CITATION: BURSWOOD RESORT (MANAGEMENT) LTD v. THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2000] WASCA 384 CORAM: KENNEDY J (Presiding Judge) HEARD: 2 JUNE 2000 DELIVERED: 2 JUNE 2000 PUBLISHED: 11 DECEMBER 2000 FILE NO/S: IAC 3 of 2000 BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD Appellant AND THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH Respondent Catchwords— Industrial law (WA)—Application for stay of proceed- ings in Industrial Relations Commission until determination of appeal or further order—Appeal to the Full Bench from Senior Commissioner successful—Mat- ter remitted to Senior Commissioner—Appeal to Industrial Relations Court—Arguable case—Stay of pro- ceedings granted Legislation— Nil Result— Application for stay granted Representation— Counsel— Appellant: Mr R L Le Miere QC & Mr B Di Girolami Respondent: Mr D J Kelly (Agent) Solicitors— Appellant: Mallesons Stephen Jaques Respondent: Case(s) referred to in judgment(s)— Norbis v Norbis (1986) 161 CLR 515 The Australian Tramway Employes Association v The Prahran and Malvern Tramway Trust (1913) 17 CLR 680 West Australian Locomotive Engine Drivers’ Firemen’s and Cleaners’ Union of Workers v Schmid (1995) 76 WAIG 6 Case(s) also cited— Burswood Resort (Management) Ltd v Australian Liq- uor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 1655 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 West Australian Locomotive Engine Drivers’ Firemen’s and Cleaners’ Union of Workers v Hathaway (1995) 75 WAIG 1785 Western Australian Mint v Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Work- ers Division, Western Australian Branch (1999) 79 WAIG 643. 1 KENNEDY J (Presiding Judge): Judgment in this matter was delivered on 2 June 2000. It was then indicated that fuller reasons would be published later. These are those reasons. 2 In May 1999, a dispute arose between the parties to this appeal as to whether members of the respondent Union who are employed by the appellant should be at liberty to wear a Union badge in the workplace. A compulsory conference held under s 44 of the Industrial Relations Act 1979 having been unable to resolve the dispute, the matter proceeded to arbitration before the Senior Commissioner, with the respondent seeking a declaration from the Commission that, in all the circumstances, it would be harsh, oppressive or unfair for the appellant to penalise, dismiss or in any other way to discipline or disadvantage any employee because that employee chooses to wear a membership badge of the respondent whilst performing work for the appellant and/or does not comply with an instruction from the appellant not to wear the badge whilst performing that work. 3 As appears in the reasons for decision of the Senior Commissioner, the respondent and the Federated Liquor and Allied Industries Employees’ Union of Australia, Western Australian Branch, Union of Workers (“the Liquor and Allied Industries Employees’ Union”) had constitutional coverage for the employees in question. The latter Union, and not the applicant, was, however, a party to the Burswood International Resort Casino Employees’ Industrial Agreement 1997, which regulated the employment of the relevant employees. The term of that agreement had expired. 4 A number of the employees of the appellant were unhappy with the representation afforded to them by the Liquor WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 10 and Allied Industries Employees’ Union and they therefore decided to form their own Union, called the Burswood Resort Union of Employees. That association was never registered, but it became, in effect, integrated into the respondent. From a time in or about September 1998, some of those responsible for establishing the Burswood Resort Union of Employees began to wear the respondent’s Union badge whilst performing their work. They did so, essentially, to advertise to their fellow employees that they were members of that Union. Subsequently, they took to wearing a badge identifying the Burswood Resort Union of Employees. They claim that they wore these badges without any criticism from the appellant’s managers or supervisors until the middle of 1999, when they were instructed to cease wearing them. One of the employees was disciplined for continuing to do so. 5 The appellant argued before the Senior Commissioner that it was a term of the employment of the employees that they should not wear badges in the course of their employment unless they had been issued by the appellant or unless they were otherwise authorised by the appellant to wear them. It denied that it had either consented to its employees wearing the badges in question, or otherwise condoned the practice, claiming that the grooming and appearance of its employees plays a most important role in the industry. To this end it provides its employees with uniforms. It complained that the badges detracted from the concept of a uniform appearance by its staff. 6 The argument for the respondent was that the appellant’s attitude towards the wearing of the Union membership badges was contrary to one of the principal objects of the Industrial Relations Act, namely, to encourage the formation of representative organisations of employees. In support of this argument, it relied upon the judgment of Isaacs and Rich JJ in The Australian Tramway Employes Association v The Prahran and Malvern Tramway Trust (1913) 17 CLR 680, at 694. It also claimed that the constitutional right to freedom of speech embodied a right in the employees to express publicly, by the wearing of a Union membership badge, that they were members of the respondent. 7 The learned Senior Commissioner found that it was a term of the employees’ contract of employment that they should not wear badges, ornamental buttons or jewellery on their uniforms unless issued by, or otherwise authorised by, the appellant. It was also an express term of their employment that the employees should observe all of the appellant’s policies and procedures and the rules and regulations outlined in the Employees’ Handbook, as amended from time to time. The Grooming Regulations set out in the Handbook prohibited the wearing of badges on uniforms issued by the appellant unless the badges had been issued by the appellant, or otherwise authorised by it. The Senior Commissioner held that these provisions were neither unlawful, nor unreasonable. He accepted that it was important for the appellant, as a hospitality resort, to present a special image or identity and that the personal appearance of employees was an integral part of that ideal. He rejected the argument that the policy was being applied in a way which discriminated against the respondent and its members. As a result, the Senior Commissioner dismissed the respondent’s application. 8 The respondent appealed to the Full Bench of the Industrial Relations Commission against the Senior Commissioner’s dismissal of its claim. Grounds 3 and 4 of that appeal, which were eventually upheld by a majority of the Full Bench, were as follows— “3. The Senior Commissioner erred in finding that the respondent’s policy prohibiting the wearing of Union badges is not an unreasonable infringe- ment on employees’ right to freedom of speech and/or expression. 4. The Senior Commissioner gave insufficient weight to the uncontradicted evidence that the Union badge did not interfere with visual impact made by employees’ uniforms to the public.” 9 The formal orders made by the Full Bench were that the appeal be upheld on grounds 3 and 4 and that the order made at first instance be suspended, and the matter remitted to the Commission as constituted at first instance, to be heard and determined according to law. 10 The appellant has appealed against the decision of the Full Bench and, by notice of motion dated 23 May 2000, it sought an order that the proceedings of the Commission be stayed until the determination of the appeal, the appeal having been at that time listed for hearing on 1 August 2000 in this Court. The remitted matter was relisted for hearing before the Senior Commissioner on 7 June 2000. 11 An applicant for a stay of proceedings has the burden of showing that the circumstances justify a stay, on the principle that a litigant is normally entitled to the fruits of his litigation. At present, however, there are no immediate fruits to be enjoyed by the respondent, the decision appealed from having resulted in the remission of the matter to the Senior Commissioner, with the possibility, of course, of a further appeal to the Full Bench if either party should decide to challenge his decision. 12 The grounds upheld by the majority of the Full Bench clearly challenged the exercise by the Senior Commissioner of a discretionary judgment and, in my opinion, it was clearly arguable that the learned President and Beech C each merely exercised his own discretion in place of that of the Senior Commissioner, contrary to the principles laid down in Norbis v Norbis (1986) 161 CLR 515. It is not now necesssary to expand upon my reasons for forming this view. Furthermore, having regard to the pending appeal, it was clear that, if the appeal were to be successful, the remission of the matter to the Senior Commissioner would result in a waste of the Commission’s resources and the imposing of unnecessary costs upon the parties. On the other hand, if the appeal should prove to be unsuccessful, there would be the advantage of having the Industrial Appeal Court resolve some of the issues upon which the members of the Full Bench were not unanimous prior to the further hearing before the Senior Commissioner. I was quite satisfied that these special circumstances, as well as the balance of convenience, justified the ordering of a stay-see the West Australian Locomotive Engine Drivers’ Firemen’s and Cleaners’ Union of Workers v Schmid (1995) 76 WAIG 6. For these reasons, I considered that a stay of the proceedings in the Commission should be granted. 13 In the course of the hearing of its application for a stay, the appellant indicated its willingness to undertake to this Court, in the event of a stay being granted, to allow those employees of the appellant who had usually worn BRUE badges on their uniforms when on the gaming floor at the time of the interim order of Parks C dated 10 June 1999, to continue to wear those BRUE badges until the determination of the appeal herein or until further order. While recognising that the terms of the undertaking might give rise to some difficulties in its enforcement, depending as it would upon the establishing of the fact that employees seeking to take advantage of the undertaking had “usually” worn the badges, and also acknowledging the limited application of the undertaking, it nevertheless appeared to me to be desirable to require that undertaking. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 11 81 W.A.I.G. FULL BENCH— Appeals against decision of Commission— 2000 WAIRC 01517 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA (INCORPORATED), APPELLANT v. EXECUTIVE DIRECTOR, FISHERIES WESTERN AUSTRALIA AND EXECUTIVE DIRECTOR, DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT, RESPONDENTS CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER S WOOD DELIVERED FRIDAY, 8 DECEMBER 2000 FILE NO/S FBA 37 OF 2000 CITATION NO. 2000 WAIRC 01517 _______________________________________________________________________________ Decision Appeal dismissed. Appearances Appellant Mr D L Newman Respondents Ms J C Pritchard (of Counsel), by leave, on behalf of the first named respondent No appearance by or on behalf of the second named respondent _______________________________________________________________________________ Reasons for Decision. THE PRESIDENT— 1 These are the unanimous reasons for decision of the Full Bench. 2 This is an appeal against the decision of the Public Service Arbitrator (hereinafter referred to as “the Arbitrator”) made on 21 July 2000 in matter No P17 of 1999. The appeal would appear to be against the whole of the decision. 3 The decision was constituted by a declaration made on 29 June 2000 that Principles 2, 5 and 6 of the State Wage Principles applied to the application. GROUNDS OF APPEAL 4 The appellant (hereinafter referred to as “the CSA”) now appeals against that decision on the following grounds— “1. The Public Service Arbitrator erred in law in de- claring that the Commuted Overtime Allowance, which is the subject of the application, should be categorised as a general allowance to which prin- ciples 2,5 and 6 of the State wage Principles apply. Particulars 1. The declaration issued relates to an applica- tion to vary Subclauses 5 (2) and 5 (3) of the Public Service Allowances (Fisheries and Wild- life Officers) Award 1990 No PSA A5 of 1986. 5.—COMMUTED OVERTIME ALLOWANCE Fisheries Department (1) Fisheries Officers (a) Subject to the provisions of paragraphs (b) and (c) of this subclause, these of- ficers shall be paid an allowance of 15% of gross annual salary which shall continue to be paid during annual leave, long service leave, sick leave and as part of any retiring allowance. (b) An additional 15% shall be paid for those days on which an officer is en- gaged in extensive field work approved by the Chief Executive Officer. (c) Officers who occupy offices which gen- erally do not require work to be performed outside of or in excess of the prescribed hours of duty may, at the discretion of the Chief Executive Officer, be paid overtime pursuant to Clause 20.—Overtime Allowance of the Public Service General Conditions of Service and Allowances Award No. PSA A 4 of 1989, in lieu of the allow- ances prescribed in paragraphs (a) and (b) of this subclause. (2) Technical Officers and Technical Assistants involved in Fisheries Research and any other officers authorised by the Chief Ex- ecutive Officer excluding officers employed in specified calling positions pursuant to Clause 7 of the Public Service Salaries Agreement 1985, PSA AG No. 5 of 1985. (a) All officers shall be paid an allowance at a rate of 20% of gross annual sal- ary for days when working on field duties away from headquarters. (b) Officers who occupy positions which generally do not require work to be performed outside of or in excess of the prescribed hours of duty may, at the discretion of the Chief Executive Officer, be paid overtime pursuant to Clause 20.—Overtime Allowance of the Public service General Conditions of Service and Allowances Award No. PSA A 4 of 1989, in lieu of the allow- ances prescribed in paragraph (a) of this subclause. (3) Officers Engaged in Duties at Sea (a) Notwithstanding the provisions of subclauses (1) and (2) of this clause, any officer engaged in duties at sea involving either an overnight stay on a Departmental vessel or being at sea on board a commercial fishing vessel shall be paid an allowance of 30% of gross annual salary for those days spent at sea, including the day of de- parture and day of return. (b) The allowance prescribed by this subclause shall be paid in lieu of the allowance prescribed by subclauses (1) and (2) of this clause. Conservation and Land Management (1) Wildlife Officers (a) Subject to the provisions of paragraphs (b) and (c) of this subclause, these of- ficers shall be paid an allowance of 15% of gross annual salary which shall continue to be paid during annual leave, long service leave, sick leave and as part of any retiring allowance. (b) An additional 15% shall be paid for those days on which an officer is en- gaged in extensive field work approved by the Chief Executive Officer. (e) Officers who occupy offices which gen- erally do not require work to be performed outside of or in excess of the prescribed hours of duty may, at the discretion of the Chief Executive Officer, be paid overtime pursuant to Clause 20.—Overtime Allowance of the Public Service General Condi- tions of Service and Allowances Award No. PSA A 4 of 1989, in lieu of the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 12 allowances prescribed in paragraphs (a) and (b) of this subclause. (2) Technical Officers and Technical Assistants involved in Wildlife Research and any other officers authorised by the Chief Executive Officer excluding officers employed in specified calling positions pursuant to Clause 7 of the Public Service Salaries Agreement 1985, PSA AG No. 5 of 1985. (a) All Officers shall be paid an allowance at a rate of 15% of gross annual sal- ary for days when working on field duties away from headquarters. (b) An additional 15% shall be paid for those days on which an officer is en- gaged in extensive field work approved by the Chief Executive Officer. (c) Officers who occupy positions which generally do not require work to be performed outside of or in excess of the prescribed hours of duty may, at the discretion of the Chief Executive Officer, be paid overtime pursuant to Clause 20.—Overtime Allowance of the Public Service General Conditions of Service and Allowances Award No. PSA A 4 of 1989, in lieu of the allow- ances prescribed in paragraphs (a) and (b) of this subclause. Fisheries Department and Conservation and Land Management (1) Payment of Commuted Overtime Allow- ances will not be made to officers classified above Level 5 except where the Chief Ex- ecutive Officer otherwise determines. (2) Officers placed “on-call” by the Chief Executive Officer shall be paid on-call al- lowance in accordance with Clause 20.—Overtime Allowance of the Public Service General Conditions of Service and Allowances Award No. PSA A 4 of 1989. 2. On the face of the Clause, and viewed in the con- text of the Award, the allowance which is the subject of the application is a commuted allow- ance, paid in lieu of payments which would otherwise be made under Clause 20- Overtime Allowance of the Public Service Award No PSA A4 of 1989. 3. It is not an allowance with relation to either the nature of the work or the conditions under which the work is performed. A dispute over whether the commuted rate remains fair is not a matter properly dealt with under Principles 5 and 6. Con- sequently it is not an issue under Principle 2. 4. The Arbitrators decision is based, in part, on a conclusion that the allowance is now properly categorised as a “general” allowance. No evidence of the operation of the allowance, which would justify this conclusion, was placed before the Arbitrator. 5. The Appellant seeks a declaration that applica- tion number P17 of 1999 is not an issue to be progressed and determined under Principles 2, 5 and 6 of the State Wage Principles.” APPLICATIONS TO EXTEND TIME 5 It should be noted that, whilst the decision bears the date “29 June 2000”, it was not deposited in the office of the Registrar until 21 July 2000. A Notice of Appeal was filed herein on 19 July 2000, which was incompetent because there was no perfected decision and, therefore, no decision pursuant to s.36 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) against which to appeal. That was conceded by Mr Newman, for the CSA. Needless to say, that Notice of Appeal should not have been accepted for lodgement or filing. 6 It matters not that the original declaration was lost. There was no decision on the file against which a competent appeal might be lodged. This was confirmed by a letter to the Secretary of the CSA by the Deputy Registrar of this Commission on 31 August 2000. In the letter, it was advised that a fresh Notice of Appeal was required to be lodged and also applications for extensions of time. A new Notice of Appeal was filed on 21 September 2000. 7 The CSA, on the same day, filed applications to extend time within which to appeal and within which to apply to extend time. The CSA sought leave to discontinue the first appeal. 8 The Full Bench decided to hear those applications together with the substantive appeal and to decide those matters, having heard submissions in relation to those applications and the merits of the appeal. BACKGROUND 9 The CSA is an organisation of employees and a party to the award hereinafter referred to. The respondents are the Executive Directors of two departments of Government in which are employed a number of members of the CSA. There was no appearance by or on behalf of the second named respondent on the hearing of this appeal. 10 The CSA applied to the Arbitrator, by application P17 of 1999, to vary the Public Services Allowances (Fisheries and Wildlife Officers) Award 1990, No PSA A5 of 1986 (hereinafter referred to as “the award”) and, in particular, the provisions of Clause 5 thereof to provide for fair and reasonable compensation for Fisheries Department Technical Officers and Technical Assistants, as it was submitted, for the number of hours which they worked, the time of day when the hours are worked and the time worked away from home, together with the nature of their duties at sea. 11 The CSA claimed that attempts to manage the work of employees in such a way and at such times as to reasonably match the remuneration currently provided under Clause 5 had failed and were likely to continue to fail. It was the case for the CSA at first instance that fairness required an amendment to the award in the form of the proposed variation to be made. This would retain for the respondents, it was submitted, the administrative convenience of a commuted payment system and produce a fairer result for employees. The proposed variation would have five categories of allowance instead of the previous two and was designed, so it was said, to create greater equity in the disposition of earnings from the allowance. 12 On 20 September 1999, the CSA requested that the matter be referred to the Chief Commissioner for consideration under Principle 10 of the Statement of Principles contained in the July 1999 State Wage Case. This request was conveyed by letter, and the CSA referred to material in support of its application, which did not need to be reviewed for the purposes of reasons for decision. The CSA contended that the matter should be dealt with under Principle 10 of the State Wage Fixing Principles 1999. 13 In November 1999, the Commission was requested by the Department of Productivity and Labour Relations (hereinafter referred to as “DOPLR”), which was acting on behalf of the respondents, to determine which was the appropriate principle or principles of the State Wage Fixing Principles 1999 which might apply (see TLC and AMMA and Others 79 WAIG 1847 and TLC and AMMA and Others 80 WAIG 3379). 14 It was the case for DOPLR that Principle 10 was not appropriate. DOPLR submitted that the issues raised by the application were matters which should be dealt with in accordance with Principle 5: Adjustment of Allowances and Service Increments, and Principle 6: Work Value Changes, and not Principle 10. 15 The matter was eventually heard on 26 May 2000 when both parties made submissions. It was DOPLR’s case that the commuted overtime allowance was, in reality, a general allowance payable whether field workers performed work in the office or not. It was submitted, in WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 13 81 W.A.I.G. the first instance, that Principle 2 must be applied because it describes when an award or relevant agreement may be varied or another award may be made out without the claim being regarded as above or below the safety net. In order to adjust allowances and service increments, Principle 2, according to DOPLR, requires that Principle 5 be also applied. Principle 5 provides that the relevant provisions of the Work Value Changes Principle will be applied to any claims for increased existing allowances. 16 Commissioner Fielding (as he then was) found in CSA v Public Service Board No PSA A5 of 1986 70 WAIG 3612 that the State Wage Principles required that increases in existing allowances which relate to work or conditions are to be made in compliance with the Work Value Changes Principle. The Arbitrator relied on that decision at first instance. The Arbitrator held that the Commission is required, when determining a matter to which Wage Principles apply, to actually apply the relevant principles and the Arbitrator correctly applied the decision in RRIA v AMWSU and Others 73 WAIG 1993 (IAC). 17 DOPLR also submitted at first instance that the application did not affect the variation of wages or conditions above or below the safety net because, whilst the allowance in the award is based on a formula, the application did not change the formula. It was submitted that there was, therefore, no variation to the safety net which is a condition precedent to attracting the operation of Principle 10. 