WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Ludwig Stephan Miskiewizc (Appellant) and City of Belmont (Respondent) No. 1192 of 1994. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT Pol. SHARKEY. COMMISSIONER A.R. BEECH. COMMISSIONER C.B. PARKS. 23 May 1995. Reasons for Decision. THE PRESIDENT: This is an appeal against the decision of the Commission, constituted by a single Commissioner, made on 28 October 1994, whereby the Commission dismissed an application made by the appellant, Ludwig Stephan Miskiewizc. The appellant had made application in application No 428 of 1994 alleging that he had been unfairly dismissed by the respondent from his employment with the respondent on 14 March 1994. The appellant claimed salary in lieu of no- tice, alleging that the employment was tenninated summarily and no payment in lieu of notice had been made. It is clear that when the matter came before the Commission there was an application for reinstatement as well, but that is not clear from the tenns of the application itself. Having heard the applicant's case and the respondent's case, the Commis- sion dismissed the application and issued its reasons for deci- sion. It is against that decision that the appellant now appeals. The following are the grounds of appeal (see pages 2-6 of the appeal book (hereinafter referred to as "AB")):- "The Commission erred in law and in fact in failing to recognise or to have regard for or proper regard for the following and failed to properly apply the relevant legal principles to the facts of the case in particular, the com- mission failed to apply or failed to apply correctly the legal principles relevant to summary dismissal cases and to unfair dismissal cases generally. 1. The Commission gave regard or gave undue regard to allegations that the Appellant had previously en- gaged in incidents of a similar nature to the incident of 1 December 1993 in circumstances where upon a proper reading of the uncontradicted evidence of the Appellant; (a) the Appellant only attended the premises at 241 Epsom Avenue ("the premises") during his lunch break or at times otherwise outside of his work hours; (b) that any attendance at the premises was of a very short duration; (c) that the attendances occurred infrequently; and (d) that any attendance at the premises occurred while the Appellant was in the vicinity of the premises and did not involve any diversion of the Appellant from his employment duties. 2. The Commission had no evidence or no sufficient evidence that the Appellant had deliberately and/or wilfully mislead the investigation of the Respond- ent into the circumstances of the incident of 1 De- cember 1993 in that the Commission failed to give any or any proper weight to the following factors: (a) the limited literacy and comprehension abili- ties of the Appellant; (b) the confused, ambiguous, contradictory, un- true, vague nature of the various allegations made against the Appellant at various times. 1812 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. Examples of the nature of the allegations in- clude; (i) the Respondent alleged through its vari- ous officers at various times that the (A) outside a bottle shop (when there were in fact two bottle shops in the vicinity); (B) outside of a kindergarten; (C) outside of security premises; (D) outside of West Line Security. (ii) in a memorandum to the Appellant dated 3 December 1.993 it was incor- rectly alleged that the Appellant had "conducted business" at the premises during work hours. This was conceded in evidence for the Respondent to be incorrect. (c) the Commission failed to give any considera- tion or any proper consideration for the breach by the Respondent of the dispute settlement procedure prescribed by the relevant award being the Municipal Employees' (West Aus- tralian) Award 1982. (d) the Commission failed to give any or any proper consideration to the Appellant'S en- deavours immediately after the incident to meet with the protagonists involved in the in- cident in order to resolve the dispute; (e) the Commission failed to have regard or failed to have proper regard to the fact that at the first reasonable opportunity provided by the Respondent, the Appellant did co-operate fully in the investigation by the Respondent into the incidents of 1 December 1993; 3. In finding that the Respondent justifiably summar- ily dismissed the Applicant the Commission failed to give proper recognition to the Appellant'S good employment history. In particular, the Commission failed to recognise or have proper regard to the Ap- pellant's promotion to Leading Hand in 1988 and his general good conduct in that position. 4. Instead, the Commission improperly considered or gave undue consideration to so-called "memoran- dum's" given to the Appellant in circumstances where: . (a) the memorandums where (sic) issued in 1990 and 1991 nearly four years prior to the inci- dent which resulted in the Appellant's dis- missal; (b) there had not been any substantive criticisms made concerning the employment behaviour of the Appellant in the time between those memorandums and the incidents leading to the Appellant's dismissal; (c) the memorandums were a comparison of the costs associated with the work done by sub-contractors and the Appellant's work team and the Commission failed to have regard or failed to have proper regard for the fact that; (i) there was no evidence or no sufficient evidence that there was any basis upon which any such comparison could be made. That is: (A) there was no evidence that the nature of the work undertaken by the sub-contractors was the same as or similar to the nature of the work undertaken by the Appel- lant's team; or (B) there was no evidence or no suf- ficient evidence that the work undertaken by the sub-contractors was undertaken under the same conditions or un- der similar conditions to those under which the Appellant's team operated. (ii) there was no evidence or no sufficient evidence of any correlation between the employment performance of the Appel- lant and the adverse comparison of the Appellant's work team with that of sub contractors; (Hi) there (sic) no evidence or no sufficient evidence of any proper basis for mak- ing a comparison between the endeav- ours of the Appellant's work team and that of sub-contractors. For example, there was no evidence or no sufficient evidence of any comparison between the endeavours of the Appellant's work team with that of work teams in other Shire Councils. (d) The memorandums were so broad and gen- eral that they were not directed at any specific employment behaviour of the Appellant and could not have been and were not communi- cated to the Appellant as: (i) being directed to any particular aspect of the Appellant's employment perform- ance; (ii) a warning to the Appellant that specific aspects of the Appellant' semployment performance should be modified and! or improved; (iii) a warning that unless those specific as- pects of the Appellant's employment performance were modified and!or im- proved that the Appellant's employment would be adversely affected. 5. In finding that the Respondent justifiably summar- ily dismissed the Applicant the Commission gave undue regard to the incident (''the incident") of I De- cember 1993 and; (a) the Commission failed to have regard or failed to have proper regard to the Appellant's prior employment history; (b) the Commission failed to have regard or failed . to have proper regard to the fact that the inci- dent was of a relatively minor nature and did not constitute a substantial breach of the Con- tract of Employment or a breach of the Con- tract of Employment sufficient to warrant a summary dismissal; (c) in finding that the incident could be a ground for a summary dismissal applied the wrong legal principles for determining what behav- iour could warrant grounds for summary dis- missal; (d) the Commission failed to have regard or proper regard to the admissions of management per- sonnel of the Respondent to the effect that the incident had blown out of all proportion and that, while the Appellant may have justifiably received a letter of warning in relation to the incident, the incident did not constitute a sub- stantial breach of the Appellant's Contract of Employment or a breach sufficient to warrant a summary dismissal. 6. If, which is denied, the Commission did have evi- dence or sufficient evidence to find that the Appel- lant had prior to 1 December 1993 attended the premises during working hours, then the Appellant says that the Commission had undue regard for this finding in view of: (a) the occasional nature of the Appellant'S attend- ances to the premises; (b) the short duration of the Appellant'S attend- ance at the premises. 75 w'A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1813 (c) the legal principles applicable to unfair dis- missal cases. 7. The Commission failed to consider or failed to give proper consideration to the fact that the Appellant . was initially not afforded procedural fairness in re- lation to the investigation of the incident in that: (a) the Appellant was not afforded an opportu- nity to address the.major protagonists in rela- tion to the incident; (b) the Appellant was not provided with clear and unambiguous allegations to which he could properly respond; . (c) the Appellant was often given unreasonable time frames in which to respond to general- ised allegations of events whiCh had occurred some time·previously. 8. In the letter dated 14 March 1994 the Appellant was informed by the Respondent that he was being dis- missed summarily for, inter alia not responding to allegations made by the Respondent against the Ap- pellant within a prescribed time. The Commission while acknowledging that this time table was harsh and by implication unreasonable did not find and should have found that this was the substantial and operative reason for the Respondent dismissing the Appellant and that accordingly the action of the Re- spondent in dismissing the Appellant was harsh, unfair and unreasonable." BACKGROUND The background to the matter is this. The appellant had been employed as a Leading Hand Grano Worker by the City of· Belmont, the respondent (hereinafter referred to as "the City"), from July 1987. He had received a number of memo- randa from the City concerning his employment during that time. At the time of his dismissal, he was a Leading Hand Grano Worker in charge of the Council's concrete gang, which made kerbings, paths and did other concrete Work in the City of Belmont. The dismissal took place on 14 March 1994. On I December 1993, the appellant and members of his work gang were working in Belmont near 1st Avenue and Central Avenue. The gang consisted ofMr Miskiewizc, Mr Ken Yeow, Mr Victor James Leitch and Mr Stewart McAuley, the driver. They left that site to return to the Council depot, drove to Epsom Avenue, and when driving past the premises at 241 Ep- som Avenue, the premises of Westline Security Pty Ltd, they stopped. There was evidence that the appellant is a casual employee of Westline Security Pty Ltd on a part-time basis "engaged in crowd control". They had stopped at the premises for a period of some eight minutes, according to the appellant, and had discussions about a boat which was owned by the "proprietor" of Westline Security Pty Ltd, and which was at the premises. While parked in a Council truck, talking to the proprietor of the security fmn, there was a call over the radio from John Rolfe, a Supervisor of the appellant, and, accord- ing to the appellant, Mr Rolfe asked him what he was doing and he replied that he was on his way to another job. Mr Rolfe, who had been watching them, had reported that they had stopped outside Westline Security Pty Ltd's premises for about 20 minutes. According to his evidence, Mr Rolfe had spoken to Mr Miskiewizc about the incident on 2 December 1993 and was informed, inter alia, that he had Alzheimer's disease. On 2 December 1993, Mr Michael John Britt Payne, the Engineering Controller, had· spoken to Mr Miskiewizc and other members of the gang about the incident. On his ac- count, there was denial and obfuscation. On Mr Miskiewizc's account, they had asked Mr Payne to have Mr Rolfe come to see them to discuss the complaint. On 