T6915 and T6918
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Capital Hill Corporation Pty Ltd and Terence James O'Connor
Appeals - decision by President F D Westwood on 27 March 1997 in matter T6563 of 1996 - appeals dismissed - decision confirmed REASONS FOR DECISION In late 1996 Mr T J O'Connor, a former employee of Capital Hill Corporation Pty Ltd ("Capital Hill"), initiated proceedings in this Commission concerning two issues: (1) his alleged unfair dismissal on or about 1 March 1996 from the position of Group General Manager, Trident Consolidated Industries Pty Ltd ("Trident") and (2) his alleged unfair dismissal on or about 26 September 1996 from the position of Business Manager, Storage and Distribution Division, Trident Consolidated Industries Pty Ltd. The President, after hearing the matter, determined the issues put to him by way of decision dated 27 March 1997.1 In brief, the President declined to grant Mr O'Connor's application, pursuant to Section 21(2)(m) of the Industrial Relations Act 1984, for an extension of time in which to lodge his application concerning the first alleged unfair dismissal.2 As to the second dismissal, the President found in favour of Mr O'Connor on the ground that "he was denied procedural fairness in that he was not provided an opportunity to defend himself".3 In settlement of that dispute the President ordered Capital Hill to pay Mr O'Connor, by close of business on 16 April 1997, the sum of $26153.85.4 Subsequently, Mr O'Connor appealed the decision regarding his Section 21(2)(m) application5 and Capital Hill appealed the decision that, as to the second dismissal, the company unfairly dismissed Mr O'Connor.6 Those are the appeals that comprise the subject-matter of the current proceedings in which, by leave of the Commission, Mr M O'Farrell appeared for Capital Hill and Mr P Evans appeared for Mr O'Connor. The parties agreed that we should hear and determine both appeals having regard to the Industrial Relations Act 1984 as it was prior to enactment of the Industrial Relations Amendment Act 1997.7 Jurisdiction Capital Hill's appeal, in part, challenges the President's finding that it is within the Commission's jurisdiction to hear and determine the dispute. The grounds of appeal, in that regard, are:
Mr O'Farrell opened with the submission that the jurisdiction conferred on the Commission to make an order under Section 31 of the Act depends upon there being present: (a) an industrial dispute within the meaning of Section 3(1) of the Act; (b) in the case of termination of employment, an application made under Section 29(1A) of the Act within 14 days of the date of termination (Section 29(1B)) or within such other period of time as the Commission may otherwise determine (Section 21(2)(m)); and (c) a proper exercise by the President of the power to convene a hearing before a Commissioner (Section 29(2)). For purposes of these proceedings Section 3(1) of the Act provided, among other things, that:
and that:
The scheme of the Act is such, Mr O'Farrell contended, that a Section 29(1A) application must display on its face sufficient material to disclose an industrial dispute within the meaning of the Act. In the absence of such material it is not an application in respect of an industrial dispute and there is no basis upon which the President can act, pursuant to Section 29(2), to convene a hearing before a Commissioner. In that context, Mr O'Farrell went on, the appellant's assertion is that the President fell into fundamental error by determining that "... so long as a former employee seeks reinstatement with his or her former employer within 14 days (or such other time as the Commission on application considers reasonable) of termination the application is within the jurisdiction of this Commission."8 Mr Evans, responding, contended that the proposition argued by Mr O'Farrell, that the Commission is without jurisdiction to hear and determine the dispute, is an utterly misconceived submission. The necessary jurisdiction, he argued, was available even before the amendments that arose from New Town Timber & Hardware Pty Ltd v Gurr and Another (1995) 5 Tas R 71 - so much being put beyond doubt by the Tasmanian Supreme Court decisions of Cox J (as he then was) at first instance and by the Full Court (Green CJ, Underwood and Zeeman JJ) on appeal in that case. In the proceedings at first instance, Mr Evans continued, Cox J said:9
and later on:10
Zeeman J, in the appeal proceedings, while specifically agreeing with Cox J's observations on the effect of Section 70(1)(b) of the Act, went on to add that "it does not particularly acknowledge the power of the Commissioner to make such an order in the circumstances of the present case."11 However, Mr Evans contended, the distinction to which His Honour was there referring was that, unlike the proceedings now before the Commission, there was no claim for reinstatement in New Town Timber & Hardware. Similarly, he said, acknowledgment of the presence of the power referred to by Cox J appears also in the judgments of Green CJ12 and Underwood J.13 It is clear, Mr Evans submitted, that all the judges involved in the New Town Timber & Hardware cases accepted that, for the Commission to have jurisdiction to award money amounts under Section 70(1)(b), the necessary condition precedent is a claim for reinstatement or re-employment in which the Commission, having found in favour of the applicant, then determines that reinstatement or re-employment is neither practical nor possible. In any event, Mr Evans said, notwithstanding any of the above, perusal of the "Second Reading Speech and Explanatory Notes to the Clause" relating to the Industrial Relations Amendment Bill 1994 shows that Parliament has since put the question of the Commission's jurisdiction in circumstances such as the present beyond doubt by enacting Sections 29(1A) and 31(1A) of the Act. We do not disagree with Mr O'Farrell's description of the elements that go to constitute a valid exercise of the Commission's jurisdiction under Section 31 of the Act. However, we think the proper approach to determining the existence or otherwise of an industrial dispute within the meaning of the Act is that suggested by Underwood J in New Town Timber & Hardware. That is, we should give the words of the legislative definition "their ordinary and natural meaning". On that point His Honour, in coming to a conclusion similar to that expressed by Cox J at first instance (although, perhaps, for different reasons),14 said: 15
We note, too, in this context, as Mr Evans urged us to do, that Green CJ acknowledged, at least by inference, the existence of jurisdiction to deal with a dispute between a former employee and a former employer about dismissal or reinstatement,16 as also did Zeeman J.17 Following Cox J's judgment, but before that of the Full Court on appeal, Parliament amended the Act. Mr Evans said that, according to the Second Reading Speech and Explanatory Notes to the Clauses concerning the Industrial Relations Amendment Bill 1994 (which we may take into account by reason of Section 8B of the Acts Interpretation Act 1931) the definition of "industrial dispute" was widened from "dismissal" to "termination of employment" and Section 29(1A) was added to provide "an unambiguous mechanism by which ex-employees may make application for a hearing in relation to termination of employment." In explanation of those changes the relevant Minister said (p.11):
