T9833
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Blue Ribbon Meat Products Pty Ltd and George Watson Carnie
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:
[4] She found also that Mr Carnie resigned from his position, however she said:
[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:
[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:
[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:
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:
and further [page 207]:
[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:
[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:
Respondent's Submission [36] Mr Phillips said that the finding of witness credibility was within the Commissioner's province. The Commissioner found:
[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:
[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:
[44] In Carrigan's17 case, Mr Philips drew our attention to the following passage where His Honour Justice Von Doussa said:
[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:
[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:
[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:
Appellant's Submission [54] Mr O'Farrell said:
and further:
[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: .
and further:
and:
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:
[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:
and further:
[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:
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:
[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:
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:
[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:
[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:
[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:
[101] Mr O'Farrell sought to draw a distinction between discretionary and non-discretionary29 decisions referred to in Saarinen, which goes on to say:
[102] His Honour found:
[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:
[111] And later from the judgment of Mr Justice Kitto in Continental Liqueurs Proprietary Limited v GF Heublein & Bro Incorporated31 where it was said:
[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:
[115] Reference was made to Maxwell v Murphy (19570 96 CLR 261 where Dixon CJ summarised the approach of the courts thus:
[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:
[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:
[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:
[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:
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:
[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:
[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 Appearances: Date and Place of Hearing: 1 T9163 of 2000 |