7 December 1993, the appellant received a formal memo- randum from the Acting City Engineer, Mr Rick Lutey, citing unsatisfactory work performance, and that, formal parts omit- ted, reads as follows (exhibit DJ, page 280 (AB»:- "On the afternoon of Wednesday, 1 December, 1993, your truck and your gang of three men were seen parked outside the premises of Westline Security Pty Ltd at 241, Epsom Avenue, Belmont, while you yourself conducted private business at the premises. It was noted that some twenty minutes elapsed before you resumed your Council duties. And, during this time, in a conversation over the two-way radio, you inferred that you were actually on your way to the Depot to get more materials. I must make it perfectly clear to you that private visits such as this must be carried out entirely outside working hours .. furthermore, such an amount of time wasted by your whole·gang only adds to the problems of poor productiv- ity (which have been mentioned in the past) and points to poor leadership on your part. Please ensUre that such an incident does not happen again. ·Jf it does, Council will have to consider strong action." That memorandum was delivered by Mr Payne, the Engi- . neering Controller, to whom Mr Rolfe had reported. By 9 December 1993, the appellant had engaged solicitors who wrote to the City asking that the notice of unsatisfactory work performance be withdrawn within seven days or the matter might be taken to the Industrial Relations Commis- sion. On 21 December 1993, there was correspondence to the appellant from the City Engil)eer. This required him to with- draw in writing his assertion that the incident referred to in the memorandum of 2 December 1993 did not occur. In the letter he was told that if he did not withdraw or give some reason as to why the City should not dismiss him, then his services would be terminated on21 December 1993. There was a letter in reply .on the same day from the solici- tor's for the appellant asking for delay in implementing the termination. That was agreed to by the City in a letter of the same day. (Mr Miskiewizc had returned to work on 22 or 23 December 1993). The matter wasaIso referred to the Australian Industrial Relations Commission, and this was confmned in a letter from the appellant's solicitors on 22 December 1993. On 24 December 1993, the City advised the appellant's so- licitors that it did not propose to take any new action in rela- tion to the appellant. However, it advised that investigations had confmned the incident of misconduct. Other matters were raised in that letter involving alleged unauthorised absences from duty. The City advised that upon the resolution of the dispute in the Commission, it was the intention of the City to take action in respect of those other matters. On 25 January 1994, the matter was before Bryant C in the Australian Industrial Relations Commission. He requested that the parties meet and review the matter and this occurred on 2 February 1994. There was evidence of what occurred there, but Mr Miskiewizc continued to deny the allegations. On 8 February 1994, there was a meeting at the Council where Mr Miskiewizc admitted that he was outside 241 Ep- som Avenue, Belmont in the Council truck for five to eight minutes on 1 December 1993. There was a further conference in the Australian Industrial Relations Commission on ·16 February 1994, at which time it was alleged that the City gave a commitment to carry out an enquiry into certain unspeCified allegations which the City said had come to its attention. The matter was then adjourned until 28 March 1994. . On 7 March 1994, the appellant was told by Mr John McCutcheon, a Supervisor, that he, the appellant, was required to attend a meeting at 9.30 am the following day. That meeting took place on 8 March 1994, and the appel- lant was told that there were two further allegations. These were, firstly, that he was present on more than one occasion at 241 Epsom Avenue whilst using City vehicles and in doing so was detaining other staff from their duties. Secondly, he was told that he had deliberately and willingly misled manage- ment and accused a Supervisor of lying. The City asked for a response to these two allegations within 24 hours. As a result, the appellant's s9licitors wrote to the solicitors for the City. In that letter, the City was informed that the appellant was prepared to partiCipate and co-operate in an in- vestigation, but he had not been given a proper opportunity to defend the allegations made against him, and they complained 1814 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. that he was only given 24 hours to respond. This, his solici- tors said, would be to disregard the processes of natural jus- tice. There were also complaints that the allegations were vague and ambiguous and not sufficiently particularised. The letter then sought further and better particulars. On 10 March 1994, the solicitors for the City wrote to the solicitors for the appellant saying that the delay of 72 hours sought in which to answer was unreasonable because these matters had been verbally communicated to the appellant on 8 March 1994. The solicitors for the appellant were told that the City required a response by close of business on 11 March 1994. The appellant said in evidence that the contents of the letter of 10 March 1994 was not drawn to his attention until 14 March 1994. On 14 March 1994, he received a letter of termination from the City which, formal parts omitted, reads as follows (exhibit 013, page 304 (AB»:- "On Tuesday, 8 March 1994, you attended an inter- view with representatives of Council in relations to Coun- cil's investigation into a number of matters relating to your activities while employed by the City. I conftrm verbal advice to you that Council has thor- oughly investigated and independently verifted your be- ing at 241 Epsom Avenue (the premises of Westline Security Guards) at various times on regular occasions, during ordinary working hours, when you should have been undertaking work for the City of Belmont. You also deliberately and wilfully misled your employer in respect of its