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T9833

 

TASMANIAN INDUSTRIAL COMMISSION

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

Blue Ribbon Meat Products Pty Ltd
(T9833 of 2001)

and

George Watson Carnie

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT R J WATLING
COMMISSIONER T J ABEY

HOBART, 15 May 2002

REASONS FOR DECISION

Appeal against Order handed down by Commissioner P C Shelley arising out of T9163 of 2000 - Appeal Ground 7A upheld - Original Order revoked - new order issued.

Introduction

[1] These proceedings concern an appeal against a decision of Commissioner Shelley handed down on 3 September 20011 and a subsequent Order dated 14 September 2001. The hearing at first instant dealt with an application lodged by George Watson Carnie (the applicant), pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing in respect of an industrial dispute with Blue Ribbon Meat Products Pty Ltd (the employer) alleging unfair termination of his employment and a claim for severance pay.

[2] The facts surrounding the dispute are conveniently summarised in Commissioner Shelley's Decision and we do not repeat them here. The application required 12 hearing days and the Commissioner heard evidence from 12 witnesses.

[3] Commissioner Shelley found:

"that there was no valid reason for the termination of employment and that it was unfair. There was no evidence of poor performance or conduct. The evidence was that Mr Carnie was a loyal, effective and hard-working senior employee of the company. Mr Carnie was blameless. The evidence was that the tasks and functions performed by Mr Carnie are still being performed by others; Mr Cameron's submissions were that Mr Carnie's resignation had left the company short of skills and had left a vacuum in the knowledge base of the company. There is clearly no operational reason for the termination of Mr Carnie's employment. I can only conclude that Mr Joy did not want Mr Carnie in that position for the reasons adverted to earlier. Mr Joy's evidence was that Mr Carnie was acting under a misapprehension when he resigned in the belief that his position as General Manager Commercial would cease to exist, yet he did nothing to disabuse Mr Carnie of this, allegedly mistaken belief. He did not ask him to withdraw his resignation. I think it likely, therefore, that his resignation was not unwelcome."

[4] She found also that Mr Carnie resigned from his position, however she said:

"... that an employee who resigns from his or her employment can and should be treated as having been dismissed from his or her employment if the resignation was as a result of the conduct of the employer, provided that the action of the employer is the principle contributing factor which leads to the termination of the employment relationship."2

[5] In arriving at her decision the Commissioner considered the comments found in Carrigan v. Darwin City Council that the conduct of the parties should be looked at as a whole, its effect judged reasonably and sensibly and the cumulative impact assessed.3 Accordingly she found that the termination of Mr Carnie was a constructive dismissal and was at the initiative of the employer

[6] Commissioner Shelley also found that the offer of the position of General Manager Sales and Distribution, if genuine, was not a position that Mr Carnie could reasonably be expected to accept. She said it was outside his competence for reasons of lack of training and experience, and it was reasonable for Mr Carnie to conclude that it would have been beyond his physical capabilities.

[7] She accepted that Mr Carnie's authority had been reduced, she said:

"He was no longer privy to the decision-making processes that he had previously been involved in because of his senior level in the company. Key aspects of his role and functions had been removed, or were about to be removed. He was to move to a location that did not have disabled facilities. His secretary would be removed from him. He had been told that his position would cease to exist. He was offered a position that did not appear anywhere in the company structure, and which was a position that he felt unable to fill, for reasons of lack of skills and experience and the physical inability to fill such a role."4

[8] Reinstatement was found to be impractical as it was unlikely that the trust and confidence necessary between the employer and the employee could be re-established. The Commissioner made an award of compensation of $93,053.63, after deducting 25 percent for contingencies.

The Appeal:

[9] On 4 October 2001 Blue Ribbon Meat Products Pty Limited [the appellant] lodged a notice of appeal pursuant to s.70(1) of the Industrial Relations Act 1984 (the Act).

[10] At the commencement of the appeal proceedings Mr M O'Farrell, for the appellant, sought and was granted leave to withdraw certain grounds of appeal.

[11] We deal with the remaining grounds of appeal.

Time for Appeal

[12] Mr R J Phillips, appearing for Mr Carnie [the respondent] raised a preliminary issue concerning the time limit within which a notice of appeal must be lodged.

[13] Commissioner Shelley handed down her Reasons for Decision and Order on 3 September 2001. The Decision refers to the respondent in the original hearing as "Blue Ribbon Meat Products Pty Ltd", however the Order was against "Blue Ribbon Holdings Limited ACN 009 487 674". This discrepancy was brought to the attention of the Commissioner who, on 14 September 2001, issued another Order, this time on Blue Ribbon Meat Products Pty Ltd, pursuant to s.19(2)(a) of the Act.

[14] The Acting Registrar informed the parties that the time limit prescribed by s.71(1) of the Act for the lodging of an appeal would commence from 14 September 2001.

[15] Mr Phillips argued that the Acting Registrar had no power to extend the time of appeal. He said that the relevant date is that found in the original decision and not the correction order. He also maintained there was no power for the Full Bench to extend the time for appeal as this was prohibited by s.21(2)(m) of the Act.

[16] Mr O'Farrell contended that the Commissioner had no power to make an Order pursuant to s.31(1) of the Act against Blue Ribbon Holdings Limited. This was so because an industrial dispute within the meaning of the Act is a dispute between the employer and the employee and the Commissioner was purporting to settle the dispute between a third party and the employee.

[17] He submitted that the scheme of the Act requires that for an Order to be enforceable under s.31 of the Act that an effective decision be made.

[18] Mr O'Farrell further submitted that until the correct Order was issued the Commission has effectively done nothing which allows the appeal to be justiciable.

