TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Liquor, Hospitality and Miscellaneous Union -
Tasmanian Branch
(T11594 of 2004)

and

Classic Video Pty Ltd trading as Video City

Appeal against a decision handed down by Commissioner T J Abey arising out of T11391 of 2004 

REASONS FOR DECISION

[1] This is an appeal against a decision of Commissioner Abey in Matter T11391 of 2004. The Appellant is the Liquor Hospitality & Miscellaneous Workers Union (LHMU) representing the former employee, Ms Allison Adkins.

[2] The LHMU has sought, by direction pursuant to s.21(2)(n) of the Industrial Relations Act 1984 (the Act), a number of documents and further information from the Respondent, Classic Video Pty Ltd trading as Video City (the employer).

[3] The matter of the Directions was listed for hearing on 30 November, 2004.

[4] This decision only considers the application by the LHMU for the employer to provide documents and further information in respect to the allegation that the termination of Ms Adkins was not for the purpose of a genuine redundancy and that there was no valid reason for such termination.

[5] The LHMU seeks the following:

"1. All papers, minutes, memoranda, letters, emails, drafts of advertisements, advertisements or other documents relating the employment of Cindy Pulford, including between the Respondent and Australian JobSearch.

2. All papers, minutes, memoranda, letters, emails, drafts of advertisements, advertisements or other documents related to the employment of Michelle Brown, including between the Respondent and Australian JobSearch.

3. All Rosters for the period from 1 July 2004 until 13 September 2004.

4. All papers, minutes, memoranda, letters, emails or other documents setting out the duties, functions, tasks and responsibilities of Cindy Pulford.

5. All papers, minutes, memoranda, letters, emails or other documents setting out the duties, functions, tasks and responsibilities of Michelle Brown.

6. A complete list of the names of all persons employed, whether full time, part time, casual or otherwise at the Devonport library operated by Classic Video Pty Ltd trading as Video City for the period 1 July 2004 until 13 September 2004, inclusive, the date each person commenced employment, their employment status, whether they have worked at any other Video City store during this period, if they have, the length of time so worked and the reason(s) for such work and their duties, functions, tasks and responsibilities.

7. A complete list showing the daily hiring and sales of videos, DVDs, computer games (however described) for the period 1 January 2003 to 1 November 2004.

8. A complete list showing the daily takings deposited with the financial institution or institutions used by the Respondent for the period 1 January 2003 to 1 November 2004.

9. The Acting Registrar is to provide to the Liquor, Hospitality and Miscellaneous Union (the Union) a copy of all documents provided by the Respondent, in answer to these Directions, to the Union by 4.30pm on 6 October 2004."

[6] The employer opposed the application by the LHMU and argued against the provision of any of the information sought.

[7] The LHMU submitted that the Act provided under s.71(8) for the admission of fresh evidence. S.71(8) provides:

"On the hearing of an appeal, evidence and matters, other than evidence and matters raised in the proceedings in respect of the matter appealed against, shall be admitted only by leave of the Full Bench hearing the appeal."

[8] The grant, or otherwise, of the application by the LHMU is an exercise of discretion.

[9] It was submitted by the LHMU that the additional information sought related to its claim that the redundancy of Ms Adkins was not a genuine redundancy. The employer claimed, and Commissioner Abey accepted, that the redundancy was genuine however, it was claimed at the hearing below, and is still claimed, that the termination of Ms Adkins due to redundancy was a `sham.'

[10] The appeal against the decision of the Commissioner is "firmly and squarely over the issue of whether there was a genuine redundancy."

[11] The LHMU submitted that 18 days after the issue of the Commissioner's decision the employer engaged Ms Cindy Pulford at the Devonport store. Ms Adkins had been employed at the Devonport store prior to being made redundant. The LHMU claimed, subsequent to the employment of Ms Pulford, that another person was also engaged at the Devonport store, a Ms Brown.

[12] Commissioner Abey had been dealing with a dispute notification in respect to Ms Adkins prior to her termination and also a notification of dispute in respect to the former employee at the Burnie store who had also been terminated, allegedly due to redundancy.