investigations into an incident which oc- curred on 1 December 1993, the detail of which you are fully aware. Clearly, your actions in relation to this inci- dent amounted to a direct challenge to Council's man- agement. During the interview on Tuesday, 8 March 1994 you were given the opportunity to answer the allegations put to you and to explain your actions, but you chose not to do so. You then agreed to provide your response and explanation to the matters raised by Council by 11.00 am, Wednesday, 9 March, 1994. Further particulars, as requested, were provided to your solicitors on 10 march 1994 at which time they were ad- vised that your reply was required by close of business on 11 March 1994. Despite more than reasonable opportunity being given to you, you have elected not to provide any explanation as to your conduct. Your conduct in these matters is in breach of your fun- damental obligation of good faith to your employer. This is particularly so as you have been in the position of Lead- ing Hand, a position in which Council has relied upon you for the leadership of other employees. Council there- fore has no alternative but to advise you that, effective forthwith, yout services are terminated summarily for misconduct. Your entitlements will be determined by the Council's pay clark (sic) and will be made available to you as soon as possible." The appellant's solicitors protested at this action of the City on the basis that there was no indication that the City would dismiss the appellant if its letter was not answered by the 5.00 pm deadline and Claimed that this was harsh. It was al- leged that the chain of events constituted a breach of proce- dural fairness. In particular, it was alleged that there had been no speciftc identiftcation of any complaints prior to 1 Decem- ber 1993, and, accordingly, the appellant was unable to an- swer the allegations made against him. There was documentary evidence tendered at first instance and there was oral evidence given by the appellant on his own behalf. There was oral evidence given on behalf of the re- spondent by Mr Payne, the City'S Engineering Controller, Mr Melvin Soe Mya, a Technical Officer, Mr Raymond Stewart Tame, the City Engineer, Mr Leitch, whom I have already mentioned, and Mr Peter Robert McLean, a business proprie- tor. FINDINGS The Commission at ftrst instance heard evidence from a number of witnesses and made a number of ftndings. These were as follows:- (1) That notwithstanding that the appellant had some difficulty with language which was used by Coun- sel, and that he may have suffered an inability to comprehend what might be categorised as everyday language, the Commission had some lingering doubts about the reliability of his evidence, but did not go so far as to label it as deliberately untrue or mislead- ing. (2) The Commission generally accepted the evidence of other witnesses, except that the evidence of Mr Victor James Leitch, a colleague of the appellant, was "to say the least, evasive". (3) This was a case where what should have been a mat- ter which was easily handled, as part of a normal disciplinary function of management, had got out of hand. (4) The appellant was a Leading Hand in charge of a Council truck and on 1 December 1993, in the after- noon, he did cause to have the truck parked outside the premises of West line Security Pty Ltd at 241 Ep- som Avenue, Belmont, and was there for some time in conversation with a man who was either near or standing in a boat. (5) Mr Rolfe observed this event but did not immedi- ately drive to the vehicle and tell the occupants to go about their business, opting to remain there and ob- serve. (6) Mr Rolfe reported this matter to his superiors and an investigation was started. (7) The preliminary investigation was not well con- ducted. The appellant, because it was alleged that he had been seen in the vicinity of a bottle shop, denied the allegation against him that he was con- ducting private business. (8) There was evidence of complaints of poor perform- ance and leadership in the past. (9) The sequence of events which led to the appellant's termination eventually did not allow him to prop- erly respond to advice given to him by his "Coun- sel", notwithstanding that he sought legal advice and was, in the opinion of the Commission, entitled to receive that advice and act in accordance with it. (10) The City took no account of the necessity for the appellant to consult with his solicitors and get ad- vice and caused termination to be effected by the letter of 14 March 1994 when the appellant was still getting advice from his solicitors, which, as a matter of j~stice, he was entitled to receive. (11) This constituted a fault in the "process" and it was the type of fault which has been described in Shire of Esperance v. Mouritz 71 WAIG 891 (lAC). (12) The Commission found that there were a number of visits to the premises at 241 Epsom Avenue, and these took place in the time when the appellant should have been working, and they did involve removal of his gang from their assigned duties. (13) (a) Hence, the Commission found that the appel- lant was in breach of his contract of employ- ment, as alleged by the employer, in attending upon the premises at 241 Epsom Avenue when he should have been at work. (b) The Commission relied on the evidence of both Mr Leitch and Mr McLean and the cross-examination of the appellant in so ftnd- ing. (15) The Commission found, relying on the evidence of Mr Leitch and Mr Payne that every effort was made by the appellant to throw the Supervisors off the scent in a proper investigation of the incidents. (16) Further, the appellant spoke in a derogatory manner concerning Mr Rolfe's role. 75 w.