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Tasmanian Industrial Commission

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T8004 and T8013

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against an order

Betta Milk Co-op Society Limited
trading as Betta Milk

(T8013 of 1998)

and

Philip Tony Patterson
(T8004 of 1998)

 

FULL BENCH:
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER R J WATLING
COMMISSIONER P A IMLACH

HOBART, 31 May 1999

Appeals against an order

Appeals against an order handed down by President F D Westwood on 10 September 1998 in matter T6945 of 1997 - appeals dismissed - decision and order confirmed

REASONS FOR DECISION

Introduction

The appeal and cross-appeal comprising these proceedings arise out of the President's decision of 10 September 1998 in matter T6945 of 1997. That case concerned an application by Mr Philip Tony Patterson regarding the alleged termination of his employment on 18 April 1997 by Betta Milk Co-op. trading as Betta Milk.

The brief facts of this matter are as follow.1 Betta Milk employed Mr Patterson as a cool room attendant at its Launceston plant. Part of his duties involved loading and unloading bulk supply and domestic supply delivery vehicles. Mr Wright, a contractor, was the driver of a bulk supply delivery truck. There was evidence of a workplace history of banter between the two individuals that apparently became personal from time to time.

On 18 April 1997 Mr Wright evidently spoke to Mr Patterson about his new dentures, referring to him as Chad (as in Chad Morgan). Mr Wright perhaps indulged in other name-calling and comment. Mr Patterson took exception to Mr Wright's remarks and asked the plant manager, Mr A Vodak, to intervene. After making inquiries of another employee, Mr Vodak formed the view that there was nothing serious about the exchange between Patterson and Wright.

Mr Patterson, however, felt physically threatened. He told Mr Vodak that he did not have to put up with Mr Wright's behaviour. Mr Patterson then left the workplace, saying he intended to go and find out about his rights. When Mr Patterson returned to the workplace about 45 minutes later, he spoke to Mr Vodak. After some possibly heated discussion Mr Patterson said Mr Vodak told him he was sacked. Mr Patterson's subsequent termination certificate showed the reason for dismissal as "failing to do designated duties".2

During the hearing of 25 May 1998 and afterwards the President:

  • Granted leave to Mr L Harper, a legal practitioner, to appear;3

  • Refused a motion by the employer to strike out the application for want of prosecution;4

  • Found that Mr Patterson did not deliberately resign from his employment when he walked off the job on 18 April 1997;5

  • Found that Betta Milk unfairly dismissed Mr Patterson;6 and

  • Ordered Betta Milk to pay Mr Patterson an amount of compensation equal to six weeks' pay at the rate of $394.70 per week.7

Appeal Grounds

Betta Milk (the appellant), appealing pursuant to Section 70(1)(b) of the Industrial Relations Act 1984, alleged that the President erred by:8

1. Finding that Betta Milk did not have a valid reason to terminate Mr Patterson's employment.

2. Finding that Betta Milk did not afford Mr Patterson procedural fairness.

3. Finding that Betta Milk failed to treat Mr Patterson fairly.

4. Giving disproportionate weight to Mr Patterson's evidence compared with that of Betta Milk's four witnesses.

5. Taking into account management prerogative, a matter not within the Commission's jurisdiction.

6. Granting a legal practitioner leave to appear, contrary to the Industrial Relations Act 1984.

7. Denying Betta Milk natural justice in refusing to strike out Mr Patterson's application for want of prosecution.

8. Failing to properly take into account, as required by Section 31(1A) of the Industrial Relations Act 1984, Part II of the International Labour Organisation's Convention concerning Termination of Employment at the Initiative of the Employer (the ILO Convention).

9. Making a finding not supported by the evidence.

10. Ordering compensation that was excessive in all the circumstances.

Mr Patterson (the cross-appellant), in his appeal, alleged there was no evidence capable of supporting the President's finding that "it is unlikely that Mr Patterson would have remained employed by Betta Milk at Launceston for more than 6 weeks after the date on which he was dismissed".9

Appeal Principles

The parties agreed that, in determining these appeal proceedings, we should apply the well-known principles established by Dixon, Evatt and McTiernan JJ in the High Court case of House v The King (1936) 55 CLR 499 at 504-505:

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

We apply those principles in determining the issues put to us.

Approach

Mr Cameron told us that much of what he had to say necessarily canvassed more than one appeal ground.10 We identify those circumstances by way of remarks or footnotes where relevant.

Valid Reason for Termination (Appeal Ground 1)

Termination at the Initiative of the Employer (Appeal Ground 8)

Findings not Supported by the Evidence (Appeal Ground 9)

We begin our consideration of these issues with the appellant's Appeal Ground 8 and the ILO Convention. If there was no termination at the initiative of the employer, it will not be necessary for us to consider the remaining grounds of appeal. Section 31(1A) of the Industrial Relations Act 1984 obliges the Commission, before "deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment", to take into account the standards of general application contained in Part II of the ILO Convention.

Part II of the Convention must be read and understood having regard to the definition of "termination" and "termination of employment" set out in Part I - Saarinen v University of Tasmania (1997).11 Article 3 of Part I prescribes that:

"For the purpose of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer."

Andrew S Cameron for the appellant:

The Commission's obligation pursuant to Section 31(1A) of the Act only arises in circumstances where termination occurs at the employer's initiative. In the present case the President did not need to determine issues concerning a valid reason for termination or procedural fairness, because Mr Patterson initiated his own termination. He resigned his employment by wilfully leaving the workplace contrary to his contract of employment. Consequently, the employer did not initiate the termination.

The President, in his decision, referred to the words used at the time by Mr Patterson and other witnesses:12

"Did Mr Patterson resign his employment?

The evidence of those present when Mr Patterson walked out understandably produced some differences of opinion as to what Mr Patterson actually said. Mr Vodak recalled Mr Patterson saying 'I'm finished'; Mr Reardon recalled him saying 'I've had enough'; Mr Wright recalled him saying 'I don't have to put up with this any more', and Mr Patterson claims he said 'I don't have to put up with this, Andrew'. I suspect and conclude it was the latter, as the evidence of Mr Reardon and Mr Wright more closely coincides with that of Mr Patterson than it does with the words remembered by Mr Vodak. I therefore find Mr Patterson did not deliberately resign his employment at that point."

At the hearing the President had the opportunity to listen to both sides of the argument. He saw each witness and he was able to assess their credibility and demeanour. The credibility and demeanour of the employer's witnesses, especially that of Mrs Robinson, is particularly important.

The Commission must read and understand the words spoken by the witnesses in their proper context. When Mr Wright used the words referred to by the President he was not quoting directly. He was answering a question in cross-examination about what happened after Mr Patterson made remarks concerning his work ethic.13 Mr Wright's full statement was that:14

"Well, you've got to understand, it's fairly hard to recollect specifically but as far as I probably would have remarked back to him again, what's going on Chad, or words to those effect and the next minute I realised that his comment, I don't have to put up with this any more and walked off."

At the time, according to Mr Wright, Mr Patterson walked off the premises without any provocation.

The evidence of witnesses Reardon and Vodak displays an identical understanding. Mr Reardon's complete statement was "Yes, he just said, I've had an effing 'nough and that was it and walked out"15 and that of Mr Vodak was "The next thing I knew Philip put his trolley down and said, I've finished, I've had enough of this shit, and walked out."16 The President's references omit a very important contextual consideration that was a unanimous feature of the evidence of all three witnesses. They all understood that Mr Patterson was walking off the job and did not intend coming back.

Having next posed for himself the question whether Mr Patterson's departure was reasonable in the circumstances, the President concluded that:17

"His only alternatives, I think, were to remain at his work and not react; or to remove himself from the unloading operation for a short time to allow things to cool down."

The President's conclusions stretch the facts regarding the nature of the incident. Admittedly there was banter, but there was no physical confrontation between Mr Wright and Mr Patterson. The President correctly observed that he thought "Mr Patterson was frustrated and annoyed at having lost the war of words with Mr Wright". However, he then went on to add that he also thought Mr Patterson "was concerned that he might be involved in a fight with Mr Wright with the consequences that would flow from that."18 The witnesses who were present at the time said there was nothing like that at all. It was simply the usual banter that occurred every time Mr Wright came over from Burnie.

There was no evidence before the President that Mr Patterson considered either of the suggested alternatives. The evidence is that he just put down his trolley and walked off the job in a manner that was indicative of a resignation. Mr Vodak, the manager, heard Mr Patterson say "I've finished" and he acted accordingly, believing that Mr Patterson was leaving and would not be coming back.

It was not only the manager and witnesses Wright and Reardon who believed Mr Patterson had resigned. After leaving the workplace Mr Patterson started to walk towards the Launceston city centre. At the time another Betta Milk employee, Mrs Robinson, was driving past on Company business and offered him a lift.

Mrs Robinson's evidence is particularly telling because it corresponded with other evidence to effect that Mr Patterson said he did not have to put up with the "banter" any more. In summary, she said Mr Patterson told her he had left Betta Milk "because he couldn't take any more of the shit". Mrs Robinson said he also told her that he was going to Redline Coaches to look for work. 19

Concerning whether Mr Patterson left the workplace to get advice about his rights or to look for more work at Redline Coaches, the President concluded that, "the evidence is conflicting on this point".20 He recorded that conflict in the following terms:

"Mrs Robinson said Mr Patterson was going to see if there 'was any more work' at Redline Coaches. Mr Patterson denies that was the case as he knew there was no full time work available there and claims that he told Mrs Robinson that he was going to the 'DLI' and that the Redline people would know where the 'DLI' was."

Mr Patterson's evidence-in-chief is that he was and had been a part-time employee at Redline Coaches for four years.21 In cross-examination he acknowledged that Redline Coaches offered him a full-time job six months earlier.22 However, he then said that although "there wasn't a full-time job at Redline"23 "there could be a full-time job coming up in freight at the end of June".24 Mrs Robinson's evidence on this point was very clear. Mr Patterson was going to Redline Coaches to see "whether there was more work".

All that evidence was before the President. There was also evidence before him that Mr Patterson did not ask permission to leave the workplace25 and was not due for a break.26 The lunch break, normally taken between 11:00am-12:00noon, was over.27 Mr Patterson did not tell his manager, Mr Vodak, where he was going.28 Because he was due to do deliveries that afternoon, he left Mr Vodak short-handed.29

Notwithstanding all that evidence however, the President, in posing the question "Did Mr Patterson resign his employment?", rejected the employer's submissions and did not refer at all to the evidence of Mrs Robinson. In addition he found that whether Mr Patterson went to both Redline and "DLI" (the Workplace Standards Authority) "is I think irrelevant".30

It is true that the President, in recording in his decision the substance of Mrs Robinson's evidence, observed that she could not remember, one way or another, what had happened.31 Mrs Robinson's evidence however, contrary to the President's record, shows that her memory was in fact quite clear as to what she and Mr Patterson discussed.32 Yet, the President dismissed her evidence because of poor memory. In doing so, he did not refer at all to the fact that Mr Patterson told Mrs Robinson he was going to look for work at Redline Coaches. According to her evidence, Mr Patterson's recollections were incorrect.

In Mrs Robinson the President had before him a witness who was not at the workplace when the incident between Patterson and Wright occurred. She knew nothing of those events. Mrs Robinson also denied in cross-examination that she was only giving evidence because her continued employment was under threat.33

In the circumstances, the President did not give enough weight to the evidence that was put to him on the employer's behalf. In particular, in relation to Mrs Robinson's evidence, he did not take into account a material consideration. There was no evidence of physical threats or intimidation by Mr Wright. All the witnesses present at the time understood from his words and actions that Mr Patterson resigned. In short, the evidence shows that Mr Patterson resigned.

