TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against an order

Tasmanian Chamber of Commerce and Industry Limited
(T.4774 of 1993)

Appeal against an order handed down by Deputy President Robinson on 26 November 1993 in matter T.4333 of 1993 - jurisdiction - power to award a sum of money - legal representation - order revoked

REASONS FOR DECISION

This is an appeal made to a Full Bench pursuant to section 70(1)(b) against an order made by Deputy President Robinson under section 31 of the Act, directing that Fahan School pay Miss Harriett Gunn a sum of $49200.00 having found she had been unfairly dismissed and that re-employment or reinstatement was not possible or practical. The order was made on 26 November 1993, arising out of application T.4333 of 1993.

The notice of appeal, lodged by the Tasmanian Chamber of Commerce and Industry Limited (TCCI), contained 24 grounds which, at the commencement of the hearing, were amended to 21 and read as follows:

"1. The Deputy President erred in granting leave to a Legal Practitioner to appear pursuant to Section 28(5) of the Industrial Relations Act 1984 without giving any or sufficient weight to the submissions of the Appellants going to the general principles relating to the granting of leave.

2. The Deputy President erred in refusing an application by the appellant to seek reassignment of the matter of the alleged unfair dismissal to an alternative member of the Commission following conferences chaired by the Deputy President pertaining to matters which occurred prior to the dismissal.

3. The Deputy President erred in making subjective findings as a consequence of conciliation conferences and was overly influenced by extraneous matters not raised in formal proceedings before the Commission.

4. The Deputy President erred in a written decision of the 14 September 1993, in refusing to grant a further adjournment to the Appellant without affording proper and adequate opportunity to the appellant to put submission in support of the application for an adjournment contrary to the rules of natural justice.

5. The Deputy President by refusing to grant the further adjournment denied the appellant natural justice in preventing the Appellants principal Witness from giving sworn oral evidence in the proceedings.

6. The Deputy President erred in not giving any or sufficient weight to the evidence of Margaret Alexander in that he concluded that the evidence was hearsay and therefore inadmissible or alternatively of inferior quality, which is contrary to Sections 20(1)(a) and 20(1)(c) of the Act.

7. The Deputy President erred in giving undue weight to the evidence of Miss H Gunn.

8. The Deputy President erred in finding that Miss Gunn assertions of overly harsh treatment during the latter part of her employment at Fahan were beliefs genuinely held by her when such a finding was not reasonable open on the evidence.

9. The Deputy President erred in finding that Miss Gunn had not breached her Contract of Employment by not disclosing her pre existing Contract of Employment with the Department of Education and Arts.

10. The Deputy President erred in that he failed to give any or sufficient weight to the evidence of Margaret Alexander corroborated by the evidence of Ian Shadbolt together with submissions which indicated Miss Gunn had already resigned from her pre existing Contract of Employment with the Department of Education and the Arts.

11. The Deputy President erred in that he failed to give any or sufficient weight to the evidence and submissions of the Appellant relating to Miss Gunn drinking coke out of a wine glass during class.

12. The Deputy President erred by failing to give any or sufficient weight and/or dismissing the evidence of Mrs M Alexander, on account of her ill health which led to the conclusion that the evidence was highly subjective and over reactive.

13. The Deputy President erred in concluding that there was a "deep resentfulness and tensions" on the part of Mrs M Alexander and Mrs J Bennett to Miss H Gunn, when such conclusion was not reasonably open to him on the evidence.

14. The Deputy President erred in having found that the evidence of Mrs J Bennett "was fluent and that she responded to questions without hesitation" failed to give any weight or gave insufficient weight to evidence relating to matters prior to the termination of the Contract of Employment.

15. The Deputy President erred in that he failed to give any or sufficient weight to evidence of Miss Moerkerk relating to an incident at Nickleby's Wine Bar.

16. The Deputy President erred in concluding that Mrs M Alexander had a mistaken belief as to Miss Gunn's presence at Nickleby's Wine Bar, such conclusion was not reasonably open on the evidence.

17. The Deputy President erred in making findings relating to Miss P Moerkerk's, willingness to give evidence on behalf of the Appellant, when such findings were not reasonably open to him on the evidence.

18. The Deputy President erred in concluding that the dismissal of Miss Gunn was inequitable as others involved did not receive the same penalty and therefore unfair, when such conclusion was not reasonably open on the evidence and ignored factual evidence indicating that Miss Gunn was terminated for misrepresentation.

19. The Deputy President erred in concluding that a series of warnings were required in instances of summary dismissal.

20. The Deputy President erred in holding or finding that the subject-matter of matter T.4333 of 1993 was sufficiently broad to allow the subsequent dismissal of the Applicant (Miss Gunn) to be dealt with as part of matter T.4333.