[19] When dealing with the rights of appeal s.71(b) states:

"An appeal may be made to a Full Bench against -

(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 long service leave, or breach of award or registered agreement by -

    (i) the party who applied for the hearing; or

    (ii) the party to whom the order relates; or

    (iii) the Minister."

[20] Blue Ribbon Meat Products Pty Ltd, being "the party to whom the order relates" brought this appeal and that order was not served on them until 14 September 2001. As the notice of appeal was lodged with the Acting Registrar on 4 October 2001, it was within the time specified in s.70(1) of the Act.

[21] Given our finding, we dismissed the preliminary issue.

Appeal Ground 1

[22] The appellant claimed that the Commissioner erred in finding that:

(a) the respondent was constructively dismissed by the appellant; or further, or alternatively;

(b) the termination of the employee was at the initiative of the employer.

Appellant's Submission

[23] Mr O'Farrell submitted that Mr Carnie's evidence required close examination to see whether he was "pushed or did he jump".5

[24] He said that Mr Carnie left of his own volition and claimed that he did not want the job and instead of seeing what might happen to him or his position as General Manager, Commercial he resigned.

[25] Mr O'Farrell said that the job being offered to Mr Carnie was not defined but that Mr Carnie had made no attempt to determine what were the duties or roles of the position. He said that Mr Carnie had made assumptions as to those roles and duties and submitted that Mr Carnie was leaving his position of General Manager, Commercial because he assumed that that position would cease. That was by no means clear because he did not ask whether it would cease and Mr Joy had not said that it would cease.

[26] As to motive Mr O'Farrell noted that Commissioner Shelley had made no finding that Mr Joy deliberately embarked on a course of action to bring about the resignation of Mr Carnie. He said that if an employee comes to the Commission claiming that the principal contributing factor for the resignation was that the employer forced them to leave, the Commission must look at the `voluntariness' of the resignation.

[27] It was Mr O'Farrell's submission that Mr Joy was entitled to run his business as he saw fit and, if Mr Carnie had lost the relationship that existed with previous managers then it cannot be used to justify his resignation. He said that in order to rely on a repudiatory breach, that is, the contractual breach, the evidence and the decision needed to specifically identify the breach that is said to amount to repudiation. It was Mr O'Farrell's submission that such repudiatory breach cannot be identified in this matter.

[28] The decision in Advertiser Newspaper Pty Ltd v Industrial Relations Commission of South Australia6 was helpful, according to Mr O'Farrell, as it examined such things as: (a) voluntary abandonment of employment; (b) lawful termination of the contract; (c) repudiation of the contract by the employer; (d) a course of conduct sufficient to justify an employee terminating the contract - constructive dismissal; (e) termination of contract or unilateral action by the employer, even if repudiatory, and further negotiations which result in termination of the contract by agreement and the substitution for that contract of a fresh contract.

[29] Mr O'Farrell said that Mohazab v Dick Smith Electronics Pty Ltd7 was "probably a sort of paradigm case of constructive dismissal".

[30] He said the applicant in that case was presented with a demand for his resignation, but on the other side of the coin, the risk that if he didn't resign, then he would be subject to a police investigation. However, Mr O'Farrell submitted, it was not possible to simply then turn around and say that Mohazab is authority for the proposition that where you can find employer action which makes an employee feel uncomfortable in their employment then that would give the employee some correlative right to resign. He did accept that Mohazab was authoritative or, at least, an essential "start in the jurisprudence of what termination at the initiative of an employer is".8

[31] He highlighted the passage where the Full Court [page 205] stated:

"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee."

and further [page 207]:

"However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer."

[32] In Mr O'Farrell's submission these passages were critical as the issue of "voluntariness" was the issue to be determined. Her noted that "voluntariness" was seen as a critical issue in Gunnedah Shire Council v Grout9.

[33] He maintained it was instructive to look at the decisions of other tribunals to see how they dealt with similar matters. He said in Robins v Franklins10 the Australian Industrial Relations Commission found that it was unable to conclude that the employer acted in a way so as to initiate a termination of employment, and stated that a "constructive dismissal does not arise merely because an employee is faced with a disagreeable situation, to which he or she responds with a resignation". That decision, he said, referred to Australian Bank Employees Union v ANZ, where Deputy President Hancock said:

"It is not sufficient for there to be a finding of constructive dismissal, that an employee feels that he has little or no choice but to resign."

[34] Mr O'Farrell also relied on Sparrow v Little11 where, after two appeals the matter was returned to the South Australian Industrial Relations Commission and the Commission ruled in favour of the employer citing "the worker's act of resignation was premature" and "it could not be regarded as an acceptance of repudiatory conduct amounting to dismissal."

[35] The decision in Western Excavating and Sharp discusses the various tests which might be applicable to the doctrine of constructive dismissal and was relied on by Mr O'Farrell. It states:

"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

Respondent's Submission

[36] Mr Phillips said that the finding of witness credibility was within the Commissioner's province. The Commissioner found:

"After a careful analysis of the evidence, and a consideration of Mr Joy's demeanour during the hearing, I have concluded that Mr Joy is an unreliable witness. Where Mr Joy's evidence differs from that of Mr Carnie, or, indeed, of any other witness, I prefer that other evidence." [paragraph 393].

[37] Mr Phillips noted that the position of General Manager, Sales and Distribution offered to Mr Carnie was never advertised and seemed to disappear into oblivion after Mr Carnie's departure. Mr Russell Young's evidence was that the position did not exist in the company organisational structure chart. Further, Mr Carnie's long history of employment would have given him an intimate knowledge of the operational requirements and structures of the company. He said that on three occasions Mr Joy had told Mr Carnie that he did not have a job as General Manager Commercial as it would cease to exist.