18 On behalf of the CSA, it was submitted that Principle 5 dealt with allowances and servicing increments and the subject of the application at first instance was neither of those. It was also submitted that it was not an allowance which fitted within any of the categories referred in Principle 6, but was merely a payment of an allowance meaning paying overtime. 19 The Arbitrator held as follows— “... the exposition of how the matter should be treated is as set out by Fielding SC in his reasons in Civil Service Association of Western Australia Inc—v- Public Service Board (Ibid) .... [with which the Ar- bitrator agreed] The matter should proceed as if it were an issue under Principle 2 which attracts the attention of Principle 5 and that being the case, the Work Value Principle is brought into operation. The allowance is now properly categorised as a general allowance and the Wage Principles should be ap- plied accordingly.” (See pages 16-17 of the of the appeal book (herein- after referred to as “AB”).) 20 A declaration to that effect then issued (as we have observed above) and the matter was adjourned for the parties to complete the matter in private discussions, with a view to, in due course, asking the Commission to list the matter for variation by consent. ISSUES AND CONCLUSIONS 21 As the award presently provides in Clause 5(2), Technical Officers and Technical Assistants involved in Fisheries Research and certain other officers are to be paid an allowance at the rate of 20% of gross salary for days when working on field duties away from headquarters. Other officers may be paid an overtime allowance in lieu of that allowance. Clause 5(3) of the award provides for similar allowances for officers engaged in seagoing duties, except that the prescribed percentage of gross salary to be paid is 30%. 22 The application to vary was in the following terms— “1. Delete subclause 5(2) and replace with— (2) Technical Officers (a) In this sub-clause “on duty” means time in attendance from the earliest instructed start time to the latest in- structed finish time in a 24 hour period, where the employee is available to un- dertake field research activities, inclusive of all meal breaks, inactive periods and all travelling time. (b) In this sub-clause “prescribed hours” means the period of duty between 7.00am and 7.00pm Monday to Friday. (c) Technical Officers and Technical As- sistants involved in Fisheries Research and any other officers authorised by the Chief Executive Officer excluding of- ficers employed in specified calling positions pursuant to Clause 7 of the Public Service Salaries Agreement 1985, PSA AG No. 5 of 1985 shall be paid an allowance in accordance with the following table when undertaking field work. ................... (d) A continuous break of at least eight hours shall be provided between peri- ods on duty. (e) Officers who occupy positions which generally do not require work to be performed outside of or in excess of the prescribed hours of duty may, at the discretion of the Chief Executive Officer, be paid overtime pursuant to Clause 20.—Overtime Allowance of the Public Service General Conditions of Service and Allowances Award No. PSA A 4 of 1989, in lieu of the allow- ances prescribed in paragraph (a) of this subclause.” 2. Delete subclause 3(b) and replace with— “(b) The allowance prescribed in this subclause shall be paid in lieu of the allowance pre- scribed by subclause (1) of this clause. It shall not apply to officers receiving an al- lowance under subclause (2) of this clause.”” (See page 8(AB).) 23 The Statement of Principles, the relevance of which the decision at first instance was not and could not reasonably be submitted to be in issue, prescribes, by Principle 2, the circumstances in which an award might issue or and award or agreement might be varied without the claim being regarded as being above or below the safety net. Relevantly, inter alia, the issue of an award or the variation of an existing award or agreement may occur without an application for any of those purposes being regarded as a claim for wages and conditions above or below the award safety net, when it seeks to adjust allowances and service increments in accordance with Principle 5, or to adjust wages pursuant to work value changes in accordance with Principle 6. 24 Principle 5 provides that existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the Work Value Changes Principle of the Statement of Principles, namely Principle 6. 25 It is also prescribed that new service increments may only be awarded to compensate for changes in the work and/ or conditions and will be determined in accordance with the relevant parts of the Work Value Changes Principle of the Statement of Principles. 26 Clause 10 of the award is of relevance, and provides as follows— “Leave is reserved by the parties to apply at any time to the Public Service Arbitrator for amendment to Clause 5.—Commuted Overtime Allowance.” 27 At first instance and before the Full Bench, the CSA relied on the finding by Negus C in The Honourable Minister for Community Services v CSA (1989) 69 WAIG 3281 that a commuted overtime allowance does not, in concept, cut across any of the Wage Fixing Principles because, as he held, it is in essence a device for paying existing allowances in a more convenient form. 28 The Arbitrator held that the matter should proceed as if it were an issue under Principle 2 which attracts the attention of Principle 5 and, thus, the Work Value Principle 6 is WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 14 brought into operation. Further, he held that the allowance is now properly categorised as a general allowance and the Principles should be applied accordingly. 29 Of course, Principle 10, as with all of the other principles, must be read and interpreted in the context of all of the principles. It is quite clear that Principle 10 applies only to applications for a variation in wages or conditions “above or below the safety net” (see Principles 5 and 6 and TLC and AMMA and Others at 1847 and at 1852 (op cit)). 30 It is only if an application to vary an award does not fall within any of the paragraphs in Principle 2 that Principle 10 will be applicable to that application. Principle 2(c) refers to applications “to adjust allowances and service increments in accordance with Principle 5”. Clauses 5(2) and 5(3) of the award prescribe allowances which relate to work or conditions. Principles 5 and 6 prescribe the manner of adjustment of existing allowances. 31 It was submitted at first instance and upon appeal that the commuted overtime allowance prescribed in Clauses 5(2) and 5(3) of the award are not allowances of a kind contemplated by Principle 5 of the Statement of Principles because they were simply a means of paying overtime and were not an allowance which had to do with the type of work done or the skills or responsibilities of work (see page 27(AB)). 32 However, the “commuted overtime allowance” is, so called referred to in those clauses, clearly an allowance, because it properly refers to an entitlement of an employee to a payment notionally distinct from the wage for a purpose connected with the employment relationship and, particularly, to compensate for some condition of or related to work (see AFMEPKIU v Leighton Contractors Pty Ltd 78 WAIG 1571 at 1572 (FB) and the cases cited therein). Principle 5 applies to all allowances which might be contained in awards. The application was unequivocally and self evidently an application to vary or adjust an allowance and came within Principle 5. 33 We would make the following further observations about the commuted overtime allowance which exists by virtue of Clauses 5(2) and 5(3) of the award which is sought to be varied by the application to vary the award— (a) The amount is not simply an amount to be paid in lieu of overtime payments. They would clearly be able to be otherwise made under Clause 18 Overtime Allowances of the Public Service Award 1992. (b) It is something of a misnomer to call the Clause 5(2) and 5(3) prescribed payments “commuted overtime allowances” or overtime allowances at all, because they are prescribed as payments to compensate for conditions of work of certain of- ficers. (c) By its prescription and by the submissions made to the Arbitrator at first instance, the award pre- scribes for and reflects, and the variation sought is said to reflect, the fact that the subject employ- ees’ overtime is referred to only for the purposes of calculating a payment equivalent to the pri- mary allowance prescribed by Clauses 5(2) and 5(3) of the award. (d) The payment is really, in its nature, a general al- lowance, as defined above, payable to officers engaged in field work and is not payable for over- time worked nor is it conditional upon overtime being worked. (e) The grounds of the application, Grounds 1 and 4 in particular, acknowledge that the prescribed payments are allowances and are not overtime allowances. We say that because the allegation is that the “current arrangements” under Clause 5 of the award do not provide “reasonable com- pensation” to various officers. Further, that compensation, obviously by Ground 1 of the ap- plication, is to compensate for a number of work conditions, namely the number of hours worked, the time of the day when the hours are worked away from home and the nature of duties at sea. Further, Ground 4 of the application acknowl- edges that the variation sought is a variation of an existing allowance. Further and alternatively, Clause 5 by its plain unambiguity, sets out to pre- scribe allowances as such. That would, in addition, on a fair reading of the award, seem to be its purpose and tenor. 34 For those reasons and for the reasons expressed in paragraph 30 hereof, the view expressed by Negus C in The Honourable Minister for Community Services v CSA (op cit) was erroneous. Firstly, the allowance is more than a commuted overtime allowance and, secondly, whether it is or is not or whether the provisions of the award are varied or are not, the allowance is an allowance and not a device for paying existing allowance. 35 The allowance, as it exists and as it is sought to be prescribed in varied form, is a general allowance in terms of the Wage Fixing Principles. 36 Further, the application to vary the award made at first instance is and was, for those reasons, not an application falling within Principle 10 of the Wage Fixing Principles because it is not an application for a variation in wages or conditions above or below the safety net; and, in any event, there is no submission that, nor have the preconditions for an application under Principle 10, been satisfied in this case. 37 The Arbitrator correctly held that the matter should proceed as if it were an issue under Principle 2 which attracts the attention of Principles 5 and 6; and that it was a general allowance and that the Principles should be applied accordingly. The Arbitrator was correct, on a fair reading of the Principles and the award as a whole, in so concluding and the reasons for decision of Fielding C (as he then was) in CSA v Public Service Board (op cit), if it were necessary, support the approach taken. 38 There is no merit in the appeal and, for those reasons, it would fail. 39 We now turn to the applications for extension of time, which were opposed by the respondents. We apply the principles laid down in Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J, Ryan v Hazelby and Lester trading as Carnarvon Waste Disposals 73 WAIG 1752 (IAC) and Tip Top Bakeries v TWU 74 WAIG 1189 (IAC) and the cases cited therein. 40 Applying those authorities, we would find— (a) That there was no error manifest in the decision at first instance, and there was not even an argu- able case on appeal. (We have already set out the reasons for such a finding above.) (b) The law is well known in this Commission that a decision is not a decision and cannot be appealed against until it is perfected in accordance with the requirements of s.36 of the Act (see McCorry v Como Investments Pty Ltd 69 WAIG 1000 (IAC); CMEWU v The United Furniture Trades Industrial Union of Workers, WA 70 WAIG 3913 (IAC); Registrar v MEWU and Others 74 WAIG 1487 (IAC); and FPFAIIU V Joyce Australia Ltd and Others 76 WAIG 18 at 19 (FB)). (c) When the first Notice of Appeal was filed, there was no decision against which an appeal could lie and no search was done to ascertain whether there was or not. Subsequently, no fresh Notice of Appeal was filed until after the decision was filed and, in any event, even after the letter of the Deputy Registrar of 31 August 2000, nothing was done for a further three weeks. The Notice of Appeal was not filed in time because the CSA took no steps to discover when the order was perfected and because, even when put on notice, it unaccountably delayed in filing its notice. There is no explanation or no satisfactory explanation for the delay. (d) The decision of the Arbitrator merely determines which of the Wage Fixing Principles are applica- ble to the CSA’s application to vary the award. (e) The decision of the Arbitrator does not prevent the CSA from pursuing its application to vary WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 15 81 W.A.I.G. the award. The decision merely determines which principles should apply. In this case, given those factors, we cannot see how prejudice can arise. 41 However, having regard to all of those factors, the maintenance of the time limit of 21 days pursuant to s.49(3) of the Act will not work an injustice in this case. 42 The CSA has not established that the denial of the application will prejudice it. 43 We would, for those reasons, dismiss the application to extend time in which to appeal and the relation application. We would accordingly dismiss the appeal. Order accordingly WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPELLANT v. EXECUTIVE DIRECTOR, FISHERIES WESTERN AUSTRALIA AND EXECUTIVE DIRECTOR, DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT, RESPONDENTS CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER S WOOD DELIVERED FRIDAY, 8 DECEMBER 2000 FILE NO/S FBA 37 OF 2000 CITATION NO. 2000 WAIRC 01518 _______________________________________________________________________________ Result Appeal dismissed. Representation Appellant Mr D L Newman Respondents Ms J C Pritchard (of Counsel), by leave, on behalf of the first named respondent No appearance by or on behalf of the second named respondent _______________________________________________________________________________ Order. This matter having come on for hearing before the Full Bench on the 28th day of November 2000, and having heard Mr D L Newman on behalf of the appellant and Ms J C Pritchard (of Counsel), by leave, on behalf of the first named respondent, and there being no appearance by or on behalf of the second named respondent, and the Full Bench having reserved its decision on the matter and reasons for decision being delivered on the 8th day of December 2000, it is this day, the 8th day of December 2000, ordered as fol- lows— (1) THAT the applications filed herein to extend time to file appeal No. FBA 37 of 2000 out of time be and are hereby dismissed. (2) THAT appeal No. FBA 37 of 2000 be and is hereby dismissed. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. 2000 WAIRC 01642 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES OLTEN PTY LTD T/A MSA SECURITY, APPELLANT v. ANTHONY JAMES BYFIELD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J F GREGOR DELIVERED MONDAY, 18 DECEMBER 2000 FILE NO/S FBA 39 OF 2000 CITATION NO. 2000 WAIRC 01642 _______________________________________________________________________________ Decision Appeal dismissed. Appearances Appellant Mr D Clarke, as agent Respondent Mr R Mancini (of Counsel), by leave, and with him Ms M Quai (of Counsel), by leave _______________________________________________________________________________ Reasons for Decision. THE PRESIDENT— INTRODUCTION 1 This is an appeal brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) against the decision of the Commission, constituted by a single Commissioner, made on 10 July 2000 in matter No 453 of 1999. It is not clear from the Notice of Appeal whether the appeal is against the whole of the decision or not, but it would seem to be. 2 A correcting order was deposited in the office of the Registrar on 12 July 2000 and the original order was deposited on 10 July 2000. 3 The decision appealed against (see page 55 of the appeal book (hereinafter referred to as “AB”), formal parts omitted, reads as follows— “(1) DECLARES that the above named Anthony James Byfield was harshly, oppressively or un- fairly dismissed by the above named respondent on the 12th day of March 1999; and (2) ORDERS that the said respondent do hereby pay within seven days of the date of this order, as and by way of compensation, the amount of $13,629.81 to the said applicant, Anthony James Byfield.” GROUNDS OF APPEAL 4 It is against that decision that the abovenamed appellant (hereinafter referred to as “MSA”) now appeals on the following grounds— “1. The Learned Commissioner erred in fact and law in finding that the Respondent Mr Tony Byfield was harshly, oppressively or unfairly dismissed in that he failed to give proper weight to the evi- dence and in particular to— (a) The fact that the Respondent had a reason- able period of at least two months to improve sales; (b) The fact that there had been no improve- ment in sales and there was no explanation for not improving sales; (c) The fact that the Respondent had not and would not in the future be likely improve or to make any effort to improve the sales performance of the sales team; (d) The fact that the Respondent knew that his continued employment was in jeopardy if WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 16 sales performance did not improve and should have expected to have been dis- missed for failure to achieve those improvements when the managing direc- tor told him to give a presentation on why the sales team was needed by the company; (e) The fact that knowing he was required to make a presentation that day, the Respond- ent made no effort to prepare for it and instead took the sales team out to lunch and when called upon to make the presen- tation, made no objection to the other managers being there and delivered a pres- entation that consisted solely of “Every company needs a sales team”. 2. The Learned Commissioner erred in law in con- sidering the other employee’s (sic) dismissals as a relevant factor in deciding whether the Respond- ent’s dismissal was unfair when the unfairness or otherwise of other dismissals not properly before him. 3 . The Learned Commissioner erred law (sic) in placing undue weight on the matter of alleged fumes, when evidence before the Commissioner clearly indicated that that particular problem was being dealt with. The Respondent was aware that the matter was being addressed and this was not a factor in his dismissal whatsoever. 4. The Learned Commissioner erred in fact and law in finding that the failure of the Respondent to prepare the presentation did not amount to a re- pudiation of his contract justifying termination, when the Respondent knew that his employment was in jeopardy if the performance of the sales team did not improve, and in not preparing a pres- entation justifying the continued retention of the sales team, demonstrated such a disregard for his obligations as a manager and an employee as to amount to misconduct. 5. Further and in the alternative, the Learned Com- missioner erred in fact and law in finding that a reasonable period of notice for the Respondent to remedy the situation would have been 3 months when in fact there was no evidence to establish this period would have achieved such an outcome and in fact the Commission held as established that no matter how long the Respondent was given for his performance to improve, “his attitude as evidenced at the hearing and the evidence leads ... to the conclusion that even if he had been af- forded this the result would have been the same”. 6. Further and in the alternative, if the Respondent was harshly oppressively and unfairly dismissed, the Learned Commissioner erred in fact and in law in assessing the compensation for loss and injury in that— (a) the three month review period for the Re- spondent to improve his performance should have been considered to commence from 15 January 1999 when he was told his employment was in jeopardy if the per- formance did not improve, and any loss was therefore covered by the one month’s pay in lieu of notice given to the Respondent; (b) if the three month review period is taken to have commenced from the date of dis- missal, the loss of income over the three month period should properly be reduced by the one month’s salary paid in lieu; (c) the “short break in employment, the dura- tion of which is unknown but .... was more probably at the applicant’s [Respondent] instigation” should be taken into account to reduce the loss of the Respondent since during this period the Respondent was not mitigating his losses by seeking alterna- tive employment; (d) the Respondent received a higher remu- neration in his new position ($40,000 salary + $12,000 vehicle allowance) than he was receiving while employed by the Appellant ($49,000 plus a maintained ve- hicle and phone of no calculated or estimated value that would enable the Com- mission to say total remuneration exceeded $52,000 by any amount or at all) (e) the liability of the Appellant to compen- sate the Respondent is limited to loss or damage arising out of the termination of the employment and not any actions taken by the Appellant subsequent to the termi- nation which conduct moreover was held not to have caused any injury (f) that the Appellant did not cause injury to the Respondent in conduct after the termi- nation of a contract of employment 7. The Appellant seeks an order from the Full Bench of the Western Australian Industrial Relations Commission to uphold the Appeal and quash the decision or vary it in such a manner, as the Full Bench considers appropriate.” Particulars 5 It was submitted on behalf of the respondent that the grounds of appeal were defective because they did not comply with Regulation 29 of the Industrial Relations Commission Regulations 1985 (as amended) in that they did not specify the particulars relied on to establish that the decision was against the evidence and the weight of the evidence, or why the decision was alleged to be wrong in law. 6 The application to strike out the grounds of appeal were in error insofar as it referred to s.90 of the Act, which governs appeals to the Industrial Appeal Court. 7 In my opinion, the grounds of appeal provide, for the most part, the particulars required and, on a fair reading, were provided and were sufficiently detailed to enable the respondent to know substantially the case which it had to answer. BACKGROUND 8 Evidence in the proceedings at first instance was given on behalf of the abovenamed respondent, Mr Anthony James Donald Byfield by himself, by a former employee of MSA in sales, Mr Keith Vivien Nazareth, and by an MSA employee, Mr Alan Thomas Taylor. Evidence was given on behalf of MSA by its Managing Director, Mr John Blaise Dennison, Ms Julie Elizabeth Wegglar, a former employee; Mrs Jessie Lynette Scully, the office manager and administrator of MSA; Mr Donald Lee Coughren, MSA’s Patrols Manager; Mr Edmond Robins, MSA’s General Manager; and Mr Laurence Berkhout, MSA’s Administration Manager. 9 Mr Byfield was employed by MSA, an employer engaged in the business of providing security services, as its General Manager, Sales and Marketing. He was also a shareholder in MSA. His duties were to manage a sales team, to handle “client liaison” (sic) and new tender work. He reported to Mr Dennison, who was, at all material times, MSA’s Managing Director. 10 Mr Dennison gave evidence, inter alia, that his co-director, Mrs Scully, and he took Mr Byfield to lunch in September 1997 to discuss improving sales performance and sales management and, after lunch, they put to Mr Byfield that they were not entirely satisfied with the direction in which the sales team was going. They then employed an additional salesperson. The fact of that meeting was not put to Mr Byfield. 11 In March 1998, Mr Dennison said that they had another lunch with Mr Byfield at which Mr Dennison said that they wanted to gee him up and get him going with the full expectation that, if they provided the resources, then Mr Byfield would provide the drive and leadership to get the sales which were required. They then appointed a further salesperson. 