[13] The LHMU argued that within 18 days of the decision being issued in respect to the two notifications, (the decisions were issued on the same day), Ms Pulford was engaged and a couple of months later Ms Brown was engaged. It is understood that the two employees, Ms Pulford and Ms Brown, work in both the employer's Devonport and Burnie stores performing the work previously performed by Ms Adkins and the other terminated employee. Accordingly the LHMU argued that the termination of Ms Adkins due to redundancy was not a genuine termination or for a valid reason as required by s.30(5) of the Act.

[14] The employer's representative challenged the jurisdiction of the Commission to deal with the application filed pursuant to s.21 of the Act submitting that the powers found in s.21 are general powers and not those to be exercised by a Full Bench. The employer relied on a decision of a Full Bench of this Commission in Barminco Pty Limited v the Australian Workers Union (Barminco) [T No. 10893 of 2003].

[15] The decision in Barminco is about the application and variation of an agreement registered pursuant to s.55 of the Act and can be distinguished from the application before us in this matter.

[16] The employer opposes the application by the LHMU and provided five (5) objections claiming that the information sought:

(1) would be commercial in confidence (eg dealings between the employer and its client companies);

(2) is beyond the subject matter under appeal and the associated appeal grounds (eg rosters for all employees, details of all persons employed);

(3) may or may not be used in the hearing of the appeal or in other matters;

(4) the respondent has now provided (in the employer's written submission);

(5) forms part of staffing changes and reorganisation of one of the employer's stores in North West Tasmania that relates to events that occurred some four months after redundancies were decided and three months after redundancies were effected throughout all five of the employer's properties in North West and Northern Tasmania.

[17] In response to the objections raised by the employer the LHMU submitted that the Commission is able to deal with information claimed to be commercial-in-confidence and that "simply pleading that it is commercial-in-confidence is not an excuse or reason for the Commission not to issue a direction."

[18] The LHMU submitted that the information sought in respect to rosters would show conclusively not only that the employees existed and were employed but the hours of work that they performed and where they performed that work. Those issues are "central to this argument about genuine redundancy because if you say that you are declaring two employees in stores in close proximity, redundant, and then within months you have put two people on in those stores doing the same, or similar work, then that does raise this whole question of redundancy."

[19] The assertion that the information sought was for reasons other than to be used in the hearing of the appeal "particularly pained" the LHMU who submitted that it did not make applications which it did not believe to be relevant to the proceedings at hand. The Commission would be unlikely to support any application which is little more than a fishing expedition; in this matter the employer has not denied that new employees have been employed. It is the circumstances of, and reasons for, the engagement of the new employees in the Devonport store which, in part, raise the allegation that the termination of Ms Adkins was a sham and is the basis of the appeal.

[20] The LHMU submitted that the information provided in the written submission of the employer is no more than a series of assertions and not evidence. There is no affidavit by the employer or a member of staff which could be subject to cross examination by the LHMU and as such, it was submitted, is not accepted as evidence and the submissions of the employer are in fact challenged by the LHMU.

[21] The information sought relates specifically to the North West coast stores and employees engaged shortly after the decision of the Commission. The employer claims that the staffing changes being referred to and relied upon by the LHMU occurred some four months after redundancies were decided and three months after they were effected.

[22] The LHMU referred to the decision of His Honour Justice Blow of the Supreme Court of Tasmania in Fernando v Medical Complaints Tribunal (Fernando) (No. 2) [2003] TASSC 139 (22 December 2003) where His Honour rejected an application for the production of fresh evidence. In that decision His Honour cited the comments of Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513, at 519, where it was said:

"One very significant strand in the development of the law has been the judicial transformation of discretionary remedies into remedies which are granted or refused according to well settled principles. ...It has been a development which has promoted consistency in decision making and diminished the risks of arbitrary and capricious adjudication."