This is not a case in which the evidence required the President to exercise his discretion. Whether there was a termination at the initiative of the employer is mostly a question of fact. The evidence before the President indicated there was no such termination but, rather, a resignation. In coming to the decision that he did, in the circumstances, the President ignored the relevant facts.

Mr Harper argued that an employee who leaves a hostile work environment is not resigning, but merely protecting himself - Ipsa v Westgate Medical Centre.34 The President referred to that case in his decision.35 However, the case is not authority for the proposition advanced by Mr Harper. The only mention of the word "hostility" appears in the case head note. There was no hostility at the workplace when the termination occurred and the facts of the matter, as the Judicial Registrar found, did not relate to abandonment or resignation, but concerned a termination at the initiative of the employer. Mr Harper's contention that the case is persuasive is erroneous. The relevant fact situation is completely different from that which was before the President.

The President also concluded that, even though "Mr Patterson's actions were extremely rash", there were mitigating circumstances.36 The President identified some of those circumstances as a concern by Mr Patterson that "he might be involved in a fight with Mr Wright with the consequences that would flow from that."

There was no mention in Mr Patterson's application that he was fearful of getting into a fight or that there was a threat of physical violence. Indeed, there was no evidence before the President upon which Mr Patterson might reasonably have formed that view. In fact, Mr Patterson never mentioned such a fear until the day of the President's hearing. None of the witnesses saw any physical confrontation between Wright and Patterson. Mr Wright did not use abusive words or make any threats. Indeed, Mr Wright, in cross-examination, denied that he "got close to Phil Patterson".37 The evidence does not disclose any mitigating circumstances in the form of a threat of physical violence.

After noting that Mr Patterson "should have been alert to the fact that he was leaving his colleagues short-handed and placing his job in jeopardy", the President ventured to suggest that "in the heat of the moment those oversights can be excused".38 The evidence shows there was no such heat.

Mr Vodak's evidence is that the exchange between Patterson and Wright was not particularly heated39 and did not get out of hand.40 Mr Vodak said he was caught by surprise when Mr Patterson walked off the job.41 Mr Patterson clearly believed that Mr Vodak had to have known what he (Patterson) and Wright were talking about because "he was at the back of the trailer, just as you come off the ramp in the cool room".42 Mr Wright's evidence is that Mr Patterson surprised him too, by walking out.43 As for Mrs Robinson, Mr Patterson said she picked him up "probably four to five minutes" after he left the workplace.44 Mrs Robinson's evidence is that "he was a little agitated" but "not terribly upset".45 There is nothing in the evidence capable of supporting the President's "heat of the moment" conclusion.

In any event resignations made in the heat of the moment can still constitute a resignation - Avery v Air Design Pty Limited (1996).46 In that case Patch JR held that the employer did not force the applicant into resigning. Rather, the applicant resigned by way of an impetuous and angry act. Furthermore, clear words of resignation will be sufficient to defeat a later claim of unlawful termination. It is not necessary for a resignation to be in writing to be effective - Cartmel v Skilled Engineering Pty Limited (1995).47

All the evidence supports the employer's contention that Mr Patterson resigned from his employment. Consequently, his termination was not one effected at the initiative of the employer.

If, however, the Commission should find that Mr Patterson's termination of employment was a termination at the initiative of the employer then, for reasons already advanced, there was a valid reason for that termination. So much was put to the President at first instance. In the alternative, if Mr Patterson did not resign from his employment, then his actions at the time justified his termination.

Mr Patterson left his place of work without permission. In doing so, he left the employer shorthanded. Mr Vodak had to do his work and move other staff around to cover the situation. For those reasons, noting also that the President indicated in his decision that "in most ... circumstances the Commission would not condone an employee leaving the workplace without permission",48 the facts constituted a valid reason for termination of Mr Patterson's employment.

L Harper by leave for the respondent:

The President had the benefit of hearing the evidence and the opportunity to assess the demeanour and credibility of the witnesses. In circumstances where there is conflicting evidence it is not possible for a tribunal member to determine a matter without expressing a preference for the evidence of one witness over that of another. In this case the President preferred the evidence of Mr Patterson. The President's decision was clearly open to him and this Appeal Bench should not disturb that outcome.

The evidence does not support the appellant's contention that there was no physical confrontation between Mr Patterson and Mr Wright. To the contrary, it was clearly possible for such an incident to have occurred and that it was simply not seen by any of the witnesses. Mr Patterson's direct evidence is that the incident continued for "roughly about 10 minutes" and that Mr Wright "got into my face very physically"; that is, about "two inches away from my face in a threatening manner".49 Mr Patterson also said that "I felt threatened and I asked Mr Vodak to get the matter stopped" because "I thought there could have been a fight and I didn't want that because ... it is instant dismissal".50

Mr Wright, in his evidence in cross-examination, first denied that he got close to Mr Patterson.51 Later, however, he said he could not remember whether he had put his face close to Mr Patterson and told him that he was "just a boy around the place".52 The inference to be drawn from this evidence is that, rather than a failure of memory, Mr Wright did not want to admit to actions that he previously denied.

Mr Reardon agreed in cross-examination that, out in the truck, there might have been things said between Patterson and Wright that he did not hear because he was in the cool room.53 Mr Vodak, for his part, said he did not know what happened.54

Despite what the other witnesses said, Mr Patterson's evidence is that he felt intimidated and thought the incident might get physical. Mr Patterson's state of mind at the time he walked off the job was a relevant consideration. The President's acknowledgment of that relevance is consistent with the evidence, ie:55

"Although the evidence is somewhat conflicting on the point I think that Mr Patterson's version that he was confronted by Mr Wright and told that he was 'only the boy around the place' provides the most likely description of what occurred. I have come to that view mainly because Mr Wright was unable to remember whether or not such a circumstance occurred and Mr Patterson was quite certain about what had taken place. Neither Mr Vodak nor Mr Reardon saw any confrontation, but they said they could not see Messrs Patterson and Wright all the time."

The appellant generalises in asserting that when Mr Patterson walked off the job he was not coming back. There was no specific evidence before the President relating to Mr Patterson's intentions when he left the workplace. The evidence of witnesses Wright and Reardon tends to confirm that position. Their recollection is that Mr Patterson simply said something to the effect that "I don't have to put up with this any more" or that "I've had enough". In fact, Mr Vodak was the only witness who said he could recall Mr Patterson saying, "I'm finished".

The President's Reasons for Decision show he clearly weighed all this evidence.56 In doing so he did not simply accept Mr Patterson's evidence, but weighed it against the evidence of the other witnesses.

The appellant wrongly suggests that the President ignored the evidence of Mrs Robinson in coming to his decision. Mrs Robinson did not say that when Mr Patterson entered her vehicle he told her he had resigned or that he had left Betta Milk. Rather, her evidence is entirely consistent with that of Mr Patterson. Mrs Robinson recalled him simply saying he could not take any more of the banter from Mr Wright. Mr Patterson did not say whether he resigned or was terminated.

After taking into account the evidence of all the witnesses, the President found that, in effect, there were no unequivocal words used by Mr Patterson when he walked off the job. In those circumstances, the decided cases referred to by the appellant - Avery v Air Design and Cartmel v Skilled Engineering - do not assist the appellant. That is because, in both cases, the employees concerned used unequivocal words of resignation. Mr Patterson, however, did not use any clear or unequivocal words of resignation to terminate his contract of employment.

The President's decision was open to him on all the evidence. It was open for him to conclude that there was an incident between Patterson and Wright that was sufficient to justify Mr Patterson walking off the job. It was also open to the President to conclude that Mr Patterson's actions did not constitute an abandonment of his employment. In that regard the President's decision is clearly consistent with the evidence because Mr Patterson returned to work about 45 minutes later.

Findings

The appellant's first contention is that the President, in considering whether Mr Patterson resigned his employment, omitted to take into account the unanimous evidence of witnesses Wright, Reardon and Vodak. The effect of that evidence was that Mr Patterson walked off the job and was not coming back. Our perusal of the President's decision shows he noted that Mr Wright said Mr Patterson "walked off"57 and that Mr Reardon recalled Mr Patterson saying " 'I've had enough' and out he walked".58 The President also noted that Mr Vodak's recollection was that Mr Patterson said " 'I've had enough of this shit, and walked out' ".59

We agree with Mr Cameron that the President did not specifically refer to the fact that witnesses Wright, Reardon and Vodak all said Mr Patterson walked off the job. We do not believe it was necessary for him to do so. The President had already acknowledged that evidence in a manner that satisfies us he was alive to its significance. His decision shows that he properly recorded the different aspects of the evidence of each of the three witnesses. However, no doubt in an effort to be commendably brief, he evidently did not believe it was necessary to tediously repeat three more times the one common aspect of that evidence, ie the "walking off". In our opinion, looking at the whole structure of the President's decision, the approach he took was a permissible ellipsis. In the circumstances, it was not an omission of the kind referred to by Mr Cameron, ie a failure to take into account a material consideration. Accordingly, we reject the appellant's contentions to that effect.

We go now to the actual incident between Mr Patterson and Mr Wright. The appellant's contention is that, banter aside, there was no evidence before the President of any physical confrontation between the two employees. Consequently, there was no evidence upon which he could properly base his finding that it was reasonable for Mr Patterson to walk off the job.60 Mr Harper's submission, on the other hand, is that it was clearly possible for an incident to have occurred that the witnesses simply did not see.

The President's Reasons for Decision plainly disclose the evidence that he regarded as being relevant in this context. He noted that Mr Wright "could not remember whether he put his face close to Mr Patterson's face".61 He also observed that Mr Reardon, after telling Mr Vodak that Patterson and Wright were only " 'stirring each other up' " went on to add that " 'then they got a bit serious for a couple of seconds' ".62 In addition the President acknowledged that Mr Reardon, who did not see Mr Wright approach Mr Patterson, nevertheless said that they "were just at each other".63 Finally, he noted that Mr Vodak, who thought Mr Patterson was only joking when he asked if he had to put up with Mr Wright's comments, " 'didn't bother answering him' ".64

There is no doubt, in our opinion, that Mr Wright's evidence on this issue is equivocal. That is not a point that appears specifically in the President's decision. Nevertheless, it is clear that Mr Wright's demeanour and his relationship with Mr Patterson were high in the President's mind. That is because he noted that Mr Wright said he would not back down if harassed; that he was " 'abusive back to Mr Patterson' "; that "his banter with other employees was not as vindictive as his banter with Mr Patterson"; and that "he and Mr Patterson did not get on well together". 65

Mr Reardon's evidence plainly shows that, in addition to "stirring each other up", "they got a bit serious for a couple of seconds". That evidence, to our mind, connotes the possibility of something more serious than mere banter occurring between Wright and Patterson. Mr Reardon's evidence also appears to contradict the advice that he said he subsequently gave Mr Vodak. That is, that the banter between Wright and Patterson was not serious. Then there is the evidence of Mr Vodak who, on his own admission, initially ignored Mr Patterson's request for intervention - a fact that the President highlighted in his findings.66

In summary, we believe the evidence disclosed good reason to doubt that all of what occurred between Patterson and Wright was not serious. Indeed, we believe there was more than just a hint in the evidence that the relations between the two individuals, at least at one point during the course of the incident, went beyond mere banter.