As a result of that Parliamentary activity the "unambiguous mechanism" in place for purposes of the current proceedings was, in short terms, that a former employee might apply for a hearing in respect of an industrial dispute relating to that person's termination of employment - Section 29(1A) - in circumstances where the particular "industrial dispute" included a dispute relating to termination or reinstatement of employment - Section 3(1) of the Act. We do not believe it is necessary, in that context, to consider the definition of "industrial matter" because, in our view, the statutory right that enabled a "former employee" to apply for a hearing regarding a "dispute relating to the termination of employment or reinstatement" of that former employee was not a dispute as to an "industrial matter" since it did not pertain to the relations of employers and employees. In our opinion the words "and includes", as used in the definition of "industrial dispute", should be construed as meaning something that is in addition to an "industrial matter" as defined. That is, where "and" is used in a cumulative sense and "includes" is used to extend the meaning of the phrase "'industrial dispute' means a dispute relating to an industrial matter" beyond its usually accepted meaning by including a dispute between a former employee and a former employer about the particular employee's termination of employment. That approach is, we believe, identical with the view expressed by Underwood J in New Town Timber & Hardware and referred to above. We also take comfort from the fact that all the paragraphs ((a), (ab), (b) and (c)) in the definition of "industrial dispute" arguably reflect extensions to the usually accepted meaning of that phrase. In the present case the facts are that the President had before him an application dated 9 October 1996, made pursuant to Section 29(1A) of the Act by Mr O'Connor, a former employee, for a hearing concerning the following circumstances:
Mr O'Connor supported his application with a comprehensive statement of contentions of fact. On its face the application informed the President of certain allegations: (1) that it was made by a former employee; (2) that it was about that person's termination of employment on or about two nominated dates by an identified former employer; (3) that, regarding the second of those terminations, it was ostensibly made within the time prescribed by the Act; and (4) that the applicant sought reinstatement. In those circumstances, given the view we take that the relevant provisions of the Act should be construed in the context of "their ordinary and natural meaning" and taking into account what we have to say later on regarding his argument about the requirement of an industrial dispute to have some "sufficient industrial flavour", we do not agree with Mr O'Farrell's contentions that neither the application itself nor the evidence presented at the hearing disclosed an "industrial dispute" within the meaning of the Act. To the contrary, we believe the application itself disclosed a clear prima facie case of the existence of such a dispute, at least in relation to the second termination. Having regard to the foregoing discussions and conclusions we dismiss Appeal Ground No 1. Turning to his next ground of appeal, Mr O'Farrell contended the President erred to the extent that he relied upon Section 31(1A) of the Act for assistance in determining the existence of an "industrial dispute" within the meaning of the Act.18 Section 31(1A), and through it "Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer", ("the ILO Convention") Mr O'Farrell submitted, have nothing to do with identifying the existence of an "industrial dispute" and cannot serve to enlarge the definition contained in Section 3(1). Section 31(1A), Mr O'Farrell continued, merely sets up a procedure for the Commission to follow in the event that it has before it an "industrial dispute" of the relevant kind. All the President did in relation to Section 31(1A) of the Act in the context of jurisdiction, Mr Evans argued, was to agree with his (Mr Evans) submission that the provision must be taken into account when making an order under Section 31(1). It was quite proper, Mr Evans continued, for the President to look at the Act as a whole - as did all the judges in New Town Timber & Hardware - for the purpose of determining the extent of his jurisdiction. In the circumstances, Mr Evans contended, the assertion that the President erred by taking into account an irrelevancy is unsound. We agree with Mr O'Farrell that Section 31(1A) of the Act serves neither to identify the existence of, nor to enlarge the scope of, an "industrial dispute" as defined in Section 3(1). That having been said, however, we think the most appropriate course for us to adopt, in considering this ground of appeal, is to examine the President's decision in some detail to see if he did indeed rely on Section 31(1A) in the manner suggested by Mr O'Farrell. The particular observation of the President to which Mr O'Farrell refers is:19
So far as the President's comments refer to Section 31(1A) his decision shows, at page 2, that he was responding to the submissions put to him by Mr Evans concerning jurisdiction. In brief, those urgings were: that the Act had been amended since New Town Timber & Hardware to make it clear that a dispute relating to the termination or reinstatement of an employee is an "industrial dispute" and that, in making an order under Section 31(1), the Commission must take into account the standards set out in the ILO Convention. In his decision the President then went on to deal with the question of jurisdiction in the following sequential order. He acknowledged that he agreed with the main points of Mr Evans' submissions;20 he discussed and ruled on the relevance of the fact that Mr O'Connor "was not an award employee";21 he decided that the involvement of an employee organisation was not necessary because Section 29 of the Act specifically conferred upon a former employee the right to make a relevant application;22 he concluded that "the absence of other employees from the dispute does no damage to the application";23 he expressed an opinion that the obligation to take into account the ILO Convention supported the contention that Parliament intended that the Commission should deal with applications from individuals as well as organisations; and, finally, he distinguished R v Staples; Ex parte Australian Telecommunications Commission (1980) 143 CLR 614 on the grounds of relevance. Our review of the steps taken by the President in dealing with the question of whether he had before him an "industrial dispute" within the meaning of the Act, as set out above, does not in our opinion disclose any evidence that he relied on Section 31(1A) in the manner for which Mr O'Farrell contends. Indeed, as we read the President's decision, the very paragraph upon which Mr O'Farrell relies shows beyond doubt that the President did not err in such a manner because he made no reference to Section 31(1A) in his actual finding, which was simply that "so long as a former employee seeks reinstatement with his or her former employer within 14 days (or such other time as the Commission on application considers reasonable) of termination the application is within the jurisdiction of this Commission." In the circumstances we agree with Mr Evans on this point. If the President did anything at all with Section 31(1A) in the present context the evidence shows that it was simply to observe in passing that its requirements supported his conclusion as to the jurisdiction of the Commission to deal with relevant applications from individual former employees. For those reasons we dismiss Appeal Ground No 2. Mr O'Farrell further submitted that the President erred in distinguishing the High Court case of R v Staples; Ex parte Australian Telecommunications Commission (1980) 143 CLR 614.24 It is apparent from the judgment of Zeeman J in New Town Timber & Hardware, Mr O'Farrell contended, that in considering whether the dispute in that case constituted an "industrial dispute" within the primary meaning of that term as used in Section 3(1) of the Act, ie. "a dispute relating to an industrial matter", His Honour obtained "considerable guidance" from Staples.25 In particular, Mr O'Farrell said, Zeeman J referred to the joint judgment of Stephen, Mason and Wilson JJ in Staples where, in discussing "the possibility of an industrial dispute arising between a single employee and his employer", their Honours observed26 that the statutory definition of "industrial matter" then under consideration27 required an industry character to be given to the concept, ie. there must be an "implication or likely repercussion or dislocation for the industry as such so as to give the necessary character to what would otherwise be no more than a personal dispute".28 It is appropriate, before going on, to quote here the statutory definition of "industrial dispute" as it was, in relation to dismissal, at the time of New Town Timber & Hardware (the definition of "industrial matter" is unchanged) because, as Mr O'Farrell acknowledged, the Industrial Relations Act 1984 to the extent that it concerns Section 3(1) and the current proceedings is differently worded:
Returning to Zeeman J and New Town Timber & Hardware, Mr O'Farrell said that His Honour, after considering the reasoning in Staples, suggested the dispute before him did not concern an "industrial matter" as defined because, there being no employer-employee relationship at the time the demand was made, it did not pertain to the relations of employers and employees: nor, he added, did the dispute have an industry character because the definition of "industrial matter" as a whole only encompasses matters that have such a character.29 Zeeman J, Mr O'Farrell continued, then turned his attention to the question of whether the dispute fell within paragraph (a) of the extended meaning of "industrial dispute", ie. one that "includes a dispute relating to the ... dismissal ... of any particular employee". After observing that the dispute did not relate to the dismissal because it did not call the dismissal into question, His Honour went on to say:30
and, later on:
Mr O'Farrell contended that, with the above observations in mind, the facts show that while there was a termination of employment, the President erred because there was no disharmony or dislocation in the industry and nothing appeared on the face of Mr O'Connor's application to lend weight to such a proposition. The fact that Parliament has changed the Act since New Town Timber & Hardware, Mr O'Farrell went on, does not effect the weight of the present submission because Section 3(1), while different in form, remains in substance essentially unchanged from that which was before Zeeman J. The conclusion to be drawn, Mr O'Farrell submitted, is that Section 3(1), properly construed, cannot be read as meaning that any termination of employment or any argument about reinstatement is necessarily an industrial dispute. To the extent that the President concluded to the contrary, Mr O'Farrell argued, he fell into error by misconstruing the law as determined in New Town Timber & Hardware regarding the necessity for the extended definition of "industrial dispute" to have, in Zeeman J's words, "some sufficient industrial character". The consequence of the President's error regarding Staples, Mr O'Farrell argued, is that the reasoning process he adopted caused him to fail to properly take into account other relevant matters, albeit mentioned in his decision, such as: Mr O'Connor "was not an award employee";31 "the lack of involvement of an employee organisation in the dispute";32 and "the absence of other employees from the dispute".33 Furthermore, Mr O'Farrell submitted, the President erred in distinguishing Staples on the facts and circumstances before him at first instance.34 It was not open to him to do so, Mr O'Farrell contended, because the Supreme Court applied Staples in New Town Timber & Hardware, a decision which is binding on the Tasmanian Industrial Commission. Mr Evans in reply to the contrary and after noting that Zeeman J was the only member of the New Town Timber & Hardware bench to advert to Staples, asserted that having regard to the legislation now before the Commission "you could barely find a decision that had less relevance to the matter you are considering."35 In the statutory definition considered by the High Court in Staples,36 Mr Evans submitted, there is not one reference to termination of employment or reinstatement of an employee - a completely different definition, he said, from that under consideration in the present case. Similarly, he continued, the definition of "industrial matter in respect of the Service" that was considered in Staples, ie. "any matter in relation to the salaries, wages, rates of pay or other terms and conditions of service or employment of officers or employees",37 does not remotely fit the definition of "industrial matter" as it appears in the Industrial Relations Act 1984. The Tasmanian legislation, Mr Evans went on, is a very wide definition that, in the words of Cox J at first instance in New Town Timber and Hardware, "does not require that the dispute be between the employer and employee, merely that the dispute should relate to a matter pertaining to the relations of employer and employees".38 A further indication of the irrelevance of Staples to the current circumstances, Mr Evans went on, is the fact that in that case Stephen, Mason and Wilson JJ, in their joint judgment, observed of the meaning of an industrial dispute as defined in the Act there under consideration that:39
There is, on the facts of the current matter, no such limitation in the Industrial Relations Act 1984, Mr Evans argued, because the definition of "industrial dispute" in Section 3(1) expressly includes "a dispute relating to the termination of employment or reinstatement of an employee" and Section 29(1A) specifically provides that "A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of the employment of that employee." Furthermore, Mr Evans contended, the definition of "industrial matter" in the Tasmanian legislation is very wide in scope, concerning as it does "any matter pertaining to the relations of employers and employees", compared with that considered in Staples, ie. "any matter in relation to salaries, wages, rates of pay or other terms or conditions of service or employment of officers or employees", about which Gibbs J (as he then was) had the following to say:40
Clearly, Mr Evans submitted, while Staples was relevant to Zeeman J's considerations in New Town Timber & Hardware, it has no relevance to the legislation now under consideration, which expressly provides for the notion of individual or personal industrial disputes - as the remarks of Underwood J plainly confirm.41 In light of His Honour's observations, Mr Evans submitted, the particular appeal ground is misconceived to the extent that it suggests the President should have taken into account, in determining the presence or otherwise of an industrial dispute within the meaning of the Act, that the dispute involved only one employee. In considering the issues raised here we take as our starting point the findings and observations of Zeeman J that immediately follow those cited above by Mr O'Farrell.42 His Honour said that the "implication or likely repercussion or dislocation for the industry" statement of Stephen, Mason and Wilson JJ in Staples43, suggests that:44
What is before us, however, is a quite different statutory regime to that which was before His Honour and which he found necessary to read down. In 1994 Parliament amended the definition of "industrial dispute" to the form set out above at page 3 and inserted new Section 29(1A) into the Act which specifically provided that:
The purpose of that amendment, which we have also previously mentioned but repeat here for convenience, was to provide "an unambiguous mechanism by which ex-employees may make application for a hearing in relation to termination of employment."45 We do not think the importance of those changes can be understated when considered in relation to the submissions that Mr O'Farrell put to us regarding the necessity for disputes arguably falling within the extended meaning of "industrial dispute" to have "an industrial character" or, in the context of Staples, an "implication or likely repercussion or dislocation for the industry". We believe the intention of Parliament is abundantly clear. In our view, properly construed,46 the extended definition of "industrial dispute" in the context of Zeeman J's observations (but not forgetting the contrary opinion of Underwood J), no longer requires the presence of a "continuing employer-employee relationship" or involvement "in the dispute of the existing employees or any employee organisation". In other words, in the relevant circumstances, it is now possible for a personal dispute to be an "industrial dispute" within the meaning of the Act. Our conclusion, we believe, draws strong support from the words of Section 29(1A) and the purpose of its introduction as set out in the Second Reading Speech mentioned at page 5 above. In forming our opinion, however, we do not suggest that the jurisdiction is at large in the sense that, to use Zeeman J's words, "it may be assumed that any dispute which actually relates to the dismissal of an employee does constitute an industrial dispute".47 If, in the extended definition of "industrial dispute" that is before us and contrary to our opinion, it should be necessary to find the presence of an "industrial character" as argued by Mr O'Farrell then it can only be, and must be, giving the words of the statute 'their ordinary and natural meaning", a dispute between a former employee and his or her former employer about the termination of employment of the former employee in which he or she seeks reinstatement or restoration of the employer-employee relationship. An "industrial dispute" of such nature would not, clearly, extend to include the "extreme example" to which Zeeman J made reference in his judgment in New Town Timber & Hardware.48 For the above reasons we find that in considering whether the application before him related to an "industrial dispute" within the meaning of the Act: (1) the President did not err in failing to take account of the absence of other employees from the dispute (Appeal Ground No 3) and (2) the President did not err in expressly excluding from his consideration the fact that there was an absence of other employees in the dispute (Appeal Ground No 4). As a consequence of the above findings we further find that, in the circumstances (1) the President did not err in distinguishing Staples (Appeal Ground No 5) and (2) the President did not err in his finding as to the nature of the Commission's jurisdiction (Appeal Ground No 6). This part of Capital Hill's appeal goes to the President's findings in relation to the ILO Convention and his subsequent award of compensation. In that regard the grounds of appeal, as amended by leave of the Commission for purposes of clarification, are:
Mr O'Farrell submitted that Section 31(1) of the Act essentially comprises three parts: the Commissioner presiding must hear the parties; after hearing the parties the Commissioner must then form an opinion as to what thing might be required to be done or what action should be taken to prevent or settle the particular dispute; and, finally, the Commissioner must make an order to that effect. In such circumstances, Mr O'Farrell continued, the scheme of the Act obliges the Commissioner to take into account the standards of general application contained in Part II of the ILO Convention only after forming the requisite opinion but before deciding whether to make an order. There is nothing in the President's decision, Mr O'Farrell contended, that shows he formed the necessary opinion. To the contrary, Mr O'Farrell went on, at a very early stage in his decision the President went directly to the ILO Convention49 for the purpose of using it "to determine whether what he found had been done was sufficient to allow him to make an order".50 In that regard, Mr O'Farrell argued, the President erred because, in forming the opinion required by Section 31(1) of the Act, the Commission is not permitted to refer to the ILO Convention. Section 31(1A), he said, only becomes relevant for the purpose of determining a remedy and then only after the Commission has formed the necessary opinion and has determined that it should make an order under Section 31(1). That the purpose of Section 31(1A) directly concerns remedy, Mr O'Farrell argued, appears clearly in the "Second Reading Speech and Explanatory Notes" relating to the Industrial Relations Amendment Bill 1994. The Second Reading Speech, he submitted, described the purpose of the proposed Section 31(1A) in the following terms (p. 11):
In light of that clarification, Mr O'Farrell contended, it was not open to the President to take into account "all sorts of things arising in the ILO Convention which didn't really ... have any bearing on remedy".51 For example, he continued, the President specifically took into account Articles 4, 7 and 10 of the Convention "in determining the remedy to settle this matter".52 Mr Evans, responding, said the Explanatory Notes referred to by Mr O'Farrell show that "The effect of the provision is to require the Commission to have regard for the ILO Convention".53 Indeed, Mr Evans submitted, the President's obligation in relation to the ILO Convention is very clear: Section 31(1A) of the Act obliges "a Commissioner ... to take into account the standards of general application contained in Part II" of the Convention. In the circumstances, Mr Evans continued, it would have been quite improper for the President to have done other than what he did - indeed, such a failure would have been the only situation in which he could be found to have erred. We do not agree with Mr O'Farrell's contention that Section 31(1) can be conveniently compartmentalised in the manner he suggests. We start from the proposition that the ILO Convention vests employees with certain rights regarding termination of employment at the initiative of the employer. In those circumstances we believe his view of what constitutes "remedy" is much too narrow in that it tends to look only at the kind of order or orders that might be made, without taking into account the circumstances which give rise to them or the rights that they are intended to vindicate. We believe that "remedy" cannot be separated from "right" and that any consideration of one will involve consideration of the other in the same act. Those observations lead us to the conclusion that the President was right to look at the ILO Convention when he did because Section 31(1A) obliged him to take into account, in relation to the evidence, the employee's rights in order that he might then decide whether there had been an unjustifiable termination of Mr O'Connor's employment. We cannot see how he could have done otherwise because it is only in the ILO Convention that an employee's rights concerning termination of employment are to be found - they are nowhere else expressed in the Act. For these reasons, in terms of but contrary to Mr O'Farrell's submission, we believe the proper sequence of events is that, concerning a dispute relating to termination of employment, a Commissioner must hear the parties after which he is obliged to take into account the ILO Convention for the purpose of determining if any right there set out has been infringed. If the Commissioner should then decide that there has indeed been an infringement the next step will be formulation of an opinion as to what thing should be done, in the particular case, to settle the dispute. The next and final step, of course, is to make an order to the appropriate effect. On occasion, for reasons mentioned above, some of those actions are likely to blend seamlessly one into another - but that will not necessarily mean that the Commissioner concerned has not properly observed the processes authorised by the Act. We believe the President's decision shows conclusively that he followed the above process quite precisely. In the circumstances, for the reasons set out, we dismiss Appeal Grounds No 7 and No 8. Mr O'Farrell submitted that, having decided that "it would not be fair or practicable to impose reinstatement",54 the only part of the ILO Convention then relevant for the President's purposes was Article 12, the operative part for present purposes being:
In coming to any conclusion about the proper application of Article 12 in the circumstances before him, Mr O'Farrell submitted, it was necessary for the President to consider, which he did not do, the expression "national law and practice". Had he done so, Mr O'Farrell suggested, he might have been led to consider the judgment of Wilcox CJ of the Industrial Relations Court of Australia in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233. In that case, after referring to Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, His Honour observed (p. 244) that "in assessing compensation for a breach of s170DC [of the Industrial Relations Act 1988 (C'wlth.)] it is appropriate to consider what would have been likely to occur if that breach had not occurred" and then, a little further on, "on the other hand, it would be unrealistic for a court automatically to assume that, if this employer had complied with s170DC, the employee's employment would have continued indefinitely". His Honour also went on (p. 246), Mr O'Farrell reported, to refer to the judgment of Black CJ in Byrne v Australian Airlines Ltd (1994) 120 ALR 274, 285 in which the Chief Justice said:
Bostik and Byrne, Mr O'Farrell submitted, are important in identifying the "national law and practice" that the President ought to have considered when he applied Article 12 of the ILO Convention in the present case. At its highest, Mr O'Farrell asserted, "national law and practice" in relation to severance payments, in the circumstances of this case, could amount to no more than the payment in lieu of notice that Mr O'Connor had already received because he was not covered by an award and there was nothing in his contract of employment that gave him the "added measure of security of employment" referred to by Black CJ in Byrne. In effect, Mr O'Farrell said, the decided cases limit to his contractual rights alone any claim Mr O'Connor might have made in the absence of a right to claim additional compensation according to "national law and practice". In Australia, Mr O'Farrell submitted, redundancy excepted,55 there is no "national law and practice" relating to severance payments.56 In any event, Mr O'Farrell contended, the amount of compensation awarded by the President, based on four weeks pay for each year of service,57 is manifestly and extremely excessive. In that context, he continued, it is important to recognise that the only complaint upheld by the President was that "Mr O'Connor was denied procedural fairness in that he was not provided an opportunity to defend himself"58 - there was no finding of substantive unfairness or of redundancy. In those circumstances, Mr O'Farrell argued, some guidance is available from the thrust of Wilcox CJ's observations in Nicolson that, on the facts in the present case, it is appropriate to consider what would have been likely to occur if Mr O'Connor had been given an opportunity to be heard. Is it likely, Mr O'Farrell posed rhetorically, that Mr O'Connor would have remained with his employer or that he would have received, in any case, more than his period of notice? The facts and circumstances of this case, Mr O'Farrell submitted, do not justify an award based on four weeks for each year of service because, on the basis of Nicolson, it is inconsistent with and fails to take into account "national law and practice"; it fails to recognise that as to amount of compensation the Commission acting pursuant to Section 31(1) of the Act "cannot be at large";59 and, finally, the standard adopted by the President is one for which there is little, if any, precedent within the decisions of the Commission itself. Mr Evans, arguing to the contrary, said that the President, having found that Mr O'Connor was unfairly dismissed and that reinstatement was not an appropriate remedy,60 was obliged to award compensation. So much, he said, is made plain by Article 10 of the ILO Convention. Not surprisingly, Mr Evans continued, the Act does not detail the mechanism for assessing adequate compensation in circumstances of the kind that were before the President. However, he said, guidance is available from the decided cases - in particular, Gregory v Philip Morris Ltd (1988) 80 ALR 1988. In that matter, Mr Evans continued, where the court was faced with quantifying damages in circumstances not unlike those that confronted the President, Wilcox and Ryan JJ observed that (p. 483):
Their Honours, after assessing the past wages lost by Gregory for the six months period between the date of his dismissal and commencement of the trial, went on to say:
Those observations, Mr Evans submitted, show that while the quantification of damages in the circumstances is not an exact science, the principle to be applied is one that involves a comparison of the employee's position "as it was after his dismissal with the position [in] which he would have been placed if he'd not been wrongly dismissed."61 Further support for that principle, he continued, is found in Bostik where, in upholding an appeal from Keely J at first instance, Sheppard and Heerey JJ said (p. 33):
The case is also significant, Mr Evans contended, because Sheppard and Heerey JJ found no error in Keely J's assessment after considering "the evidence put at first instance, the absence of cross-examination in relation to much of it and the absence of submissions about the overall amount".62 In the current matter, Mr Evans said, "there is not one jot of cross-examination in relation to my client in relation to the relevant evidence".63 That evidence, Mr Evans submitted, was clearly before the President in the form of Exhibit E4 and Mr O'Connor's oral explanation of the calculations there set out.64 In brief, he said, those figures, which were unchallenged, show that, based on the salary Mr O'Connor was earning at the time of his second dismissal, ie. $102000, his immediate loss per year, less future expected earnings, was $39400 - a loss that would continue for some time. At the time of giving evidence, Mr Evans continued, Mr O'Connor was 43 years of age with an expected working life of either 17 or 22 years, depending on whether he should decide to retire at 60 or 65 years of age. However, he argued, account must also be taken of the notorious fact that, in Tasmania, it is very unlikely Mr O'Connor could regain employment at his former salary level, particularly against a background of unjustified termination. In the circumstances, Mr Evans asserted, it could not be remotely suggested that the amount actually awarded by the President was excessive. Admittedly, he went on, the mechanism that the President adopted is arguably inconsistent with Gregory v Philip Morris. However, Mr Evans said, the President's approach does recognise what Mr O'Connor was likely to have obtained if the matter of his termination had proceeded properly on the basis of redundancy - albeit "at the very bottom level of