12 On three or four occasions, including the above, Mr Dennison conducted what he termed “counselling WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 17 81 W.A.I.G. sessions”, prior to a formal session, which he had with Mr Byfield on 15 January 1999, at which Mr Robins was present. Mr Robins was regarded by Mr Byfield as his equal and not his superior. This session occurred as a result of a direction from the management team because they had expressed concerns that, despite everything they had put into place, the sales team was not performing, according to Mr Dennison. It is significant that lack of staff was identified as a problem and sought to be remedied. 13 Mr Robins was involved towards the end of 1998 because Mr Byfield was then on paternity leave and Mr Robins had become more closely involved with the sales team in his absence. Mr Dennison said in evidence that, at the 15 January 1999 meeting, he gave Mr Byfield a final warning and, in fact, told him unequivocally that he would have to “shape up or ship out”. He also told Mr Byfield “that being a shareholder of the company bought him no insurance against being terminated for non performance”. Mr Byfield asked if Mr Dennison was interested in buying shares and, at which point, Mr Robins left the meeting. At no time, on all of the evidence, was Mr Byfield given a written warning or given a time in which to meet required sales targets, nor was he given any definite indication of a likely dismissal. 14 Mr Byfield did not believe that his employment was under threat because of the meeting nor was any guide given as to the extent to which his performance needed to improve. It should be noted that Mr Nazareth corroborated Mr Dennison’s evidence that, in 1998, members of the sales team had raised the question of Mr Byfield’s leadership. However, Mr Taylor said in evidence that he had no difficulties in that respect. Ms Wegglar said that she recalled no such problem and that there was a great team spirit in sales. Her evidence was not shaken. There was evidence of problems with Mr Nazareth himself. 15 It is quite clear that Mr Byfield heeded what was said to him and undertook to restructure the sales team (see his memorandum of 18 January 1999 to Mr Dennison (page 320(AB))). Whilst he was not given a detailed warning, it is quite clear that Mr Byfield was told that he was not immune from dismissal. 16 On Thursday, 11 March 1999, Mr Byfield had a meeting with his sales team to talk about their performance and the restructure of the sales team to improve performance. Present at the meeting were Mr Nazareth, Mr Taylor and Mrs Cheryl Kennedy. All three complained about the lack of air conditioning in their office and the strong pesticide smell. The latter was due to the laying of cockroach baits by a pest control contractor. 17 Mr Byfield asked them to put their concerns in writing and said that he would take those concerns to management. Mr Taylor said that the complaints were oral. However, the evidence was, and it was quite clear, that complaints were made, whether oral or not. Mr Byfield attempted to deliver his report on those complaints to Mr Dennison on the same day. Mr Dennison was busy, so he handed the report to Mr Dennison’s assistant, Mrs Scully. Mrs Scully became agitated, shaking the page in her hand and said “I knew something like this was going to happen.” Mr Byfield said to her “Jessie, don’t shoot the messenger. I’m only reporting as to what’s happening downstairs.” She then said “Well this is the straw that’s broke the camel’s back.” 18 Mr Dennison said that MSA took objection to Mr Byfield raising the complaints from the sales team about the pesticide odour because Mr Byfield was aware of action that MSA was taking to have the air quality tested. Mrs Scully, in evidence, corroborated her disapproval of the complaint. There was an opinion that the sales people should be out of the office selling rather than complaining about the environment of the office. Mr Dennison gave substantial evidence in relation to the steps taken by the company to have the maintenance and servicing of the air conditioning checked. 19 Mrs Scully’s own evidence was that she was not pleased by the complaints. There is no doubt, on Mr Dennison’s evidence, that the complaints annoyed him, that he was firmly of the opinion that the sales staff should be out selling rather than “concocting” these matters. There is no doubt that, shortly after, Mr Dennison asked Mr Byfield to make a presentation at 5 o’clock to justify the need for a sales team. 20 Soon after, Mr Byfield was called to a meeting at which were present Mr Dennison and Mrs Scully. He was asked about the meaning of his memorandum. He explained the concerns of his staff. It was not denied that Mr Byfield told them the nature of the complaints, namely that the people within the sales team had felt ill on the Tuesday night, that the air conditioning was still a problem, that they were doing something about it, but the staff were looking for a “quick fix”, such as a fan. The evidence was, and not controverted, that contractors or tradespersons had been looking at or dealing with these matters. However, on the evidence, there was still a problem. Mr Byfield said that Mr Dennison and Mrs Scully then changed their attitude. Then a question was raised by Mr Dennison as to why they should continue to provide jobs for a sales team that was not performing. Mr Byfield had no indication before the meeting that that would be discussed. Mr Dennison said that he wanted to be convinced as to the need for a sales team at 5.00 o’clock that afternoon. 21 The sales team went to lunch, as they had planned to do. They were left with the impression that their jobs were in jeopardy because of their complaints and wished Mr Byfield to tell Mr Dennison “what he could do with his jobs”. Mr Byfield, wisely, did not. 22 Mr Byfield’s opinion, in evidence, was that it was not fair to expect him to prepare a justification in four hours of the jobs of four people when it had come “out of left field”. Mr Dennison, on the other hand, opined that such a task should be well within the capacity of a manager. 23 At 5.00 pm when he walked in to attend the meeting, Mr Byfield had expected to see Mr Dennison and Mrs Scully, but found that it was a full-blown Manager’s meeting, and he felt intimidated because each of the managers had been given a copy of his earlier memorandum. Mr Robins’ evidence was that Mr Byfield was stunned when he walked in to see all of the managers sitting there and that he was upset and agitated and might have felt intimidated and under pressure. Mr Taylor said in evidence that Mr Byfield knew the nature of the meeting, but that was inconsistent with other evidence of Mr Byfield’s agitation and his protests when the meeting commenced. Mr Robins’ evidence was that the sales team was not performing. 24 According to Mr Byfield, Mr Dennison asked him to report as to why the sales team should be continued. Mr Byfield became very agitated because he thought that he was being treated unfairly. He said that he was not prepared to be judged in front of his peers. Mr Dennison said that that was not good enough and asked other members of the management team to express their opinions about how good or bad the sales team was. The individual managers gave their opinions, three of them saying that it was necessary to have a sales team. Mr Dennison said that he wanted to meet the sales team the next morning and wanted Mr Byfield to leave so that he could speak to the other managers. The managers present, Mr Dennison, Mrs Scully, Mr Coughren, Mr Robins and Mr Berkhout, discussed the matter and decided to get rid of the sales team. 25 Mr Dennison said, in relation to the meeting of 11 March 1999, that he did not advise Mr Byfield, when he saw him that morning, that he was due to present to the management team. Mr Dennison said that it “just became obvious during the course of the day” and that, at 11.00 o’clock, he was invited to “give his presentation” at 5.00 pm. Mr Byfield, in evidence, indicated that he did not think that the meeting was going to be with the other managers. He then said that Mr Byfield responded that he did not have a great deal to say, except that every company has a sales team. Mr Dennison said that Mr Byfield stormed out of the office and slammed the door. Mr Byfield’s evidence was that he shut the door firmly, WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 18 because he was not fully aware of his position as to the door. The managers then discussed the matter and decided to dispense with the whole sales team. 26 Mr Dennison said in evidence that MSA prepared overnight and in the morning letters of termination. Mr Dennison said that, in the presence of Mr Robins, in Mr Byfield’s office, he told Mr Byfield that “... because of the overall lack of performance of the sales team and his lack of performance as the General Manager sales team in managing that team that the company had decided to dispense with the sales team”. According to Mr Byfield, Mr Dennison said “Based on what has happened in the last 24 hours, the directors have decided to dispense with the sales team.” Mr Byfield was then handed a letter saying that he was being dismissed. 27 The letter dismissing Mr Byfield (Exhibit A2 (page 313(AB)) dated 12 March 1999, said— “It is with regret that we hereby inform you that your services as an employee of M.S.A. Security are no longer required, effective immediately.” 28 It then cites the reasons as follows— “(i) General lack of performance, as whole, of the Sales and Marketing operation; (ii) Company growth being as a result of other influ- ences, other than the Sales and Marketing division; (iii) Continuing conflict between the managing of the operation as whole and the direction provided by the Sales and Marketing operation. (iv) The need for restructuring of the operation of the company, and (v) The general direction that the management of the company wish to pursue in the future.” 29 This was, to a significant extent, contrary to the oral reasons given by Mr Dennison before the letter was handed over. 30 Mr Byfield said that he was also handed a cheque and a termination certificate at that time. He said that his termination pay included, and it did, payment of accrued annual leave and four weeks’ pay in lieu of notice. Mr Dennison then proceeded into the general sales area to announce the dismissal of all other members of the sales team. They were Mr Nazareth, Mr Taylor and Mrs Kennedy. There was no previous indication that they would be dismissed, although Mr Nazareth had previously received a written warning for not reaching his budget. 31 The dismissal of Mr Byfield and the others all occurred in the same area of the office. No explanation was given as to why it was necessary to dismiss them immediately. It is quite clear, on all of the evidence, that Mr Byfield was given none of the counsel, advice, notice or assistance required by Part V of the Minimum Conditions of Employment Act 1993 (hereinafter referred to as “the MCE Act”). Indeed, Mrs Scully opined that that Act did not apply, inferably because these were not redundancies. Mr Byfield gave unchallenged evidence that the dismissal made him very hurt and embarrassed, which was not contradicted. 32 Mr Byfield gave evidence that his remuneration was approximately $49,000.00 per annum with the use of a fully maintained company vehicle and mobile telephone. 33 There was no allegation then, but there was in later correspondence, of any gross misconduct, the assertion was that the termination was for non-performance by Mr Byfield and the sales team. 34 Mr Byfield gave evidence of his subsequent employment (see pages 99-102(AB)). 35 Mr Nazareth, who was employed by MSA from December 1996 until 12 March 1999, as a Regional Security Advisor, gave evidence. His duties were to seek new sales as well as look after existing clients. He said it was not quite clear why his employment was terminated. He was given no chance to comment. His evidence corroborated much of what Mr Byfield said concerning the pesticide smell but, contrary to Mr Byfield, he said that Mr Byfield knew that the meeting at 5.00 o’clock would be with Mr Dennison and other managers. He was angry and disillusioned by the dismissal. 36 There was also evidence from Mr Taylor, who was dismissed as part of the sales team on 12 March 1999, but was subsequently re-employed. Mr Taylor said that he was not told on 12 March 1999 that his job was at risk, but the complaints about the pesticide smell were verbal and that his employment on 12 March 1999 was terminated as a result of non-performance by the sales team. 37 In evidence, Mr Taylor said that Mr Byfield, after the meeting with Mr Dennison, told the sales team that they had to justify why the sales department should continue. 38 Mr Taylor said that he performed the same job as he performed before, except that he was not employed on a commission basis and does not “cold canvass” for sales. 39 He said that Mr Byfield knew, because of the managers’ meetings, what steps were being taken to overcome the difficulties. 40 It was common ground as to the events that followed. However, it was in issue between the parties as to whether the escorting the dismissed employees from the premises which occurred was normal practice in the security industry. Mr Dennison said that it was. 41 Mr Dennison said, too, in evidence that, in the six months following the termination of the sales team, the company made more sales than in the previous twelve months with the sales team. COMMISSIONER’S FINDINGS 42 The Commissioner accepted the evidence of Ms Wegglar, Mr Taylor and Mr Robins. Mr Taylor and Mr Robins remained employed at the time of hearing with MSA. The Commissioner accepted the evidence of Mr Robins as to what occurred at the meeting of 15 January 1999 as the most credible and probable account of what took place. He had no reason, he said, to query the evidence of Mr Nazareth, Mr Coughren and Mr Berkhout, except that he preferred Mr Taylor’s evidence to that of Mr Nazareth. 43 The Commissioner found Mr Byfield to be, in the main, a credible witness, but he accepted the evidence of Mr Robins as to the warnings or counselling. However, he considered Mr Byfield’s evidence more credible than that of Mrs Scully or Mr Dennison. 44 He held that Mrs Scully’s evidence was not, in his view, particularly credible. He did not place much reliance on her evidence concerning the counselling Mr Byfield was supposed to have received. 45 The Commissioner observed that Mr Dennison’s evidence regarding the managers’ attendance at the 5.00 o’clock meeting of 11 March 1999 was contradicted by other witnesses, that he was defensive to the point of being evasive at times on the issues to do with performance and the warnings or counselling provided to Mr Byfield. 46 I have scrutinised all of the evidence carefully and there is nothing in the evidence or the submissions to persuade me that those views are erroneous. Indeed, a fair reading of the evidence supports them. 47 The Commissioner made the following findings— 1. Mr Byfield was warned on 15 January 1999 at a meeting involving Mr Dennison and Mr Robins that his performance and that of the sales team was not adequate and would need to improve. 2. That Mr Byfield, as a result of that meeting, knew that his employment was in jeopardy should the per- formance of the sales team not improve. 3. The warning was not a final warning. 4. With the exception of Mr Nazareth, the other mem- bers of the sales team had not been warned that their jobs were at risk before they were dismissed. 5. Mr Byfield would have been aware of the accept- able level of sales performance and that he was given appropriate support from the company with which to achieve sales figures. 6. Mr Byfield was not given any time frame by which he was required to achieve an improvement in per- formance, that is to meet the sales targets. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 19 81 W.A.I.G. 7. Mr Byfield was surprised and annoyed to find, on 11 March 1999, as were the sales team, that he had to justify their continued existence at a meeting later that day. 8. Mr Byfield, it is common ground, did not give rea- sons why the sales team should be retained. 9. Mr Dennison’s sudden demand for Mr Byfield to justify the retention of the sales team was sparked by Mr Byfield handing to Mrs Scully a complaint on behalf of the sales team about the smell of pesti- cides. 10. After Mr Byfield left, the other managers decided not to continue with the sales team. 11. Mr Byfield was advised of this in his office on the morning of 12 March 1999. Mr Dennison and Mr Robins were present and Mr Byfield was handed his letter of termination and his final payment. 12. The sales team were then dismissed and escorted from the building. 13. Mr Byfield was dismissed for poor performance, as evidenced by his letter of termination (exhibit A2). 14. Mr Byfield was not made redundant, nor was the sales team. 15. Whilst the performance of the sales team was a real issue, the only time when it was made clear to Mr Byfield that his job might be in jeopardy was at the 15 January 1999 meeting. 16. There was no timetable given within which to im- prove the level of sales. That judgment came upon Mr Byfield very quickly and in the context in which he was rightly aggrieved. It came in retaliation for the audacity of the sales team to complain about the pesticide smell when they should have been out on the road selling. 17. In addition, the manner of termination lacked regard for the dignity of those affected. 48 The Commissioner therefore found that the dismissals were unfair. Compensation 49 The Commissioner found as follows— 1. That Mr Byfield was dismissed on 12 March 1999 with immediate effect and was paid one month’s salary in lieu of notice. 2. Mr Byfield obtained alternative employment on 10 May 1999 and continued in that employment until February 2000, being paid $40,000.00 per annum, together with a $12,000.00 car allowance. He also earned $700.00 for selling real estate. 3. There was a break in his employment for an indeter- minate time. He commenced another job in early March 2000 on $45,000.00 per annum, together with vehicle, mobile telephone and travelling allowances. This compared with his earlier remuneration in his employment by MSA of about $49,000.00 per an- num, together with vehicle and mobile telephone. 4. Mr Byfield was not afforded procedural fairness, and should have been given a clear indication of time and consequences for his performance. However, the Commissioner concluded that, had he been given extra time for review and counselling, that this should have amounted to three months. His dismissal after such a period of review would not have been unfair in the circumstances of the employment relationship. 5. The Commissioner found that Mr Byfield earned nothing for the first eight weeks following his dis- missal and, for the next four weeks, he earned $9,000.00 per annum less than he had earned with MSA, which gave a figure of $11,629.81. 6. Mr Byfield said that he felt embarrassed by his dis- missal, but gained subsequent employment in the industry and his reputation does not appear to have been overly damaged at all. Nonetheless, it was a sudden dismissal and he was removed from the premises with no regard for his position. He was awarded $2,000.00 for injury. 7. This was not a fixed term contract of employment. 8. The total sum of $13, 629.81 was awarded. ISSUES AND CONCLUSIONS 50 This was a discretionary decision, as that is defined in Norbis v Norbis (1986) 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC)). 51 It is for the appellant to establish that the exercise of the discretion of the Commission at first instance had miscarried in accordance with the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU 73 WAIG 220 (IAC)). Unless that is established, the Full Bench may not find error in the exercise of the discretion or substitute its own exercise of discretion. 52 In this case, findings of fact were made, based on the credibility of witnesses. Such findings of fact are not to be set aside because the Full Bench, as an appellate tribunal, thinks that the probabilities of the case are against, even strongly against, those findings. If, as is the case here, the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or palpably misused his advantage or has acted on evidence which was inconsistent with facts uncontrovertibly established by the evidence, or which was glaringly improbable (see Devries and Another v Australian National Railwasy Commission and Another [1992-1993] 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306). Grounds of Appeal 53 The grounds of appeal were not the subject of submissions in support of any element of them. I have considered all of the submissions and all of the material carefully. Ground 1 54 There were a number of elements of that ground. 55 First, it was alleged that Mr Byfield had a reasonable period of at least two months in which to improve sales. As the Commissioner correctly found, only on 15 January 1999 was it made clear that Mr Byfield’s job was in jeopardy and then, in somewhat general terms. Mr Dennison said that being a shareholder would not prevent Mr Byfield being dismissed for non-performance, he was given no precise or even approximate time within which to improve the performance of the sales team. There was no time limit fixed within which it was said that “more stringent” action would be taken against Mr Byfield if sales did not improve; even Mr Dennison’s evidence was that he had to shape up or ship out. 56 Further, no one suggested or advised him that his performance or that of his team warranted dismissal at or near the time of dismissal until the sales team complained about the pesticides and air conditioning. The evidence was, too, that Mr Byfield was restructuring his team, something that he had said that he would do. 57 Almost two months later, without warning, his employment was terminated first, because of events not related to his performance, on Mr Dennison’s oral evidence, then, by the allegations contained in the letter of dismissal, for a mixture of reasons including alleged redundancy and then, for other reasons, after 18 March 1999 and not before, of “gross misconduct”. There was a shifting of ground in the reasons given for dismissal. 58 As the Commissioner found, “judgment came upon the applicant very quickly and in a context which he was rightly aggrieved” (see page 67(AB)). It was open on all of the evidence to so find. The Commissioner found that the judgment came as if in retaliation for the complaint, not said to be an unjustified complaint, about the pesticide smell. Certainly that complaint elicited an unsympathetic and angry response from Mr Dennison followed by the peremptory and unreasonable requirement that, in effect, Mr Byfield justify the continuing existence of his employment and that of other sales persons. It was open to so find that the judgment came in retaliation for the complaint and was, for that reason alone, unfair. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 20 59 I would add that, even if this were a redundancy, and it was not said to be in clear terms, nor found to be at first instance, nor argued on appeal, as I understood the submissions, then it was strongly open to be found to be an unfair dismissal because of the admitted failure to comply with the provisions of the MCE Act and because of the failure to pay an adequate redundancy payment. 60 What was not found and what does not seem to have been argued, so I can place no weight on it, is that Mr Byfield might be said to have been summarily dismissed for incompetence or for no good reason at all. However, this was not a situation of redundancy, so it might be properly found. Further, at no time was it alleged that the unsatisfactory sales figures were due to the fault of the sales team in terms which identified the fault. 61 As the Commissioner found and it was open to him to so find, Mr Dennison said when he dismissed the sales team— “Based on what has happened in the last 24 hours, the directors have decided to dispense with the sales team.” 62 That, it would be open to find, was the real and cogent reason, since the Commissioner preferred Mr Byfield’s evidence, why the dismissal occurred. 