In our opinion, the President did not need to satisfy himself beyond reasonable doubt that physical confrontation between Patterson and Wright actually occurred. It was enough for him to conclude that, on the facts, there were sufficient grounds upon which Mr Patterson could have formed a reasonable apprehension that such a confrontation might occur. The fact that it seems likely that the incident between the two individuals went beyond mere banter provides those grounds in our view.

We believe it was open for the President to conclude, as he did, that it was reasonable for Mr Patterson to walk off the job because "there was more heat in the banter between Mr Patterson and Mr Wright than should have been tolerated by the manager".67 We reject the appellant's contentions to the contrary.

The appellant's further contention is that, when Mr Patterson walked off the job, all three witnesses understood him to be indicating he was not coming back. Mr Harper described that submission as a generalisation that was unsupported by any specific evidence as to Mr Patterson's intentions at the time.

We observe that Mr Patterson's evidence clearly disclosed what he said his intentions were in leaving the workplace. As the President recorded in his decision (citing Mr Patterson in the quote):68

" 'Andrew [Vodak] didn't say anything again, so I put my trolley down, I walked around to the truck and got my jumper and I proceeded to walk into town to find out what my rights were.'

Mr Patterson said he was going to the 'Department of Labour and Industry' [Workplace Standards Authority] to see what his rights were and at that stage he did not know what they were."

Obviously, there is nothing in that evidence that confirms the appellant's submissions that Mr Patterson did not intend to return to the workplace. However, Mr Patterson's evidence is necessarily self-serving and is uncorroborated by any other contemporary evidence.

The appellant's assertion, that all three witnesses understood that when Mr Patterson walked off the job he was not coming back, does not appear to us to be strictly correct. As we construe the evidence it seems clear enough that Mr Reardon69 and Mr Vodak,70 the latter being the only witness who believed Mr Patterson said "I've finished", both entertained such a belief. However, in our view, Mr Wright made no such observation. To the extent that his remarks went beyond those cited by Mr Cameron,71 it seems to us that they only reflected Mr Wright's surprise at Mr Patterson's actions.72

The evidence of Mr Reardon and Mr Vodak is specific and goes directly to the point, ie what they believed Mr Patterson intended when he left the workplace. As such, in our opinion, the evidence comprised more than the mere generalisation for which Mr Harper argued. That point mentioned, we simply add that the President was plainly aware of the beliefs held by Reardon and Vodak because he recorded their views in his decision.73

Those observations bring us to the evidence of Mrs Robinson. Mr Patterson's evidence is that he told Mrs Robinson what had happened. He said he told her "it could have got physical" and that he was going to the Department of Labour and Industry after first asking Redline Coaches to tell him the Department's address. According to his evidence, Mrs Robinson said, "I don't blame you".74 In cross-examination Mr Patterson denied telling Mrs Robinson that he had walked out of Betta Milk because he "was not going to take any more of that". He also denied he told her that he was going to Redline Coaches to see if they had any work.75

How did the President deal with that evidence? It is necessary to begin by noting that the relevant facts and circumstances contain an admixture of two issues. First, whether in leaving the workplace Mr Patterson resigned his employment and second, if he did not resign, whether he abandoned his employment. The President clearly recognised the presence of both issues and dealt with them separately.76

The President found that it was reasonable for Mr Patterson to walk off the job because of his concern about a possible confrontation with Mr Wright. In making that finding the President also observed that, at the time, Mr Patterson "was frustrated and annoyed at having lost the war of words with Mr Wright". Those two factors, the President went on to find, were the mitigating circumstances that excused Mr Patterson from the consequences of his act in leaving the workplace without permission, since he did so in the heat of the moment.

Mr Patterson's evidence, however, is that he left the workplace to get advice about his rights. In discussing that issue the President acknowledged the conflicting evidence of Mrs Robinson. Her recollection was that, while she could not remember Mr Patterson saying anything about resigning or being terminated,77 he did say he was going to Redline Coaches to see if there was any more work.78 The President weighed all the evidence and found that:79

"It is possible that Mr Patterson made both an enquiry about work at Redline and an enquiry about his rights at the WSA. Whether he did both is I think irrelevant, given my subsequent findings, although I am satisfied that Mr Patterson did visit the Workplace Standards Authority."

It seems to us that the President's finding infers his acceptance of Mr Patterson's explanation as to his intentions on leaving the workplace. We believe that it was reasonably open to the President (the question of resignation aside for the moment) to prefer the evidence of Mr Patterson to that of Mrs Robinson. In that regard, he had the benefit of seeing and hearing the witnesses give their evidence and thus was able to make judgments about their demeanour.

It is convenient to summarise the effect of the President's findings to this point. Mr Patterson, having reason to leave the workplace because of his apprehension of a confrontation with Mr Wright, left without obtaining his employer's permission. He took that action not only to get advice about his rights but also because, being frustrated at the outcome of his encounter with Mr Wright, he left the workplace in the heat of the moment.

The President found that, in those circumstances, Mr Patterson did not abandon his employment.80 We do not understand that finding to be the subject of challenge in these proceedings. However, if it was, we reject the submission. We believe that such a finding was open to the President having regard to the evidence reviewed above.

We now turn to consider whether Mr Patterson resigned from his employment. The President dealt with this issue in two parts. First, he turned his attention to whether Mr Patterson "deliberately" resigned his employment.81 He determined that question in the terms quoted earlier, ie by reference to what those present at the time could recall Mr Patterson saying as he walked out.82 In his conclusion, the President preferred the evidence of witnesses Reardon and Wright, since their evidence "more closely coincides with that of Mr Patterson than it does with the words remembered by Mr Vodak".83

Second, the President considered whether Mr Patterson "intended his 'walkout' to be interpreted as his resignation",84 by investigating whether he left "the workplace to get advice about his rights, or to see if he could get more work at Redline Coaches".85 In deciding the question in favour of Mr Patterson, the President considered and weighed the conflicting evidence of Robinson and Patterson before concluding that whether Mr Patterson actually went to both places was irrelevant.

The substance of the appellant's submissions before us, however, is that in deciding the question of resignation per se, the President gave insufficient weight to the evidence of Reardon and Vodak and gave no weight at all to the evidence of Mrs Robinson. In our opinion the President clearly considered the relevant evidence of Mr Vodak. For example, he specifically mentioned the particular evidence relied on by the appellant, ie "I'm finished", in his discussion regarding whether Mr Patterson deliberately resigned his employment. We are also of the view that the President no doubt did not find it necessary to mention the evidence of Mrs Robinson because she could not remember Mr Patterson saying anything about resigning or being terminated.

The evidence of Mr Reardon appears at first glance to be in a different category in that, in addition to the evidence mentioned by the President, the witness also said, "I actually thought he meant that he was gone" and "not coming back at all".86 However, the President had earlier acknowledged in his Reasons for Decision that this evidence was before him.87 In the circumstances, the available inference is that he took that evidence into account in concluding that Mr Patterson did not resign from his employment.

It is also relevant to note that, in deciding the resignation question, the President did not rely solely on the above evidence. His decision shows he also took into account, as tending to suggest the termination was at the initiative of the employer, evidence that:88

"... Mr Vodak did not notify the pay office of Mr Patterson's termination until well after Mr Patterson had returned from the city; that Mr Patterson was paid a week's notice, notwithstanding the submission by Mr Cameron that the payment was in error, and the reference on the separation certificate that termination was for failing to do designated duties ..."

We believe that, on the evidence, it was open to the President to conclude that Mr Patterson did not resign from his employment.

We do not know why the President considered the issue of Mr Patterson's alleged resignation in two parts. The mere fact that, as a matter of convenience, a tribunal member chooses to structure his or her decisions by posing a series of rhetorical questions is, we think, a simple matter of personal preference. Such an approach, in our opinion, does not impeach the particular decision in circumstances where, as in the present case, all the relevant evidence is observably identified, weighed and resultant findings are clearly expressed.

We believe the approach adopted by the President, as a means of structuring his decision, was open to him in light of the evidence put to him by the parties. After reviewing the relevant aspects of that evidence we are of the opinion that the findings made by the President were reasonably open to him and that, contrary to the appellant's submissions, he did not mistake the facts or fail to take into account some material consideration.

Finally, we come to the question of whether or not there was present a valid reason for termination. In that regard, in the proceedings before the President, Mr Cameron relied on Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698. That case, he said, supported the appellant's contention that, by leaving the workplace without permission, Mr Patterson showed an intention to repudiate his contract of employment.89 Mr Cameron in effect took the same approach before us in urging the Bench to find that the President erred in finding that "Betta Milk did not have a valid reason for terminating Mr Patterson's employment".

We have already upheld the President's decision in so far as he found that (a) Mr Patterson did not deliberately resign from his employment and (b) that it was reasonable for Mr Patterson to walk off the job. Having made his findings in that regard, the President went on to observe that:90

"... I do not consider the reason advanced by the employer in the alternative, and submitted by Mr Cameron at pages 85 and 86 of transcript [Mr Patterson's behaviour in walking off the job was a repudiation of his contract of employment], is a valid reason for terminating Mr Patterson's employment and accordingly I find that the dismissal of Mr Patterson was unfair."

In coming to that decision the President said he considered the cases referred to him by Mr Cameron. However, for reasons that he outlined, the President did not believe that "the facts in this matter show an intention to repudiate the contract of employment as referred to in Laws & London Chronicle."91 In the light of all those findings, in our opinion, there are no grounds capable of sustaining the appellant's contention that the employer had a valid reason for terminating Mr Patterson's employment on the grounds that he failed to perform his duties. In that regard we find it was open for the President to conclude, as in effect he did, that the reason advanced by the employer in the alternative (to Mr Patterson's resignation) did not constitute a valid reason for terminating Mr Patterson's employment.92

Having regard to our findings and after taking into account House v The King, we are satisfied that, in relation to Appeal Ground 8, it was open to the President, in light of the facts and circumstances before him, to find that Mr Patterson did not initiate his own termination. That is, he did not resign from his employment by wilfully leaving the workplace contrary to his contract of employment. We also believe that, concerning Appeal Ground 1, it was open to the President to conclude that the employer did not have a valid reason for terminating Mr Patterson's employment on the grounds that he failed to perform his duties. Furthermore, again taking into account the above discussions, we conclude that, in the context of Appeal Ground 9, none of the President's findings in relation to Appeal Grounds 1 and 8 comprise findings that the evidence does not support.

Accordingly, we dismiss Appeal Grounds 1, 8 and 9.

Fairness (Appeal Grounds 2 and 3)

Appeal Ground 2 alleges that the President erred in "finding that Betta Milk did not afford procedural fairness to Mr Patterson". Appeal Ground 3 alleges, similarly, that the President erred by "finding that Betta Milk failed to treat Mr Patterson fairly". So far as we can see, Mr Cameron dealt with these two matters together in his submissions. For that reason we take the same approach.

Andrew S Cameron for the appellant:

At page 13 of his Reasons for Decision the President observed that:

"However it seems those reasons [other valid reasons for the employer to effect a dismissal] were not put to Mr Patterson. Mr Vodak thought Mr Patterson was not going to come back to work at all, and he was adamant that, in those circumstances, he had not dismissed Mr Patterson. Mr Vodak, therefore, did not give Mr Patterson an opportunity to explain why he had left the workplace."