[38] The finding of the Commissioner that it was probable that Mr Joy had a motive for pursuing a course of action designed to result in Mr Carnie's resignation, was, Mr Phillips submitted, a finding that Mr Joy had in fact that motive. He said the Commissioner found she could not be satisfied that Mr Joy deliberately planned to bring about Mr Carnie's resignation.

[39] Further Mr Phillips submitted that the Commissioner's finding that it was the cumulative circumstances leading to the termination was open to her on the evidence.

[40] Mr Phillips said, Mr Carnie's evidence indicated there was a fourth conversation with Mr Joy, during which the following discussion took place:

"I said that I'd considered the position of general manager sales and distribution and the fact that my function - or the position of general manager commercial was to cease to exist; that I didn't have the skill sets or capabilities to carry out that function and that with a great deal of regret after almost 18 years that I had no choice but to resign my position from the company."12

[41] Mr Phillips said that it was Mr Carnie's evidence that as a paraplegic he did not have the freedom of mobility that ordinary members of the community would have and so would not have been able to perform some of the functions of the new position.

[42] He submitted that the authorities relied on by the appellant, such as Sparrow v Little13, and Robbins v Franklins14, were plainly distinguishable from the present case.

[43] He said in Pawel the court found that the Commissioner had applied the wrong test in dismissing Pawel's15 application for relief. Further he said that in Pawel the majority cited Mohazab16 with approval. Their Honours said:

"The proper construction of the phrase "termination of employment at the initiative of the employer was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd. The approach adopted by the Full Court was referred to, with apparent approval, by McHugh J in Qantas Airways Ltd v Christie. The Full Court held in Mohazab that termination at the initiative of the employer occurs when "the act of the employer results directly or consequentially in the termination of employment".

[44] In Carrigan's17 case, Mr Philips drew our attention to the following passage where His Honour Justice Von Doussa said:

"The alternative limb of Ms Carrigan's case is that the Council was in breach of an implied contractual obligation that the employer would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee."

[45] Mr Philips submitted that the above passage is relevant when considering Mr Joy's conduct and said that the fallacy in appeal Ground 1 is found in the following statement of Mr O'Farrell:

"she [Commissioner Shelley] couldn't make any firm finding that Mr Joy deliberately embarked on a course of action intended to bring about the resignation of Mr Carnie. It wasn't Mr Joy's conduct at all which was the principal contributing factor because he didn't embark upon that course of action."

[46] It was noted by Mr Phillips that His Honour in Carrigan quoted with approval the passage from Mohazab referred to by Mr O'Farrell in respect to his submission as to `voluntariness'.

Finding

[47] The Commissioner correctly identified the credit of the witnesses as a major issue in this matter. She said:

"The evidence of Mr Carnie and Mr Joy is critical to the determination of this case and it differs in many important respects." [paragraph 380]

[48] The Commissioner found Mr Carnie to be a "thoughtful and credible"18 witness and Mr Joy to be "an unreliable"19 witness and where Mr Joy's evidence differed to that of Mr Carnie, or indeed, that of any other witness she preferred that other evidence.

[49] We agree with Mr Phillips submission that having made such a finding the Commissioner was entitled to disregard Mr Joy's evidence.

[50] The Commissioner found that if viewed cumulatively, the combined weight of all the events led her to conclude that the actions of the employer were the principal contributing factor leading to Mr Carnie's resignation. This led her to conclude that there was a termination at the initiative of the employer and that such termination was unfair.

[51] Having considered the evidence and submissions presented in the proceedings below and the submissions presented in this appeal, we are of the view that it was open to the Commissioner to make the finding she did and we are unable to detect any error.

[52] We reject appeal ground 1.

Appeal Ground 2

[53] The appellant claimed that the Commissioner was bias (sic), or, alternatively, the employer was reasonably entitled to apprehend bias on the part of the Commissioner, in that:

  • the Commissioner suggested at the hearing that the employer had engaged in "a pattern of purge" in respect of its management;

  • prior to the evidence commencing the Commissioner suggested that a letter was "a face saving out" by the employer's CEO.

Appellant's Submission

[54] Mr O'Farrell said:

"We all know that the procedure in this commission is to place great emphasis at the beginning of any proceedings which come before it on conciliation and that is obviously a right and proper thing for the commission to do and obviously the nature of conciliation is that people say things, they discuss things, perhaps evidence is disclosed, all sorts of things happen at conciliations that may be adverse to their interests on a hearing and of course that's one of the reasons why conciliations are generally conducted without prejudice and on we go."20

and further:

"it behoves all the parties ..... and indeed the commissioner presiding in the matter to treat the proceedings with great care, particularly matters which have possibly arisen in conciliation."21

[55] He referred to a letter from Holding Redlich (at the time Mr Joy's solicitors), which was presented to the Commissioner and which she described as giving Mr Joy "a face saving out from the company"22. At the time Mr Cameron, appearing for Blue Ribbon, objected to that reference and the admission of the letter. The objection was over-ruled and the letter was admitted as evidence.

[56] It was contended by Mr O'Farrell that the expression used by the Commissioner suggests she had drawn some sort of inference about the nature of that correspondence.

[57] In respect to the words - "pattern of a purge"23 Mr O'Farrell said the mere fact that the phrase had found its way into and achieved some prominence in the Commissioner's decision was cause for concern.

[58] He said the question to be determined is whether there could be a reasonable apprehension of bias as discussed in Livesey24 which states: .

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."

and further:

"In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters "of degree in particular circumstances may strike different minds in different ways". If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting."

and:

"On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so -."

Respondent's Submission

[59] It was Mr Philips submission that an appellate tribunal ought to be very circumspect when dealing with an allegation of actual or apprehended bias.

[60] He said there was no evidence filed which addressed the very serious allegations that have been made. In addition no issue was taken by the appellant at first instance which, he said, was a fatal omission as had objection been taken it could have been properly dealt with at the time rather than raising it as an issue on appeal.