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZEITE 1815 (17) He consistently declined to assist the City in their investigations. (18) Accordingly, he did do what was complained about by his employer. (19) The City was entitled to take prior behaviour into account when making its decision to terminate, and these included behaviour referred to in a memoran- dum of 2 December 1993 (see page 280 (AB)). (20) The Commission found that the appellant was most likely denied natural justice through failure by the City to properly recognise that it was fair that he be able to get legal advice before replying to critical questions about the continuation of his employment. (21) However, because the complaints of the City con- cerning the appellant's conduct were established on the balance of probabilities both in respect of the improper use of the council truck and therefore the improper conduct of the appellant insofar as his duty of trust as a Leading Hand was concerned, and be- cause he had made every attempt to impede the proper investigation of the incident by obfuscation and by labelling the Supervisor, who had first ob- served him and others who were investigating him, as liars, then the conduct was such as would have led a reasonable employer to conclude that the ap- pellant was in fundamental breach of his conditions of employment such that the City was entitled to draw the conclusion that it had lost faith and trust in him as an employee and was therefore able to terminate his contract of service. (22) In the circumstances, the Commission observed that "even though I have grave doubts about the proce- dure, on balance there has not been unfairness in the dismissal and the application will be dismissed". CONCLUSIONS The application in this matter alleged unfair dismissal. It was, at all times, for the applicant to establish that he was unfairly dismissed. However, it was for the respondent, who summarily dismissed him, to prove that the summary dismissal was justified. The respondent bore that evidential burden. The principles to be applied in deciding whether the dis- missal was unfair are those laid down in Miles and Others tJa Undercliffe Nursing Home v. FMWU 65 WAIG 385 at 386 and 387 (lAC) ("the Undercliffe Case") per Brinsden and Kennedy JJ respectively. The test was expressed in that case as follows: Was the dismissal unfair, had the employee re- ceived less than a fair deal, or was the employer's action so harsh and unjust that the employer had abused his/her right to dismiss the employee? Or put another way, was there an abuse of the employer's right to dismiss because it was exercised harshly or oppressively? In order to justify the summary dismissal, it was necessary that the respondent establish that the employee disregarded the essential conditions of the contract of service (see North v. Television Corporation Ltd 11 ALR 599 at 608-609 per Smithers and Evatt JJ). The test was put another way in Blyth Chemicals Ltd v. Bushnell [1933] 49 CLR 66 where it was said (see per Dixon and McTiernan JJ at pages 81-82):- "Conduct which in respect of important matters is in- compatible 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 per- formance of his obligations, or is destructive of the nec- essary 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 de- structive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future con- duct arises." The final decision at first instance was a discretionary deci- sion, that is whether the dismissal was unfair or not. Accord- ingly, the rules laid down in House v. The King r 1936155 CLR 499, and referred to, inter alia, in Gromark Packaging v. FMWU 73 WAIG 220 (lAC) apply. The Full Bench may not substitute its exercise of discretion for the exercise of the dis- cretion of the Commission at first instance, unless it concludes that there was a miscarriage of the discretion according to the principles laid down in House v. The King (op cit) and Gromark Packaging v. FMWU (lAC) (op cit). Assistance can also be derived within the confines of the test in House v. The King (op cit) from Devries and Another v. Australian National Rail- ways Commission and Another 112 ALR 641 (HC-FC). Further, in this case, the Commission at first instance en- joyed the advantage, not lightly to be interfered with, of ob- serving the witnesses at first instance. The Commission here had the advantage of observing the witnesses, and unless that advantage was misused in terms to which I have referred above, the Full Bench should not inter- fere (see FMWU v. Board of Management, Narambeen Dis- trict Hospital 72 WAIG 471 (lAC) and Gromark Packaging v. FMWU (lAC) (op cit)). I have read the transcript of evidence carefully, together with the documentary evidence and the other material before the Commission at first instance. I have also carefully consid- ered all of the submissions made to the Full Bench. EVIDENCE I will turn firstly to the evidence. It was a substantial part of the appellant's case that there was at least insufficient evidence upon which it could be said that the dismissal was justified as a matter of fairness or at all. There were a number of major aspects of the evidence which I ought to consider. Mr Miskiewizc, as Leading Hand of the grano or concreting crew, was in charge of it. There were, at the material times, three other members of the crew, although sometimes there were two other members of the crew. One member of the crew was the driver, since Mr Miskiewizc did not drive a vehicle requiring a class B licence to drive. The vehicle was a Council truck, white, with the City of Belmont Coat of Arms on the side and it towed a trailer or a concrete mixer. Mr Miskiewizc had worked for the Council for seven years, and up until December 1993 had received a number of memo- randa from his employer about his employment. Some re- lated to the alleged unfavourable cost of concrete work done by his gang compared to the cost of work done by private contractors (see memo of 9 April 1990, page 308 (AB)). He also received an unsatisfactory work memorandum dated 10 April 1990 for leaving wet concrete unattended, and in re- lation to that he admitted that it had occurred claiming that it was an honest mistake (see pages 309-310 (AB)). He received a memorandum alleging lack of guidance of other employees under his control dated 1 February 1991 (see page 312 (AB)). He was also criticised on 11 July 1991 for making false and inflammatory statements about the situation of another em- ployee, a Mr Jimmy Taylor (see page 313 (AB)). On 19 July 1991, his gang's