Mr Patterson's own evidence, however, is that he went back to the workplace after about 45 minutes. Mr Patterson asked to see Mr Vodak in his office. During the ensuing discussion, Mr Vodak asked where he had been - to the Department of Labour and Industry, Mr Patterson said - and why did he go there - to find out about his rights, said Mr Patterson.93 This evidence clearly establishes that, contrary to the President's observation, Mr Vodak did give Mr Patterson an opportunity to explain why he had left the workplace.

Towards the end of the same discussion, Mr Patterson said that Mr Vodak told him "I want you to come in Monday so we can talk about it."94 That evidence also discloses, again contrary to the President's observation, a further opportunity given by Mr Vodak to Mr Patterson to discuss the issue.

The evidence is that the appellant well and truly afforded Mr Patterson procedural fairness. Having regard to that evidence, the President's statement that "Mr Vodak, therefore, did not give Mr Patterson an opportunity to explain why he had left the workplace" is clearly in error.

As to the meeting itself, there is conflicting evidence as to what actually happened. Overall, however, the evidence shows the meeting - which extended for some eight to nine minutes - was calm, although Mr Vodak conceded that he did hit the palm of his hand on a table while making a point. Mr Patterson's evidence is that his discussion with Mr Vodak centred on such questions as "Why did you walk out?", "Where did you go?" and "Why did you go?"

In the circumstances, the President clearly erred when he said there were no other valid reasons for the employer to effect the dismissal. The context of the parties' discussion revolved around Mr Patterson leaving the premises. There is no common law or legal obligation on an employer to give a reason for termination. However, the absence of such an explanation may go to the question of whether or not a dismissal is fair.

It is plain that, contrary to the President's decision, Mr Vodak did give Mr Patterson an opportunity to explain why he left the workplace.

L Harper by leave for the respondent:

A meeting occurred between Mr Patterson and Mr Vodak after the former returned to the workplace. There was admittedly some evidentiary conflict about the length of the meeting - it lasted either eight or nine minutes according to Mr Patterson95 or perhaps five minutes or less according to Mr Vodak.96 However it is clear that Mr Vodak was of the opinion that Mr Patterson's employment had already ended because, according to his own evidence, he said "as far as I'm concerned you're already finished".97 In the circumstances there was no procedural fairness on the part of the Company because Mr Vodak had already decided Mr Patterson was finished.

As for Mr Vodak's invitation to Mr Patterson to "come in Monday" to talk about the matter, the horse had already bolted. Mr Patterson's evidence was that, at the time, he said "Why can't we talk about it now if you've got something to say ... you've just sacked me, what do I have to come in Monday for?"98 It is too late to provide procedural fairness after a termination has already taken effect.

Findings

Our perusal of the evidence shows that Mr Cameron correctly cited Mr Patterson's evidence regarding his recollection of what he discussed with Mr Vodak concerning his reasons for leaving the workplace. Curiously, however, Mr Cameron did not draw our attention to the fact that his own witness, Mr Vodak, said almost nothing at all about that particular aspect of their conversation. Mr Vodak's evidence is that Mr Patterson said he did not have to put up with Mr Wright's banter and that he had gone into town to see a union.99 Mr Vodak said he did not sack Mr Patterson because, as far as he was concerned, Mr Patterson was already finished. Mr Cameron later asked Mr Vodak if he could recall other things that he or Mr Patterson might have said at the meeting. All Mr Vodak could relevantly recall was that he asked Mr Patterson to come back on Monday.100

It seems to us that there is a clear conflict in the evidence of Patterson and Vodak regarding their discussion about Mr Patterson's reasons for leaving the workplace. It might be arguable, as Mr Cameron contended, that on the evidence of Mr Patterson, Mr Vodak did indeed give him an opportunity to explain his actions. On the other hand it is equally arguable, as Mr Harper in effect contended, that Mr Vodak gave no such opportunity to Mr Patterson because he already held the opinion that Mr Patterson was finished.

In the circumstances, having heard the witnesses and assessed their demeanour, we believe it was open to the President to take the approach that he did. On this point, in the face of evidentiary conflict, he preferred the evidence of Mr Vodak to that of Mr Patterson. We do not believe he erred in doing so.

Mr Cameron also relied on Mr Vodak's suggestion to Mr Patterson that he come in on the following Monday to talk about the matter. That action too, he said, demonstrated procedural fairness. We do not believe the evidence supports such a conclusion. Mr Vodak already believed Mr Patterson was finished. Arguably, therefore, he did not put that proposition to Mr Patterson as a means of giving him an opportunity to explain, or further explain, his actions in leaving the workplace. Rather, it seems to us, the purpose of the invitation, according to Mr Vodak's evidence, had more to do with the fact that Mr Patterson "had stuff stored in our cool room".101

In our opinion, regarding Appeal Ground 2, it was open on the evidence for the President to conclude that "Betta Milk did not afford procedural fairness to Mr Patterson". The essential focus of Appeal Ground 3 is not entirely clear to us. However, in the absence of anything to the contrary, we assume the ground is a reference to the President's further finding that, having rejected the employer's contention that Mr Patterson's actions showed an intention to repudiate his contract of employment, "the dismissal of Mr Patterson was unfair".102 Such a finding was clearly open to the President in our view. That is because the essential unfairness for Mr Patterson did not arise from an intention to repudiate his contract or from a lack of opportunity to explain his actions. Rather, it arose from the fact that the Company did not have a valid reason for terminating his contract of employment.

In all the circumstances, after taking into account the principles established by House v The King, we dismiss Appeal Grounds 2 and 3.

Weight of the Evidence (Appeal Ground 4)

Andrew S Cameron for the appellant:

The President completely ignored the strong evidence of Mrs Robinson. The witness was fairly sure of her recollections. She believed that Mr Patterson told her he was going to Redline Coaches to look for work at a time when he was supposed to be at work for Betta Milk. He had neither reason nor permission to leave Betta Milk. There was some uncertainty, because of the passage of time, as to the actual words used. However, the general intent displayed by Mr Patterson, as recalled by the other witnesses who were there and saw the event, was that he simply resigned his employment and was not coming back. He was gone.

The weight of the evidence - three witnesses against one - surely emphasised the resignation factor. Mr Patterson was the only witness for his own case. He claimed he went to the Workplace Standards Authority - or DLI as he called it - to discuss his rights, but he did not provide any evidence in that regard. Mr Patterson also asserted that he only went to Redline Coaches in order to find out the location of the Workplace Standards Authority. Again, he did not provide any supporting evidence.

All the President had to rely on was the unsupported evidence of Mr Patterson. Once again the President erred. He did so because he clearly applied more weight to Mr Patterson's evidence than he did to the evidence of three other employees of Betta Milk who were present at the time - Messrs Wright, Reardon and Vodak - and Mrs Robinson who saw Mr Patterson four or five minutes later. All four witnesses in effect held the same view: that Mr Patterson had resigned from his employment. In the circumstances the President erred in not finding that Mr Patterson resigned from his employment.

The proper question for the President's attention was whether Mr Patterson's departure from the workplace was reasonable in all the circumstances. In this regard the President found, in effect, that Mrs Robinson's evidence was irrelevant. However, he gave no reason for that finding, even though it was crucial to the question of resignation. The President also regarded as irrelevant whether Mr Patterson went to the Workplace Standards Authority for advice or to Redline Coaches for work. In finding for Mr Patterson on this point, the President again erred by applying disproportionately more weight to Mr Patterson's evidence than he did to that of the other four witnesses, whose evidence remained unchanged as the result of cross-examination.

In discussing whether Mr Patterson, in walking off the job, abandoned his employment the President did not fully canvass the issue. The employer's contention is that the evidence does not support the President's conclusion that there was some "heat" in the matter.

The President also found that Mr Patterson's dismissal was unfair because "he was not given the opportunity to explain why he had not carried out his designated duties".103 As already mentioned,104 in making that finding the President erred in that he did not give sufficient weight to the evidence of either the Company's employees or of the applicant himself.

L Harper by leave for the respondent:

Weight of evidence is not an assessment based on the quantity of witnesses but rather on the quality of the evidence adduced from those witnesses. It was open to the President to conclude on the evidence that an incident had occurred that justified Mr Patterson walking off the job and that, in so acting, he did not resign or abandon his employment. Similarly, the evidence also supported the President's finding that Mr Patterson's dismissal was a termination initiated by the employer.

Findings

In considering Appeal Grounds 1, 8 and 9, we came to several conclusions that apply to the issues raised in relation to Appeal Ground 4. Regarding the evidence of Mrs Robinson we observed, relevantly, that:105

  • The President acknowledged the conflicting evidence of Patterson and Robinson.

  • The President's finding, after weighing the evidence, that whether Mr Patterson made enquiries at both Redline Coaches and the Workplace Standards Authority was irrelevant, infers his acceptance of Mr Patterson's explanations as to why he left the workplace.

  • In that regard it was reasonably open to the President to prefer the evidence of Mr Patterson to that of Mrs Robinson.

We do not accept the appellant's contention that the criterion for assessing the weight of evidence is a measure of quantity, ie "three witnesses against one". As Mr Harper pointed out, the measure is one of quality. Included in that process, relevantly in terms of House v The King, will be the benefit that accrues to a tribunal member hearing a matter at first instance. That is to say, the benefit of being able to see and hear the witnesses give their evidence and to make judgments about their demeanour.

In contending that the President simply relied on the unsupported evidence of Mr Patterson, Mr Cameron asserted that all four of the Company's witness in effect held the same view. That is, that Mr Patterson resigned from his employment. In that regard our relevant earlier observations were that:106

  • The appellant's assertion, that all three witnesses understood that when Mr Patterson walked off the job he was not coming back, does not appear to us to be strictly correct.

  • It seems clear enough that Mr Reardon and Mr Vodak both entertained such a belief.

  • In our view Mr Wright made no such observation, merely expressing surprise at Mr Patterson's actions.

  • Mrs Robinson could not remember Mr Patterson saying anything about resigning or being terminated.

Having regard to those conclusions, which flow from the evidence, we believe Mr Cameron's contention mistakes the facts that were before the President.

Concerning whether it was reasonable for Mr Patterson to walk off the job, we earlier made the following observations:107

  • The evidence disclosed good reason to doubt that all of what occurred between Patterson and Wright was not serious.

  • There was more than just a hint in the evidence that the relations between Patterson and Wright, at least at one point during the course of the incident, went beyond mere banter.

  • The President did not need to satisfy himself beyond reasonable doubt that physical confrontation between Patterson and Wright actually occurred. It was enough for him to conclude that, on the facts, there were sufficient grounds upon which Mr Patterson could have formed a reasonable apprehension that such a confrontation might occur.

In that regard Mrs Robinson's evidence was clearly not relevant. She was not present when the incident occurred and did not recall Mr Patterson saying anything about resigning or being terminated.

We believe it was open on the evidence for the President to conclude, as he did, that it was reasonable for Mr Patterson to walk off the job and that, in doing so, he did not abandon his employment. That was because "there was more heat in the banter between Mr Patterson and Mr Wright than should have been tolerated by the manager".108

Turning to the question of fairness, we simply reiterate our earlier finding that having heard the witnesses and assessed their demeanour, we believe it was open to the President to take the approach that he did. On this point, in the face of evidentiary conflict, he preferred the evidence of Mr Vodak to that of Mr Patterson. In any event, as we also mentioned earlier, the essential unfairness for Mr Patterson did not arise from an intention to repudiate his contract or from a lack of opportunity to explain his actions. Rather, it arose from the fact that the Company did not have a valid reason for terminating his contract of employment.

