for the same and thus was not entitled in equity, good conscience and on the merits of his application to the two weeks redundancy pay.

2. The Commissioner in awarding the Respondent two (2) weeks pay as a redundancy payment failed to accord equity to the Appellant by giving insufficient weight to the fact that the preponderance of evidence suggested that the Respondent had abused his position as an employee of the Respondent in fraudulently misusing his expense allowance, abusing the use of his mobile phone provided for the purpose of his employment and abusing his entitlement to purchase the Appellant's computer equipment at near cost price.

3. In the circumstances, namely evidence of the Respondent's abuse of his expense allowance, abuse of his mobile phone provided for the purpose of performing his employment duties and evidence of the Respondent's failure to pay for computer equipment obtained by him at near cost price as an incident of his contract of employment, the awarding of two (2) weeks pay as a redundancy payment was plainly unreasonable and/or unjust."

[3] Directions were issued on 4 May, 2004, and the appeal was listed for hearing on 4 June, 2004.

[4] On 28 May, 2004, the appellant, by letter from his representative Simmons Wolfhagen, sought an adjournment of the hearing date due to the Managing Director of Omega Computer Industries Pty Ltd not being available on that day.

[5] The hearing was rescheduled for 8 June, 2004.

[6] By letter dated June 4, 2004, the appellant advised that Simmons Wolfhagen no longer represented his company and that he "personally have taken over the running of the proceedings before the Tasmanian Industrial Commission." The appellant also sought a further adjournment of the hearing. Any further adjournment was opposed by the respondent to the appeal and the application for a further adjournment was refused by the Full Bench.

[7] The matter proceeded as listed and there was no appearance by the appellant.

[8] The appellant was forwarded a copy of the transcript of the proceedings of 8 June, 2004, and a copy of the High Court decision in House v The King (1936) [55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan] for perusal. The appellant was given until close of business on 16 June, 2004, to respond to issues raised by the Bench in the proceedings.

[9] The appellant in his letter of response noted that the respondent had acknowledged his personal debt to the appellant.

[10] The appellant requested that we exercise our discretion to offset the personal debt of the respondent from the amount awarded by the Commissioner. It was also indicated that "There are a number of other issues relative to Mr Walker and we will pursue these issues in other jurisdictions."

[11] We are not able to accede to such request, we are determining an appeal against the decision of Commissioner Abey and are required to consider the grounds of appeal as filed. There has been no application to amend those grounds.

[12] The respondent to the appeal provided a response to the letter of the appellant submitting that the appellant has not demonstrated any error by the Commissioner. Further the respondent rejected the appellant's proposal for a "final opportunity to agree to offset" his personal debt against the Commissioner's order.

[13] In considering an appeal the Commission relies on the principles established in the decision of the High Court in House v The King which provides:

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

[14] We address the three grounds of appeal together.

[15] Commissioner Abey noted that the issue of alleged monies owed to the appellant by the respondent was not within the jurisdiction of the Commission. The appellant has not challenged that finding and generally relies on the same submissions as presented to Commissioner Abey.

[16] Commissioner Abey said:

"In any event the evidence relates to issues that should properly be dealt with by the management process at the time they occurred. There is no justification to retrospectively seek to discount a severance payment for redundancy based on these factors." 1

[17] The appellant has failed to demonstrate any error by the Commissioner and we disagree that he gave insufficient weight to the issues raised by the appellant. We are of the view that the Commissioner has acted with equity and his decision was fair and reasonable. He has considered the submissions of the parties and reached certain findings none of which are challenged by the appellant.

[18] The Commissioner has clearly and concisely addressed the matters raised and in our view the decision made was reasonably open to him.

[19] The appellant has not challenged the findings of the Commissioner that "There is no suggestion that this is anything other than a genuine redundancy, which on the face of it, was handled in a somewhat summary and insensitive manner by the employer. There was clearly an absence of consultation, consideration of alternatives, assistance with finding another position or extended notice which might have allowed Mr Walker to seek alternative employment from a position of strength." 2

[20] The basis of the appeal was that the debt owed to the appellant should have been offset against the award of the Commissioner. As noted in the Commissioner's decision that is a matter not within the jurisdiction of the Commission. We agree with that finding of the Commissioner.

[21] We reject all three grounds of appeal and confirm the order of Commissioner Abey. Payment is to be made no later than 5.00pm Friday 2 July, 2004.

P L Leary
PRESIDENT

Appearances:
Mr R Mecklenburgh with Mr G Walker

Date and place of hearing:
2004
June 8
Hobart

1 Original decision para 13
2 Original decision para 14