63 That would seem, since it was accepted as having occurred by the Commissioner and was on his findings as to the credibility of witnesses open to him to so find, to have been said. That reason bore no relation to any question of performance. 64 It follows, in the light of those findings that it was not at all material nor in any way conducive to a finding that the fact that two months had expired since Mr Dennison had complained about the performance of the sales team and that he had not seen fit to take any further action or to warn of it until the incident with the pesticide. The period of two months was not expressed to be and could not properly be found to be a period of warning. 65 It was also submitted that there was no improvement in sales and no explanation for not improving sales. Again, there was no formal complaint or threat of further action after the meeting of January 1999. Further, there were no detailed allegations at any time as to why it was the fault of the sales team and there was evidence of the sales team endeavouring to implement measures to achieve better results by its meeting on 11 March 1999. 66 There was no finding that MSA was not likely to improve the performance of the sales team and, indeed, no evidence that that would not occur. The finding by the Commissioner as to what might occur in future in relation to the improvement of sales, in the context of the separate exercise of making a finding as to loss, was in relation to an entirely different issue, namely the question of loss and compensation. 67 It is not the case that Mr Byfield knew or ought to have known that his employment was in jeopardy if sales performances did not improve. First, it was not made clear that that was the case with any certainty or within any time and, second, because he was given no time within which to achieve improved performance. Further, there is no evidence that he was given reasons why it was said that he was at fault or that other employees were at fault, save and except that they were not achieving budgeted figures. Also, his being given, within hours, the task of pleading for his job and that of his colleagues was, in the circumstance, entirely unfair in its lack of notice. 68 In my opinion, Mr Byfield gave a “presentation” at short notice, was not advised in any detail of the complaints against him and his team so that he could answer them, and was, in fact, required to plead for employment at short notice and was, it might properly be found, dismissed for the events of that last 24 hours, which hardly encompassed a period of alleged unsatisfactory sales performance. 69 The Commissioner quite rightly found as he did and there was ample evidence on which to so find. 70 For those reasons, no part of Ground 1 is at all made out. In particular, no part of it is a valid submission that the finding of unfairness of the dismissal was made in error. Ground 2 71 I have examined the reasons for decision. Certainly, the Commissioner was not required to determine whether the other members of the sales team were unfairly dismissed. He did not so find. There was evidence before him and entirely relevant to the dismissal of the sales team, including Mr Byfield, en masse and without warning. What the Commissioner observed and what was open to him to so find as a fact on the evidence, was that the terminations, including Mr Byfield’s, “lack a sense of dignity” because the dismissed employees, including Mr Byfield, were escorted from the premises. Mr Byfield gave evidence of the effect, too, of the dismissal on him. 72 Even if it was wrong to make the finding complained about in Ground 2, which it was not, it cannot detract from the correct finding on the evidence that Mr Byfield had been dismissed in a manner which deprived him of his dignity and humiliated him, thus causing him injury (see page 67(AB)). That ground is not made out. Ground 3 73 By this ground, it is alleged that the Commissioner erred in law in placing undue weight on the matter of the alleged pesticide fumes. It was submitted that Mr Byfield was aware that it was being addressed and for that reason, it was not a factor in his dismissal. The fact of the matter was, too, whether it was denied or not, that there was uncontradicted evidence that all of the sales team were complaining about, and some were of the view that they were suffering ill effects from the pesticides. Further the air conditioning had not been fixed. 74 On the evidence of Mr Byfield, which was preferred to that of two of MSA’s managers, Mrs Scully and Mr Dennison, it was clear from both of them that they were angry about and/or non-receptive of the complaint (a complaint not without foundation). The requirement that Mr Byfield justify the existence of the sales team and the dismissal en masse of the sales team which followed close upon the complaint, properly gave rise to the inference that the complaint played a part in and/or was the main propellant of the dismissals. That ground is not made out. Ground 4 75 The learned Commissioner did not err in fact or law in finding that the failure of Mr Byfield to prepare the “presentation” to justify the retention of the sales team did not amount to a repudiation of his contract, justifying dismissal, when he knew that his employment was in jeopardy if the sales team did not improve its performance. As well as the observations which I made in relation to Ground 3, which I repeat here, I would observe as follows. 76 First, it was not submitted with any force that the Commissioner’s finding that the alleged repudiation of the contract on the grounds of failing to comply with a lawful direction was not a reason given at all in the letter of dismissal and the inference not a reason for dismissal was not challenged. 77 Second, if it was the reason given for dismissal and the actual reason for dismissal, then, as I understand the ground, it constituted insufficient reason to justify a summary dismissal. In my opinion, on the evidence, a presentation was made whether prepared for or not. Indeed, there was no direction, but an ultimatum, that Mr Byfield make a presentation justifying the continued existence of the sales team; and if there were no justification, the dismissal of its members would follow. Failure to prepare, as alleged, was not sufficient reason to justify a summary dismissal, even if there was any disobedience, which there was not. In any event, it is quite clear that Mr Byfield was not expecting to have to make a formal presentation to a meeting of managers, nor did he think it fair that he should. It was open to find, in the circumstances, that that view was valid. Even if it were disobedience of an order, the disobedience was not such as to enable MSA to conclude that Mr Byfield no longer intended to be bound by the provision of his contract (see Laws v London Chronicle [1959] 2 All ER 285 at 287 and 289; see also North v Television Corporation Ltd (1976) 11 ALR 599 at 609 (FCFC) per Smithers and Evatt JJ and Blythe Chemicals Ltd v Bushwell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ). WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 21 81 W.A.I.G. 78 There was no deliberate flouting of an essential contract and condition. In the circumstances, too, for the reasons advanced above, the failure to adequately and properly warn was unfair. That ground has no merit. Ground 5 79 By this ground, it was alleged that the Commissioner erred in fact or in law in finding that, as a matter of fairness, Mr Byfield should have been given three months as a matter of fairness to remedy the sales team’s performance. (That, of course, is based on the assumption that it was within his power to achieve that.) It was submitted that there was no evidence to establish that this period would have achieved such an outcome. 80 That, with respect, is not the point. It was, in the circumstances, assuming that he was at fault, which is not at all clear on the evidence, a reasonable time within which to require improvement to be achieved and reasonable period of notice of dismissal if this was not achieved. 81 The finding that Mr Byfield’s attitude, as evidenced at the hearing, which it is not clear to me it was open to find, led to the conclusion that the result would be the same was not a finding relevant to the unfairness of the dismissal, but relevant to the finding as to loss It supports a finding that he would otherwise have been terminated after a period of review or made redundant which means that he would not necessarily have been dismissed for fault but because his job was surplus to requirements. 82 Thus, too, that finding alone does not unequivocally base itself on a finding of fault in the future if Mr Byfield were not to improve performance in and by the sales team. Ground 6 83 This ground contains complaints as to the exercise by the Commissioner of his discretion in assessing compensation for loss and injury. 84 First, the period from 15 January 1999, when Mr Byfield was told that his performance was unsatisfactory, was found and properly found not to constitute a definite period of notice in which he was, as a matter of fairness, given the opportunity to improve the sales team’s performance. There was, as the Commissioner found, no time frame prescribed for improvement. Indeed, the failure to so warn was unfair and it is quite wrong to submit that that period should be taken into account to reduce the amount of the loss found. 85 I am not persuaded, either, that the three month period judged by the Commissioner to be a fair period of warning which should have been afforded before any termination of the contract is at all the correct period of notice. It is properly characterised as a period of warning, judged fair, to put Mr Byfield on notice that his employment was in jeopardy if the sales team’s performance did not improve. It did not and could not commence from the date of dismissal. 86 The payment of an amount in lieu of notice was paid in lieu of one month’s notice of termination. The three month period of warning, if it had occurred, would have occurred before the dismissal and had and has nothing to do with the notice required to be given for the termination of the contract. Indeed, the proper approach was to determine what was reasonable notice (see Tarozzi v WA Italian Club (Inc) 71 WAIG 2499 (FB)), and award an amount to compensate for it not being given, subject to mitigation. However, since this was not argued, I make no finding. 87 As to the short break in employment of unknown duration, it was open to MSA to ascertain by cross-examination what that was and it did not. There was ample evidence of attempts, and successful attempts, to obtain new employment and mitigate his loss, which a small gap in employment did not vitiate (see Growers Market Butchers v Backman (FB)(op cit). It is quite irrelevant to submit that, in his new employment, Mr Byfield received higher remuneration. He still suffered a loss during the time when he was unemployed. That was his proven loss, and a mitigated loss. 88 Next, MSA attacks the award of $2,000.00 for injury. The Commissioner held that the manner of Mr Byfield’s dismissal and the attempts to portray his actions as misconduct after the event and to contact other employers in the industry were harsh. Further, the sudden dismissal and removal from the premises, the Commissioner held, occurred with no regard for his position and in the close vicinity of his team. It did as a matter of fact. Mr Byfield was, on his evidence, embarrassed and upset. It was open to so find. 89 I would agree that what happened after the dismissal was not relevant but, in my opinion, the amount of $2,000.00 for the manner of the dismissal, which was obviously humiliating, warranted an award of more than $2,000.00 for the injury caused. However, there is no cross-appeal and I make no order in that respect. The sum awarded is not, therefore, as the result of an erroneous exercise of discretion, excessive. The ground is, however, not made out. 90 I would also make the general observation that it was open to find that the dismissal of Mr Byfield was unfair according to the test in Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC) and was open to be so found by the Commissioner at first instance for the reasons which he did. MSA attempted to effect a dismissal which had, at least, some of the hallmarks of a summary dismissal, where it is not certain that any valid ground existed and/or without any adequate warning or opportunity for Mr Byfield to remedy or complete the remedy of problems perceived to exist in his team and his leadership of it. 91 In particular, it was open to find that Mr Byfield was not dismissed for gross misconduct, which was never alleged until after he alleged in his letter to Mr Dennison of 18 March 1999 that he was unfairly dismissed, and of which there was no mention prior to that. 92 Margio v Fremantle Art Centre Press (1990) 70 WAIG 2559 is authority for the proposition that it is unfair for an employer to dismiss an employee without giving her/ him a fair and adequate warning as to what is wrong, what is needed to be done to remedy the situation, making the consequences of failure plain, and fixing a fair and reasonable time for improvement. In the absence of such a warning, a dismissal may also be substantially unfair, not procedurally unfair, although it may also be procedurally unfair (see, too, the cases cited therein). This case was both. 93 In this case, there was substantive unfairness, for the reasons found by the Commissioner. 94 For those reasons, it was open to the Commissioner to find as he did, to find that the dismissal was unfair and to find that there was a loss and award compensation as he did. FINALLY 95 For those reasons, I find none of the grounds made out. I find no established error in the exercise of the discretion at first instance which would warrant the interference of the Full Bench. 96 I would, for those reasons, dismiss the appeal. CHIEF COMMISSIONER W S COLEMAN— 97 I have had the advantage of reading the Hon President’s draft reasons for decision. I agree that the grounds for appeal adequately identified issues being pursued. However there was nothing presented for the appellant that showed the Commissioner had misdirected himself on matters of law nor had he erred in the exercise of his discretion. I agreed for the reasons expressed by the Hon President that the appeal should be dismissed. COMMISSIONER J F GREGOR— 98 I have had the benefit of reading the Reasons of Decision of His Honour the President. I respectfully agree with the conclusions that he reached. I add the following comments. 99 The respondent to the appeal sought that it be struck out on the basis that the grounds were defective because they fail to comply with Regulation 29 of the Industrial Relations Commission Regulations 1985. The grounds were in my view sufficient for the respondent to properly address the matters raised on appeal. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 22 100 In my opinion the Appellant in seeking to prove the grounds of appeal has embarked upon that course without a proper understanding of the role of the Full Bench in dealing with appeals against a discretionary decision as matter on appeal clearly was. 101 The advocate for the Appellant chose to ignore the positive findings made by the Commissioner at first instance on the credibility of witnesses. The learned Commissioner supported his conclusion of the value he placed on the evidence he received by making a series of findings that His Honour has described in paragraph 47 of his Reasons. It is upon those findings that the learned Commissioner concluded that the dismissals were unfair. In my opinion each and every one of those findings was open to learned Commissioner on the evidence that had been placed before him. 102 For the Full Bench to conclude that there has been a miscarriage it has to reach the conclusion that the Commission at first instance has failed to use or palpably misused the advantage of seeing and hearing the evidence or acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence. That did not happen in this case. 103 There is no reason or warrant to interfere with the decision made by the Commission at first instance and the appeal should be dismissed. THE PRESIDENT— 104 For those reasons, the appeal is dismissed. Order accordingly, 2000 WAIRC 01641 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES OLTEN PTY LTD T/A MSA SECURITY, APPELLANT v. ANTHONY JAMES BYFIELD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J F GREGOR DELIVERED MONDAY, 18 DECEMBER 2000 FILE NO/S FBA 39 OF 2000 CITATION NO. 2000 WAIRC 01641 _______________________________________________________________________________ Result Appeal dismissed. Representation Appellant Mr D Clarke, as agent Respondent Mr R Mancini (of Counsel), by leave, and with him Ms M Quai (of Counsel), by leave _______________________________________________________________________________ Order. This matter having come on for hearing before the Full Bench on the 24th day of November 2000, and having heard Mr D Clarke, as agent, on behalf of appellant and Mr R Mancini (of Counsel), by leave and with him Ms M Quai (of Counsel), by leave, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 18th day of December 2000 wherein it was found that the appeal should be dismissed, it is this day, the 18th day of December 2000, ordered as follows— (1) THAT the application filed herein on behalf of the respondent pursuant to s.27(1)(a) of the Industrial Relations Act 1979 (as amended) be and is hereby dismissed. (2) THAT appeal No. FBA 39 of 2000 be and is hereby dismissed. By the Full Bench, (Sgd.) P.J. SHARKEY, [L.S.] President. 2000 WAIRC 01573 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES BRYAN FRANCIS STOKES, APPELLANT v. THE TYPING CENTRE OF PERTH PTY LTD T/A AUSTRALIAN INTERNATIONAL COLLEGE OF COMMERCE, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER S J KENNER COMMISSIONER J H SMITH DELIVERED WEDNESDAY, 13 DECEMBER 2000 FILE NO/S FBA 47 OF 2000 CITATION NO. 2000 WAIRC 01573 _______________________________________________________________________________ Decision Appeal dismissed. Appearances Appellant Mr B F Stokes on his own behalf Respondent Mr D P Cronin, as agent _______________________________________________________________________________ Reasons for Decision. THE PRESIDENT AND COMMISSIONER S J KENNER— INTRODUCTION 1 These are the joint reasons for decision of the President and Commissioner Kenner. 2 This is an appeal against the decision of the Commission, constituted by a single Commissioner, brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). The decision appealed against is constituted by an order whereby the Commissioner dismissed the application, made on 24 August 2000 in matter No 779 of 1999 and deposited in the office of the Registrar on 24 August 2000. GROUNDS OF APPEAL 3 The appeal is against the whole of the decision and is made on the following grounds— “1. The learned Commissioner erred by— 1.1 finding that the appellant could complete the remaining 3 weeks of the current teach- ing module despite evidence that the respondent had cleared his desk in the staff room in the afternoon of Thursday the 3rd June, 1999, removed all his notes & books to the Principal’s office, cancelled his classes for the 4th June without any ad- vice to him and on Friday 4th June telling him to collect his books and leave without any advice that he could return on Mon- day the 7th June and resume teaching; 1.2 finding that the respondent intended to permit the appellant to resume teaching on the 7th June for 3 weeks to complete the current module, even though it was com- mon ground that the respondent did not tell the appellant of this at all; WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 23 81 W.A.I.G. 1.3 failing to find that after the following acts, the only conclusion or inference to be rea- sonably drawn by the appellant was that the respondent intended and did terminate the appellant’s contract of employment namely— (i) advising the appellant on the 3rd June, 1999 that at the conclusion of the cur- rent module he would be required to take 10 weeks off work without pay; (ii) clearing the appellant’s desk in the staff room completely; (iii) failing to advise the appellants super- visor of its intentions as to his continued employ; (iv) removing the appellant’s books and personal effects to the principal’s of- fice; (v) cancelling the appellant’s Friday class without any prior advice to or consul- tation with him even though he could be contacted by telephone which was known to the respondent; (vi) on the 4th June, 1999 requiring him to remove his books and notes from the principal’s office and to leave the re- spondent’s premises forthwith without any opportunity to farewell his stu- dents; (vii) advertising his position in the West Australian newspaper without any ad- vice to him, & (viii) failing advise the appellant to return on Monday the 7th June and resume his teaching duties even though the ap- pellant had foreshadowed an intention to commence unfair dismissal proceed- ings later that day if nothing was resolved before he left. 1.4 failing to find that the respondent breached its implied common law duty to provide the appellant with work pursuant to its con- tract of service; 1.5 finding that because the appellant agreed that Mrs Jenkins said that he was not be- ing dismissed, the appellant was in fact agreeing with Mrs Jenkins position when the contrary was the only inference on the evidence; 1.6 failing to consider that the respondent in believing it was not terminating the appel- lant because he was employed as an as-needs casual and could be stood down at any time, which belief was erroneous, took action in reliance upon same which in fact terminated the appellant’s contract of service; 1.7 failing to consider that by giving the re- spondent notice that he considered the respondent’s actions constituted a construc- tive dismissal placed a duty upon the respondent to deny that construction if er- roneous and advise him that he could resume his duties on the 7th June, 1999; 1.8 finding that the appellant’s alleged rude- ness, loudness and aggression justified the respondent’s reactions, when it was uncon- tested that the respondent had instigated the withdrawal of work and advised of its intention to stand down the appellant for 10 weeks unpaid unilaterally without any prior consultation prior to any of this al- leged behaviour which occurred after an unequivocal intention of the respondent was manifest and that such alleged action could never of itself justified summary or instant dismissal; 1.9 failing to find that because of her admitted misapprehension, Mrs Jenkins did in fact determine the contract of service despite her stated intention to the contrary; 2.0 finding that the appellant’s failure to ad- vise the respondent of his disbarment justified the latter in summarily terminat- ing the contract of service, when the respondent was under a common law duty of caveat emptor to check the appellant’s qualifications, credentials and referees prior to agreeing to employ him and in fail- ing so to do waived any right to complain subsequently, & 2.1 finding that the appellant acted in a loud, aggessive (sic) and rude manner failed to onsider (sic) that the principal’s office was glass petitioned and that Leanne and the receptionist were in close proximity and were not disturbed in their work by the appellant’s acts. 3. The appeal is in respect to an order that the claim for unfair dismissal be dismissed and that as the learned Commissioner misdirected himself and made substantial errors of law and fact, the Full Bench should substitute inferences correctly drawn and find that the respondent did construc- tively determine the appellant’s’(sic) contract of service unfairly within sec 29 of the Act and award the appellant compensation of $9705.00 and one week’s pay in lieu of notice of $600 both total- ling $10,305.00. 4. The appellant seeks an order quashing the order at first instance to dismiss and an order that the respondent did dismiss the appellant unfairly and should pay one week’s pay in lieu of notice and compensation both totalling $10,305.00.” APPLICATIONS TO EXTEND TIME 4 The Notice of Appeal was filed on 29 September 2000 and the appellant, Mr Bryan Francis Stokes, applied for leave to file and serve the Notice of Appeal out of time and for leave to make application out of time. Both those applications were filed on 29 September 2000, about fifteen days after the twenty-one day period for instituting an appeal had expired. BACKGROUND 5 At the time of the hearing at first instance, Mr Stokes was a registered industrial agent. 