For all the above reasons we dismiss Appeal Ground 4.

Management Prerogative (Appeal Ground 5)

Andrew S Cameron for the appellant:

The President found that "there was more heat in the banter between Mr Patterson and Mr Wright than should have been tolerated by the manager".109 Mr Vodak was present at the time and, as manager, it was his duty to form an opinion whether or not to intervene in the interaction between Mr Patterson and Mr Wright.

The evidence is that Mr Vodak intervened on an earlier occasion to resolve an issue between Mr Wright and Mr Patterson. Mr Vodak was aware that the parties had met on that occasion and that Mr Patterson apologised to Mr Wright. Even with that background of awareness, however, Mr Vodak, who was present and heard what was going on in the current matter, formed the view that his intervention was neither necessary nor justified. Mr Vodak took the step of asking another employee about the circumstances. That person's response was to effect that what was going on between Mr Wright and Mr Patterson was just par for the course.

Mr Vodak, in his role as manager and after considering the circumstances, took a decision not to intervene. Accordingly, it is not for the President to say what he believed Mr Vodak's decision should have been.

L Harper for the respondent:

Mr Vodak's evidence is that he did not know what was happening because he had to ask Mr Reardon if they (Patterson and Wright) were serious.110 In the circumstances there was no exercise of management prerogative by Mr Vodak because he simply let the matter go. The evidence supports the President's finding that Mr Patterson was not given procedural fairness before the Company terminated his employment.

Findings

The President dealt with this matter in his decision in the following terms:111

"... I consider that the Manager, Mr Vodak, should have been aware that something more serious than usual was taking place, even though he was told by Mr Reardon there was no need to worry. When Mr Patterson approached Mr Vodak for help it appears he took no notice. I consider that Mr Vodak should have approached either Mr Patterson or Mr Wright at that time to determine whether there was a need for him to intervene. Whether he decided not to intervene because Mr Patterson was getting the treatment he thought he deserved is not completely clear from the evidence, but what is clear is that Mr Patterson's request for the manager to intervene was ignored.

Whilst I do not condone the behaviour of either Mr Patterson or Mr Wright, this incident would not have developed to the extent that it did if Mr Vodak had exercised some managerial responsibility and called a halt to the banter at an early stage."

We agree with Mr Cameron that it was Mr Vodak's obligation to decide whether or not to intervene in the exchange of words that was then occurring between Patterson and Wright. In our view that obligation rested on him, as the senior employee on site, because of the Company's duty of care to provide a safe working environment for its employees.

We do not, however, accept Mr Cameron's implied contention that it is open to an employer to hide behind "management prerogative" for the purpose of avoiding that duty of care. The evidence shows that had Mr Vodak made his enquiries of the participants or one of them, rather than of Mr Reardon, a bystander, he most likely would have discovered, as did the President, that:

  • The evidence disclosed good reason to doubt that all of what occurred between Patterson and Wright was not serious.

  • There was more than just a hint in the evidence that the relations between Patterson and Wright, at least at one point during the course of the incident, went beyond mere banter.

In this regard we note in passing that the evidence leaves us wondering about one issue. Mr Reardon's evidence shows that, while he told Mr Vodak that Patterson and Wright were stirring each other up, he apparently did not add that their "stirring" got a bit serious for a short time112 or, if he did, Mr Vodak's evidence does not confirm that advice.

In our opinion Mr Vodak's duty to make such an enquiry of Patterson and/or Wright, rather than of Mr Reardon, was all the more necessary because of two factors in particular. First, he was fully aware at the time of a previous similar incident between the same two individuals. Second, when he took his decision not to intervene, he did not possess a full knowledge of the current incident because, as he admitted in cross-examination "I don't know what happened" and "I'm not in visual contact all the time, no".113

Having regard to the above discussion we believe the evidence allowed the President to make the observations that he did concerning Mr Vodak's exercise of his managerial responsibilities. Because those observations went to the employer's duty of care to provide a safe working environment, we do not accept the appellant's contention that the President intruded into an area of management prerogative.

For the above reasons we dismiss Appeal Ground 5.

Leave to Appear (Appeal Ground 6)

Andrew S Cameron for the appellant:

The appellant has problems with the manner in which the President expressed his decision to grant leave to appear to a legal practitioner.114 Any matter that comes before the Commission should be brought by an applicant and not by an agent. If, however, the proceedings involve an agent, such a person should not be a legal practitioner of the kind referred to in Section 28 of the Act .

The appellant's main concern is this. The President, in exercising his discretion referred to the right to appear as being a freedom of choice issue. More specifically, to use the President's own words, he said:115

"I consider that as a matter of general principle individuals appearing in the Commission, particularly by way of section 29(1A), are entitled to be represented by the person or organisation of their choice."

Section 29(1A) of the Act, however, does not mention whether an applicant may appear by way of agent. It is Section 28 of the Act that deals with representation. Section 28(1) provides that a party may appear "in person or by his agent", but Section 28(5) goes on to enact that "the following persons are not entitled to be agents ... except with the leave of the Commission ...". Included among "the following persons", relevantly in terms of the present case, is a person who is "a barrister or solicitor".

Section 28(5) clearly vests the Commission with a discretion. That discretion, however, does not permit the President to stipulate that the right of choice is a general principle with which the Commission will not interfere. Leave to appear, or special leave, is not an automatic right. It must depend upon a valid reason being given in support of the application.

It is a matter of historical fact that industrial tribunals are non-legalistic in approach. They do not seek the intervention of solicitors so that they might go directly to the merits of a case without becoming tied down in legal technicality or complex legal arguments and submissions. There was nothing particularly complex in legal terms about the matter that was before the President. The decision he had to take was simply whether there was a resignation or an unfair dismissal - nothing unusual for an industrial tribunal.

The decided cases that the appellant put to the President at first instance were not advanced as precedent. The employer tendered them merely to define the general principles used by tribunals in determining questions of this nature.

Mr Harper pointed out to the President that the employer (or his agent) never objected to his appearance in the context of the communications that flowed between them from July 1997. The issue is not one of objection to appearances in conciliation processes. Section 28(1) refers to "appear"; it says nothing about "negotiate". Dealing with a solicitor in the course of negotiations does not prejudice a party's right to subsequently object to that person's appearance when the matter comes before the Commission.

At this point in Mr Cameron's presentation the Presiding Member invited him to respond to the following observation:116

"... prima facie it seems to us that this appeal ground is not competent because it does not attack, if that's the right word, any of the substantial merits of the decision under appeal."

Mr Cameron, replying, argued that the President's decision gave a false impression as to what the Act actually states.

Unfair dismissals are not the only industrial disputes that come before the Commission in circumstances where the Act specifically precludes certain representation. There are in fact a number of such disputes. The appellant's contention is that the parties to an industrial dispute should be of a kind that fall within the limitations of the Act. The Act refers to and governs the whole of an industrial dispute. It follows therefore that if some question arises as to a particular person's entitlement to appear and be heard, any decision taken by the tribunal in that regard should constitute an appealable ground. While the particular industrial dispute in the present case concerns an alleged unfair dismissal, it is still subject to the provisions of the Act. The granting of leave to appear by giving an inappropriate interpretation of the Act tainted the President's decision.

L Harper by leave for the respondent:

Appeal Ground 6, as currently proposed, does not fall within the scope of Section 70 of the Act.

In any event, there is no evidence in the transcript of the proceedings or in the President's decision that the granting of leave to the applicant's agent had any real effect on either the merit or the outcome of the case.

The President recorded in his decision that he believed it to be appropriate "that the applicant, if he so wished, should be represented by a legal practitioner".117 The President's decision confirmed an observation he made at the hearing that "I think it is important for that reason [a question having arisen concerning loss of memory on the part of witnesses] to have experienced people leading the evidence and cross-examination ..."118

There are other factors that the Commission should take into account. Mr Cameron, the employer's representative, is an experienced industrial advocate. Accordingly, no real disadvantage arises for the employer from the President having exercised his discretion to grant a legal practitioner leave to appear.

It is also relevant that Mr Cameron did not inform the employee's representative prior to the hearing that the employer intended to object to the appearance of a legal practitioner. Furthermore, even though the Act specifies that, in the exercise of its jurisdiction, the Commission "shall act ... without regard to technicalities or legal forms",119 Mr Cameron referred to no less than eight legal authorities, two of them House of Lords decisions, in support of the employer's contentions. By suggesting that legal practitioners should be kept out of the Commission to avoid technicalities, but at the same time citing legal cases and attempting to rely on the legal doctrine of precedent, Mr Cameron is trying to have it both ways.

In all the circumstances it was open to the President to grant leave for a legal practitioner to appear. There are, accordingly, no grounds for overturning his exercise of discretion in that regard.

Findings

During the course of the hearing we suggested to Mr Cameron that this ground of appeal might not be competent in terms of Section 70(1) of the Act. That is because, in our opinion, the "ground" as expressed seeks to appeal the decision itself, ie that the President erred by "granting a legal practitioner leave to appear, contrary to the Industrial Relations Act 1984". That decision, having regard to the Act, does not appear to us to be:

"(a) a decision of a Commissioner to make, vary or rescind an award, or refuse to make, vary or rescind an award ...

(b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or breach of award or a registered agreement ...

(c) a decision made by a Commissioner, the Enterprise Commissioner or the Registrar under section 43, 55, 59, 61J, 61R, 61S, 63(10), 65A, 67(4), 67A or 75(7E) ..."

Section 69(2) of the Act provides that:

"For the purposes of sections 70 and 71, 'decision' includes a declaration, an order, a determination, an approval, a refusal, a dismissal, an award or any other finding made by a Commissioner, the Enterprise Commissioner or the Registrar."

Having considered the appellant's submissions we have come to the conclusion that a decision to grant leave, or to refuse to grant leave to a legal practitioner pursuant to Section 28 is not a decision that falls within the scope of Section 70(1) of the Act. For that reason we believe that Appeal Ground 6, in the form expressed, is not a competent ground of appeal.

We also note that the focus of Mr Cameron's submissions concerning this issue went not so much to the order under appeal but to the manner in which the President expressed his "leave to appear" decision. In particular, Mr Cameron objected to the phrase "as a matter of general principle". We do not know why the President used that expression. Perhaps it might have been better had he not done so. However, it is trite law that administrative tribunals cannot fetter their exercise of a statutory discretion by reference to general principles. Each exercise of discretion must fall for determination by reference to its own facts and circumstances. If the inference in Mr Cameron's submissions was that the President's decision could mislead future parties or in some way act as a binding precedent, we do not accept it. The position at law is very well known.

For reasons discussed above we dismiss Appeal Ground 6.

Natural Justice (Appeal Ground 7)

Andrew S Cameron for the appellant:

Delay was prejudicial to the employer. In refusing to strike out Mr Patterson's application for want of prosecution, the President denied Betta Milk natural justice.

Mr Patterson filed his initial application only just within the required 14-day period. When the Transport Workers' Union advised of its involvement, the employer's agent (the Tasmanian Chamber of Commerce and Industry Limited - TCCI) wrote to the Union. TCCI requested discussions to see if the parties could resolve the matter. The Union subsequently asked for an adjournment of the hearing set down for 18 June 1997. That was done so that Mr Patterson might obtain legal advice regarding other matters connected with his employment. Later, by letter dated 29 July 1997, the law firm Jennings Elliott informed TCCI that it was now acting for Mr Patterson. Nothing further happened until, by letter dated 1 September 1997, TCCI reminded Jennings Elliott that the employer was still waiting to hear from it regarding Mr Patterson. A meeting finally occurred on 7 October 1997.