[23] In Fernando Mr Forrest QC enunciated the "well-settled requirements as to fresh evidence in that:

(a) it is potentially credible;

(b) it was not available to the appellant or his legal advisers before the Tribunal made its decision;

(c) it was evidence which the appellant and his legal advisers could not reasonably have been expected to obtain with the exercise of due diligence before the Tribunal made its decision; and

(d) it would have made a different result in the Tribunal proceedings so likely that the matters before the Tribunal should be reconsidered or re-determined."

[24] It was submitted by the LHMU that its application should be granted as the employer has engaged two (2) staff in the Devonport library since the decision of the Commissioner, that situation is factual and credible; any evidence in respect to those two (2) new employees was not available before the decision of the Commissioner; it was not evidence the appellant could have been expected to obtain with the exercise of due diligence prior to the decision; the Commissioner accepted the submission of the employer that the termination was a genuine redundancy and if the information now sought was then available there may well have been a different outcome from the application.

[25] The decision of Justice Blow was appealed and set aside. However the authorities relied upon in Fernando in respect to the admission of fresh evidence were discussed by all members of the Appeal Bench.

[26] His Honour Justice Crawford analysed the decision in Wollongong Corporation v Cowan (1955) 93 CLR 435 (Wollongong Corporation) upon which Justice Blow had placed some reliance, and said that Wollongong Corporation was "not prescribed for an appeal by way of rehearing, in which the rehearing is carried out by the appellate court. It was intended as a test on a motion for a new trial or action. The original trial was conducted before a jury, and the jury gave no reasons for its verdict in what was an action for damages for personal injuries. To regard Wollongong Corporation as controlling the discretion to admit evidence in a statutory appeal by way of rehearing may be erroneous."

[27] The circumstances in both the Fernando Appeal decision and Wollongong Corporation are different to the circumstances the subject of this decision however the principles in respect to the admission of fresh evidence are generally consistent. In this matter the party seeking to admit fresh evidence does so on the basis of the information not being available in the hearing below and that had such information been available the result may have been different.

[28] Crawford J also referred to the decision of the Full Court of the Supreme Court of Western Australia in the Australian Democrats WA Division Inc v Australian Democrats Vic Division Inc BC9805206 where Owen J said: "There is no precise formula as to how the Court should exercise its discretion in deciding whether to admit further evidence on appeal. However it has been said that the exercise should be undertaken with regard to the context in which it arises (including the nature of the litigation) and also the public interest in the finality of litigation; Doherty v Liverpool Hospital (1991) 22 NSWLR 284 at 297."

[29] Reference was also made by Crawford J to a decision of the New South Wales Court of Appeal in Akins v National Bank (1994) 34 NSLR 155. When considering whether special grounds had been established for the reception of further evidence after trial, as required by the Supreme Court Act 1970 (NSW), s75A(8), it was said by Clarke JA, with whom the other members of the court agreed, at 160 saying:

"Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."

[30] In that matter the fresh evidence sought to be lead only related to the credibility of one witness.

[31] Crawford J said in the Fernando Appeal decision:

"Some jurisdictions have statutory provisions or rules of court that expressly permit the reception of further evidence by an appellate court without any express limitation on the exercise of the discretion to do so. I referred earlier to CDJ v VAJ (1998) 197 CLR 172 in which such a provision was considered by the High Court on appeal from the Family Court of Australia. It was held by the majority in the High Court that the Wollongong Corporation test was not the appropriate one. McHugh, Gummow and Callinan JJ pointed out at 199, that the test was one developed for common law procedures that were interlocutory in nature. At 200, their Honours said: "Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion." Those comments can be extended to a case such as the present, where there were no adverse parties before the Tribunal and where the nature of the inquiry and its possible outcome contrary to the interest of the appellant, had similarities to criminal proceedings. Their Honours continued: "Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it.

Similar views were expressed in McCann v Parsons (1954) 93 CLR 418. It was observed by Dixon CJ and Fullagar, Kitto and Taylor JJ at 430-431, when considering whether a new trial should have been granted because of fresh evidence: The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end."