21. The Deputy President erred in holding or finding that he had the power to order the Respondent (Appellant) to pay to the Applicant an amount of $49,200.00 when;

(a) there is no power under the provisions of the Industrial Relations Act to order the payment of any sum of money;

(b) alternatively,

(i) the Commission is not empowered, in the absence of an order to reinstatement or re-employment, to order the payment of any sum of money;

(ii) the power of the Commission under the Act to order the payment of money, if any, is limited to an order, supplementary to an order for reinstatement or re-employment, for the payment of lost wages between the date of termination of the employment and the date of reinstatement or re-employment, discounted by any wages received from other sources during the said period.

(iii) the Commission is not empowered in any circumstances to order the payment of any sum of money in the nature of damages at common law."

At the start of appeal proceedings we were ngquested by Mr Sealy, for the appellant to consider, as a threshold question, whether or not the Deputy President was entitled to determine the issue relating to unfair dismissal given that Miss Gunn, on filing an application for that specific matter to be decided, was no longer an employee. It was contended by Mr Sealy that in respect of that specific circumstance the Deputy President, in the first instance, lacked jurisdiction to deal with the matter that was before him.

Mr Sealy also submitted that the Commission had no power to order the payment of a sum of money. However, if it was found that this power did exist it was only collateral to the exercise of the power to order reinstatement or re-employment. Mr Sealy submitted if he was wrong on that point, it was not open to the Commission in any event to award compensation in the nature of damages at common law.

After hearing Mr Hunniford for Miss Gunn, we decided that we would hear the parties in full before deciding on any one of the particular appeal grounds, including those which had been termed threshold issues.

We turn now to the consideration of some of the specific issues comprehended in the grounds of appeal.

Jurisdiction

The original application (T.4333 of 1993), lodged on 8 April 1993, was made pursuant to section 29(1) of the Act by Miss Harriett Gunn of 37 Rialannah Road, Mt. Nelson, who at that time was employed as a teacher at Fahan School, Hobart.

The application detailed the circumstances of the industrial dispute as follows:

"1. Harassment and verbal abuse by superiors and senior teaching staff.

2. Threats as to termination of employment.

3. Failure by superiors to establish guidelines and work duties."

The matter came on for hearing before Deputy President Robinson on 26 April 1993 and continued on 12 May 1993.

Subsequently, on 20 May 1993 Miss Gunn was dismissed, and on 21 May 1993 the Commission received a second application (T.4397 of 1993) from Miss Gunn for a hearing in respect of an industrial dispute, the subject matter being "wrongful dismissal".

This second application was listed for hearing with T.4333 of 1993 on 24 May, 15 June and 18 June 1993.

During the hearing on 15 June the Deputy President foreshadowed that on the next day of sitting, i.e. 18 June, the question of whether or not the Commission had jurisdiction to hear T.4397 of 1993 would be dealt with.

On that day, he indicated to the parties that he had some doubts about the application, as the question of jurisdiction would arise if the application came from a person who was no longer an employee, and he referred the parties to a decision of the Commission arising out of application T.4401 of 1993. In that matter the Commission ruled that a person who was no longer an employee was unable, under section 29 of the Act, to make an application.

When the hearing resumed on 29 June 1993, Mr Hunniford, representing Miss Gunn, sought to amend the first application to include unfair dismissal and submitted that the second application could then be set aside.

Mr Fitzgerald, representing Fahan School, offered the view that the first application, which included threats of dismissal, was "broad enough to encompass" the matter before the Commission. He said that he did not want to put any barrier in the way of, or hold up Mr Hunniford proceeding. Nevertheless, he submitted that it was not open for application T.4333 of 1933 to be amended to include unfair dismissal because, at the time it was made, the dismissal had not occurred and that any amendment could only relate to circumstances in existence at the time the application was made.

The Deputy President on pages 79 and 80 of transcript stated:

"Very well. Look, I'm going to rule that the first application deals with a number of matters. They may all be broadly categorised as alleged unfair treatment in employment.

And I believe that the second item, "threats as to termination of employment" raises the issue of whether or not termination is part of the dispute, and to that extent I also rely upon Mr Fitzgerald's comments that there is no objection to the question of termination being dealt with as part of proceedings.

To that extent, I suppose I deny the application to amend the last application. My inclination is really to dismiss it, but I don't think any damage is done by adjourning it sine die."

Following this ruling the Deputy President, over a period of time, continued to hear submissions from the parties and on 12 November 1993 handed down his decision which contained the following finding:

"Having conducted a hearing in which the parties were afforded every reasonable opportunity to make any relevant submissions, and after considering those views as well as all of the evidence and exhibits presented, I have decided that Fahan School has not been able to satisfy that onus and to justify its actions in dismissing Miss Gunn on 20 May 1993.

I have further formed a view that the dismissal of Miss Gunn was, in all of the circumstances, both harsh and unjust."