On 15 January 1998 TCCI applied to the President to have the matter struck out pursuant to Section 21(2)(c) of the Act. The grounds for that application were that, one letter and one meeting aside, Mr Patterson had taken no action in relation to his application for some eight and half or nine months. When the matter came on for hearing on 25 May 1998, Mr Harper said the reason for the delay arose out of Mr Patterson's application for legal aid. Without legal aid, Mr Harper said, the hearing could not proceed. However, at no time before that hearing did the applicant or his agent inform Betta Milk or TCCI that he was applying for legal aid.

There was nothing in the applicant's circumstances to say the hearing could not take place. The means by which Mr Patterson might fund his action were his concern alone. The delay arose solely because the applicant needed to obtain payment of his legal costs. Nothing else caused the delay. There was no absence of witnesses, no preparation of evidence and no collection of facts to put before the Commission. The employer asks rhetorically: What would have happened had the Legal Aid Commission refused Mr Patterson's application?

The employer, relying on Birkett v James [1978] AC 297 (HL), submitted to the President that the Commission has full authority under Section 21(2)(c) of the Act to dismiss a matter or part of a matter. At the time the employer said that its main concern about postponement of the hearing lay in the fact that witnesses' memories could fail.

However, even before he heard any witness evidence, the President remarked that:120

"I am not concerned about the loss of memory on the part of the witnesses and I think it is important for that reason to have experienced people leading the evidence ..."

Subsequently, in his decision, the President went on to say that "having heard the witnesses, I am satisfied that their memories were not unduly affected by the passage of time".121 Notwithstanding that decision, however, there were a number of occasions on which the memories of witnesses were affected. Those occasions, in particular, concerned the words used at the time Mr Patterson left the workplace. At the time, the employer told the President it would suffer prejudice because witnesses would be put under cross-examination to test their memories. Witnesses Wright, Reardon and Vodak could not answer some questions put to them in cross-examination because they simply could not remember conversations that occurred thirteen or fourteen months earlier.122

The President's decision contains several references to memory problems of that kind. For example, he observed that "Mrs Robinson said she could not remember saying that she did not blame Mr Patterson for walking out on Betta Milk" and that "she could not remember Mr Patterson saying anything about resigning".123 Furthermore, in Mr Wright's case, the President noted that he "said it was hard to recollect specifically what was said" and that he "said he could not remember whether he put his face close to Mr Patterson's".124

The President also conceded, concerning Mr Patterson's resignation, that there were conflicting recollections of the witnesses as to what was actually said at the time.125 Mr Patterson may have said something at the time that the witnesses heard but could not now recall, other than generally, some 14 months after the event. The appellant's view is that the witnesses' inability to remember exactly what was said caused the President to prefer the evidence of Mr Patterson.

The employer highlighted possible memory problems before the merit hearing commenced. In that light, the way the President weighed the evidence prejudiced the appellant. Those same memory problems also disadvantaged the Commission. That is because the only witnesses who were available to say what actually did happen could not remember.

Having regard to the principles established in Birkett v James, the employer submitted that the President should dismiss the matter on the grounds that "there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers".126 It was not only memories that were affected. The applicant never advanced a real reason for the delay that occurred. He simply decided, some five months after applying to this Commission, to lodge an application for legal aid. Those circumstances do not mean that a hearing in relation to unfair dismissal could not proceed.

The President referred to the fact that the Commission's time constraints might have contributed to the delay. Even so, the Commission first set the matter down for hearing in June 1997, some ten months before a hearing actually commenced. Had the hearing proceeded on the earlier date no memory problems would have arisen. Furthermore, problems of reinstatement or compensation, an additional prejudice to the employer, would have been greatly reduced. The time frame for hearing the matter extended out to April 1998. The employer could do nothing about that fact, even though it tried to do so in January 1998. Because of the delay, the employer found itself confronted with a lost wages claim in excess of $20,000.00, an amount of compensation that the Commission has full jurisdiction to order.

There was no merit in the reasons for delay. It was up to Mr Patterson to sort out his funding problems when he lodged his application rather than wait for some five months before filing an application with the Legal Aid Commission. The mere fact that the employer did not send Mr Patterson's solicitor a copy of its application to have the matter struck out does not help the applicant. It is the Commission, not the applicant, that has the relevant jurisdiction to make such a ruling.

It is not necessarily correct for the applicant to assert that the meeting with the Transport Worker's Union in June 1997 - before the first hearing date - and a subsequent meeting with Mr Harper several months later on 7 October 1997 amounted to attempts at conciliation. Mr Patterson did not attempt to get the employer to conciliate. The employer put an offer on the table at both meetings, but Mr Patterson made no subsequent attempt to contact the employer to see if the matter could be further pursued by conciliation.

It was purely because of delay on the employee's part that the matter did not come on for hearing at an earlier time. The delay prejudiced Betta Milk, particularly in light of the President's finding that the employer unfairly dismissed Mr Patterson. In the circumstances, the Commission as presently constituted should intervene.

L Harper for the respondent:

The President declined to decide the employer's application before he heard the witnesses' evidence, describing the position in the following terms:127

"... it seems to me that the merit of the case ought to be heard to determine whether or not the line-ball explanation of delay can be overcome and in respect of your submission, Mr Cameron, that the employer will be prejudiced by any decision which might fall from the Commission ..."

Basically, the President wanted to hear the evidence, to test whether the passage of time had eroded the witnesses' memories, before deciding whether or not to strike out Mr Patterson's application. After hearing the witnesses give their evidence the President accepted the reason for delay "although it borders on the unacceptable" and rejected the application, observing that:128

"In addition, having heard the witnesses, I am satisfied that their memories were not unduly affected by the passage of time, and I do not consider the employer will be unduly prejudiced by whatever decision the Commission arrives at in the matter."

Obviously, there will be points in transcript where witnesses' memories of particular events will be less than good. That condition is a part of human nature - people tend not to remember things that are not specific at the time. Quality of memory is not simply a matter of going through the transcript pointing out aspects where witnesses could not remember. That is because, conversely, it is possible to do exactly the same exercise to show specific events that witnesses have remembered.

The Commission should also take into account the relative position of the parties at the time, a position that remains unchanged. Mr Patterson is largely unemployed and is not in a great financial position, hence his application for legal aid. The Company, however, is quite able to pay for its own representation.

Concerning the matter of advice to the employer, the applicant is not the only party at fault. The letter sent by Mr Cameron's organisation to the President applying for the matter to be struck out was not copied to the applicant's solicitor for information.

It was the applicant who initially sought to mediate the problem before turning to arbitration. Mr Patterson should not be prejudiced because he first tried to resolve the dispute by mediation.

On the submissions that were before him the President considered that dismissing the application would be contrary to Section 20(1)(a) of the Act.129 That decision was reasonably open to him and should not be disturbed on appeal.

Findings

Appeal Ground 7 asserts that the President erred by "denying Betta Milk natural justice in refusing to strike out Mr Patterson's application for want of prosecution". Mr Cameron did not give us the benefit of any submissions regarding what the appellant intended us to understand from its use of the term "natural justice". Being left to our own ends we assume that "natural justice" refers to the administrative law concept that the Commission, being required to act judicially, must provide parties with a fair hearing and act without bias.

In the case of the present appeal there was no suggestion by the appellant that the President acted in a biased manner. We assume, therefore, that the appeal ground alleges the President erred in that, by refusing to strike out Mr Patterson's application for want of prosecution, he denied the appellant a fair hearing. We draw support for our assumption from the observations of the House of Lords in Birkett v James, upon which the appellant specifically relied:

"The power [to dismiss actions brought before the Court] should only be exercised where the Court is satisfied ... that there has been inordinate and inexcusable delay on the part of the plaintiff' or his lawyers and ... that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action ..."

In the current proceedings, the appellant asserted in effect that there was "inordinate and inexcusable delay" by the applicant that gave rise to a "substantial risk", in the form of prejudice to the employer because of fading memories, that it would not be possible for the employer to have a fair hearing.

Before considering those issues we go first to the appellant's suggestion that the President actually decided the issue before hearing any witness evidence. In that regard the appellant relied on the President's observations already quoted above.130 We believe the correct approach to understanding the President's remarks is to read them in context. Before he said that he was "not concerned about the loss of memory on the part of the witnesses", the President noted that the issue was "a fairly line-ball situation". He then went on to say:131

"... it seems to me that the merit of the case ought to be heard to determine whether or not the line-ball explanation of delay can be overcome and in respect of your submission, Mr Cameron, that the employer will be prejudiced by any decision which might fall from the Commission, may I make the comment that I will take into account concerns in respect of delay."

It seems to us that all the President decided to do here was to proceed to hear the merits of the case before determining the interlocutory application. In the course of doing so he also said he would take into account the appellant's concerns regarding delay. He then went on to say that loss of memory on the part of the witnesses did not concern him because "... it is important for that reason to have experienced people leading the evidence and cross-examining ..." .

In our opinion the President did not prejudge the loss of memory issue. All he did in effect, in our judgment, was express his belief that, in allowing the merit of the case to be heard, there was no reason at that time to express concern about fading memories because the presence of experienced advocates could ameliorate the difficulty.

Regarding the matter of "inordinate and inexcusable delay" the President determined that issue in the following manner: 132

"It is clear that the delay in proceeding with this matter could have been reduced if the applicant or his representative had pursued the matter with greater energy. However, the longest period of apparent inaction is between late October 1997 and the end of March 1998 when, it seems, the legal aid people were deciding whether or not funds were to be provided to assist Mr Patterson. Although it borders on being unacceptable I accept that delay because the applicant needed legal representation, as advised by the Transport Workers Union, and the delay it would seem was not necessarily his fault. The remaining delays were the result of normal administrative arrangements associated with the availability of personnel and hearing rooms."

In resolving the issue of delay, the President took into account the parties' attempts to settle the issue in October 1997. He concluded that the "longest period of apparent inaction" occurred between late October 1997 and the end of March 1998 - approximately five months. In taking that approach he differed from the employer, whose measurement of the length of delay commenced with the date of lodgment of the application in early May 1997 and continued until the date of hearing at the end of May 1998 - approximately 13 months.133

In the proceedings at first instance Mr Cameron submitted that "at no stage did Mr Harper explain to us any reasons for the delay".134 Mr Cameron repeated that submission before us. Mr Harper appeared to concede the point when he told us that "the applicant is not the only party at fault". Mr Harper was there referring to the fact, acknowledged by Mr Cameron, that the employer's agent did not provide the applicant with a copy of the 15 January 1998 application to have the matter struck out.

Although the President did not specifically refer to this point in his decision, it was clearly one of the employer's concerns that he said he would take into account because, in the record of proceedings, it preceded his decision to that effect.135 In that regard we note that the President also had in his mind, at the same time, the fact that the employer did not send the applicant a copy of the Section 21(2)(c) application. Indeed, at the time, he remarked that it was a pity that the employer had not taken that action because it "might have stirred something up mightn't it?".136

Both events - Mr Harper's lack of advice and Mr Cameron's lack of advice - occurred within the five month time frame that the President considered to be the real measure of delay. We can only assume, in the circumstances, that the President formed the view that because each party apparently treated the other with equal discourtesy, the disadvantages of lack of advice fell with equal effect on both of them. We can take the matter no further other than to say that, in our opinion, the decision the President took was open to him on the evidence.