productivity was again criticised (see page 314 (AB)). On 14 September 1993, he was criticised for leaving work to inspect a concrete path which had been completed a few days before for the Council by a private contractor (see page 315 (AB)). I now turn to the events commencing on 1 December 1993 in some detail. That day, Mr Rolfe, the Supervisor responsi- ble for the concrete gang, on his evidence, saw and indeed saw at close quarters (he parked behind the truck containing the concrete gang outside 241 Epsom Avenue, Belmont, on his evidence), the truck containing Mr Miskiewizc's gang outside 241 Epsom Avenue, Belmont. He saw them there not engaged in their work for 20 minutes. These premises were the premises of Westline Security Pty Ltd. When Mr Rolfe spoke to them over the two-way they said that they were on their way back to the depot. After this, the matter was raised by Mr Rolfe with Mr Payne, the Engineering Controller, and there was a conversation which Mr Rolfe had with Mr Miskiewizc the next day, 2 December 1993. Mr Rolfe's evidence was that he spoke to Mr Miskiewizc on this occasion and asked him ifhe had been out "at the actual place". Mr Miskiewizc, on his evidence, denied it and told Mr Rolfe that he, Mr Rolfe, had Alzheimer's disease. 1816 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. Mr Payne prepared the memorandum of 2 DeCiember 1993, which was a formal note of unsatisfactory performance (see page 280 (AB». He did, however, go to see Mr Miskiewizc and the gang before handing out the memorandum. Mr Payne' s evidence was that he asked Mr Miskiewizc if he had been with the crew pulled up outside Westline Security Pty Ltd's premises in Epsom Avenue. He was cross-examined to some extent on whether he had mentioned a b(ittle shop and child care centre or with a view to the later submissions that he had confused Mr Miskiewizc, but it is quite· clear, on the evidence, that he had referred to the chlId care. centre and the bottle shop as well known locations and that. he had definitely referred to Westline Security PtYLtd's premises as the location where the truck was stopped.,' In any event, the !11emorandwri of 2 December 1993, which was delivered to Mr Miskiewizc, recording this allegation of unsatisfactory perf~rmance,referred specifically and unequivo- cally to Westline Security Pty Ltd' s premises as the place where the truck was stopped (see page 280 (AB)). It was Mr Payne '.s evidence that Mr Miskiewizc said that he knew nothing about this and that several times Mr Miskiewizc said that Mr Rolfe should come down and discuss it with Mr Miskiewizc and with the other members of the crew. The other members of the crew said they knew nothing of the event, or were otherwise non-committal. The unsatisfactory work performance memorandum of 2 De- cember 1993 was delivered to Mr Miskiewizc on 7 Decem- ber 1993, but no admissions of the allegations contained in it were made. It was Mr Miskiewizc's evidence that he was cOncerned to deny that he was near the bottle shop, and that thatwas.what Mr Payne had raised with him, or at least that is how I t1nder- . stood some of his evidence. However, the unsatisfactory work performance note of 2 December 1993, as I have said, refers to the allegation that "your truck and your gang of three men were seen parked outside the premises of Westline Security Pty Ltd at 241, Epsom Avenue, Belmont, while you yourself conducted private business at the premises". Something was sought to be made in submissions of the phrase "private busi- ness". The phrase "private business" plainly connotes some- thing other than work The fact is that Mr Miskiewizc was conducting, in that sense, private business. As he subsequently admitted to his employer in evidence, they were. parked out- side the premises looking at Mr Bep Hop's boat. That could properly be described as private business, since it certainly was not work. (Mr Hop is the "proprietor" of West line Secu- rity Pty Ltd) .. Further, Mr Miskiewizc conceded that the premises were not on the route which they were due to take back to the depot that day, 1 December 1993. (Mr Miskiewizc admitted later to their being there about five to eight minutes on that occasion). The matter then, however, was at an end, on the evidence, the memorandum of unsatisfactory work performance' having been delivered on 7 December 1993. However, Mr Miskiewizc, having' gone off work on 7 December 1993 due to stress, consulted solicitors who wrote on 9 December 1993 that the memorandum dated 2 December 1993 should be with- drawn and complaining about attempts by Council staff to obtain statements from shop owners and members of the pub- lic in relation to the incident of 1 December 1993 (see page 284 (AB)). The letter of 21 December 1993 requiring Mr Miskiewizc to withdraw his allegations that the incident had not occurred was written to him then (see page 285 (AB)). He returned to work on 22 or 23 December 1993. There was other correspondence which I have referred to and also proceedings in the Australian Industrial Relations Commission. On 2 February 1994, there was a meeting attended by Mr Tame, the City Engineer, Mr Leitch, Mr Rick Lutey, the Deputy City Engineer, Mr Rolfe, Mr Miskiewizc and others at whieh Mr Leitch admitted that they were where Mr Rolfe alleged them to be on 1 December 1993 (see pages 290-296 (AB). However, Mr Miskiewizc accused Mr Payne, on this occasion, as having Alzheimer's disease, an accusation he had previously levelled at Mr Rolfe. On 8 February 1994, there was another meeting of the Coun- cil which included Mr Tame, Mr Lutey, Mr Adrian ~ennett of the Federated Municipal and Shire Council Employees Un- ion of Australia and others. Mr Miskiewizc admitted for the first time that the truck had been stopped outside 241 Epsom Avenue, Belmont for about five to eight minutes on 1 Decem- ber 1993. On 8- March 1994, allegations against him, to whieh Mr Miskiewizc was asked to reply, were put as follows (see the letter from Mr Bennett to Messrs Dwyer Durack, exhibit DlO, pages 297"298 (AB)):- (1) Mr Miskiewizc had been present at 241 EpsomAvc enue (Westline Security Pty