6 On 23 December 1999, the Commissioner issued reasons for determining, as a preliminary point, whether or not Mr Stokes was employed as a casual employee. 7 Mr Stokes had been employed by the respondent as a lecturer in Paralegal Studies from 12 April 1999 until 4 June 1999. He claimed to have been dismissed and that his dismissal was harsh, oppressive and unfair. He also claimed certain contractual entitlements. 8 The respondent employer offers courses to train persons for various occupations including paralegal employees, flight attendants and private investigators. 9 It was not in issue at first instance that Mr Stokes was struck off the roll of legal practitioners for misconduct in 1992. 10 The respondent opposed the claims, arguing that Mr Stokes was employed on a casual basis and that it was entitled to vary Mr Stokes’ days and times of work or to provide no work. Indeed, the respondent denied that it terminated Mr Stokes’ employment at all and alternatively said that, if it did terminate Mr Stokes’ employment, then it did so by accepting his repudiation of the contract. Further, the respondent contended that Mr Stokes could be dismissed on one hour’s notice. 11 The Commissioner further found that the respondent had placed an advertisement in the West Australian newspaper on 27 March 1999 for an employee called a “legal trainer”. The position referred to in the advertisement was a “casual trainer” (see page 42 of the appeal book (hereinafter referred to as “AB”)). The advertisement was noticed by WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 24 Mr Stokes’ wife and she informed Mr Stokes of it. He did not read the advertisement, but made contact with the respondent and then attended for an interview with Mr Richard Stephen MacDonald, the Manager of the respondent. 12 The advertisement in the West Australian of 15 July 2000 (see page 38(AB)) read as follows— “Applicants must have at least five years experience in their respective industries. The Paralegal lecturer must have been a solicitor for the same period.” 13 There was difference in evidence between Mr Stokes and Mr MacDonald as to whether Mr MacDonald stated during the course of the interview that the position was “casual”. Mr MacDonald maintained that he did so state, but Mr Stokes maintained that the word “casual” was not used at all. 14 The Commissioner found that Mr MacDonald showed Mr Stokes a curriculum which contained module details for a Certificate in Paralegal Studies, containing eight modules. The course was a 36 week course and had an accompanying timetable until December 1999. Mr Stokes was informed that the hours would be 9.00 am to 1.00 pm, five days per week and that the remuneration would be $30.00 per hour. Mr MacDonald asked Mr Stokes what part of the curriculum he would be comfortable in teaching and Mr Stokes indicated that, with some preparation, he would be comfortable in doing all of it. The Advance Legal Procedure Course included an element of professional ethics. 15 The Commissioner accepted the evidence of Mr MacDonald that it was understood between him and Mr Stokes that, if everything went well and if the respondent was satisfied with Mr Stokes’ work and if Mr Stokes was happy at doing that work, that Mr Stokes would do the course until the end of the year. 16 Mr Stokes commenced employment on 12 April 1999, three weeks before lecturing commenced and there was no written contract of employment between the parties. Mr Stokes worked until 4 June 1999 and he was not paid for public holidays. 17 The Commissioner found that Mr Stokes, for the purposes of s.29(1)(b) of the Act, was not a casual employee whose contract of employment merely came to an end in accordance with its terms. He found that, on the evidence, Mr Stokes’ employment came to an end because of the decision of Ms Julia Ann Jenkins, the General Manager of the respondent, who is based in the eastern states, that Mr Stokes would cease teaching and that the respondent would employ another person for the purposes of becoming a back up lecturer for the course. During that period, a ten week period, Mr Stokes would not lecture and would not be paid. The Commissioner accepted and found that Mr Stokes became irate and even aggressive in his response. 18 For the purposes of making that finding, the Commissioner was quite satisfied that Mr Stokes’ employment was brought to an end by the actions of the respondent in removing his lecturing work after he had lectured in one module. There was no evidence, or any suggestion of any evidence that things were not going well or that the respondent was not satisfied with Mr Stokes’ work. The Commissioner therefore found that Mr Stokes was dismissed and that the dismissal was not contemplated by the terms of the contract of employment agreed between him and the respondent. 19 On Thursday, 3 June 1999, approximately three weeks prior to the end of the module, Mr Stokes was called to a meeting with Ms Jenkins. She had not met Mr Stokes before and commenced a discussion by asking his views on the viability of introducing a night course. Mr Stokes gave a positive response and she then informed him that it was the respondent’s intention to employ a back up trainer to teach the second module in such a way that the new trainer and Mr Stokes could teach day and night classes between them. She told Mr Stokes that she was not exactly sure how it would affect him but that, since she intended to give the new trainer a trial in the next module, Mr Stokes would not be required for the ten weeks duration of the new module which would give him time to “organise his other work”. 20 The Commissioner found that Mr Stokes became quite angry and upset at this news and informed Ms Jenkins that he had been employed to teach the course, that he knew the law, that the respondent could not do that to him, that it amounted to constructive dismissal and that he would commence an action to sue them accordingly. Mr Stokes then left the meeting. 21 The Commissioner was satisfied that Ms Jenkins was stunned at his reaction and accepted her evidence that Mr Stokes’ reaction was unnecessary and was seen by her as “over the top”. Her evidence was supported by Mr MacDonald who was also present during this conversation. Mr MacDonald’s evidence was that he was taken aback by Mr Stokes’ reaction. As a result, Ms Jenkins did not know if Mr Stokes had left the respondent’s employ or if he would return on the Friday to continue teaching. She therefore cancelled Mr Stokes’ Friday class out of concern for the students, collected all his notes and textbooks from his desk and put them in Mr MacDonald’s office. 22 Mr Stokes’ evidence was that, that evening, he prepared his notes for the Friday class. He attended the college prior to the 9.00 am start. He prepared some photocopies for distribution to the class and gave these to Mr MacDonald. He then discovered that his books had been removed from the desk and spoke to Mr MacDonald who invited him to come in and meet Ms Jenkins again. Ms Jenkins said that she wanted to discuss the problem with Mr Stokes, who said he was ready to work and asked if he was teaching that day. Ms Jenkins told him that his class had been cancelled and he asked if he was being dismissed. He was told that he was not being dismissed. 23 Ms Jenkins then said that she told him that she was trialling a new trainer and that Mr Stokes was a casual and was paid by the hour on an “as-needed” basis. Mr Stokes replied that that was “rubbish” and an insult to his intelligence. He then said that he was there to work and that, if his employer was not offering him work, then his employer was dismissing him and he would have an application claiming unfair dismissal on their desk by close of business that same day. 24 At this meeting, Mr Stokes became loud and aggressive, as the Commissioner found, and his manner suggested a rudeness which Ms Jenkins found unacceptable. Ms Jenkins, as the Commissioner accepted, told Mr Stokes that she had no intention of arguing with him but, if he did not want to discuss the matter, then he should leave and that the college would then be in touch with him. She informed Mr Stokes that his books were collected on a particular table and he was requested to collect them himself and leave. Mr Stokes did leave. He thanked Mr MacDonald for being “a good boss”, shook his hand and departed. 25 Mr Stokes forthwith then lodged a claim in the Commission for unfair dismissal and served the application on Mr MacDonald later that day. He claimed that he was dismissed on 4 June 1999. Mr Stokes relied on the fact that he reported for work in the ordinary course of events and was prepared to teach on that day. He found that his class had been cancelled and was told by Ms Jenkins to leave. 26 However, the evidence of Ms Jenkins, supported by Mr MacDonald, was that the Friday class was only cancelled by them because they feared, from the strength of his reaction in their discussion on the previous day, that he would not be working on the Friday. Rather than have students attend the class in the absence of a trainer, Ms Jenkins decided that they would cancel the class. They made the decision to remove Mr Stokes’ books in case he had made a decision not to continue. It was seen as a precaution. The Commissioner found that Mr Stokes’ aggressive response and perceived rudeness towards Ms Jenkins and Mr MacDonald precipitated that action. It was also, as the Commissioner found, his aggressive response and perceived rudeness on that day which caused Ms Jenkins to ask him to leave the premises. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 25 81 W.A.I.G. 27 On the evidence, Mr Stokes was asked to collect his books and leave because his attitude prevented Ms Jenkins from being able to discuss the matter rationally with him. In the notes Ms Jenkins made after that meeting, she wrote that she requested Mr Stokes to collect his belongings and leave. In her evidence to the Commission, Ms Jenkins stated that she did so because they were not getting anywhere, he was aggressive, he was loud, he was very upset, he was not willing to discuss anything in a rational manner and she was not prepared to stand in the front office and argue with him (see page 147 of the transcript at first instance (hereinafter referred to as “TFI”). 28 The Commissioner found that the reason why Ms Jenkins requested Mr Stokes to leave was his aggressive and uncompromising stance and not any intention on the part of the college that his employment would be terminated at that point. The Commissioner accepted unhesitatingly the evidence of Ms Jenkins that she did not intend to dismiss Mr Stokes and was not, in fact, dismissing him. 29 It was relevant, the Commissioner found, that there was three weeks’ training remaining in the module and there was nothing whatever in the evidence to suggest any intention at that time on the part of the respondent that Mr Stokes would not continue training until the end of that module. The Commissioner observed that he was inevitably led to the conclusion that, had Mr Stokes’ reaction not been as it was, he would have continued teaching for the balance of that module. 30 The Commissioner, therefore, found that Mr Stokes was not dismissed by the respondent on 4 June 1999. He found that it was the lodging of the application, on the evidence of Mr MacDonald, that prevented any further discussion between Mr MacDonald and Mr Stokes and prevented Ms Jenkins from getting in touch with Mr Stokes. 31 Mr Stokes argued that the situation was properly to be characterised as a constructive dismissal and submitted that he was placed in a situation where Ms Jenkins made it quite plain that he either accepted the new arrangements whereby a new trainer would be engaged and he would not be employed for the second module or that he was to leave. He therefore said that he chose to leave. 32 The Commissioner, however, found that that was not the choice at all and that Ms Jenkins, on the evidence, did not put that to Mr Stokes as an ultimatum. Her evidence made it quite plain that her direction to him to leave with his books was a direct response to Mr Stokes being aggressive, loud, upset and not willing to discuss anything in a rational manner. The Commissioner also found that, at the time Mr Stokes left the respondent’s premises, it was the intention of Ms Jenkins to discuss further the issue of the respondent’s intention to appoint a back up trainer and not offer work to Mr Stokes for ten weeks with Mr Stokes when it was possible to do so in a calm and rational manner. It was a fact, the Commissioner found, that this did not occur because her intention was overtaken by his serving on the respondent within a few hours a claim alleging unfair dismissal. 33 Given Mr Stokes’ reaction in this manner, the Commission found that Ms Jenkins was entirely reasonable in requesting that Mr Stokes leave. That request from Ms Jenkins for Mr Stokes to leave was a direct consequence of Mr Stokes’ behaviour, not the respondent’s. 34 The Commissioner found that, because it is important in a constructive dismissal that the termination of the contract occurred as a result of the actions of the employer, not the employee, he was not able to conclude that Mr Stokes was constructively dismissed. 35 In the alternative, Mr Stokes submitted that he was dismissed because the respondent was substantially changing the contract by withdrawing work from him. He argued that the respondent did not have the right to do so and that it was unfair to him for the respondent to do so. In fact, Ms Jenkins was giving notice to Mr Stokes that, in three weeks’ time, the respondent would not need him for the ten week period during which the new trainer would be employed. By implication, Mr Stokes would continue working for the three remaining weeks of the module, then be stood down without pay for the next ten week period and then be given work and paid for it after that period. 36 If Mr Stokes had, in fact, been stood down for that ten week period, it would have been in breach of his contract of employment and is likely to have constituted a sufficient breach to allow Mr Stokes to terminate the contract, the Commissioner held. He then held that, in substance, the respondent dismissed Mr Stokes because, effectively, standing him down for ten weeks would be conduct on the part of the employer which was plainly inimical to a continuation of the contract of employment and would have been entitled to treat the contract as at an end. 37 First, however, as the Commissioner observed, the respondent’s stated intention did not come to pass, if that were the case. Mr Stokes’ contract of employment did not come to an end at the end of that three week period. The respondent’s stated intention was overtaken by the cessation of the contract of employment on 4 June 1999, brought about by Mr Stokes’ own precipitous action, so the Commissioner held. Whether the stated intention would have become reality or whether a compromise would have been found will never be known, the Commissioner held, because the strength of Mr Stokes’ reaction to Ms Jenkins overtook the situation. 38 The respondent then submitted that it was able to rely upon its discovery that Mr Stokes had been disbarred from practising as a solicitor, a fact not known to it at the time and that that would justify any dismissal which the Commissioner found to have occurred. The Commissioner relied on Byrne and Frew v Australian Airlines Ltd 185 CLR 410 at 430 to find that the facts which exist at the time of the dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unfair. That is the case here, the Commissioner found. Ms Jenkins indicated that, subsequent to the departure of Mr Stokes, she contacted the legal trainer at the Adelaide college and asked him to assist her in discovering that the information that she had been given regarding Mr Stokes and his disbarment was true. The information was confirmed. 39 The Commissioner found that the respondent was indeed able to rely upon the knowledge it now has that Mr Stokes had been disbarred. Mr Stokes submitted that the facts of his disbarment was effectively irrelevant. He did not need to be a practising solicitor in order to be a trainer in the Paralegal Studies course of the respondent. The respondent did not require him to be a practising solicitor when it employed him. He was never asked at the interview whether he was a practising solicitor or whether he had been disbarred. He was not obliged to volunteer the information that he was disbarred at the interview, nor did he mislead the respondent. 40 The Commissioner observed that that was irrelevant and that, on the evidence, had the respondent had that knowledge prior to employing Mr Stokes, it would not have offered him the position. Indeed, Mr Stokes acknowledged as much, which is why he did not volunteer the information at the time of his interview (see page 67(AB)). Mr Stokes subsequently said that he did not volunteer the information because he needed the job very badly. 41 Nevertheless, the Commissioner found that Mr Stokes can hardly be heard to complain if the employer who would not have employed him if the fact of his disbarment had been known to it, subsequently discovered the fact and thereupon dismissed him due to him being unsuitable for the position. The evidence of Ms Jenkins was that the respondent’s reputation in the education field is of significant importance, that the college had to uphold its reputation and has to stand up in front of students and say that the students are getting the best qualified trainers that the college can get. That, she said, would not be the case with Mr Stokes. The Commissioner accepted her evidence and found that the reputation of the college would hinge, in a large part, on the reputations of its staff. 42 In any event, the Commissioner found, on the evidence before the Commission, that the fact of Mr Stokes’ disbarment did make him unsuitable for the position. It WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 26 was not just an issue of whether he had the knowledge to teach the Paralegal Studies course. The respondent’s advertisement for the position required a person who was a solicitor, that is a person who practised or applied the law as distinct from, for example, a person with a law degree. That was apparent from the respondent’s requirement that the person be a solicitor with five years’ experience practising the law (see page 38(AB) and compare the draft advertisements in exhibit A at pages 39-40(AB)). 43 The Commissioner then said that he was led to the conclusion that the status of solicitor was a significant factor from the respondent’s point of view and, indeed, Ms Jenkins’ evidence was that this was a minimum requirement for the respondent’s accreditation to train the course. 44 Mr Stokes admitted that he was disbarred on 6 August 1992 and that he was guilty of illegal conduct. The Commissioner found that that fact can only have an adverse impact on the reputation of the respondent and it was not without significance that one element of the course concerned professional ethics, even if that element was not a significant part of the course. 45 The Commissioner therefore found that Mr Stokes’ employment would not have survived the discovery of the fact of his disbarment. He would have been dismissed and that dismissal would have been for a justifiable reason. The claim was therefore dismissed for want of jurisdiction. THE EVIDENCE 46 We now summarise hereunder the most significant evidence. 47 On 3 June 1999, Ms Jenkins and Mr MacDonald met Mr Stokes at the college. Ms Jenkins had not met Mr Stokes before. 48 According to Mr Stokes’ evidence, after discussions about bringing in a night class and another lecturer in Paralegal Studies, Ms Jenkins told him that the other lecturer would take that module for the next ten weeks. He gave evidence that, if that occurred, he would be disappointed. Ms Jenkins, according to Mr Stokes, said that he was a casual and that they would not need him for the next ten weeks. He said that he told Ms Jenkins that what she was doing was a constructive dismissal and, if she proceeded with that course, he would commence an “industrial action” in this Commission. He admitted that, at the time, he was getting angry, but that he did not raise his voice. He told Ms Jenkins that she would leave herself open to a claim. 49 The next morning, Friday, 4 June 1999, Mr Stokes came in to work and Ms Jenkins and Mr MacDonald met him. Ms Jenkins told him that she had rung the students and cancelled the classes. Mr Stokes’ books and other effects had been moved to Mr MacDonald’s office. Mr Stokes asked Ms Jenkins if he was being dismissed and she said that he was not (see pages 53-54(AB)). Ms Jenkins said “We will let you know if we need you.” Mr Stokes took that, he said, as a dismissal and said that he would file an application in this Commission, which he did the same day and which he served on Mr MacDonald that afternoon. 50 Mr Stokes dealt with the question of whether he was a solicitor or not and what occurred at his interview for employment with Mr MacDonald. He said that he was not asked at the interview by Mr MacDonald whether he was a solicitor and, as Mr Stokes said, he did not dissuade him. However, Mr Stokes also said that Mr MacDonald asked him why he was not practising and Mr Stokes said that he had sold his practice in 1992. He did not tell Mr MacDonald that he was in practice or was a solicitor. He did not tell him that he was disbarred. Mr Stokes said that he told Mr MacDonald that he had a fledgling industrial relations consultancy practice. 51 In cross-examination, Mr Stokes admitted that, on 3 June 1999, he was pretty annoyed, but was not rude. He said that he did not swear and did not slam doors. He denied that he resigned on that day. He denied that, on 4 June 1999, Ms Jenkins was prepared to discuss the issue. He said further that Ms Jenkins said that she was not dismissing him, and he said that it was tantamount to a dismissal. 52 In the course of the discussion, Mr Stokes said that he was a lawyer. In saying that, he agreed that he could be perceived as putting himself out as entitled to practise. He agreed that he had not volunteered the information that he had been struck off and admitted that it would be of concern to a prospective employer that he had been “found guilty of offences relating to these areas”. 53 Mr Stokes was of opinion that he had no obligation to volunteer this information. He said also that he did not mention his striking off at the interview because he had never been asked. He added that Mr MacDonald knew that he was not practising and had sold his practice (see page 68(AB)). He said that, on 4 June 1999, he was directed to get his books and shown the door. 54 Mr MacDonald gave evidence that Mr Stokes did not mention that he was not permitted to practice law in Western Australia; he did not say that he was not a practising lawyer. Mr MacDonald said that, if he had known that Mr Stokes had been struck off, he would have had second thoughts and spoken to Mr Christopher Tooley (a Director of the respondent described as “the owner of the business”) or Ms Jenkins. 55 Mr MacDonald said that it was not intended to replace Mr Stokes, but to merely provide a back up lecturer. Mr MacDonald said that, at the discussion between Ms Jenkins, Mr Stokes and himself on 3 June 1999, Mr Stokes became agitated and said that he would sue the college. Mr MacDonald did agree that he thought that Mr Stokes was a casual employee and that they were within their rights. However, what occurred was that Mr Stokes raised his voice and threatened to sue and then walked out. Mr Stokes’ books were collected and brought up to Mr MacDonald’s office in the event that Mr Stokes decided not to continue. 56 Ms Jenkins gave evidence that she visited Perth in June 1999 and that she had not met Mr Stokes beforehand. She said that a person had told her that a solicitor called Stokes had been struck off. That troubled her greatly, she said, because the respondent has a duty of care to students and one cannot have a person who has been accused of being unethical standing up in front of a class teaching legal ethics. 