[61] Mr Phillips further submitted that to take these two comments as indicative of apprehended bias, in a case of over 800 pages of transcript, was to draw an extremely long bow.

Finding

[62] The claim of bias or apprehended bias was not raised in the proceedings below and relate to two brief comments made in isolation and in exchanges between the Commissioner and advocates and/or witnesses during proceedings.

[63] The expression `pattern of purge' seems to have been used by the Commissioner to describe the changes in the company management personnel. However she made no finding that Mr Carnie's termination had been part of any `pattern of purge'. The Commissioner does not appear to have placed any weight or reliance on her comment said to relate to a letter from Mr Joy's solicitors.

[64] The allegation against the Commissioner is serious but we find absolutely no basis on which such allegation could be supported.

[65] We reject appeal ground 2.

Appeal Grounds 3 and 4

[66] The appellant dealt with grounds 3 and 4 together. Ground 3 claims that the Commissioner erred in:

(a) making findings, or alternatively;

(b) placing undue weight on hearsay evidence in respect of:

  • a version of a statement of the employer's CEO on 30 June 2000 to the effect that he was not psychic;

  • the fact that Ms Hogarth had been told that she was to be moved as the employee's secretary.

[67] Ground 4 alleges the Commissioner erred in drawing an inference that the evidence of Ms Hogarth may not have been helpful to the employer.

Appellant's Submission

[68] Mr Cameron, who replaced Mr O'Farrell during the appeal proceedings, submitted that it was unreasonable to put weight on hearsay evidence and in particular a comment made by Mr Joy which was reported to or heard by Mr Carnie to the effect that he [Mr Joy] was not psychic.

[69] Mr Cameron also contended that the decision of Commissioner Shelley relied on hearsay evidence in respect to a conversation that took place between Ms Hogarth [Mr Carnie's secretary] and the CEO's secretary at a luncheon.

[70] The Commissioner said:

"If Mr Joy's secretary did, as is alleged, tell Mr Carnie's secretary that he was expected to resign, it would have been very telling evidence. It was open to the respondent to call Mr Joy's secretary, Ms Hogarth, to give evidence."

and further:

"Ms Hogarth could have confirmed or denied what was allegedly said to her at the lunch. The company called seven employees as witnesses, but not Ms Hogarth. The fact that they did not do so leads me to draw the inference that her evidence may not have been helpful to the respondent."

[71] The Commissioner in the passages quoted by Mr Cameron does little more than state that the evidence, hearsay or not, remained unchallenged.

Respondent's Submission

[72] It was Mr Phillips' contention that not all of the evidence in respect to Ms Hogarth was hearsay evidence. He said there was direct evidence of her demeanour; the way that she presented herself, i.e. tearful and distressed and that the Commissioner was entitled to have regard to all of the evidence.

Finding

[73] The Commissioner has issued a very comprehensive decision which has addressed most, if not all, of the matters raised in the proceedings. However if the matter complained of by the respondent was relied upon, and we are not sure that it was, it is but one incident in a number of incidents considered in the Commissioner's decision. It was one of the incidents that led to Mr Carnie feeling "that his days were numbered."

[74] Appeal ground 3 refers to the comment about Mr Joy `not being physic' and it is our view that the comment had little relevance to the issue in dispute and we are satisfied the Commissioner placed little weight on it in her considerations. Likewise the claim that the evidence of Mr Carnie concerning Ms Hogarth was hearsay is not supported by a consideration of all of the evidence surrounding Ms Hogarth. Much of that evidence is direct evidence and the Commissioner was entitled to rely on it.

[75] Appeal ground 4 alleges that the Commissioner erred in drawing the inference that the evidence of Ms Hogarth may not have been helpful to the employer.

[76] Having considered the comments of the Commissioner we are of the view that she does no more than note that the company chose not to refute the evidence presented and records her conclusion which she was entitled to do.

[77] Appeal grounds 3 and 4 are dismissed.

Appeal Ground 5

[78] Appeal ground 5 alleges that the Commissioner erred by failing to take relevant matters into account, namely:

  • the evidence of Mr Erichson and other witnesses for the employer;

  • the dinner attended by the employee and the employer's CEO at Pierre's Restaurant;

  • performance reviews and salary increases of the employee.

Appellant's Submission

[79] Mr Cameron said company witnesses presented evidence that Mr Carnie's work, duties and responsibilities were very much the same under Mr Joy's stewardship as CEO. He said that evidence contradicted the evidence of Mr Carnie. He further submitted that the evidence revealed that senior managers were aware of the changes that were taking place and it was management prerogative to structure and run the business as they saw fit.

[80] In relation to the dinner at Pierre's Restaurant Mr Cameron submitted that Commissioner Shelley did not take that incident into account in her decision because it took place prior to the events of 1998.

[81] Mr Cameron submitted that the Commissioner also ignored Mr Carnie's performance reviews and salary increase which was granted following Mr Joy's appointment.

Respondent's Submission

[82] Mr Phillips said that whilst the Commission heard about some comments made by Mr Erichson and other witnesses the person who was closest to Mr Carnie was Mr Kavanaugh who gave evidence that suggested that there were changes to Mr Carnie's work. Mr Phillips said that the fact that Mr Carnie kept himself busy did not mean that his position had not been downgraded significantly. He added that it should not be overlooked that Mr Carnie had been told three times that his job was going to finish.

[83] In relation to the dinner at Pierre's Restaurant Mr Philips submitted that Mr Joy was not the CEO at the time so the evidence was of little assistance.

[84] Mr Philips further contended that Mr Carnie's performance review and salary increases were things that had been dealt with before the new board came into effect and it was not inconsistent that recommendations made by previous management would be implemented shortly after new management took over.