The appellant submitted that the meetings of June 1997 (Transport Workers Union) and October (the respondent's legal adviser) did not necessarily constitute conciliation. Indeed, Mr Cameron's contention was that the respondent made no effort at all to get the employer to conciliate. In that regard we think the appellant's submission tends to ignore the facts, because the evidence shows clearly that there was some attempt at conciliation. The President also took into account, in measuring the period of delay, the fact that a contributing factor was the "normal administrative arrangements associated with the availability of personnel and hearing rooms". In the circumstances, in our opinion, it was open to the President in the exercise of his discretion to take the view that he did about the extent of the delay that occurred and for which the applicant or his representative was responsible. That is, that "it borders on being unacceptable" but was nonetheless acceptable for the reasons advanced.

As to those reasons, the appellant's further submission is that they contained no merit in terms of justifying the delay, because the only purpose for the delay was the applicant's need to obtain legal aid. According to the appellant, those circumstances were not reason enough to prevent a hearing from going ahead.

The President's decision clearly shows that he took the employer's submissions into account in coming to his conclusion that the delay was acceptable "... because the applicant needed legal representation, as advised by the Transport Workers Union, and the delay it would seem was not necessarily his fault." In our view it was open for the President on the evidence to take that approach in the exercise of his discretion.

We turn now to the matter of the alleged "substantial risk" in the form of prejudice to the employer because of fading memories. In that regard the President responded to the employer's submissions in the following terms:137

"... having heard the witnesses, I am satisfied that their memories were not unduly affected by the passage of time, and I do not consider the employer will be unduly prejudiced by whatever decision the Commission arrives at in the matter."

In the proceedings before us the appellant argued the issue of the quality of the witnesses' memories at great length. In that regard our earlier conclusions dealt with the issue, also at some length, in so far as it concerned Appeal Grounds 1, 4, 8 and 9. We summarise those conclusions and consider other issues concerning witnesses' memories in our discussions in relation to Appeal Ground 4. In all cases our conclusions are that the President's decisions were reasonably open to him having regard to the evidence. Accordingly, we do not repeat those considerations here but we do have regard to them because they also clearly bear on this ground of appeal.

It seems to us that the President, in expressing satisfaction that the witnesses' memories "were not unduly affected by the passage of time", implicitly acknowledged that while there was some effect, it was not an undue, as in excessive, effect. In our view the President's expression is in effect a statement that be believed that whatever effect there was from the passage of time did not, in the circumstances, constitute an unfairness for the employer or, indeed, the applicant.

Our consideration of the evidence regarding witnesses' memories in relation to Appeal Grounds 1, 4, 8 and 9 allows us to conclude that the passage of time clearly had some effect on the recall capacities of the various witnesses. Consequently, we believe the evidence supports the President's finding in that regard.

However, in both substance and effect the appellant's submissions invite us to assume that, regarding quality of the witnesses' memories, a hearing closer to the time of the respondent's termination would have favoured the employer to the exclusion of the employee. We do not believe the evidence supports such an assertion. There is nothing before us that tends to suggest the witnesses' evidence would be in any way changed from that given in the current proceedings, even to the extent of the quality of their memory. In short, we cannot know what the outcome might have been, one way or another, for either party.

Furthermore, we do not accept the appellant's contention that the President preferred the respondent's evidence because the employer's witnesses could not remember exactly what was said. That assertion, in our opinion, overlooks the fact that much of the President's decision rested on evidence that had nothing to do with witnesses' fading memories. For example:

  • The President's finding that there was more heat in the banter between Wright and Patterson than Mr Vodak should have tolerated, largely rested on (a) Mr Reardon's evidence that the banter between Wright and Patterson got a bit serious at one time and (b) that it was clearly possible for an incident to have occurred between Wright and Patterson that the witnesses did not see.

  • The President, in finding that it was reasonable for Mr Patterson to walk off the job, essentially relied on (a) Mr Vodak's rejection of his request to intervene and (b) Mr Patterson's reasonably held apprehension of a confrontation with Mr Wright.

  • In deciding the question of Mr Patterson's resignation per se, the President did not rely solely on Mrs Robinson's fading memory, if that is what it was. He also took into account other evidence - that of Mr Vodak - that supported a conclusion contrary to that of resignation.

In our opinion the weight of evidence clearly refutes the appellant's contention that the President preferred the respondent's evidence because the employer's witnesses could not remember exactly what was said. We are also of the view that the weight of evidence supports the President's conclusion that the witnesses' memories "were not unduly affected by the passage of time". That is because in our opinion, much of the President's decision rested on evidence that had nothing to do with witnesses' fading memories.

The President concluded his consideration of the appellant's Section 21(2)(c) application with the observation that "... it would be contrary to the provisions of Section 20(1)(a) of the Act to dismiss the matter for want of prosecution". By that finding we understand the President to mean that, in his opinion, the applicant had an arguable case. Clearly, the appellant strongly disagrees with the President's conclusion. However, having regard to the above discussion, we can see nothing in what he did that, in terms of House v The King, constituted an error on his part in the exercise of his discretion.

In light of our findings we conclude that the President did not err in that, by refusing to strike out Mr Patterson's application for want of prosecution, he denied the appellant a fair hearing.

For all the above reasons we dismiss Appeal Ground No 7.

Excessive Compensation (Appeal Ground 10)

The Cross-Appeal

Betta Milk's Appeal Ground 10 alleged that the President erred in "ordering compensation that was excessive in all the circumstances". Mr Patterson, in his cross-appeal, alleged that the President erred in finding that "it is unlikely that Mr Patterson would have remained employed by Betta Milk at Launceston for more than six weeks after the date on which he was dismissed". As a matter of convenience we consider both appeal grounds together, because they deal with the same subject-matter, ie the quantum of the President's compensation order.

L Harper for the appellant:

In his decision regarding compensation the President relied on Nicolson v Heaven and Earth Gallery Pty Limited (1994) 57 IR 50 and, in doing so, took into account Mr Patterson's past performance. In coming to his conclusion the President mistook the facts that were before him.

In Nicolson the employer certainly denied the employee procedural fairness. But Mr Nicolson also had another problem that would have been more difficult to resolve. It seems the President formed a similar conclusion regarding Mr Patterson's continued employment. That option was neither open to the President as a matter of discretion nor was it available to him on the evidence.

The evidence discloses very little regarding Mr Patterson's prospects of continued employment had the Company not dismissed him. The applicant138 and witnesses Wright139 and Vodak140 all gave evidence to the President about an episode of past behaviour that, like the current episode, involved Mr Patterson and Mr Wright. But there was nothing in that evidence that could have led to a conclusion that Mr Patterson's employment would soon end. The evidence shows that it was an isolated incident that the employer did not consider to be an ongoing problem. It contains little to suggest that the employment relationship would end in a further six weeks.

There was also some evidence, that of Mr Reardon,141 which tended to suggest that everybody stirred up Mr Wright from time to time.142 It was not just Mr Patterson who apparently engaged in that activity.

There was no adverse evidence regarding Mr Patterson's work performance. Mr Patterson's evidence was that the Company had no problem with his work ethic,143 an attitude that Mr Vodak confirmed.144 Indeed, Mr Cameron asked Mr Vodak to describe what he would have said had Mr Patterson returned to work 10 minutes after walking off the job and apologised for his actions. Mr Vodak's clear response was that "Philip would still be working here today".145

Mr Vodak made his comment on 25 May 1998 whereas Mr Patterson's termination occurred on 18 April 1997. Mr Vodak did not make his admission in the course of cross-examination. It was an admission given freely and voluntarily in response to a question asked of him by Mr Cameron.

There is a complete lack of evidence suggesting an end to the employment relationship in six weeks. To the contrary, there was direct evidence that Mr Patterson's employment would have continued. In reaching the conclusion he did the President overlooked Mr Vodak's glaring admission. In the circumstances, the President's decision is clearly incorrect. The Full Bench should therefore intervene to substitute its own decision concerning compensation.

Andrew S Cameron for the appellant:

In terms of Nicolson, for the purpose of determining what might have happened had there been a termination that was not harsh, unjust or unreasonable, the Commission must look at the overall incident. In that regard, there is no guarantee that a person's employment will continue indefinitely.

The President was aware of the circumstances that existed in relation to Mr Patterson's employment. For example, there was evidence before him that what occurred between Mr Patterson and Mr Wright in the present circumstances also occurred on a previous occasion. At that time Mr Wright made a formal complaint to Mr Vodak who called a meeting of the parties to clear the air. Mr Vodak believed Mr Patterson was at fault and the latter apologised to Mr Wright for his behaviour. Furthermore, there was evidence before the President that Mr Patterson was abusive towards Mr Wright in a personal manner. Mr Wright was not a Company employee, but an outside contractor who dealt with the company. Mr Wright's evidence in that regard is that:146

"Yes, it got personal. I warned him once ages ago that he got personal about my wife's sexual habits and I sort of - just sort of indicated to him that he was about to step over the line."

The President acknowledged that this sort of banter accompanied the arrival, unloading and loading of Mr Wright's truck.147 Indeed, Mr Wright's evidence is that "I honestly did dislike coming down to Launceston knowing that the ridicule that I was going to get, you know, like as soon as I virtually opened the door ..."148 At some stage Mr Wright would probably have complained again and Mr Vodak would have acted on that complaint.

As for Mr Patterson's general behaviour, Mr Vodak's evidence is that he had a good work ethic if he had tasks to perform. However, Mr Vodak also said that, if Mr Patterson was left to his own devices, he could be his own worst enemy. In the circumstances, Mr Patterson could not be left idle - he had to be given tasks otherwise he would cause trouble. In fact, Mr Patterson acknowledged in his evidence that, when he met Mr Vodak in his office after he had walked off the job, Mr Vodak started talking about his work performance. Mr Patterson said he had worked back and done extra things during Mr Vodak's absence. Clearly, however, there were indications before the President that, in addition to abuse towards a Company contractor, there were other problems concerning Mr Patterson's conduct and performance.

Regarding the quantum of the President's order the Company, at the time Mr Patterson finished working for Betta Milk, paid him in error three weeks' pay in lieu of notice. The award provides for only one week's notice. The Company endeavoured to recover that money, but was unsuccessful.

The President found that Mr Patterson's employment would have come to an end, in any event, within a short period of time. But, notwithstanding that finding and the over-award payment, the President went on to order the employer to pay a further six weeks' wages as compensation for unfair dismissal - a total of nine weeks' compensation.

In all the circumstances, the President's order of six weeks' compensation was excessive. By any measure Mr Patterson's actions on the day in question amounted to a serious breach of his employment contract. Even had the Company gone through a meeting process with Mr Patterson on the particular Friday and allowed him another opportunity to discuss the matter on the following Monday, it could well have terminated his employment, with one week's notice, for misconduct.

Findings

There is no doubt in our minds, having regard to the evidence, that the "banter" involving Mr Wright was an ongoing activity. Perhaps, as Mr Harper contended, that activity involved employees other than Mr Patterson. But the evidence that was before the President appears to distinguish Mr Patterson in particular. For example, Mr Wright's evidence is that Mr Patterson's "banter" got personal on one occasion and Mr Vodak said "It got a bit personal at times ...".149 In the present case, Mr Reardon noted that the "banter" got serious for a short time. However, we accept that Mr Vodak was not aware of that happening because Mr Reardon did not tell him.