57 At the meeting of 3 June 1999, Ms Jenkins suggested that they would put in the new lecturer for the new module (see page 85(AB)) and Mr Stokes could come in after that and then they would have two people trained for two streams. Mr Stokes’ reaction was very aggressive, she said. She said that he “went over the top”. She said that his reaction absolutely stunned her and he said “You can’t do this to me. I’m a lawyer.” He then stormed out and she had no way of knowing whether he was coming back. She said that Mr Stokes kept saying that she had dismissed him and she told him that she had no such intention. 58 Ms Jenkins said that Mr Stokes threatened to sue. She said that she was prepared to discuss the matter but Mr Stokes would not. In evidence, she said that she had cancelled the classes for 4 June 1999 because she did not know whether Mr Stokes would return that day or not. She also said in evidence that, as he got louder and louder, she said that if he was not willing to discuss the matter, then he was going to have to leave and she would get in touch with him. 59 Ms Jenkins denied that she dismissed Mr Stokes. She also added that she would not have employed him had she known that he had been struck off the roll (see page 87(AB)). She said that their reputation was at stake and that Mr Stokes was employed because he had had twelve years’ practice. She did tell him that she believed that he was a casual. She reiterated in evidence that she told him to leave because he was aggressive and loud, she was not getting anywhere with him and he was not willing to discuss anything in a rational manner. She said that she was not prepared to stand in the front office and argue with him (see page 104(AB)). She would have been in touch with him, but he was in touch first when he served the application upon the respondent. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 27 81 W.A.I.G. ISSUES AND CONCLUSIONS 60 When this appeal came on for hearing, the Full Bench heard the applications to extend time, first. The principles which apply to such applications are well settled. They have been laid down in Gallo v Dawson [1990] 64 ALJR 458 at 459 (HC) per McHugh J and in the Industrial Appeal Court in Ryan v Hazelby and Lester trading as Carnarvon Waste Disposals 73 WAIG 1752 at 1752-1753 (IAC); as well as Tip Top Bakeries v TWU 74 WAIG 1189 (IAC) (see also Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Girando v Girando (unreported) (No FUL 41 of 1997) Delivered 14 October 1997 (Supreme Ct of WA)(Lib No 970525)). Principles 61 The principles laid down in these cases were set out in Rosemist Holdings Pty Ltd v Khoury 79 WAIG 645 (FB) per Sharkey P at 645 and per Scott C at page 647. They are summarised as follows— 1. The grant of an extension of time is not auto- matic. 2. The object of a rule or power to extend time is to ensure that legislative provisions or rules which fix times for doing acts do not become incidents of injustice. 3. The discretion to extend time is given for the sole purposes of enabling the Commission to do jus- tice between the parties. 4. This means that the discretion can only be exer- cised in favour of an applicant upon proof that strict compliance with the rules will work an in- justice upon the applicant. 5. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the conse- quence for the parties of the grant or refusal of the application for extension of time. 6. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant suc- ceeding in the appeal. 7. It is also necessary to bear in mind in such appli- cation that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment”, unless the application is granted. 8. It follows that, before the applicant can succeed upon such an application, there must be material upon which the Commission can be satisfied that to refuse the application would constitute an in- justice. 9. The initial step in determining whether there would otherwise be an injustice to the appellant may often be to decide whether the prospect of the appellant succeeding in the substantive ap- peal if an extension of time were to be granted is a real one. In Esther Investments Pty Ltd v Markalinga Pty Ltd (op cit), the Full Court of the Supreme Court held that there were usually four major factors to be considered in exercising the court’s discretion to extend time, these being— (a) The length of the delay. (b) The reason for the delay. (c) Whether there was an arguable case. (d) The extent of any prejudice which might be suf- fered by the respondent. 62 In this case, as we have already observed, the decision to be appealed against was made, having been perfected on 24 August 2000. The Notice of Appeal herein was filed on 29 September 2000. The twenty-one day limit within which the appeal was required to be instituted, pursuant to s.49(3) of the Act, expired on 14 September 2000. Accordingly, the appeal was filed some fifteen days late. 63 The Notice of Appeal, according to the declaration of service, was served together with the other applications on 3 October 2000. Mr Stokes, who is a registered industrial agent, appeared in person and asserted from the bar table that, in the week of 24 August 2000, when the reasons for decision issued, he was occupied full time in preparing cases to be heard in this Commission. He also gave details of an amount of work involving matters listed in the Commission on 12 and 13 September 2000, 19 and 20 September 2000 (which is outlined in his response to the respondent’s submissions). Put shortly, his reason for not instituting the appeal on time was pressure of work and that he “lost track of time”. 64 It was also Mr Stokes’ assertion that he had advised counsel for the respondent that he would appeal if unsuccessful at first instance, and that this would occur was inferable from the hotly contested nature of the proceedings at first instance. 65 Further, he submitted that there was merit in the appeal because there was evidence which should have led to a conclusion that he was dismissed. He submitted that the respondent had acted on a misconception as to the appellant’s employment status because Ms Jenkins believed that he was an “as needs casual”. He submitted that the evidence led to the conclusion that Ms Jenkins believed, mistakenly, that he could be rostered on and off at will and that there was no obligation to provide him with work. Mr Stokes submitted that the Commissioner gave these misconceptions no or no sufficient consideration. 66 Further, it was submitted by Mr Stokes in relation to the finding that he had misled the respondent by failing to reveal that he had been struck off the roll of legal practitioners and the reasons therefor, and was therefore not a practising solicitor. The respondent made no inquiry before “buying” Mr Stokes’ services as it was required to do under the principle of caveat emptor and the Sale of Goods Act 1895 which both apply to contracts of service. Further, the respondent, it was submitted, had waived its right to subsequently complain, having failed to make these inquiries. The Full Bench was referred to the appellant’s submissions (see pages 119-122(AB)) and Ms Jenkins’ evidence (see pages 82, 90 (AB)). 67 Further, it was submitted that Mr Stokes committed no misdeed during his employment which, if subsequently discovered, could justify an otherwise “unjust” dismissal by way of exculpation. 68 It was also submitted that Mr Stokes’ “disbarment” and his lecturing on “Legal Ethics” were inconsistent and prevented his performing his duties. This, it was submitted, was because Ms Jenkins’ evidence (see page 82(AB)) was to the contrary and that fact was important to her. 69 It was also submitted that the Commissioner erred in finding that Mr Stokes was, on 4 June 1999, loud, rude and aggressive. It was further submitted that, even if he were, this did not justify the respondent’s actions which were “inconsistent with the contract continuing”. 70 The respondent’s case was that, relying on Rosemist Holdings Pty Ltd v Khoury (FB)(op cit), there were four factors for consideration in deciding whether the applicant should be granted an extension of time and the four major factors in Esther Investments Pty Ltd v Markalinga Pty Ltd (op cit) were also referred to. 71 It was submitted for the respondent that the appeal was filed 36 days after the decision was made which is almost double the time limit prescribed by the Act. It was further submitted that the explanations “pressure of work” and “lost track of time” are unsatisfactory in the circumstances; and that they are particularly unsatisfactory given Mr Stokes’ position, business and knowledge of the Commission, the statute, practices and procedures and the Full Bench were referred to WA Aboriginal Media Association v Hoffmann (2000) 80 WAIG 4239 (FB). 72 It was submitted, too, that the allegation that the respondent knew of the appeal beforehand is not a relevant consideration; and further, that the respondent had WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 28 believed the matter was finished, had a vested interest in maintaining the judgment and would suffer injustice if that interest was disturbed. There was, therefore, so the submission went, no or no compelling reasons to extend time. 73 There were submissions as to the merits of the appeal. It was submitted that the finding of the Commissioner that the respondent did not dismiss Mr Stokes on 4 June 2000 (see page 14(AB)) was clearly open to him, for the reasons provided in the decision; on the unchallenged evidence of Mr MacDonald (see pages 120-122 (TFI)); and on the evidence of Ms Jenkins unhesitatingly accepted by the Commissioner (see pages 15-18(AB)). 74 It was also submitted that the Commissioner had correctly referred to and considered the applicable legal principles of constructive dismissal and determined on the facts before him that there was no constructive dismissal (see pages 15-18(AB)). It was submitted that that finding was open, on the evidence, namely Mr Stokes’ evidence (see pages 104-105 (TFI)); the unchallenged evidence of Mr MacDonald (see pages 120-122(TFI)); and the evidence of Ms Jenkins which was accepted by the Commissioner (see pages 137, 140, 143 and 146(TFI)). Those submissions went to Ground 1. 75 As to Ground 2, it was submitted that this ground was based on a misconception as to the Commissioner’s findings and as to the law. There was no evidence as to checking of credentials and no submissions as to caveat emptor. Further, applying Byrne and Frew v Australian Airlines (HC)(op cit), the discovery of the disbarment allowed the respondent to subsequently rely on that matter to justify termination, so it was submitted. It was also submitted that Mr Stokes’ disbarment made him unsuitable for the position (see page 19(AB)), and that Mr Stokes’ employment would not have survived the discovery of the fact of his striking off (see page 20(AB)). That finding was open to the Commissioner, on the evidence. 76 The Commissioner found that Mr Stokes was loud, aggressive and rude on a number of occasions and those findings were open, on the evidence (see pages 129, 130, 136, 137 and 146 (TFI)). It was submitted that these findings were relevant to the ultimate finding that it was Mr Stokes’ aggressive and precipitous behaviour which caused his employment to end when it did and not any act of the respondent. Prospects of Success 77 The Commissioner found that there was a dismissal. It was not in issue in the proceedings that, on 3 June 1999, Ms Jenkins told Mr Stokes that it was the respondent’s intention to appoint a back-up trainer to teach the second module in such a way that the new trainer and Mr Stokes could teach day and night classes between them. It was also not in issue that Ms Jenkins informed Mr Stokes that she was not sure how it would affect him. However, she also informed him that she intended to trial the new trainer in the next module and that, therefore, Mr Stokes would not be required for the ten weeks duration of the new module, which would give him time to organise his other work. 78 It was then that Mr Stokes, as the Commissioner found, became angry and upset and alleged that this amounted to a constructive dismissal, that he would commence an action to sue, and that he then left the meeting. The Commissioner found that this action was “over the top”. 79 The next day, Mr Stokes’ classes having been cancelled because of concern for the students, Mr Stokes arrived at work and was told that he was not dismissed and invited to discuss the matter, and alleged that he was a casual which he described as an insult. At this meeting, Mr Stokes, the Commissioner found, became loud and aggressive and left, saying that he was dismissed. He forthwith lodged the claim in the Commission, claiming that he was dismissed on 4 June 2000. 80 The Commissioner concluded that Mr Stokes left on 4 June 2000, that there was no intent to dismiss him and that he was not dismissed. Further, he found that the termination was not as a result of the acts of the employer and that, therefore, there was no constructive dismissal. Ms Jenkins’ intention was not to dismiss Mr Stokes or put him in a situation where he would resign. 81 It is quite clear that the Commissioner found that, if the employer had stood Mr Stokes down for ten weeks, it would have been in breach of his contract of employment and he would have been entitled to treat the contract at an end. However, that event did not occur because, as it was disputed, whether in anger or not, Mr Stokes twice broke off discussions and left, alleging dismissal and threatening action which he indeed took. 82 Mr Stokes had not been put in the position where he had to resign or else. There was still room for discussion and retreat by the employer. 83 For those reasons, there could not be any serious submission that there was a dismissal (see the discussion of what constitutes a dismissal in The Attorney General v WA Prison Officers’ Union 75 WAIG 3166 (IAC); and in Farrell v Harlem Enterprises Pty Ltd ACN 064 730 187 trading as Ace Rent A Car 78 WAIG 1103 at 1106-1107 (FB); Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd 79 WAIG 3187 at 3190 (FB); and Tranchita v Wavemaster International Pty Ltd 79 WAIG 1886 at 1893 (FB)). 84 What emerges from all of the evidence, including Mr Stokes’, is that, on 3 June 1999, as soon as it was suggested that he was a casual employee and that the second lecturer should take the module in which he was lecturing for ten weeks instead of Mr Stokes, who would then return, Mr Stokes threatened action in this Commission and made a rapid departure. 85 Without even considering whose version of events was correct, given that the evidence of all witnesses was not dissimilar in a number of matters, it was open to the Commissioner to find that there was no action by the respondent which might be said to be a constructive dismissal. 86 On Mr Stokes’ evidence, this made him angry and he left after threatening action in this Commission. It is quite clear that, at that point, he had not been dismissed and that his protests had not even been ignored, even on his own evidence. It was also reasonable in the circumstances that his employer, not being certain whether he was returning to work in the light of Mr Stokes’ threat which was somewhat drastic, cancelled his classes and placed his effects in the keeping of Mr MacDonald. 87 Further, when Mr Stokes returned to work on 4 June 1999, whether he was as visibly angry as Mr MacDonald and Ms Jenkins said he was, it is clear on all of the evidence including his own, that matters very soon deteriorated to Mr Stokes’ conception of what had occurred as being tantamount to a dismissal. Mr Stokes, deciding that he had been dismissed and erroneously by so deciding, had terminated the contract of employment; indeed, he had abandoned it. Most materially, there is no evidence in the light of Mr Stokes’ protests, that the ten week interruption to his work was to be implemented. 88 On the above authorities, this was not a dismissal where the employer asked the employee to resign as an alternative to dismissal. Mr Stokes was not dismissed in the sense that he was given no option but to leave. A dismissal, whether constructive or not, occurs by the action of the employer and it was open to find that that was not the case here. 89 That being so, for those reasons alone, it was open to find that there was no dismissal. Thus, there was no real prospect upon appeal that the appellant would succeed on that ground. Therefore, the appeal would fail. 90 There is a second question of merit. That is one which arises even if there were a dismissal. 91 The respondent sought to rely at first instance and before the Full Bench that it was entitled to rely on its discovery that the appellant had been struck off the roll of legal practitioners of the Supreme Court of this State. These facts came to light subsequent to the dismissal, as we have observed. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 29 81 W.A.I.G. 92 As a matter of law, facts which existed at the time of a dismissal, but which came to light only subsequently, may justify the dismissal when otherwise it would be harsh, unjust or unreasonable (see Byrne and Frew v Australian Airlines (HC)(op cit) at 430). 93 Mr Stokes said in evidence that he did not volunteer the information that he had been struck off because he needed the job badly. 94 The conclusion open to the Commissioner was that Mr Stokes well knew the effect of revealing what he had concealed, but nonetheless concealed the fact of his disbarment. 95 Ms Jenkins gave evidence that the respondent had to uphold its reputation and has to say that its trainers are the best whom they could get and that would not be the case with Mr Stokes. The Commissioner accepted that evidence and so found. The evidence was not contradicted and the Commissioner was entitled to so find. 96 The Commissioner also found that Mr Stokes’ disbarment made him unsuitable for the position because the advertisement required a person who was a solicitor, that is a legal practitioner, not merely a graduate in law (see page 42(AB))). That the Commissioner correctly found was apparent from the respondent’s requirement that the person be a solicitor with five years’ experience in practice. The incompatibility of Mr Stokes, having been struck off on 6 August 1992, teaching a course which covered professional ethics illustrates the problem. 97 That Mr Stokes avoided revealing that he had been struck off the roll because he knew of the consequences of so doing is clear from his evidence. Indeed, to his credit, Mr Stokes admitted in evidence that, when Mr MacDonald asked him at the employment interview why he was not practising, he said that he had sold his practice. He did not say then what he should have said, that he was not practising because he had been struck off the roll. He also admitted that his protestations on 4 June 1999 that he was a lawyer, a statement which he admitted might lead to an understanding that he was in practice. Indeed, he said that he was practising in the industrial field. 98 A principal among the obligations imposed by the common law on the employee is the duty of fidelity and good faith. That duty was explained by Dixon and McTiernan JJ in Blythe Chemicals Ltd v Bushwell (1933) 49 CLR 66 at 81-82 as follows— “Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is de- structive of the necessary confidence between employer and employee, is a ground of dismissal … But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance be- tween his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.” 99 It is clear that a prospective employee, as distinct from an actual employee, is not obliged to volunteer information about past misdeeds although he or she may be asked questions touching such matters (see Bell v Lever Bros. Ltd and Others [1932] AC 161 at 227-228 per Lord Atkin). However, with respect, we adopt as the law what the learned authors of Macken, McCarry & Sappideen’s “The Law of Employment” 4th Edition at page 150— “If a prospective employee is asked questions by the employer and answers them dishonestly then he or she is liable to dismissal if the truth subsequently emerges, at any rate in the case where the dishon- esty was material to the making of the contract or if the dishonesty amounts to a breach of the implied warranty which the employee gives that he or she is competent to carry out the duties of the job for which he or she is applying.” 100 In this case, that is what was open to find on the evidence and as to the applicable law. 101 In my opinion, applying the principles in Miles and Others t/as Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC) and Blythe Chemicals Ltd v Bushwell (op cit), even if he were dismissed by work being withdrawn from him, Mr Stokes’ deception at the interview and throughout his employment was in breach of this duty of trust and enabled him to gain and retain employment by deceit. He well knew that a practising solicitor or one who had not been struck off was required for his position, and/or at least he knew and did not reveal that he had been struck off for illegal conduct. 102 In my opinion, had the respondent known of this, it would have been justified in summarily dismissing him because of the seriousness of his misconduct and, in addition, such a dismissal could properly have been found to be fair. 103 For those reasons, there was no arguable case on appeal. As a result, there is no prejudice in dismissing the application. Further, the prejudice in requiring the respondent to respond to an appeal which has no or little chance of success is manifest. 104 Further, there is, given Mr Stokes’ knowledge and background, no reasonable explanation of the delay. 105 The justice of the matter lies with the respondent for those reasons. Pursuant to s.26(1)(a) of the Act and, having considered the interests of the parties under s.26(1)(c) of the Act, we agreed to dismiss the applications to extend time for those reasons and, therefore, the appeal which is incompetent as being out of time. COMMISSIONER J H SMITH— 106 I have had the benefit of reading in draft the reasons to be published by the President. For the reasons his Honour gives, I agree the Appeal should be dismissed and I have nothing further to add. THE PRESIDENT: 107 For those reasons, the appeal is dismissed. 2000 WAIRC 01439 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES BRYAN FRANCIS STOKES, APPELLANT v. THE TYPING CENTRE OF PERTH PTY LTD T/A AUSTRALIAN INTERNATIONAL COLLEGE OF COMMERCE, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER S J KENNER COMMISSIONER J H SMITH DELIVERED THURSDAY, 30 NOVEMBER 2000 FILE NO/S FBA 47 OF 2000 CITATION NO. 2000 WAIRC 01439 _______________________________________________________________________________ Decision Appeal dismissed. Appearances Appellant Mr B F Stokes on his own behalf Respondent Mr D J Cronin, as agent _______________________________________________________________________________ Order. This matter having come on for hearing before the Full Bench on the 30th day of November 2000, and having heard Mr B F Stokes on his own behalf as appellant and Mr D J Cronin, as agent, on behalf of the respondent, and the Full Bench having decided that reasons for decision be delivered at a future date, it is this day, the 30th day of November 2000, ordered as fol- lows— (1) THAT the applications filed herein to extend time to file appeal No. FBA 47 of 2000 out of time be and are hereby dismissed. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 30 (2) THAT appeal No. FBA 47 of 2000 be and is hereby dismissed. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. FULL BENCH— Appeals against decision of Industrial Magistrate— 2000 WAIRC 01598 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES DAVID JOHN HIGNETT, APPELLANT v. JOBURNE PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER G L FIELDING DELIVERED THURSDAY, 14 DECEMBER 2000 FILE NO/S FBA 15 OF 2000 CITATION NO. 2000 WAIRC 01598 _______________________________________________________________________________ Decision Appeal dismissed. Appearances Appellant Mr B F Stokes, as agent Respondent Mr D M Jones, as agent _______________________________________________________________________________ Reasons for Decision. THE PRESIDENT— INTRODUCTION 1 This is an appeal by the abovenamed appellant, Mr David John Hignett, against the whole of the decision of the learned Industrial Magistrate, sitting in the Industrial Court at Perth, and brought pursuant to s.84 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) whereby His Worship, on 1 March 2000, dismissed a complaint by Mr Hignett against the abovenamed respondent, Joburne Pty Ltd (hereinafter referred to as “Joburne”). GROUNDS OF APPEAL 2 By a Notice of Appeal filed 22 March 2000, the appellant appeals to the Full Bench on the following grounds which were amended at the hearing— “A. The learned Magistrate erred in law and fact in finding that the Applicant’s entitlement to paid annual leave pursuant to Ss. 18(1), 23(1) & 24(2) of the Minimum Conditions of Employment Act 1993 (MCE) was to be paid at rate of $0.00 con- trary to clause 12(b) of the contract of employment which as at the 21st September, 1998 gave the Appellant an entitlement of $597.00. As it was common ground that the Appellant com- menced employment on the 4th December, 1992, the learned Magistrate further failed to find that the Appellant’s entitlement to paid annual leave under the MCE was $13,850.40 ($597.00 x 5.8 yrs x 4 weeks). B. The learned Magistrate misdirected himself in that he misapplied the ratio in the case of John Bombak v. Didco Pty. Ltd. t/as Nik Vargo Real Estate [1995] WAIG 96, in finding that pursuant to the contract of employment as at the 21st Sep- tember, 1998 (the agreed date of termination of the contract), the Appellant had entitlement to no commission contrary to clause 12(b) thereof and contrary to the fact that due to a settlement set for the 22nd September, 1998, the Appellant was upon termination entitled to $597.00 unpaid com- mission. BA: The learned Magistrate erred in law & fact in fail- ing to apply the Pay Order 1998 applicable on 21/9/98 and adopt that minimum rate of pay of $335 to the 19.12 (or 15) weeks of accrued an- nual leave (from the 4/12/92 or 1/12/93 respectively) of $6,405.20. C. ALTERNATIVELY— (i) The learned Magistrate erred in law and fact in finding that the relevant time for determining the Appellant’s entitlement to paid annual salary taken upon termination was the sum payable on the last day of employment and not the last full pay pe- riod prior to termination. Further he misdirected himself in failing to find that the correct multiplicand was the sum paid on the pay day prior to termination namely $1,940.00 paid on the 17th September, 1998 the last Thursday pay day. The learned Magistrate should have found the Appellant entitled to $1,940.00 x 5.8 years x 4 weeks = $45,008.00 gross. (ii) The learned Magistrate failed to find that it was a term of contract, implied by prac- tice and acquiescence between the parties, that pay days were every Thursday pro- vided commission was then payable. RELIEF SOUGHT— A. A declaration that as at the 21st Septem- ber, 1998 the Appellant had an entitlement to unpaid commission of $597.00; B. A declaration that this sum was the correct multiplicand for calculating the Appellant’s paid annual leave; C. An Order that the Respondent pay the Ap- pellant the sum of $13,850.40 gross by way of accrued pro rata annual leave pursuant to the MCE. ALTERNATIVELY— D. A declaration that as at the 21st Septem- ber, 1998 it being a day which fell between scheduled pay days, the relevant pay pe- riod pursuant to S. 18 (1) MCE was the last full pay period which preceeded (sic) termination, namely the week ending the 17th September, 1998; E. A declaration that the correct weekly rate for the purposes of calculating the Appel- lant’s paid annual leave was $1,940.00; F. An Order that the Respondent pay the Ap- pellant $45,008.00 by way of annual leave pursuant to the MCE. IN EITHER EVENT— G. Whether the sum ordered be pursuant to paragraph C or F or some other sum, if any sum is ordered it attract 6% simple interest from the date of termination until the date of payment pursuant to S. 32 of the Su- preme Court Act, and H. Such other orders as the Full Bench deems appropriate.” BACKGROUND 3 Mr Hignett, by virtue of a complaint brought under s.83 of the Act, alleged that, on or about 30 September 1998 at Perth, Joburne, being a party bound by “Clause (sic) ... of the said Act”, namely the Minimum Conditions of WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 31 81 W.A.I.G. Employment Act 1993, (hereinafter referred to as “the MCE Act”) failed to pay Mr Hignett annual leave as prescribed by the MCE Act. The complaint contains no particulars of the amount. Mr Hignett claimed orders for the sum of $25,000.00 to be paid, together with interest at the rate of 6% per annum as prescribed by s.32 of the Supreme Court Act 1935, and costs (see page 3 of the appeal book (hereinafter referred to as “AB”). The matter came before the Industrial Court at Perth pursuant to s.7 of the MCE Act, which reads as follows— “7. Enforcement of minimum conditions A minimum condition of employment may be enforced— (a) where the condition is implied in a workplace agreement, under Division 1 of Part 5 of the Workplace Agreements Act 1993; (b) where the condition is implied in an award, under Part III of the Industrial Relations Act 1979; or (c) where the condition is implied in a con- tract of employment, under section 83 of the Industrial Relations Act 1979 as if it were a provision of an award, industrial agreement or order other than an order made under section 32 or 66 of that Act.” 4 The Industrial Court had jurisdiction by virtue of s.7(c) of the MCE Act. 5 The matter was heard and determined and reasons for decision issued on 24 November 1999. 6 The pivotal issue at first instance was whether or not Joburne was bound by the MCE Act. The legislation provides for regulations and, within the regulations, in Schedule 1, Item 1, under the heading “Persons who are not employees for the purposes of the Act”, there is prescribed as follows— “Persons paid wholly by commission Persons whose services are remunerated wholly by commission or percentage reward.” 7 Accordingly, those people whose services are wholly (my emphasis) remunerated by way of commission or percentage reward are not covered by the MCE Act, His Worship found. 8 By particulars of defence it was admitted that Joburne employed Mr Hignett as a real estate salesman in its business as a real estate agent. Joburne’s defence was that Mr Hignett was, at all material times, remunerated on a commission only basis and was not subject to the provisions of the MCE Act. Joburne also asserted that, being a person so remunerated, Mr Hignett cannot be entitled to monies claimed as annual leave benefits pursuant to the MCE Act (see page 5(AB)). 9 There was evidence for the appellant at first instance from Mr David John Hignett, on his own behalf and evidence for the respondent from Mr Robert Johnston, a Director of Joburne and its Sales Director. 10 The main issue before the Industrial Court was whether Mr Hignett was the employee of Joburne as a real estate agent paid or wholly remunerated by commission or percentage reward or whether he was not wholly so remunerated. 11 Mr Hignett was employed as a real estate representative, registered under the Real Estate and Business Agents Act 1978, from 4 December 1992 to 21 September 1998 (see page 53(AB)). His employment ended on 21 September 1998 when he handed in his notice of resignation and it was accepted. He was employed pursuant to a signed written agreement of employment dated 1 July 1997 (see pages 13-21(AB)). There were, His Worship found, other agreements made verbally between the parties which regulated the terms and conditions of employment. 12 Contributions were made by the employer to an approved superannuation fund for his employment. 13 It was submitted to His Worship that superannuation payments which were made to Mr Hignett formed part of his income. He rejected that submission, saying that it clearly does not. His Worship held that a superannuation payment is one made by virtue of a statutory obligation, and does not form part of income. Superannuation has never formed part of income and it simply did not form part of income in this particular situation. 14 That finding was correctly made, having regard to the decision of the Full Bench in Thompson v Gregmaun Farms Pty Ltd 80 WAIG 1733 (FB). Indeed, having regard to that decision, I do not understand how the submission could be properly made. 15 There was another payment made to Mr Hignett called “The Holiday Inn Park Suites” payment. This was a commission payment. His Worship so found. 16 If the company retained property management of a property after it was sold, then the representatives were paid an amount equal to one week’s rent. Bonuses were paid calculated on the amount of gross sales made by a representative and these were paid from time to time. 17 His Worship also found that the rental payments, in his view, were commission payments because they were based on a pro rata basis and, in the case of an existing rental client, based on 1/52nd of the year’s rental paid. In the case of new rentals clients, it was based on 2/52nd’s of the year’s rental paid. Once again, the quantum of that payment was calculated on a pro rata basis. 18 His Worship did not accept the submission of Mr Clohessy, the advocate for Mr Hignett at first instance, that these payments were not commission payments, because of their calculation on the basis mentioned. 19 His Worship observed that Mr Johnston’s evidence was quite clear in that regard and he had no difficulty with it whatsoever. Further, he observed that even Mr Hignett had some difficulties expressing a contrary view when giving his evidence in relation to that matter. 20 Mr Hignett received five such payments totalling $1,600.00, based on sales commission. Bonus payments were flat payments, he said. His telephone charges were refunded by his employer. His gross salary was $12,419.00. It is clear that annual leave was not discussed with him and no agreement was entered into as to annual leave. He agreed that what he was paid in total was— (a) Superannuation contributions; (b) Commissions on sales of property; (c) The rental payments for rental properties; (d) A telephone allowance; (e) Five sales bonuses; and no other monies, including no annual leave payments. He earned no bonuses in August or September 1998 and no commission in September 1998, including the week of his dismissal. That also was the gist of evidence and/ or not contradicted by Mr Johnston. 21 The telephone charge reimbursement payments made to Mr Hignett, His Worship held, were quite clearly not payments for remuneration, but simply reimbursements made by Joburne to Mr Hignett for expenses incurred by him; these were the defraying of Mr Hignett’s costs and not income at all. 22 His Worship found that, substantially, the remuneration to Mr Hignett by Joburne was by way of commission on sales which he achieved, but there were other payments which he received and those were the matters in dispute before His Worship. 23 His Worship then considered the payment of a bonus described in Exhibit 3 as a sales award or bonus prize. The difficulty with that was that it was to be paid only as a consequence of commission having been earned. It was, as His Worship said, a piggy back commission. Mr Johnston said in evidence that there was no particular basis of arriving at the figure paid, it being a flat payment. There was a flat payment made on achieving a particular figure of $15,000.00, $20,000.00 or $30,000.00 with no increment or increases. There was no “pro rataing”. 24 Although it was conceded that the bonus payment was based on commission paid, His Worship held that it was a payment over and above the commission which was not based on any pro rata payment. The concession made WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 32 by Joburne was that the payment was not a pro rata payment. This therefore, His Worship held, was correctly made and His Worship accepted the submissions made by Mr Clohessy that the payments were not commission payments. 25 His Worship then applied the ratio in John Bombak v Didco Pty Ltd T/A Nik Varga Real Estate (1995) 75 WAIG 2314 (FB) and correctly held that the MCE Act applied to Mr Hignett’s employment. 26 There was no evidence before His Worship in relation to the issue of the rate that is payable for annual leave. 27 His Worship gave his ex tempore reasons for decision further, on 1 March 2000. He held that Mr Hignett did not have an entitlement to annual leave payments because there was no rate upon which any such entitlement could be based. He therefore found that the complaint was not proven and dismissed it. ISSUES AND CONCLUSIONS 28 The question before the Commission was at first whether Mr Hignett was entitled to annual leave payments for service from 1 December 1993 to 21 September 1998 pursuant to the provisions of the MCE Act. Mr Jones, in his final submissions for the respondent, conceded that the MCE Act applied to Mr Hignett and conceded that there is some entitlement to annual leave (see page 41 of the transcript at first instance (hereinafter referred to as “TFI”)). It was also conceded by Mr Clohessy, who appeared for the complainant at first instance, (see page 42(TFI)) that the only claim for annual leave was for the period 1 December 1993 to 1 December 1997, which was not the period pleaded in the complaint. As Mr Jones submitted, there were no sales in August or September and nothing was payable to Mr Hignett. Mr Clohessy also conceded that a claim did not lie for more than $1,940.00 (see page 51(TFI)). 29 It is, of course, the case that Clause 13 of the contract of employment provided that Mr Hignett should be entitled to leave, including annual leave, as follows (see page 15(AB))— “The Representative shall be entitled to the follow- ing leave— (a) Unpaid annual recreation leave of four weeks after each completed year of con- tinuous service with the Agent. Such leave shall be taken as mutually agreed between the parties. (b) (i) Unpaid sick leave not exceeding ten days per year of service. (ii) Additional unpaid sick leave may be granted at the discretion of the Agent. (c) Such other unpaid compassionate leave as may be granted by the Agent.” 30 The relevant provisions of the MCE Act are s.5(1), s.11, s.18(1) and s.24(2). 31 The MCE Act prescribes an entitlement to paid annual leave (see s.23). That provision applies, in the absence of a more favourable condition in the contract, which absence is the fact (see s.5 of the MCE Act). Accordingly, for those reasons, any entitlement to annual leave had to be a minimum of four weeks per year, paid. 32 It is quite clear that Mr Hignett was substantially remunerated by way of commission payments on sales achieved (see page 8(AB)) and by other payments, one of which was a flat payment which allowed Mr Hignett to claim the benefits of the MCE Act (see page 9(AB)), as was conceded. 33 The MCE Act provides, by s.18(1), that when annual leave is paid, the leave payment is to be made at the rate the employee would have received as his or her payment at the time the leave is taken under the workplace agreement, award or contract of employment. The leave was taken effectively on the date of termination, being 21 September 1998. 34 An amount of commission in the pay week ending 17 September 1998 was not the rate for the purposes of calculating payment for annual leave pursuant to the MCE Act. The rate to be taken into account was the rate which was applicable on 21 September 1998, being the date of termination and the day upon which payment of leave was due (see page 11(AB)). 35 It was common ground between the parties that a payment of commission became due to Mr Hignett on 22 September 1998, but this was subsequent to his dismissal and fell outside the period properly the subject of the complaint (see page 89(AB)). Ground A 36 This ground contends that the Industrial Magistrate was in error in not finding that Mr Hignett was entitled to an amount of $13,850.40, being an annual leave benefit based on 5.8 years of service at $597.00 per week. There is no substance in that ground. Leave must be paid for at the rate which the employee would have received at the time when the leave was taken. The only finding able to be made by His Worship was that the leave became due and payable on the date of Mr Hignett’s termination. 37 There is no evidence that the annual leave benefit was one based upon 5.8 years’ service at the rate of $597.00. There is no authority for the proposition that the full entitlement to leave must be paid at the rate of remuneration due after termination. Indeed, the fact that an amount of commission was due and payable at that time is not evidence that that was the amount which constituted remuneration for the purpose of calculating annual leave. 38 Further, it could not, being monies payable after the termination of the contract of employment, be brought into account in calculating the amount of any annual leave payment due. In any event, an amount of annual leave calculated at a pay rate less than $335.00 per week would not be lawfully payable under the MCE Act. Ground B 39 There is no merit in this ground. On the agreed date of termination, there were, on the evidence, no monies due and payable to Mr Hignett by way of remuneration upon which a proper calculation of annual leave might be made. Further, there was no evidence that an amount different from the amount of $335.00 referred to hereinafter might be used as the basis for calculating the quantum of any annual leave payment. Ground BA 40 The commission paid in the week ending 17 September 1998 (being Thursday, the agreed pay day) cannot be the rate required to be paid by s.18(1) of the MCE Act, since it was not the rate at which Mr Hignett would have received as his payment at the time when the leave was taken. 41 Clearly, as Joburne accepts, in the absence of any other rate under the contract of employment, s.5 and s.11 of the MCE Act combined to require Joburne to pay Mr Hignett $335.00 as a minimum rate of pay which is the rate for the purposes of s.18(1) of the MCE Act. This was not the subject of any submission to His Worship on behalf of the applicant at first instance, nor to the Full Bench on behalf of the appellant. The Full Bench can take no account of it as an argument (see Metwally v University of Wollongong (1985) 60 ALR 68 (HC)), as Mr Jones, for Joburne submitted. That disposes of Ground BA. Further 42 There was no evidence before the Court (see exhibit 2 and pages 55, 61-64, 71 and 74(AB)) to support a conclusion that Mr Hignett is entitled to 5.8 years’ accumulated annual leave benefits. The evidence was that the bonus payments were payable in flat rate form only since 1996, so that annual leave entitlements accrued from that date only, in any event. FINALLY 43 There were no submissions on behalf of the appellant directed otherwise to the support of the grounds. 44 I would not be willing to accede to the submission that, if there was not sufficient evidence to prove each WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 33 81 W.A.I.G. ingredient of the complaint, then it should be remitted back to His Worship for further hearing and determination. If there was not sufficient evidence to prove all ingredients of the complaint, then it should have been, and indeed was, correctly dismissed. 45 His Worship, by virtue of s.7 of the MCE Act and s.83 of the Act, exercises a jurisdiction which can result in the imposition of a penalty upon complaint. If His Worship was not satisfied that there was sufficient evidence and he was right in so finding, then he was not in error and the appeal cannot succeed. 46 I have considered all of the evidence and all of the submissions. 47 No ground of appeal is made out. His Worship did not err as alleged in the grounds of appeal. For those reasons, I would dismiss the appeal. CHIEF COMMISSIONER W S COLEMAN— 48 I have had the advantage of reading the drafts of reasons for decision prepared by the Hon. President and the Senior Commissioner. I agree that the appeal should be dismissed. 49 Central to the determination of the matter before the learned Industrial Magistrate was whether the appellant was a person whose services were remunerated wholly by commission or percentage reward for the purposes of the Minimum Conditions of Employment Act, 1993. In my view the learned Industrial Magistrate correctly found that the superannuation payment made under a statutory obligation was not part of income and that remuneration received under an arrangement involving the Holiday Inn Park Suites (HIPS) scheme and rental (REMS) payments were clearly commissions. Where he erred in my view was in determining that ‘sales awards, bonus prize’ (Exhibit 3), fell outside a commission payment. This opened the “floodgates” with respect to the calculation of payment for annual leave. 50 The characterisation of the sales awards of bonus prize as a “piggy-back commission” correctly identifies the nature of the payment. However the fact that this additional level of remuneration was a flat payment and was not calculated on a pro rata basis does not in my view render the circumstances of employment not wholly by commission or percentage reward. The sales award albeit a flat payment was dependent on the level of gross income derived from sales secured by the salesperson. It was wholly dependent on the attainment of a threshold level of income calculated as a percentage reward. Within the context of the Minimum Conditions of Employment Act and indeed in commerce generally “commission” comprehends the payment on the basis other than a percentage reward or pro rata payment. It is the attainment of a sale which attracts the payment be that on a flat fee or percentage of the price. Here there was no entitlement to payment other than by the outcome of sales. That was clearly the intention of the parties; the nature of the additional flat payment on top of the percentage reward did not alter that nor did it bring the arrangement within the scope of the Minimum Conditions of Employment Act for the calculation of annual leave. 51 In my view the outcome reached by the learned Industrial Magistrate although arrived at for different reasons should not be disturbed. SENIOR COMMISSIONER G L FIELDING— 52 I have had the advantage of reading in draft form the reasons for decision prepared by the President. I agree that the appeal should be dismissed. The learned Industrial Magistrate was right to dismiss the complaint, but did so for the wrong reasons. 53 In my opinion the Appellant was not, on the evidence, an employee for the purposes of the Minimum Conditions of Employment Act 1993. Consequently, the complaint that the Respondent failed to pay the Appellant annual leave as prescribed by that Act was not well founded. 54 A person only has an entitlement to the benefits of annual leave prescribed by the Minimum Conditions of Employment Act 1993 if he is an employee for the purposes of that Act. Section 3 of the Act excludes from the definition of an employee “a class of persons prescribed by the Regulations as persons not to be treated as employees for the purposes” of the Act. The Minimum Conditions of Employment Regulations 1993 provide that “persons whose services are remunerated wholly by commission or percentage reward” are a class of persons not to be treated as employees for these purposes. 55 It is common ground that the Appellant was at all material times employed by the Respondent as a commission sales representative. In addition to the remuneration specified in his written contract of employment, which remuneration the learned Industrial Magistrate correctly held to be commission, the evidence discloses that the Appellant from time to time received monetary bonuses or prizes. These bonuses were paid apparently pursuant to a verbal arrangement between the Appellant and the Respondent. Under this arrangement sales personnel were awarded a bonus for achieving a nominated sales target in any one month. The magnitude of the bonus depended upon the level of the sales achieved by the salesmen in each month. Needless to say the higher the sales income in that month the higher the bonus. The bonus was not fixed by reference to a percentage of the sales income, as was the case for the regular commission paid to the Appellant, but a fixed sum which varied depending on the range or level of gross income from sales achieved by each salesman. The evidence does not reveal much about the nature of the prizes. In the normal course of events I would have thought a prize was in the nature of an ex gratia payment, and thus not to be considered as being remuneration in the context of the Act. However, such evidence as there is suggests that prizes were earnt on much the same basis as the bonuses. 