Finding

[85] In respect to the issues raised by the appellant in appeal ground 5 Commissioner Shelly said:

"I find the following issues irrelevant to the questions to be determined, and have not taken them into account when reaching my decision:

  • Mr Joy's corporate history, excepting those parts of his evidence which go to the credibility of his evidence before the Commission.

  • The dinner attended by Mr Carnie and Mr Joy at Pierre's Restaurant, because it predates the events in April 1998.

  • The performance reviews and salary increases of Mr Carnie, because these are part of the normal operations of the company, and, because it was never claimed at any stage of the hearing that Mr Carnie was not a competent employee.

  • Mr Carnie's previous involvement in human resources management, because it predates relevant events by a considerable period.

  • Mr Carnie's treatment in hospital in 2000.

  • Ms Tindall's workers' compensation claim."25 [paragraph 375, emphasis added].

[86] The Commissioner has quite clearly enunciated those matters she considered irrelevant to her determination, she was well placed to do so having heard all of the evidence at first instant and she has provided reasons why she considered certain matters irrelevant. We are of the view that it was open to her to do so and detect no error.

[87] Accordingly we dismiss this ground of appeal.

Appeal Ground 6

[88] The appellant alleged that the Commissioner erred by failing to take into account relevant matters, namely:

  • that he left his employment because of his paraplegia;

  • the circumstances of his insurance claims in relation to superannuation and sickness and disability.

Appellant's Submission

[89] Mr Cameron relied on documents tendered relating to insurance claims made by Mr Carnie for superannuation and sickness and disability and the evidence of Mr Greg Kimpton that Mr Carnie resigned not because he lacked the skill sets to undertake the role of General Manager Sales and Distribution but because his disability would make it difficult to service the customers.

Respondent's Submission

[90] Mr Philips submitted that it was not inconsistent for Mr Carnie to state that he left his job due to his paraplegia as this was the reason he was not able fulfil all of the functions proposed in the General Manager Sales and Distribution position.

Finding

[91] The Commissioner did consider the evidence relating to insurance claims made by Mr Carnie for superannuation and sickness and disability and she made the following finding:

"I accept Mr Carnie's explanation of the responses contained within his insurance claim forms. I have concluded that the answers he gave to those questions are consistent with his evidence and with his perception of the situation at Blue Ribbon at the time of his resignation. They also need to be considered in the context of the eligibility criteria for the claims, the shorthand nature of the questions and answers, his explanations of the answers, and the covering letter to AMP. I do not believe that individual answers to those questions should be considered in isolation. Having considered all of these aspects, I have concluded that his responses in the claim forms do no damage to his credibility as a witness before this Commission."26

[92] In respect to the evidence of Mr Kimpton the Commissioner found him "to be an unsatisfactory witness whose evidence was inconsistent and evasive" and she preferred "the evidence of other witnesses where there is any conflict."27

[93] With the benefit of hearing the witness evidence we are of the view that this finding was reasonably open to the Commissioner and we reject appeal ground 6.

Appeal Ground 7 and 8

[94] Appeal ground 7 alleges error in assessing the compensation payable to the employee in that:

(a) the Commissioner assessed compensation without reference to 30(12) or 31(1B)(b) of the Industrial Relations Act 1984;

(b) the Commissioner took into account a notional value of a vehicle, home computer and allowances when there was no evidence to support that value;

(c) the Commissioner failed to take into account the employee's failure to mitigate his loss;

(d) the Commissioner failed to take into account the elapsed time between the termination and the order, including the time taken by the Commissioner to reach a decision;

(e) the assessment was manifestly excessive in all the circumstances of the case.

[95] Appeal ground 8 claimed the Commissioner erred in finding that the Act applied prior to the introduction of the Industrial Relations Amendment Act 2000 [ No 104 of 2000] ("the Amending Act").

Appellant's Submission

[96] The appellant addressed ground 7(a) and 8 together.

[97] Mr O'Farrell submitted that Sections 30(12) and 31(1B)(b) of the Act came into existence on 1 January 2001 upon the proclamation of the Industrial Relations Amendment Act 2000 [No. 104 of 2000] hereafter known as the Amending Act.

[98] Mr O'Farrell said that the Amending Act came into force after the original application had been filed and the proceedings had commenced therefore in the absence of any accrued rights as discussed in Saarinen v University of Tasmania [Saarinen28] the Commissioner was required to assess compensation in accordance with the provisions of the Amending Act.

[99] In Saarinen Justice Underwood said:

"What then was the nature of the appellant's claimed right at the time part of the definition of industrial dispute was repealed and the new definition substituted? It is inappropriate to describe that right merely as a right to a hearing before a Commissioner. That right, conferred by the Act, s29(1) remained unaffected by the repeal of part of the definition of industrial dispute. The appellant exercised the right conferred by s29(1) five days after the repeal. The President convened a hearing in consequence of the exercise of that right...........The critical right which the appellant claims accrued to her was the right to relief, which the Commissioner, in the exercise of his discretion, could grant to settle or prevent an industrial dispute. It seems to me that until the appellant applied to the President in accordance with the Act, s29(1), it could not be said that she accrued any relevant right at all."

[100] Mr O'Farrell submitted that the grant of the right to a remedy depended on a favourable exercise of the Commission's discretion and he relied on the following passage in Saarinen where Underwood J said:

"Further, it is difficult to identify the nature of the right which the appellant claims had accrued to her on the repeal of part of the definition of industrial dispute. Relevantly, the Act, s31(1), conferred a discretionary power on a Commissioner after a hearing under s29, to order that something be done or action be taken for the purpose of settling the industrial dispute. After the hearing, a Commissioner might decide to make no order at all, thereby conferring no right upon the appellant. With respect to accrued rights to the exercise of discretionary powers, the Privy Council in Director of Public Works & Anor v Ho Po Sang and Others [1961] AC 901, observed at 920 that the grant of the certificate in respect of which the respondent claimed a right was dependent upon a favourable exercise of the Governor's discretion."