Ltd) on more than one' . occasion whilst using Couricil vehicles and detain- ing other staff members from their duties as directed by Council. . (2) The actions of Mr Miskiewizc in deliberately and willingly misleading the management and accqsing the Supervisor of lying. . . ..' .. It was alleged that these acts constituted misconduct: ac-' . cordirig to Mr. Bennett's letter. The reply had been required within' 24. hours.' . I will now refe~ to the evidence which' related to those mat-' ters.However, I should first observe that at .nei time' have precise dates and times for these. acts been afleged .. The' evidence in relation to the first allegation was listed as that of Mr Miskiewizc, MrLeitch and Mr McLean;·the pro- .prietor of a business situated at 236 Epsom Avenue, Betmont. MrMi~kiewi~c,in his evidence, describe.d hO~'he used to ·go in and pick up his pay (sec' page.85 (AB)), in cross-examination, and in evidence in chief at ·pages53-54 .. (AB) there was evidence that he worked Thursday for Mr Hope' . at Westline Security Pty Ltd and on Monday, that is the Mon- day following each Thursday he worked:- " ... we normally go after work or I-if we're going past-we don't leave the joh--if we're going past Ep- sOm Avenue and it's my lunch break I will pop in there. If it's extended lunch and we're going past because we're going to do another job, we would stop and I would pop in. Mostly it's after work we go there". He then said that sometimes during the day he went there and he saw nothing unusual about going to piek up his wages because it was in his lunch time which varied all the time, or if they worked through lunch and smoko he would pick it up in the afternoon or in the morning because "it's always on the way past or something to another job". He denied that he would specifically leave a job to go there. He made further reference at page 53 (AB) that if they were passing by these premises:- "I will quick go and pick up the pay-not that I thought that I was wasting any of the council's time. YOU know; it was a matter of jumping out, grabbing it and that was it", Mr Leitch's evidence (and he was a member of Mr Miskiewizc's gang) is set out at pages 226-229 (AB). He gave evidence that he had been to the location at 241 Epsom Avenue, Belmont once or twice before 1 December 1993, but was unable to say why they stopped there, saying in evidence that "you would have to ask the leading hand that". He was unable to say what Mr Miskiewizc had done on these occa- sions, only saying that he might have got out of the truck. His evidence then was as follows (see pages 228-229 (AB»:- Q: "What time of day would this have been?" A: "It would have been lunch time." Q: "Any other times, mornings, afternoons?" A: "Certainly not in the morning, as far as I can recall." Q: "What about other times?" A: "Maybe late in the afternoon." Q: "And this was during working hours?" A: "Yes." Q: "On the occasions that you can recall-and I under- stand th~t it wasn't you who wanted to be there- but do you remember Mr Miskiewizc getting out of the truck and going into Westline, as you identified the place with the sign?" 75 W.A.I.O. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1817 A: "If he does that in lunch time he is quite entitled to do it." He then referred to Mr Miskiewizc getting out of the truck and going into the place to talk to the man and that he, Mr Leitch, and the drivers were there. Later, in cross-examination (see page 234 (AB», he said that he thought that it was a couple of times that they had been to 241 Epsom Avenue, Belmont, and that it could have been during lunch hours, but that he had no real recollection as to when it was. He also said in re-examination that on some days they worked through lunch time and some days on to tea time because some jobs could not be left. There was evidence from Mr McLean, to whom I have re- ferred, who signed a statutory declaration at the request of the Council in December 1993. He said that there was excellent visibility outside the front of his premises. He gave evidence that there was a white Belmont Council truck with and em- blem on the side which parked regularly in the same spot. It had a trailer with a concrete mixer. Westline Security Pty Ltd was directly over the road from his premises and the truck would be parked straight out the front of Westline Security Pty Ltd's premises. It was there many times at different hours, mainly at the beginning of the week and the end of the week over a period of months from three to four minutes, extending to seven or eight or ten minutes. He saw people in the truck who had red vests like Council "chaps working around Belmont wore". The evidence was therefore that Mr Miskiewizc picked his pay up in his lunch hour or after work at 241 Epsom Avenue from Westline Security Pty Ltd. There was evidence from Mr Leitch that the driver of the truck and he had been with Mr Miskiewizc, but during lunch hour. However, he also said that Mr Miskiewizc had called there with them at other times in the truck, maybe late in the afternoon and not in lunch hour time, but during working hours. It was said quite clearly. There was no evidence that any other vehicle had a concrete mixer attached to it, nor was there evidence of any other con- crete gang being employed. The likelihood was therefore that it was the truck which Mr Miskiewizc travelled in, driven by the driver who drove it for him, and perhaps another member of the gang. There was sufficient evidence, on all of that, to find that the concrete crew was there on a number of occasions, and that Mr Miskiewizc went there to pick up his pay on a number of occasions, and that he was there on occasions during working hours when he should not have been there. If he were disbe- lieved and Mr Leitch's evidence, insofar as it absolved him, was in doubt in the mind of the Commission at first instance, then a finding to the same effect could be made on even stronger grounds. I now turn to the evidence in relation to the second allega- tion. There was evidence from Mr Soe Mya, a Technical Officer employed by the Belmont City Council, who reports directly to