[32] His Honour Justice Slicer said that it was "not necessary for the determination of this appeal to resolve the differing approaches taken in cases such as Wollongong Corporation.......... The circumstances here did not involve the application of the test stated in Wollongong......"

[33] His Honour Justice Evans said "As to the test to be applied when considering to admit fresh evidence, Crawford J has canvassed the different positions taken by appellate courts in criminal cases and appellate courts in civil cases, when considering whether to remit cases back to the court at first instance for a new hearing. I agree with his reasons for concluding that this was not a case in which the Wollongong Corporation's test should have applied for the reception of fresh evidence and that much of the fresh evidence should have been admitted as there is a firm chance, a significant possibility, that the result of the enquiry would have been reversed if it had been available to the appellant at the time of the hearing before the Tribunal."

[34] In the decision of the Full Court of the Federal Court in Madafferi v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 473 at 479; the court said when considering the discretionary rule under the Federal Court Act 1976 (Cth), s.27, to receive further evidence without any limitation on the power being expressed in the legislation, that it should be demonstrated "that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different."

Findings:

[35] This is an appeal against an exercise of discretion pursuant to s.29(1) of the Act. The LHMU claims that the Commissioner below erred inasmuch as he awarded compensation rather than reinstatement which was the relief sought by Ms Adkins. The Commissioner's reason for not awarding reinstatement was found at para 77 of his decision where he said: "I have reached the conclusion that this was a genuine redundancy, albeit handled poorly and insensitively. In the circumstances reinstatement is not a practical option, in that the employer has made it clear that there is no longer a role for four full-time library attendants in the Devonport library."

[36] The Commissioner noted that "the employer produced absolutely no evidence whatsoever." Ms Adkins said that from her own knowledge and experience there did not appear to have been any decline in the business compared to the previous year or, again based on her own knowledge, there was no indication of a decline in the amount of the takings. Presentation of that evidence was opposed by the employer but it seems was not challenged as to its veracity.

[37] It was submitted by the employer in the hearing below that Ms Adkins had not been replaced by a library attendant and at that time such statement was accepted by the Commissioner as being correct, however, some short time later it is alleged a library attendant was employed at Devonport to replace Ms Adkins according to the LHMU.

[38] Whilst the authorities relied on by both the appellant and the employer are specific to the circumstances applying to each case, circumstances which are not found in this application, all of the authorities, to varying degrees, are consistent as to the general principles to be observed in an application to admit fresh or further evidence. Those principles are that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different.

[39] The manner in which fresh evidence can be accepted is subject to the terms of the statute under which the application is made. S.71(8) of the Act requires the leave of the Full Bench.

[40] It is not challenged that the information about Ms Pulford was not known to the appellant at the time of the hearing below nor could it have been as Ms Pulford had not been employed at that time but, according to the submission of the LHMU, was employed some 18 days after the issue of the Commissioner's decision.

[41] The decision under appeal arises from a s.29A application seeking relief alleging that the termination of Ms Adkins was not for a valid reason and was unfair. Commissioner Abey found that the termination was "both substantively and procedurally unfair" and awarded compensation being of the view that "there is no longer a role for four full time library attendants in the Devonport library."

[42] The Act allows that compensation may be awarded "if, in the Commission's opinion, reinstatement or re-employment is impracticable." Accordingly reinstatement or re-employment is the primary relief available.

[43] Ms Adkins sought reinstatement to her previous position.

[44] The further evidence which the appellant seeks by this application is to support the allegation that the termination of Ms Adkins, due to redundancy, was a sham.

[45] The application is made pursuant to s.21(2)(n) of the Act which prescribes:

"21(2) Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it -

(n) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of that matter."

[46] The directions sought by the appellant relates to information/evidence not previously before the Commission for which the appellant seeks the leave of the Full Bench, pursuant to s.71(8) of the Act, to present in the appeal hearing.