the sort of range of damages that Mr O'Connor really was entitled to."65 We begin our consideration of the issues put to us in relation to Appeal Grounds 9 and 10 by observing, in the first place, that we do not share Mr O'Farrell's certainty that where reinstatement is found to be impracticable, Article 12 of the ILO Convention is the relevantly applicable provision. Article 10, as we comprehend it, deals with "payment of adequate compensation or such other relief as may be deemed to be appropriate" in circumstances where, like those of the present case, there is a finding to effect "that termination is unjustified". Article 12, however, deals with entitlement to "a severance allowance or other separation benefits" in circumstances where "employment has been terminated". We believe that, properly construed, each Article stands alone because each deals with a separate issue - compensation or other relief related to unjustified termination in the case of Article 10 and severance allowances or other separation benefits related to termination of employment in the case of Article 12. That distinction, it seems to us, reflects the fact that Article 10 concerns itself with circumstances in which there is found to be no valid reason for the termination, whereas Article 12 is not so conditioned. The President's Reasons for Decision show that he was conscious of this distinction because he made specific findings in relation to both Article 10 - "I find that ... Mr O'Connor was unfairly dismissed from his employment with Capital Hill Corporation Pty Ltd" - and Article 12 "I accept that [Mr O'Connor had not been made redundant] given that Mr O'Connor was an employee of Capital Hill Corporation Pty Ltd, not Trident Consolidated Industries."66 In our view the President's findings clearly demonstrate that he regarded Article 10 as being, in the circumstances, the appropriate and relevant prescription of the ILO Convention. We believe, for reasons set out above, that he was right to do so. Because the expression "national law and practice" appears in both Articles 10 and 12, we agree with Mr O'Farrell (even though he was talking about Article 12) that the President, in applying Article 10, was obliged to take "national law and practice" into account in determining the form of his order. While the President made no specific mention of the phrase "national law and practice" in his decision, he certainly made it plain that "I am satisfied that Articles 4, 7, and 10 should be taken into account in determining the remedy to settle this matter." 67 That statement, in our view, positively contradicts Mr O'Farrell's submission that the President failed to take account of "national law and practice" in coming to his decision regarding an appropriate order. We turn now to consider what the expression "national law and practice" actually connotes in terms of its proper application in the circumstances that were before the President. In that regard, in brief, Mr Evans, relying on Gregory and Bostik, urged us to adopt a wide interpretation of the phrase, ie. a comparison of Mr O'Connor's position as it was after his dismissal, with the position in which he would have been placed had he not been wrongly dismissed. Mr O'Farrell, however, relying on Nicolson, Bostik and Byrne, urged us to take a somewhat more narrow approach, ie. a consideration of what would have been likely to occur had Mr O'Connor not been dismissed in circumstances where there was no "added measure of security of employment" such as award or contract provisions. In general, we do not see any essential inconsistency in the thrust of the parties' submissions regarding "national law and practice" in the context of Article 10. However, we agree with Mr Evans that assessment of compensation "is not an exact science" and, as the decided cases tend to show, the outcome will depend upon the facts and circumstances of each particular case. It might also be the case, as Mr Evans suggested68 , that a tribunal may be empowered to consider all three forms of remedy, ie. compensation, period of notice and severance allowance in relation to an unjustified termination; but we do not attempt to decide that point. We do not, however, accept Mr O'Farrell's submission (assuming it is relevant to Article 10 as distinct from Article 12) that, in terms of Byrne, Mr O'Connor had no "added measure of security of employment". We think that ingredient is to be found in the several Articles of the ILO Convention and, in particular concerning the current matter, Article 7, ie. "the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made". Article 7 is one that the President specifically took into account "in determining the remedy to settle this matter". Indeed, the presence of the ILO Convention in Section 31(1A) of the Act and the rights thereby incorporated lead us to say that, having regard to the President's finding that Mr O'Connor was unfairly dismissed, we do not agree with Mr O'Farrell's assertion in Appeal Ground 9(e) that Mr O'Connor "had no legal entitlement to receive compensation in excess of his entitlements to notice under his contract of employment or, alternatively, under Section 47(2) of the Act." The same reasoning leads us to conclude, in relation to Appeal Ground 9(f), that the President did not err in failing to take into account that, under Mr O'Connor's contract of employment, Capital Hill was entitled to dismiss him with one month's notice because, as we see it, the exercise of that right, in the case of the dismissal being contested, was always subject to Section 31(1A) and the ILO Convention. In Appeal Ground 9(a) Mr O'Farrell contended that the President erred in awarding compensation, on the basis of certain specified factors, when he "had found only that the applicant had been unfairly dismissed as a result of being denied procedural fairness."69 On the basis of the submissions that Mr O'Farrell put to us, we understand his focus here to be that the President erred because he awarded compensation on the basis of a finding of denial of procedural fairness only, there being no finding of substantive unfairness.70 In our opinion, having found that Mr O'Connor was unfairly dismissed contrary to his right under the ILO Convention, particularly Article 7, and that reinstatement was impracticable, the President was quite correct in going to, as he did, Article 10 and the question of compensation. He was obliged to do that, we think, by Section 31(1A) of the Act. Furthermore, we do not agree with Mr O'Farrell that there was an absence of substantive unfairness. We take that view because, in dismissing Mr O'Connor without giving him an opportunity to defend himself, Capital Hill ignored his right at law, by reason of Article 7, that his employment should not be so terminated. In the circumstances, we believe Capital Hill's denial of Mr O'Connor's right at law constituted substantive unfairness. Returning to the expression "national law and practice" it is quite clear that the President's decision contains no reference to the case law mentioned above. We pause here, for a moment, to say something about that omission in particular and, in general, about the way the parties conducted their cases at first instance. In the first place neither Mr Evans nor Mr O'Farrell put to the President any specific submissions on the question of "national law and practice" nor did they give him the benefit of any of the case law that they put to us. Second, Mr O'Farrell did not put anything to Mr O'Connor by way of cross-examination concerning the latter's oral and documentary evidence as to his loss of earnings. Finally, Mr O'Farrell appears to have put no submission to the President (in the alternative to his argument regarding jurisdiction) in reply to or in rebuttal of Mr Evans' submission