Mr Vodak also knew, because he said so himself, that Mr Patterson "is usually the aggressor".150 Mr Vodak's evidence in that regard arose in the context of his observations concerning Mr Patterson's "normal work behaviour", ie "Philip is a good worker if you give him a set job to do but if you leave Philip alone, he can be his own worst enemy ...".151 The President's decision discloses one other incident that was not put to us on appeal. Mr Vodak evidently warned Mr Patterson some eight months earlier regarding the latter's failure to pick up some empty crates from the supermarkets.152

All that evidence, in our opinion, raises the question of Mr Patterson's ongoing work performance rather than simply his relationship with Mr Wright or one isolated incident in that relationship. Indeed, Mr Patterson's own evidence is that Mr Vodak accused him of not "pulling your weight around here"153. Mr Vodak's evidence, however, contains no references of that nature. To the contrary, as Mr Harper pointed out, in responding to a question by Mr Cameron, Mr Vodak voluntarily admitted that, had Mr Patterson quickly returned to work and apologised for his actions, "Philip would still be working here today".

With all that material before him, the President's decision shows that he considered the evidence by reference to Nicolson before concluding that:154

"... it is unlikely that Mr Patterson would have remained employed by Betta Milk at Launceston for more than six weeks after the date on which he was dismissed. I have reached that conclusion because I consider that Mr Patterson's behaviour at the Betta Milk depot had reached the point where the patience of management was being tested, and a lawful and valid termination would have occurred within a relatively short period of time."

The evidence before the President was clearly unsatisfactory. However, contrary to Mr Harper's submission, it did disclose evidence tending to show the presence of, in terms of Nicolson, another problem in relation to Mr Patterson's employment that would have been more difficult to resolve.

In that regard we simply make the following points. First, Mr Patterson was his own worst enemy when he did not have specific tasks to perform. Second, notwithstanding the initial incident in which Mr Vodak intervened, Mr Patterson only changed his attitude for a few weeks before reverting back to the "banter" to which Mr Wright objected.155 Against that evidence, the President had to weigh Mr Vodak's admission that, had Mr Patterson quickly returned to work and apologised for his actions, he would still be working for Betta Milk.

What was the President to make of this conflicting evidence? He had the benefit of hearing the witnesses, of being able to question them, and of being in a position to assess their general demeanour. With those advantages he weighed the evidence and concluded that it was unlikely Mr Patterson's employment would have continued for much longer. We believe it was open for the President to take that decision on the evidence that he had before him. In doing so we do not accept the contention that he erred in the manner for which the cross-appellant contends in his appeal.

Concerning quantum, it is not clear to us from the President's decision how he arrived at an amount equal to six weeks' pay. His decision shows he was aware of the over-payment that occurred in Mr Patterson's favour at the time of his termination.156 Because of that awareness we assume he took the overpayment into account - if he had to take it into account at all - in coming to his decision. In all other respects, so far as we can see from the evidence, the President was not given the benefit of any submissions of substance concerning quantum of compensation should he conclude, as he did, that reinstatement was impractical. That circumstance left the President with a very broad range indeed in which to exercise his discretion - as evidenced by the fact that the appellant's appeal ground alleges excessive compensation whereas that of the cross-appellant alleges in effect that compensation was insufficient.

We cannot take this matter any further. In the circumstances before us we believe it was open for the President, on the evidence, to award the amount of compensation that he did and that, considering House v The King, he did not make some error in exercising that discretion.

Having regard to the above discussions we dismiss the cross-appeal and we also dismiss the appellant's Appeal Ground 10.

Decision

Having considered all the appeal and cross-appeal grounds and after taking into account our findings in relation to them, we reject the several contentions that the President, in terms of House v The King, acted upon a wrong principle, allowed extraneous or irrelevant materials to guide him, mistook the facts or failed to take into account some material consideration. Accordingly, we dismiss both Betta Milk's appeal and Mr Patterson's cross-appeal. In doing so, we confirm the President's decision and order.

 

B R Johnson
DEPUTY PRESIDENT

Appearances:
Mr L Harper, a legal practitioner, for Mr P T Patterson.
Mr A Cameron of the Tasmanian Chamber of Commerce and Industry Limited for Betta Milk Co-op Society Limited trading as Betta Milk.

Date and Place of Hearing:
1998
November 16
Hobart

1 Full details appear in the President's Reasons for Decision of 10 September 1998 in matter T6945 of 1997.
2 T6945 of 1997, Reasons for Decision 10 September 1998, p. 6.
3 Supra, p. 3.
4 Supra, p. 4.
5 Supra, p. 11.
6 Supra, p. 13.
7 Supra, p. 14.
8 Notice of Appeal, 1 October 1998.
9 Notice of Appeal, 25 September 1998.
10 Transcript 16/11/98, p. 25.
11 Judgment ID Number 121/1997, p. 13 per Underwood J.
12 T6945 of 1997, Reasons for Decision 10 September 1998, p. 11.
13 T6945 of 1997, transcript 25/5/98, pp. 44-45.
14 Supra.
15 T6945 of 1997, transcript 25/5/98, p. 59.
16 Supra, p. 64.
17 T6945 of 1997, Reasons for Decision 10 September 1998, p. 11.
18 Supra, p. 12.
19 T6945 of 1997, transcript 25/5/98, p. 37.
20 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
21 T6945 of 1997, transcript 25/5/98, p. 23.
22 Supra, p. 29.
23 Supra, p. 30.
24 Supra, pp. 30-31.
25 Supra, p. 34.
26 Supra, p. 67.
27 Supra.
28 Supra.
29 Supra, p. 74.
30 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
31 Supra, p. 7. See also transcript 16/11/98 at p. 10 where Mr Cameron told us that the effect of the passage of time on witnesses' memories also comprises Appeal Ground 7.
32 T6945 of 1997, transcript 25/5/98, p. 40.
33 T6945 of 1997, transcript 25/5/98, p. 42.
34 Industrial Court of Australia, Matter No VI-2434 of 1996.
35 T6945 of 1997, Reasons for Decision 10 September 1998, p. 9.
36 Supra, p. 12.
37 T6945 of 1997, transcript 25/5/98, p. 51.
38 T6945 of 1997, transcript 25/5/98, p.51.
39 Supra, p. 67.
40 Supra, p. 74.
41 Supra, p. 67.
42 Supra, p. 21.
43 Supra, p. 45.
44 Supra, p. 29.
45 Supra, p. 43.
46 Industrial Relations Court of Australia, Decision No. 115/96.
47 Industrial Relations Court of Australia, Matter No VI-2503/94.
48 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
49 T6945 of 1997, transcript 25/5/98, p. 20.
50 Supra, p. 21.
51 Supra, p. 51.
52 Supra, p. 53.
53 Supra, p. 62.
54 Supra, p. 70.
55 T6945 of 1997, Reasons for Decision 10 September 1998, p. 11.
56 T6945 of 1997, Reasons for Decision 10 September 1998, p. 11.
57 Supra. p. 8
58 Supra.
59 Supra, p. 9.
60 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
61 Supra, p. 8.
62 Supra.
63 Supra.
64 Supra, p. 9.
65 Supra, p. 7.
66 Supra, p. 11.
67 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
68 Supra, p. 5.
69 T6945 of 1997, transcript 25/5/98, p. 60.
70 Supra, p. 64.
71 Above, p. 5.
72 T6945 of 1997, transcript 25/5/98, p. 45.
73 T6945 of 1997, Reasons for Decision 10 September 1998, p. 8 (Reardon) and p. 9 (Vodak).
74 T6945 of 1997, transcript 25/5/98, p. 23.
75 Supra, pp. 29-30.
76 T6945 of 1997, Reasons for Decision 10 September 1998, pp. 11-12.
77 Supra, p. 7.
78 Supra, p. 12.
79 Supra.
80 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
81 Supra.
82 Above, p. 4.
83 Supra.
84 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
Supra, p. 7.
85 Supra, p. 12.
86 T6945 of 1997, transcript 25/5/98, p. 60.
87 T6945 of 1997, Reasons for Decision 10 September 1998, p. 8.
88 Supra, p. 13.
89 Supra.
90 Supra.
91 T6945 of 1997, Reasons for Decision 10 September 1998, p. 13.
92 Supra.
93 T6945 of 1997, transcript 25/5/98, p. 24.
94 Supra, p. 25.
95 Supra, p. 31.
96 Supra, p. 65.
97 Supra.
98 T6945 of 1997, transcript 25/5/98, p. 25.
99 Supra, p. 65.
100 Supra.
101 Supra.
102 T6945 of 1997, Reasons for Decision 10 September 1998, p. 13.
103 T6945 of 1997, Reasons for Decision 10 September 1998, p. 13.
104 T6945 of 1997, transcript 25/5/98, pp. 21-22.
105 Above, pp. 13-14.
106 Above, pp. 12-13.
107 Above, p. 12.
108 Supra.
109 T6945 of 1997, Reasons for Decision 10 September 1998, p. 12.
110 T6945 of 1997, Reasons for Decision 10 September 1998, p. 8.
111 Supra, p. 11.
112 Above, p. 11.
113 T6945 of 1997, transcript 25/5/98, p. 70.
114 T6945 of 1997, Reasons for Decision 10 September 1998, pp. 1-3.
115 Supra, p. 3.
116 Transcript 16/11/98, p. 4.
117 T6945 of 1997, Reasons for Decision 10 September 1998, p. 3.
118 T6945 of 1997, transcript 25/5/98, p. 18.
119 Section 20(1)(a).
120 Transcript 16/11/98, p. 18.
121 T6945 of 1997, p. 4.
122 T6945 of 1997, transcript 25/5/98, pp. 51-53 (Wright), pp. 57 and 61 (Reardon) and p. 73 (Vodak).
123 Supra, p. 7.
124 T6945 of 1997, transcript 25/5/98, p. 8.
125 Supra, p. 11.
126 Supra, p. 11.
127 T6945 of 1997, transcript 25/5/98, p. 17.
128 T6945 of 1997, Reasons for Decision 10 September 1998, p. 4.
129 T6945 of 1997, Reasons for Decision 10 September 1998, p. 4.
130 Above, p. 27.
131 T6945 of 1997, transcript 25/5/98, p. 17.
132 T6945 of 1997, transcript 25/5/98, p. 17.
133 T6945 of 1997, Reasons for Decision 10 September 1998, p. 2.
134 T6945 of 1997, transcript 25/5/98, p. 17.
135 Supra.
136 T6945 of 1997, transcript 25/5/98, pp. 9-10.
137 T6945 of 1997, Reasons for Decision 10 September 1998, p. 4.
138 T6945 of 1997, transcript 25/5/98, p. 33.
139 Supra, p. 45.
140 Supra, p. 66.
141 T6945 of 1997, transcript 25/5/98, p. 58.
142 Supra, p. 61.
143 Supra, p. 32.
144 Supra, p. 67.
145 Supra, p. 75.
146 Supra, p. 56.
147 T6945 of 1997, Reasons for Decision 10 September 1998, p. 10.
148 T6945 of 1997, transcript 25/5/98, p. 45.
149 Supra, p. 66.
150 Supra, p. 67.
151 T6945 of 1997, transcript 25/5/98, p. 67.
152 T6945 of 1997, Reasons for Decision 10 September 1998, p. 6.
153 T6945 transcript 25/5/98, pp. 25 and 31-32.
154 T6945 of 1997, Reasons for Decision 10 September 1998, p. 14.
155 Supra, p. 8.
156 T6945 of 1997, Reasons for Decision 10 September 1998, pp. 6, 9 and 13.