[47] The application for the production of further information/evidence is made under the general powers of the Act pursuant to s.21(2)(n); the application to admit that further information/evidence is made under the specific power found at s.71(8). If the information or fresh evidence was already available an application pursuant to s.21(2)(n) would not be necessary however the grant of leave by the Full Bench to present that evidence would still be required pursuant to s.71(8) of the Act.

[48] We propose to grant the application by the LHMU in a limited way.

[49] We grant leave to present the additional evidence to the Full Bench and have decided to direct Commissioner Abey to hear and consider that additional evidence either by hearing argument and/or sworn evidence and to take any further action he deems necessary to deal with the subject matter of the decision in accordance with this direction.

[50] This is an appeal against the decision of Commissioner Abey in the form of a rehearing but not a rehearing de novo and as such it is our view that it is appropriate to remit the matter back to Commissioner Abey.

[51] We adopt this action being of the view that Commissioner Abey is familiar with the matter having heard the application at first instant. Further it is of concern to us that allegations that the termination for reasons of redundancy was little more than a sham need to be tested against the evidence already presented and heard by Commissioner Abey. It is in the public interest that the Commissioner not be seen to have been misled in respect to this application in the hearing at first instant.

[52] The fresh evidence needs to be tested. It will be relevant whether or not it was the intention of the employer to replace Ms Adkins regardless of the determination of her application before the Commission. Before Commissioner Abey there were no issues of work performance raised in respect to Ms Adkins, nevertheless it seems that when the employer determined it necessary to engage a new employee at Devonport, some short time after declaring Ms Adkins redundant, that new position was not offered to Ms Adkins.

[53] The fresh evidence will address the events surrounding the employment situation at both the Devonport and Burnie outlets since the termination of Ms Adkins. The issue of the termination being necessary due to redundancy was fundamental to the matter before the Commissioner.

[54] It is the contentious nature of the allegations by the LHMU, both before Commissioner Abey and again in appeal documents, which causes us to take the perhaps unusual approach we have decided.

[55] Further, the principles generally applied in a consideration of an application to admit further or fresh evidence take account of the possibility that "if the evidence had been available there was at least a firm chance that the result would have been different." That does not mean that the result would have been different only that it was a possibility.

[56] We have already indicated that the fresh evidence relied upon was not available at that time and we note that the termination was effected due to an alleged redundancy. It was not until Ms Adkins was alerted to the fact that a new employee had been engaged at the Devonport store that her concern that her redundancy was not a genuine redundancy again surfaced.

[57] We have considered the information sought by the LHMU and are of the view that only that information capable of being relevant to the allegations made by the LHMU should be provided.

[58] Accordingly and pursuant to s.21(2)(n) of the Act we direct the respondent employer in this matter to provide the following information and documentation to the LHMU and to the Commission:

(1) All media advertisements relating to the employment of Ms Pulford and Ms Brown;

(2) Rosters for the Devonport and Burnie stores for the period 1 July, 2004 to 13 September, 2004;

(3) Job descriptions or documents setting out the duties and tasks of both Ms Pulford and Ms Brown;

(4) Names, employment history and status of employees at the Devonport store including other locations at which work has been performed by those employees, from 1 July, 2004 to 13 September, 2004;

(5) Sales and hiring records and records of daily takings for the Devonport and Burnie stores for the period 1 January, 2003 to 1 November, 2004. This information shall be treated as commercial-in-confidence and will only be available to the LHMU in the presence of the Commission Registrar. This information will be treated as commercial-in-confidence if presented to Commissioner Abey in formal proceedings. The information cannot be provided to any other person or persons.

[59] Such information shall be made available to the Commission Registrar by 4.30pm Friday 10 December, 2004.

[60] Pursuant to s.71(13)(c) of the Act we direct Commissioner Abey to take further action to deal with the subject matter of the decision in accordance with our directions.

P L Leary
PRESIDENT

Appearances:
Mr P Tullgren, Liquor, Hospitality and Miscellaneous Union, Tasmanian Branch
Mr P Gourlay, Tasmanian Chamber of Commerce and Industry Limited for Classic Video Pty Ltd

Date and place of hearing:
2004
November 30
Hobart