56 The learned Industrial Magistrate thought that these additional bonuses or prizes “could almost be seen as a sort of piggy-back commission” or “an additional commission” but in the end was persuaded that they were not in the nature of a commission because there was “no pro rataering” on the level of sales income achieved by salesmen, in this case the Appellant. 57 In my assessment that was an erroneous conclusion. Such evidence as there was suggests that the additional payments made to the Appellant by way of bonuses and prizes were as the learned Industrial Magistrate postulated indeed in the nature of additional commission. They were payments determined by and based on results. Such evidence as there was suggests that the magnitude of those additional payments varied with the level of income from sales, albeit on the basis of scales of income rather than as a direct percentage of the income. They were in a very real sense pro rata payments because they varied with the level of income from sales effected on behalf of the Respondent. Instead of being based on a percentage of the value of the sales they were based on a scale which in turn was regulated by the value of the sales. They were only “flat payments” to the extent that they were based on a particular scale. 58 I adhere to the view I expressed in Oates v Sanders Executive Pty Ltd (1999) 79 WAIG 3543 at 3545 that a commission can take many forms. It does not have to be a percentage-based reward. Indeed, that is evident from the provisions of the Minimum Conditions of Employment Regulations 1993 which clearly imply that remuneration by commission need not involve remuneration by percentage reward. As explained in Drielsma v Manifold [1894] 3 Ch 100 the expression “commission” is not a term of art but is “primâ facie the payment made to an agent for agency work, usually according to a scale—it may be an ad valorem scale, but not necessarily an ad valorem scale” (per Davey LJ at 107). In my assessment that aptly fits the description of the additional payments in question on this occasion. 59 The learned Industrial Magistrate was, in my view, correct for the reasons he gave in holding that superannuation entitlements, the rental payments and telephone allowance did not constitute remuneration for the purposes of the Minimum Conditions of Employment Regulations 1993. In the circumstances it follows that the learned Industrial Magistrate was wrong to conclude that the Appellant was WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 34 not remunerated wholly by remuneration or by percentage reward. On the contrary the Appellant, on the evidence, was, in my opinion, wholly remunerated by commission or by percentage reward at least for the purposes of the Minimum Conditions of Employment Regulations 1993. 60 Much of the argument on the appeal centred on the rate at which the Appellant was to be paid for his alleged annual leave entitlement under the Act. In my assessment that argument served only to show that the Appellant was remunerated wholly by commission or percentage reward and not by any other means. Section 18(1) in conjunction with s 24 of the Minimum Conditions of Employment Act 1993 provides that payment for untaken leave is to be paid not at the rate when the leave accrued but at the rate applicable to the employee under his contract of employment at the time the leave is taken. It does not follow that because the employee was not due to be paid any remuneration at the time of taking leave, his rate of pay was nil. The logical consequence of that proposition is that the employee was employed to work for nothing. Clearly that was not the case for the Appellant. Rather, he was employed for reward on the basis of receiving a proportion of the commission received by the Respondent through his efforts. In effect that is his rate of pay, albeit that it is impracticable to be used in calculating a payment for annual leave. Perhaps that is why the legislation excludes persons remunerated wholly by commission or percentage reward from the operation of the Act. 61 It follows in my view that the appeal should be dismissed. The Appellant was not an employee for the purposes of the Minimum Conditions of Employment Act 1993. THE PRESIDENT— 62 For those reasons, the appeal is dismissed. Order accordingly 2000 WAIRC 01609 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES DAVID JOHN HIGNETT, APPELLANT v. JOBURNE PTY LTD T/A BLACKBURN REAL ESTATE, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER G L FIELDING DELIVERED THURSDAY, 14 DECEMBER 2000 FILE NO/S FBA 15 OF 2000 CITATION NO. 2000 WAIRC 01609 _______________________________________________________________________________ Result Applications granted. Representation Appellant Mr B F Stokes, as agent Respondent Mr D M Jones, as agent _______________________________________________________________________________ Order. This matter having come on for hearing before the Full Bench on the 23rd day of November 2000, and having heard Mr B F Stokes, as agent, on behalf of the appellant and Mr D M Jones, as agent, on behalf of the respondent, and the Full Bench hav- ing reserved its decision on the matter, and reasons for decision being delivered on the 14th day of December 2000, it is this day, the 14th day of December 2000, ordered and directed as follows— (1) THAT the appellant be and is hereby granted leave to substitute the endorsed copy of the complaint for the copy of the complaint at page 3 of the Appeal Book. (2) THAT the appellant be and is hereby granted leave to amend the grounds of appeal in the Notice of Appeal filed herein by inserting after the existing ground B of the appeal a new ground BA in the terms provided by the agent for the appellant at the hear- ing. (3) THAT the applications filed herein to extend time to file the Appeal Book in appeal No. FBA 15 of 2000 out of time be and are hereby granted. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. 2000 WAIRC 01599 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES DAVID JOHN HIGNETT, APPELLANT v. JOBURNE PTY LTD T/A BLACKBURN REAL ESTATE, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER G L FIELDING DELIVERED THURSDAY, 14 DECEMBER 2000 FILE NO/S FBA 15 OF 2000 CITATION NO. 2000 WAIRC 01599 ______________________________________________________________________________ Result Appeal dismissed. Representation Appellant Mr B F Stokes, as agent Respondent Mr D M Jones, as agent _______________________________________________________________________________ Order. This matter having come on for hearing before the Full Bench on the 23rd day of November 2000, and having heard Mr B F Stokes, as agent, on behalf of appellant and Mr D M Jones, as agent, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 14th day of December 2000 wherein it was found that the appeal should be dismissed, it is this day, the 14th day of December 2000, ordered that appeal No. FBA 15 of 2000 be and is hereby dismissed. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 35 81 W.A.I.G. COMMISSION IN COURT SESSION— Matters dealt with— 2000 WAIRC 01661 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. AIRLITE CLEANING PTY LTD & OTHERS, RESPONDENTS CORAM COMMISSION IN COURT SESSION COMMISSIONER A R BEECH COMMISSIONER P E SCOTT COMMISSIONER S J KENNER DELIVERED Friday, 8 september 2000 FILE NO APPLICATION 1431 OF 1998 ______________________________________________________________________________________ Result Application for joinder of respondents granted Representation Applicant Ms D. MacTiernan appeared on behalf of the applicant Respondents Ms C. Fitzgibbon appeared on behalf of those respondents members of the Chamber of Commerce and Industry of WA No appearance on behalf of other respondents _________________________________________________________________________ Reasons For Decision. 1 COMMISSIONER A.R. BEECH: By this application the union seeks to join 35 employers as respondents to the Contract Cleaners’ (Ministry of Education) Award, 1990. All of those employers have been served with a copy of the application. Twenty-four of the respondents did not file a Notice of Answer and did not appear in the Commission to either consent to or oppose the application. The 11 remaining respondents filed Notices of Answer opposing the application and appeared in the proceedings. Further, four of the remaining seven current respondents to the award appeared in the proceedings. 2 The Contract Cleaners’ (Ministry of Education) Award, 1990 was issued by consent in 1990. The scope clause of the award is as follows— “3.—SCOPE This Award shall apply to— (a) Cleaners who are employed by the named re- spondents in the industry of Contract Cleaning of Government Schools in the State of West- ern Australia; and (b) To all those employers employing those clean- ers.” 3 The first issue with which the Commission in Court Session was required to deal was the submission that the application should have been advertised in the WA Industrial Gazette in accordance with s.29A(2) of the Industrial Relations Act 1979. The Commission, by majority, overruled that objection and what follows are my reasons for overruling it. 4 Section 29A(2) of the Act is, relevantly, as follows— “Subject to any direction given under subsection (2a), if the reference of an industrial matter to the Commission seeks the … variation of the area of operation or the scope of an award … the Commission shall not hear the claim or application until those parts of the proposed … variation … that relate to area of operation or scope have been published in the Industrial Gazette…” 5 The critical point to be made is that although granting the application will result in an increase in the number of respondents to the award, its area of operation or its scope will not be extended beyond the industry of contract cleaning of government schools in Western Australia. 6 Section 37(1) of the Act is as follows— (1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section— (a) extend to and bind— (i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and (ii) all employers employing those em- ployees; and (b) operate throughout the State, other than in the areas to which subsection (1) of sec- tion 3 applies. 7 The scope of the award is the industry or industries to which it applies. The industry to which the Ministry of Education award applies is not to be determined by the number of respondents to it but by the wording of the scope clause of the award itself (cf. Freshwest Corporation v. Transport Workers Union (1991) 71 WAIG 1746 per Franklyn J at 1747). The industry is the industry of contract cleaning of government schools. The situation is to be contrasted with a situation where the scope of the award is determined by the industries carried on by the respondents to the awards. In such a case, the addition of respondents to the award may have the effect of enlarging the scope of the award if a new respondent is in an industry not previously covered by the award. That cannot be said to be the case in this instance. Each of the proposed respondents will be bound by the award only to the extent that they work in the industry of contract cleaning of government schools. The scope of the award is not affected by the addition of further respondents. That is, although the award is binding upon only the named respondents its scope is not determined by the number of those respondents. 8 The area of operation of the award is the geographical area of its coverage: s.37(1)(b). Its area of operation is the entire State. The addition of the proposed respondents will not vary the area of operation of the award. 9 Further, it is useful to have regard to the purpose of s.29A(2). In Australasian Meat Industry Employees’ Union, Industrial Union of Workers, West Australian Branch v Stewart Butchering Co (1993) 73 WAIG 1196 Kennedy C (as she then was) noted that s.29A(2) is “particularly designed to ensure that others who are bound by the same award do not have their interests overridden by virtue of no notice”. It is the key legislative protection from “sweet-heart deals” and other arrangements. Extending Kennedy C’s words to cover the current situation, s.29A(2) is designed to give notice to persons who may be affected by the proposed amendment of its existence and an opportunity to be heard in relation to it. In this case, the persons who are to be joined, and the persons who are currently a party, to the award have been given proper notice and it is not apparent that there could be other persons affected by the proposed amendment. 10 Accordingly, the application cannot be held to be one which varies the scope of the award and the preliminary point raised is without substance. 11 The union’s claim is relatively straightforward. Its evidence is that although the award is limited to the named respondents, it is regarded generally by the contract cleaning industry, and the Education Department, as being the award which sets the benchmark for wages and conditions for contract cleaning employees cleaning government schools. That is the evidence of Sharryn Jackson, Assistant Secretary of the union. The evidence of Adrienne Kennedy, an Organiser with the union, and of Diana MacTiernan an Industrial Officer with the union, is that in their dealings with employers in the industry of WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 36 cleaning government schools the industrial issues that have arisen in that industry have been settled in accordance with the terms of the Contract Cleaners’ (Ministry of Education) Award, 1990. It is therefore necessary and appropriate, it submits, that as contracts are let and re-let, and new contract cleaning employers gain contracts, the award be extended to them by having them named as respondents to the award. The employers which the union seeks to have joined to the award are those who have registered with the Education Department their intention to tender for contract cleaning work in government schools. The union recognises that employers in the industry may choose to offer workplace agreements to employees but submits that where employees’ conditions of employment are to be regulated by reference to an award, in this industry, that award is the Contract Cleaners’ (Ministry of Education) Award, 1990. 12 The opposition from those respondents to the claim who have lodged a Notice of Answer and appeared before the Commission in Court Session was based upon a number of reasons. Those respondents point to the coverage of the Contract Cleaners’ (General and Window Contractors) Award (the General award) and state that it currently applies to the employers the union seeks to join to the award. On that basis, it is submitted that it is the General award which forms the award safety net and the union needs to show good and cogent reasons why this Commission should now effectively prescribe different wages and conditions for these employers’ employees which will result from them being joined to the Contract Cleaners’ (Ministry of Education) Award, 1990. Further, those respondents submit that the Contract Cleaners’ (Ministry of Education) Award, 1990 is a consent award which applies only to the employers who consented to it. It is inappropriate to impose those conditions on an unwilling employer. Furthermore, those employers who are joined as a result of this application would have to observe the terms and conditions of two awards for the one classification of cleaner. The two awards are different, particularly for example in the areas of long service leave and wage rates. Those respondents point to the fact that the Contract Cleaners’ (Ministry of Education) Award, 1990 has not undergone a Minimum Rates Adjustment exercise whereas the General award has undergone that exercise. The latter award has established an appropriate relativity that is currently observed by the employers opposing the union’s application and they submit that there is no reason why that relativity should now be department from. Those respondents also submit that the Commission’s Wage Fixing Principles require the parties to have attempted to formalise enterprise bargaining agreements under s.41 of the Industrial Relations Act 1979. 13 Those respondents further submitted that not all employers in the industry wish to see a level playing field. In any event, even if the union is successful in its current application, as contractors come and go, new employers coming to the industry will not be covered by the Contract Cleaners’ (Ministry of Education) Award, 1990. The ability of employers to offer employees employment subject to a workplace agreement means that any intent of the union by this application to establish a level playing field will not be able to be achieved. 14 The union led evidence principally from Ms Jackson. Ms Jackson gave evidence of her long experience in dealing with the contract cleaning industry and the move from day labour to contract labour in the cleaning of government schools. Her evidence was not broken down in cross-examination and I accept it. In particular, Ms Jackson’s evidence addressed the genesis of the Contract Cleaners’ (Ministry of Education) Award, 1990 arising from a series of industrial disputes which occurred whenever there was a change in contractor. Disputes arose over the detail of the changes in contract. As a result, in Ms Jackson’s experience, it is the Contract Cleaners’ (Ministry of Education) Award, 1990 which is now seen as the basis of tender evaluation by the Education Department and which is seen within the industry as the benchmark for the employment conditions within that industry. Her evidence is that the tender document provided by the Education Department to cleaning contractors who wish to tender for contracts specifies that the award seen as providing the conditions of employment is the Contract Cleaners’ (Ministry of Education) Award, 1990. Ms Jackson acknowledges that the rates of pay, and some conditions, contained in the General award are less than those provided for in the Contract Cleaners’ (Ministry of Education) Award, 1990. However, as she explained, the rationale behind the move to contract out the cleaning of government schools was to make cleaning more efficient, not to lower the wages and conditions of the employees concerned. 15 Ms Jackson’s evidence was to some extent corroborated by the evidence of Mr Hastie who was called by the respondents who opposed the application. Mr Hastie is employed by the Education Department and is currently the Co-ordinator of the Automatic Irrigation Programme. However, up until the end of the previous year, Mr Hastie had been the Project Industrial Officer for the improvement programme that dealt with gardening and cleaning contracting. He has been an Industrial Officer with the Education Department since 1995 and has been working on the contract cleaning programme since 1996. In order to be able to tender for a cleaning contract, a contact cleaner must register with the Education Department. In first round contracts, that is, contracts being let for the first time, where employees of the Education Department would otherwise be engaged as “day labour”, the Department is concerned to ensure that its employees are considered for employment by the contractor and are provided with “suitable alternative employment.” This suitable alternative employment requires that the former day labour employees be provided with the same hours of work as previously; the employee is not required to change address to perform the work; where possible he/she performs the same shifts as previously, and is to be paid as close as possible to the same rate of pay as applies to day labour. Mr Hastie clarified that this does not require the contractor to offer identical terms and conditions of employment as apply to day labour. Mr Hastie confirms that he is unaware of any contract cleaner in the industry using the conditions of the General award for the purpose of tendering for contracts to clean government schools. He acknowledges that the General award may be applied by contractors to employees engaged directly by the contractors who have not previously been day labour cleaners. Mr Hastie gave evidence that if the contractor intends to use an Australian Workplace Agreement, a Western Australian Workplace Agreement, a federal certified agreement, enterprise agreement, or anything other than the Contract Cleaners’ (Ministry of Education) Award, 1990 then the Department requires that the contractor submit a copy for evaluation to see if it meets the requirements of suitable alternative employment, against the benchmark of the day labour rates. He states in his experience that the majority of contractors state their intention to use the Contract Cleaners’ (Ministry of Education) Award, 1990, and not the General award as the basis of their tender documents. He does not recall assessing any tenders where the contractor proposed using workplace agreements with rates lower than the award. 16 From the above evidence a number of conclusions can be drawn. Although the Contract Cleaners’ (Ministry of Education) Award, 1990 is, according to its terms, an award which applies only to the named respondents, it is seen by the Education Department and by the contract cleaning industry generally as the appropriate award for the conditions of employment for contract cleaning in the industry of cleaning of government schools. There may be some employees employed in the industry of the cleaning of government schools who are employed pursuant to the General award, however, the evidence before the Commission does not indicate that there are a significant number of such employees. The fact of their existence does not reduce the effectiveness of the evidence before the Commission which shows widespread acceptance of the Contract Cleaners’ (Ministry of WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 37 81 W.A.I.G. Education) Award, 1990. Mr Hastie gave evidence of a number of the proposed respondents having contracts to clean government schools and TAFE colleges. His evidence was also that none of the contractors tendering has indicated an intention to use the General Award. The proposed respondents chose not to give evidence of their existing employment practices. In light of the Union’s evidence that the industry uses the Contract Cleaners’ (Ministry of Education) Award as a de facto common rule award and Mr Hastie’s evidence that contractors do not indicate an intention to use the General Award, it is open to conclude that the Union’s evidence is correct. 17 The evidence also shows that in this industry there is a frequent turnover of contracts. The evidence of Ms Jackson is that contracts last between 12 months to two years and that most cleaning contractors involved in this industry are required to resubmit tenders on approximately a 12 month basis. It is this rapid turnaround of contracts which led Ms Jackson to describe the industry of the cleaning of government schools to be unique. The evidence is that there have been in the past significant industrial relations problems regarding employees’ conditions of employment when there is a change of contractors. The existence of the Contract Cleaners’ (Ministry of Education) Award, 1990 has served to minimise those disputes. That is a powerful reason for this Commission to endorse on this occasion the evidence which has been brought before it that the Contract Cleaners’ (Ministry of Education) Award, 1990 is seen as the benchmark for work in the industry of the cleaning of government schools. This evidence leads to the conclusion that the application currently before the Commission to join to the award a number of employers who have expressed an interest to the Education Department to be allowed to tender for work ought to be granted. 18 Although those respondents who oppose the joinder do so on the basis that they should not be forced to observe conditions of employment consented to by other employers, that argument has less strength in circumstances such as these where the evidence shows that the award is generally used by those contractors engaged in cleaning schools. That is, the conditions prescribed by the Contract Cleaners’ (Ministry of Education) Award, 1990 are seen by contact cleaning employers themselves as appropriate for the industry of cleaning government schools. Nor does the acceptance of those conditions prevent any individual