that, as to compensation, his client was entitled to the benefit of a "total approach", ie. "in looking at the amount that ought to be paid to my client, one should look at, a) the period of pay in lieu of notice, b) compensation to cover the other two heads [Article 10 and Article 12]."71 We are prepared to accept (what, in effect, were the submissions of both parties) that the methodology used by the President in applying Article 10 (albeit that, in our view, he was merely responding to submissions put to him at first instance without the benefit of any advice on the point) appears to be inconsistent with the general thrust of the line of judicial reasoning put to us on appeal. However, we do not believe our consideration should end there - rather, we think, our next step, appropriately, is to examine the outcome of the President's deliberations for the purpose of determining whether his methodology led him to err (if he erred at all) in substance as distinct from mere process. The methodology used by the President in calculating the amount of compensation that he ultimately ordered, ie. $26153.85, produced an outcome equivalent to, in round terms, just over 13 weeks pay at an annual salary of $102000.72 The sum awarded by the President was considerably less than that for which Mr Evans contended (and for which he continued to contend before us), as Mr Evans himself noted.73 While we accept the President decided that he should award Mr O'Connor compensation on the basis of certain factors that he specified in his Reasons for Decision and by reference to years of service, it is very clear that, as to outcome, he heavily discounted the claim put to him on Mr O'Connor's behalf. As a matter of conjecture it is arguable that, had the President applied the approach suggested by Mr O'Farrell, ie. by asking himself how long Mr O'Connor might have remained in employment with Capital Hill were it not for the dismissal, he might well have decided on a period of 13 weeks or thereabouts because Mr O'Connor's continued future with the company was quite uncertain. While there is no direct evidence to that effect in the transcript at first instance, the record of that proceeding, nonetheless, is replete with evidence that Capital Hill had lost confidence in Mr O'Connor, a fact that the President himself noted in his decision, ie. "I am satisfied that the relationship between the employer and Mr O'Connor is broken to such an extent that it would not be fair or practicable to impose reinstatement ..." Moreover, again concerning the amount of compensation awarded and the process used by the President to achieve that outcome (Appeal Grounds 9(b), 9(c) and 9(d)) we say this: it was open to Mr O'Farrell, at first instance, to cross-examine Mr O'Connor in relation to the evidence he gave about his perceived loss of earnings; he could have, had he so wished, addressed Mr Evans' submissions concerning compensation, at least in the alternative to his own submission that there was no such entitlement; and, finally, he had opportunity, had he so desired, to address the President on the matter of "national law and practice", since both Articles 10 and 12 were put in issue by Mr Evans. The fact that he did none of those things does not, in our opinion and noting a similar circumstance that arose in Bostik, to which Mr Evans referred us, operate to prevent the President from taking the decision he did given that as to outcome it was consistent with the approach suggested by the decided cases. In the circumstances, regarding Appeal Grounds No 9 and No 10, we are satisfied that, while the President in relation to "national law and practice" appears to have gone about his task in a different way from that outlined in the decided cases that were put to us, no error of substance was thereby occasioned because, in our view, the outcome of his deliberations was not inconsistent with the approach that they suggest. We also agree with Mr O'Farrell that, on the basis of the approach suggested by the decided cases, Mr O'Connor arguably had no legal entitlement to compensation calculated on the basis of length of service or by reference to such factors as "the method of calculating redundancy payments for other employees of the Group, the high level of the applicant's appointments ... and the difficulty ... in obtaining similar employment". That said, however, we believe for reasons discussed above that, in the circumstances of the President's findings, Mr O'Connor was otherwise entitled at law to compensation by reason of Article 10 of the ILO Convention. In their totality our considerations lead us to the conclusion that while the President arguably erred in process (to the extent that he applied "national law and practice" in a manner apparently inconsistent with the approach suggested by the cases put to us) he did not err as to substance, in terms of the primary assertion in Appeal Ground No 9 that "the President erred in awarding compensation to the applicant in the sum of $26,153.85, or at all ..." We also add, again for reasons discussed above, that we do not agree with Mr O'Farrell's contention that "the President erred in that the compensation awarded ... was manifestly excessive in all the circumstances ..." Finally, as a matter of caution, we observe that the above discussion deals with the question of "national law and practice" only in relation to compensation (Article 10). It seems to us that "national law and practice" in relation to a severance allowance (Article 12) might require different considerations altogether. We accordingly dismiss Appeal Grounds No 9 and No 10. In conclusion, for all the foregoing reasons, we dismiss Capital Hill's appeal in its entirety and, pursuant to Section 71(13)(a) of the Act, confirm the President's decision of 27 March 1997. The appeal brought by Mr O'Connor in respect of his application for an extension of time in which to apply for a hearing regarding the first alleged unfair dismissal relies on the following grounds:
Mr Evans submitted that the President adopted the wrong approach in concluding that the invidious position in which Capital Hill put Mr O'Connor regarding the first alleged unfair dismissal was an unacceptable explanation for the delay that occurred between that event and his subsequent application to the Commission for a hearing. The principles foreshadowed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349, Mr Evans inferred, are simply matters that the courts give consideration to in the overall totality of each decision concerning applications for extension of time. The absence of any particular factor, he said, does not mean that the tribunal member cannot exercise an appropriate discretion. That proposition, he argued, draws support from the decision of the Full Court of the Supreme Court of Tasmania in Knight v Smith [1975] Tas SR 83 in which it was held on appeal (in relation to the power of a judge to extend time under the Limitation of Action Act 1965) that "the judge is not bound first to consider the explanation for delay and to consider whether it be just to extend time only if he finds that explanation acceptable." In that case, Mr Evans continued, Neasey J said (p. 92):