[101] Mr O'Farrell sought to draw a distinction between discretionary and non-discretionary29 decisions referred to in Saarinen, which goes on to say:

"The jurisdiction of the Commissioner was limited to making orders "for the purpose of ... settling the industrial dispute." The exercise of that discretion did not depend solely upon facts and events that had occurred at the time the dispute arose. The exercise of that discretion depended in part on all the events that had occurred until immediately prior to the moment the Commissioner was asked to make an order. The Commissioner's power to make any order was correctly categorised by Mr Tracey as arbitral, not judicial."

[102] His Honour found:

"Accordingly, I am of the opinion that at the time the Industrial Relations Amendment Act 1994 came into operation, no rights had accrued to the appellant and that the jurisdiction of the Commissioner to exercise his discretion and make an order was dependent upon there being an industrial dispute as defined by the Act, as amended by Act No 90/1994. The position is exactly the same at common law. See Maxwell v Murphy (1956 - 1957) 96 CLR 261."

[103] Saarinen, Mr O'Farrell submitted, established that the power to be exercised by the Commission was arbitral and so it was a discretionary power that only comes into existence for a particular purpose, that is, to settle or prevent an industrial dispute within the meaning of the Act. He said until the Commissioner arrived at the point where she considered whether or not (a) there was an industrial dispute within the meaning of the Act; and (b) it needed to be settled or prevented; the issue about what should be done, if anything at all, did not come into play.

[104] At the time Mr Carnie came to the Commission he was not in a position to have any more than a hope that he could establish there was an industrial dispute that could be settled and that the Commission would, by order, direct that he be reinstated or award compensation.

[105] It was Mr O'Farrell's submission that once the Amending Act came into force it had the immediate effect of limiting the amount of compensation the Commissioner was entitled to grant.

[106] In respect to appeal grounds 7(b), (c), (d) and (e) the appellant submitted that the grounds were self explanatory and relied on the transcript and decision of the original hearing to support the contentions raised.

Respondent's Submission

[107] Mr Phillips submitted that the issue was not about the repeal of a right but an amendment in the form of a limit on the amount the Commission may award as compensation.

[108] Mr Phillips argued that the Amending Act did not have retrospective operation. He submitted that the Amending Act did not affect Mr Carnie's right to arbitration nor to a hearing. What was affected he said, was not the nature of the power to be exercised by the tribunal but the limit on the compensation available.

[109] Mr Phillips said that in Saarinen no application had been made; there had been no conciliation and the hearing had not commenced. In this matter the hearing had commenced and may well have been concluded prior to the Amending Act being proclaimed other than for the time taken to hear the matter.

[110] He said the following passage from the judgment of Mr Justice Underwood in Saarinen was relevant to the meaning of the expression 'right accrued' wherein he quotes from Abbott v The Minister for Lands30:

"They think that the mere right..........existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."

[111] And later from the judgment of Mr Justice Kitto in Continental Liqueurs Proprietary Limited v GF Heublein & Bro Incorporated31 where it was said:

"There is nothing in the 1955 [Trademarks] Act to displace the general rule of the common law which the Acts Interpretation Act reinforces, namely that, in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."

[112] It was Mr Phillips submission that the Amending Act put a limit on the amount to be awarded and was not a procedural matter but a matter of substance. Accordingly the amount of compensation able to be awarded was not affected by the Amending Act.

[113] Statutory Interpretation in Australia, according to Mr Phillips supports the proposition that if the amendment was a procedural amendment, it is effective from the date of the hearing.

[114] He relied on a number of authorities referred to in Statutory Interpretation in Australia under the heading `Retrospective Operation of Legislation' where it was said:

"Assumption that legislation is not retrospective. The courts have frequently declared that in the absence of some clear statement to the contrary an Act will be assumed not to have retrospective operation."

[115] Reference was made to Maxwell v Murphy (19570 96 CLR 261 where Dixon CJ summarised the approach of the courts thus:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

[116] Mr Phillips referred to three cases quoted in the article where it was found that an amendment dealing with the method of calculating damages was found to not be procedural but substantive.

[117] Given the above it was Mr Phillips submission that the Amending Act has no retrospective application and that the Commissioner had correctly applied the entitlement to compensation.

[118] In respect to appeal ground 7(b) Mr Phillips submitted that the Commissioner was able to take into account a notional value for compensation purposes without detailed evidence being provided. He claimed that in the field of damages there had been many occasions when awards were made without there being specific evidence provided. The Commission being a specialist tribunal has the power to use its own knowledge and as such the Commissioner has committed no error.

[119] The appellant relies on assertion in respect to appeal ground 7(c) and has provided no evidence to support such assertion.

[120] Appeal ground 7(d) should be rejected as it is an irrelevant consideration.

[121] No argument had been advanced in respect to appeal ground 7(e) and it should also be rejected.

Finding

[122] We note that the facts in Saarinen differ somewhat from this matter. However Saarinen is instructive in respect to the issue of accrued rights.

[123] Mr Carnie exercised his right to make application pursuant to s.29(1A) of the Act. The question we are required to consider is what was Mr Carnie's accrued right to relief, if any, should the Commissioner exercise her discretion and find in his favour.

[124] We agree with the findings in the authorities referred to by Mr Phillips but note that the issues are somewhat different to the amendment we are now considering.

[125] We are of the view that the right that existed prior to the amendment was the right to a hearing, depending on the determination of that right a remedy may then be available. In considering remedy the Commission is required to look not only at events already occurred but at contemporary issues like the attempts of the applicant to mitigate any loss and monies earned since the termination.