The entitlement to assistance from the Commission to settle an industrial dispute, which includes a dispute relating to a dismissal, is established by Sections 29 and 30 of the Act. For the purpose of this appeal Section 30 is irrelevant as it was not the vehicle for bringing the disputed matter to the Commission. Section 29 was used and it provides that "an organisation, employer or employee, may apply for a hearing to settle an industrial dispute that has arisen or is likely to arise".

In this case Miss Gunn was an employee at the time of making her first application, but not an employee at the time of making her second application because, by then, she had been dismissed. Accordingly we are of the view that the Deputy President was right in not allowing the second application (wrongful dismissal) to proceed as Miss Gunn had no standing to make the application.

It should be noted that an organisation within the meaning of the Act would have been entitled to make an application in relation to the dismissal after the dismissal had been effected.

At the time when Miss Gunn made the first application the dismissal had not taken place and therefore she was an employee within the meaning of the Act and was entitled to make the application relating to the dispute outlined in that application. She was also entitled, had she deemed it necessary, to seek to amend that application to deal with any other matters that might have been in dispute at the time of making the application. It is apparent that the Deputy President did not amend the first application, as requested by Mr Hunniford, to include "unfair dismissal" and, on that point, we consider the Deputy President was correct because at the time of making the application she had not been dismissed.

However, we consider that it was not open to the Deputy President to arrive at the conclusion that the second item in the first application, i.e. "threats as to termination of employment", could encompass actual dismissal and on this point we are of the view that a fundamental error occurred.

It is obvious from the Deputy President's decision that most of the evidence, submissions and indeed the finding itself, related to the fairness or otherwise of the dismissal of Miss Gunn. In our view the first application was not capable of dealing with the dismissal of Miss Gunn for reasons earlier stated.

We have noted that the Deputy President proceeded to hear submissions dealing with the dismissal of Miss Gunn with the consent of the parties, however, since there was no jurisdiction to entertain the dispute the Deputy President could not acquire jurisdiction by consent of the parties.

In the circumstances we find that appeal ground 20 is sustained and the appeal is upheld on this ground alone.

Although it is not necessary to make a finding in relation to the other grounds of appeal, we are of the opinion that it is desirable to make findings in respect to the following issues:

Power to award a sum of money

During the appeal hearing, it was contended by Mr Sealy that the Commission had no power under the Act to order a payment of any sum of money, or alternatively, it was restricted in doing so as outlined in appeal ground 21.

We are of the view that the Commission has jurisdiction to order the payment of a sum of money for the purpose of preventing or settling an industrial dispute.

An `industrial dispute' is defined in section 3(1) of the Act to mean a dispute relating to an industrial matter. `Industrial matter' is defined to mean any matter pertaining to the relation of employers and employees, and includes any matter relating to rates of remuneration, the conditions of employment and the relations between employers and employees (with specified exemptions).

It is clear therefore that the Commission, acting under sections 29 or 30, may be involved in the prevention or settlement of a dispute in which money matters are an issue.

The power given by section 31(1) is to direct by order in writing that anything be done or any action be taken for the purpose of preventing or settling an industrial dispute. That power is unrestricted in its terms, and in our view should not be read down as excluding the power to order that a payment or payments of money be made where such a payment can properly be regarded by a Commissioner as appropriate for the purpose of preventing or settling the dispute.

For these reasons we consider that paragraphs (a) and (b) (i) and (ii) of appeal ground 21 are not sustained. However we acknowledge that the Commission is not empowered to award money in the nature of damages at common law as outlined in appeal ground 21(b)(iii).

Legal representation

Prior to 1 March 1993, legal representation was not allowed under the Act. Subsequently the Act was amended to include the following provision:

"28(5) The following persons are not entitled to be agents for the purposes of subsection (1) except with the leave of the Commission, Enterprise Commissioner or Registrar:-

(a) a barrister or practitioner;

(b) a person who is not a barrister or practitioner but who engages in the practice of the law outside Tasmania."

In the matter under appeal the Deputy President granted leave to Mr Hunniford of Hunnifords, Barristers and Solicitors, to be agent for Miss Gunn.

We are of the view that the granting of leave subject to Section 28(5) is at the discretion of the Commission and the result of any application for leave will vary from time to time depending on the circumstances of each case.

We reject this ground of appeal.

Conclusion

Given our earlier decision on the question of jurisdiction and in accordance with section 71(13)(a), we revoke the order of the Deputy President dated 26 November 1993, arising out of application T.4333 of 1993.

Appearances:
Mr W. J. Fitzgerald with Mr L. Sealy for the Tasmanian Confederation of Commerce and Industry Limited
Mr M. Hunniford for Miss Harriett Gunn

Date and place of hearing:
1994
Hobart:
February 14
April 7, 8
May 4, 5, 9