Having regard to those considerations, Mr Evans submitted, it is clear that, in the present case, the President gave too much weight to what he considered to be an unacceptable explanation even though, Mr Evans argued, the facts demonstrate that it was quite a reasonable explanation. But in any event, he went on, even if one should accept the President's view of the explanation the next step, which he did not take, was to weigh that factor very carefully against all the other factors, including the fact that Mr O'Connor had a merit case that was beyond dispute. Furthermore, Mr Evans said, in the words of Sangster J in Mavra v Logan, Serdaridis and Pertl (1980) 24 SASR 567, 570, "the exercise of a judicial discretion in a particular case is not to be fettered by any 'absolute or inflexible rules' laid down in other cases" and, later on, regarding the question of delay (p. 576), "In my opinion this factor - like all others - is a 'matter to be considered' (to use the words of Bray CJ in Ulowski v Miller74) and is not necessarily decisive." Seen in this light, Mr Evans submitted, the President looked at the question of delay in a somewhat inflexible way because he made it the decisive issue rather than taking in account all the circumstances. Mr Evans closed his address on this issue by submitting that even though the President found Mr O'Connor's explanation regarding delay unacceptable, had he made an overall assessment of the relevant factors, especially that of merit, he would have come to the conclusion that his discretion should have been exercised in the applicant's favour. In reply Mr O'Farrell agreed with Mr Evans' contention that the President, in considering the application before him, was required to undertake a weighing exercise. However, he continued, as House v The King (1936) 55 CLR 499, 504-505 demonstrates,75 that "weighing exercise" is a matter for the person exercising the discretion, unless it can be shown that some error has been made. It is not enough, Mr O'Farrell contended, to simply say that the President put too much weight on one matter and not enough on other matters. In the present case, Mr O'Farrell asserted, the President's decision comprises a classic example of the exercise of a statutory discretion. The President, he said, had all the facts and circumstances before him; he saw Mr O'Connor in the witness box; he heard his cross-examination; he made up his mind about him; and he decided that, in the exercise of his discretion, he should not extend time.76 In support of his submission in that regard, in particular concerning the duty of a court or tribunal when considering an appeal against an exercise of discretion, Mr O'Farrell relied on the Tasmanian Supreme Court case of Motor Accidents Board v Duc Thang Lee (Unreported)77 and the well known dictum of the High Court (per Dixon, Evatt and McTiernan JJ) in House v The King. In any event, Mr O'Farrell said, the President, after setting out the appropriate tests, obviously applied his mind to the relevant aspects of the matter as his decision shows:78
The President's reference to "the question of prejudice to the employer" and "the sixth matter", Mr O'Farrell went on, show beyond doubt that he weighed things up in the manner submitted by Mr Evans as being appropriate at law. In the circumstances, Mr O'Farrell said, any suggestion that there was some miscarriage of justice is fanciful. The rationale of limitation periods, Mr O'Farrell continued, was the subject of recent (October 1996) discussion in the High Court case of Brisbane South Regional Health Authority v Taylor 139 ALR 1 at 8 where McHugh J observed that:
Those four rationales, Mr O'Farrell contended, must be taken into account in determining whether to exercise a discretion to extend time. In the words of McHugh J (p. 10), Mr O'Farrell went on, "the applicant [must] show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question" and that "he or she has the positive burden of demonstrating that the justice of the case requires that extension". Having regard to the four rationales it is clear, Mr O'Farrell submitted, that the President was entirely correct in his analysis of how the discretion should be properly exercised in the present case. We agree with Mr O'Farrell's contention that the manner in which an appeal against an exercise of discretion should be determined is governed by the well known principles set down in the High Court case of House v The King [1936] 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ, ie.:
When, in light of the above authority, we view the facts and circumstances surrounding the subject-matter of this appeal, it is apparent from his decision that the President had before him Mr O'Connor's oral evidence as to the circumstances of his first dismissal79 and his acknowledgment under cross-examination that he was aware at the time of his right to approach the Commission concerning the matter.80 In considering the facts and circumstances of Mr O'Connor's application, the President set out in his decision and applied the six principles determined in Hunter Valley. We do not understand that there is any dispute between the parties as to the appropriateness, in the circumstances, of those principles. The decision under appeal discloses that, as to his "explanation of the delay", the President found that "Mr O'Connor understood the requirement that an application in respect of termination of employment had to be made within 14 days" of the event but that he "decided to wait and see how things turned out" thereby allowing more than 14 days to pass before deciding to take action. The evidence shows that Mr O'Connor accepted the new position for family reasons because he believed it was an "accept it or reject it" situation and that, had he taken it to the Commission, "I would have been unemployed immediately".81 In cross-examination, Mr O'Connor conceded that, apart from any belief he may have held about what might have happened to him had he taken the matter to the Commission, he elected not to seek the "Commission's remedies".82 In the circumstances it was clearly open to the President, having had the benefit of seeing and hearing Mr O'Connor giving evidence on his own behalf, to conclude, as he did, that "I do not believe that Mr O'Connor was coerced into a position where he had no choice" and to then further conclude, based on the other evidence before him, that Mr O'Connor "relinquished his entitlement to make an application pursuant to section 29(1A) of the Act in respect of his previous position."83 In light of the considerations to which we refer above, it is our opinion that the President did not err in finding that, in terms of Appeal Ground 1(a), there was not an acceptable explanation for the delay in filing an application concerning the first termination. Returning to the other Hunter Valley principles, the President's decision discloses that, as to merit, he found that although there might have been merit in Mr O'Connor's case, his lack of action and acceptance of the new position told heavily against him concerning his application for an extension of time.84 We construe the President's statements in that regard as a finding for Mr O'Connor on the question of merit but a finding against him regarding action taken to actively contest the termination. The President concluded his consideration of the relevant principles by observing that prejudice was a neutral factor and the question of "fairness as between the applicant and other persons in a like position" was, in the circumstances, irrelevant.85 In our view it is abundantly plain that the President did, in fact and contrary to Mr Evans' submissions, weigh all the relevant factors in the context of an overall assessment. In so doing, it does not appear to us that he gave undue weight to the question of delay or that he overlooked what Mr Evans referred to as "the fact that Mr O'Connor had a merit case that was beyond dispute". For those reasons we dismiss Appeal Ground No 1(b). In all the circumstances we are of the view that, in terms of House v The King, the President made no error in exercising his discretion. For that reason, having regard to what we have said above, we dismiss Mr O'Connor's appeal and, pursuant to Section 71(13)(a) of the Act, confirm the President's decision of 27 March 1997.
B R Johnson Appearances: Date and Place of Hearing: 1 T6563 of 1996. |