[126] We agree with Underwood J in Saarinen where he states:

"Relevantly, the Act, s31(1), conferred a discretionary power on a Commissioner after a hearing under s.29, to order that something be done or action be taken for the purpose of settling the industrial dispute. After the hearing, a Commissioner might decide to make no order at all, thereby conferring no right upon the appellant. With respect to accrued rights to the exercise of discretionary powers, the Privy Council in Director of Public Works & Anor v Ho Po Sang and Others [1961] AC 901, observed at 920 that the grant of the certificate in respect of which the respondent claimed a right was dependent upon a favourable exercise of the Governor's discretion. At 921-922, their Lordships said:

"Was the Lessee therefore possessed on April 9 of a `right' (or privilege) within the meaning of the Interpretation Ordnance? In their Lordships' view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross-petition considered was not such a `right'. On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects."

Many of the relevant cases are carefully reviewed in the judgement of Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685. His Honour (with whom the other members of the court expressed agreement) concluded at 696:

"These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment." (Emphasis added).

See also Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683 at 699-700. The jurisdiction of the Commissioner was limited to making orders "for the purpose of... settling the industrial dispute." The exercise of that discretion did not depend solely upon facts and events that had occurred at the time the dispute arose. The exercise of that discretion depended in part on all the events that had occurred until immediately prior to the moment the Commissioner was asked to make an order. The Commissioner's power to make any order was correctly categorised by Mr Tracey as arbitral, not judicial."

[127] We uphold this ground of appeal as the Commissioner was required to assess Mr Carnie's compensation in accordance with the Industrial Relations Amendment Act 2000 (No.104 of 2000) ("The Amending Act").

[128] In the absence of any transitional provisions in the Act we rely on the view expressed in Saarinen that the only right which accrues is the right to a hearing. An applicant is then able to persuade the Commission to exercise its discretion to award a remedy in settlement of the industrial dispute to which the application refers. Until such time as the discretion is exercised in favour of an applicant there is no right to relief, accordingly we are of the view that any relief granted should be assessed by reference to the Amending Act.

[129] Having made that determination the Full Bench is required to reassess compensation in accordance with s30 (11) and s30 (12).

[130] Appeal grounds 7(b), (c), (d) and (e) were dealt with by the appellant in a cursory manner and in the absence of any detailed submissions we have been unable to establish that the Commissioner erred in the manner suggested.

[131] Appeal grounds 7(b), (c), (d),and (e) are dismissed.

Appeal Ground 9

[132] The appellant alleged that the Commissioner failed when taking a matter into account, namely, her view that the Act applied prior to the introduction of the Amending Act, to notify the parties and afford them the opportunity to be heard in relation to that matter.

Appellant's Submission

[133] Mr O'Farrell submitted that the Commissioner was required to inform the parties of her view that the Act applied prior to the introduction of the Amending Act in relation to this matter.

[134] He said the Commissioner stated in her Decision at paragraph 3:

"The application was made, and the hearing commenced, prior to the introduction of the Industrial Relations Amendment Act 2000 (No. 104 of 2000.) There was no submission put to me that the amended Act should apply. When considering remedy, I have done so under the provisions of the Act at the time the application was made."

[135] Mr O'Farrell said that it was apparent, on the face of the Commissioner's decision, that the parties were not given an opportunity to make any submission about the matter.

[136] He submitted that section 20, subsection (4) of the Industrial Relations Act requires:

"Where the Commission, in deciding any matter before it, proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information."

[137] Mr O'Farrell contended that as s.20(4) of the Act refers to any matter or information it gives the widest possible ambit to that section. As such where matters which may give rise to a finding which affects one party [in this case whether or not a six month cap should apply to any compensation awarded] the appellant was entitled to have the opportunity to address the Commission as to its application.

[138] Mr O'Farrell also submitted that this ground of appeal applied to appeal grounds 7(a) and 8 but did not elaborate further.

Respondent's Submission

[139] Mr Phillips was of the view that there was no requirement for the Commission to notify the parties that it was applying the provisions of the Act.

[140] It was his submission that the purpose of s.20(4) is to provide a statutory reinforcement of the principle that a party or parties have a right to be heard where the Commission intends to take into account matters and information that have not been put by the parties. That section, he said, is intended to act as a statutory break on a Commissioner making a finding on a factual matter without reference to the parties. He submitted it is not intended that s.20(4) requires the parties to be notified about a matter that is within the tribunal's own jurisdiction.

[141] He referred to an extract from Hotop's Principles of Administrative Law, sixth edition, at pages 198 to 199 wherein it deals with disclosure of material evidence to the parties and states in part the following:

"This problem is exacerbated by the general recognition that powers in certain areas are conferred on administrators or tribunals rather than on the courts because of their expert knowledge of those areas and because better decisions are likely to result from bodies which have a wealth of information readily accessible from their organisational structure. To require that an administrator's or tribunal's decision be based solely on evidence adduced by judicial-type procedures would undermine the value of the administrative process. On the other hand, to allow a decision to be based on extraneous material of which the parties (or a party) are unaware certainly presents an appearance of unfairness."

Finding

[142] S.20(4) of the Act is a statutory expression of one aspect of the principle of natural justice and on each occasion the Commission exercises its jurisdiction it must comply with that provision.

[143] However in our view, s.20(4) does not require the Commission to actually hear the parties with respect to every matter or information it proposes to take into account before making a decision. The requirement is to afford the parties an opportunity to be heard if the Commission is to rely on extraneous matters not raised in proceedings.

[144] The application lodged by Mr Carnie sought relief from what he alleged to be his unfair termination by the company.

[145] The transcript indicates that discussion did take place as to remedy. The claim for relief was a substantial matter before the Commission but neither party addressed the limit imposed by the Amending Act to any compensation if compensation were the remedy awarded. The parties were able to address this issue at the time had they thought it appropriate.

[146] We are of the view that the Commission was not required to provide further opportunity for the parties in accord with s.20(4); the issue of compensation was quite clearly before the Commission and was an inevitable result if reinstatement were deemed to be inappropriate.

[147] Whilst we have found that any compensation should have been assessed by reference to s.30(12) of the Amending Act it does not follow that such a finding would support the allegation on appeal that the parties were entitled to be heard further on the matter.

[148] S30(12) provides:

"Where the Commission finds that an employee's employment has been unfairly terminated and has determined that reinstatement or re-employment is impracticable, any amount of compensation must not exceed an amount equivalent to 6 months ordinary pay for that employee."

[149] Accordingly we dismiss this ground of appeal.

Conclusion

[150] We have dismissed all grounds of appeal other than appeal ground 7(a) which claimed that the Commissioner assessed compensation without reference to s.30(12) or s.31(1B)(b) of the Act. Accordingly pursuant to s70(13) of the Act we revoke the Order of Commissioner Shelley in matter T9163 of 2000.

[151] We have previously noted the absence of any transitional provisions or any guidance in the Act as to the meaning of `ordinary pay'. Whilst appeal grounds 7(b), (c), (d) and (e) did raise the issue of the amount and calculation of the compensation awarded by the Commissioner no submissions were presented which would provide us with any guidance or assistance. Accordingly and in the absence of any submissions as to the method of calculation of any compensation or any submissions which addressed the meaning of `ordinary pay' we have decided to adopt the following approach in the circumstances of this matter.

[152] We have considered the method of calculation adopted by the Commissioner and we make our assessment as follows:

    Mr Carnie's annual salary was
    Additional benefits total
    Superannuation

    $104,881.00
    10,000.00
    9,190.50

    Total annual ordinary pay

    $124,071.50

    [paragraph 464]

[153] We are of the view that the total package referred to by the Commissioner could be considered Mr Carnie's `ordinary pay' for the purpose of s.30(12). As such and adopting the Commissioner's approach as to calculation we are of the view that his entitlement should be the maximum available being 6 months pay which we say is $62,035.75.

[154] Pursuant to the powers conferred on the Commission by s.71(13)(b) of the Industrial relations Act 1984 we hereby Order that Blue Ribbon Meat Products Pty Ltd pay to George Watson Carnie, Glen Haven, 50-62 Fairlough Street, Perth, Tasmania, 7300, the sum of sixty two thousand and thirty five dollars and seventy five cents ($62,035.75). Further we Order that such payment be made within fourteen (14) days of the date of this decision.

 

P L Leary
PRESIDENT

Appearances:
Mr M O'Farrell (26.11.01), of Dobson Mitchell & Allport, Barristers and Solicitors, for Blue Ribbon Meat Products Pty Ltd; and Mr A Cameron (13.2.02) with Ms J Thomas (13.2.02), from the Tasmanian Chamber of Commerce and Industry Limited, for the liquidator Mr R G Shoobridge (Deloitte Touche Tohmatsu) for Blue Ribbon Meat Products Pty Ltd
Mr R Phillips (26.11.01 and 13.2.02), of Phillips Taglieri, Barristers and Solicitors, for Mr G W Carnie

Date and Place of Hearing:
2001
November 26
Hobart
2002
February 13
Hobart

1 T9163 of 2000
2 Original Decision para 405
3 ibid para 407
4 Original Decision para 451,
5 Appeal Transcript line 1110
6 Advertiser Newspaper Pty Ltd v Industrial Relations Commission of South Australia and Grivell, SASC, [1999] 74 SASR 240, Doyle CJ, Bleby, Martin JJ
7 Mohazab v Dick Smith Electronics Pty Ltd, IRC of A, 62 IR 200 (1995), Lee, Moore, and Marshall JJ
8 Appeal transcript line 1476
9 Gunnedah Shire Council v Grout, IRC of A, 134 ALR 156 (1995), Wilcox CJ, Spender, Beazley JJ
10 Robins v Franklins Limited, AIRC, 489/1996 (3 May 1996), Smith C.
11 Sparrow v Little (T/as Milk Plus), SAIRC, 19/4/2000, Cawthorne, McCusker and Parsons JJ
12 Appeal transcript pg 86 line 686
13 Sparrow v Little (T/as Milk Plus), SAIRC, 19/4/2000, Cawthorne, McCusker and Parsons JJ
14 Robins v Franklins Limited, AIRC, 489/1996 (3 May 1996), Smith C.
15 Pawel v Australian Industrial Relations Commission & Another, FCA, [1999] 94 FCR at 231, Branson, Marshall and Dowsett JJ
16 Mohazab v Dick Smith Electronics Pty Ltd, IRC of A, 62 IR 200 (1995), Lee, Moore, and Marshall JJ
17 Carrigan v Darwin City Council, IRCof A, [1997] No101/97, von Doussa J
18 Original decision para 381
19 ibid para 393
20 Appeal transcript pg 49
21 Appeal transcript pg 40
22 Original transcript pg 40 line 38
23 Ibid pg 127 line 32
24 Livesey v The New South Wales Bar Association, pg 293
25 Original decision para 375
26 Original decision para 392
27 ibid para 379
28 Saarinen v University of Tasmania, SC of Tas, 7 TAS R 154, [1997], Cox CJ, Underwood and Wright JJ.
29 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Act , NSW C of A, (1988) 14 NSWLR 685, Hope JA
30 Abbott v The Minister for Lands [1895] AC 425 at 431
31 Continental Liqueurs Proprietary Limited v GF Heublein & Bro Incorporated (1959 - 1960) 103 CLR 422 Kitti J