the Engineering Controller, Mr Payne. He said that he knew Mr Miskiewizc and spoke to him about these matters about a week after 1 December 1993 in his office. Mr Soe Mya told him that the matter was getting messy. His evidence was that he said to Mr Miskiewizc (see page 164 (AB»:- "Why didn't you just, you know, say you were there or something like that?" He also gave evidence that Mr Miskiewizc then said (see page 164 (AB»:- "No, I wasn't there. They have got to prove it to the extent that I was there." That evening, he said, Mr Miskiewizc telephoned him. Mr Miskiewizc was upset and said that he was disappointed that Mr Soe Mya had stitched him up. Mr Soe Mya said that he had replied that he did not work that way. Later. at work, a similar conversation to the first conversa- tion at work was said by Mr Soe Mya to have occurred. Mr Miskiewizc denied, in evidence, that he had spoken to MrSoe Mya. There was also, of course, the evidence to which I have re- ferred of Mr Miskiewizc's denials and his allegations that Mr Payne and Mr Rolfe had Alzheimer's disease, etc. OTHER MATTERS Before turning to the grounds of appeal, I wish to deal with some other matters. Firstly, there is a question of whether Mr Miskiewizc had a duty to reveal that the truck had been parked outside Westline Security Pty Ltd on 1 December 1993 when there was no authority to them to do so, or to cease work I refer to an article by Mr G J McCarry entitled "The Em- ployee's Right to Silence" 57 ALl 607. He observed rightly, in my opinion, that current serving employees are not obliged to admit to derelictions of duty unasked. Lord Atkin in Bell v. Lever Bros Ltd and Others [1932J AC 161 made it clear that an employer could question an em- ployee, and this included the right to ask questions about the employee's honesty in employment. In Associated Dominion Assurance Society Pty Ltd v. Andrew and Another [1949] 49 SR (NSW) 351 Herron J said at pages 357-358:- "Furthermore, a duty lies upon an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an em- ployee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the em- ployee's own actions performed as an employee, provided that these relate to the master's business, the employee is bound, generally speaking, to make such disclosure. Questions asked relating to the employee's activities could be so reasonable and fair that to refuse the infor- mation may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer's legitimate business association. It certainly could destroy all confidence between master and servant which is an essential feature of such con- tracts." (However, an order requiring an employee to incriminate himselflherself will not be a lawful order and the employee will not be bound to obey it (see Re Dispute-Board of Fire Commissioners Re Reports [1971] AR (NSW) 615 at 618 and Adami v. Maison de Luxe Ltd [1924] 35 CLR 143». Mr McCarry in "The Employee's Right to Silence" (op cit) suggests that in the case of a Supervisor the duty involves reporting subordinates, at any rate for serious derelictions of duty, and including but not confined to wrongful uses of prop- erty. Accordingly, as Leading Hand in charge of a gang and a Council vehicle, Mr Miskiewizc, as I would hold, was required to answer questions about the whereabouts of the truck and the gang which were under his control during working hours. It was his duty to answer those questions truthfully as a Lead- ing Hand in charge and arose in terms of Associated Domin- ion Assurance Society Pty Ltd v. Andrew and Another (op cit) to which I have referred and out of his duty to his employer as a Leading Hand. Another question arose in submissions about the applica- tion of Browne v. Dunn (1893) 6 LR 67 and its operation. The operation of Browne v. Dunn (op cit) and its principle, which was said to have been offended in this case, was re- ferred to at length by the Full Bench (which referred to a number of authorities) in Ducasse and Others v. Aitken and Others 75 WAIG 856 at 860-861 and 863-864 (FB). It was submitted to us that the principle in Browne v. Dunn (op cit), an important rule of practice, was offended in this case be- cause evidence was rejected of which there was no cross-examination of Mr Miskiewizc. In particular, it was submitted that it was never put to him that he had caused the Council truck to go off route to visit premises, nor that he had visited the premises other than in his own time, nor that he had done anything in breach of his contract of employment. It was submitted that it was never put to him that his evidence on any matter was untruthful, incomplete or inaccurate, or that he was visiting the premises in a Council truck on numer- 1818 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 w.A.I.G. ous occasions when he should have been working. Further, the rule in Browne v. Dunn (op cit) provides, as the Full Bench said in Ducasse and Others v. Aitken and Others (FB) (op cit), that the rule in Browne v. Dunn (op cit) is not offended if by the nature of the proceedings the appellant (in this case) was clearly put on notice that his version of the events and accord- ingly his credibility was in issue (see, for example, pages 97-98 and 103 (AB». Further, it can properly be inferred that Mr Miskiewizc knew or ought to have known what Mr Leitch's evidence would be because he had intended to call him as his own witness and did not do so. There was no application to recall him, that is Mr Miskiewizc, to reply to any of the evidence. Further, it is obvious from the nature of the cross-exanrination that his credit was in issue. In his evidence in chief he made reference to his visit to the premises at 241 Epsom Avenue, Belmont, and the facts in issue were well known to him in advance and quite clearly put. In all of the circumstances, I would hold that all material parts of the evidence were adequately put to him, that the rule in Browne v. Dunn (op cit) was not offended and there was no unfairness which could result in the Full Bench saying that his evidence was so insufficiently challenged that the findings could not be made. GROUNDS OF APPEAL I now turn to the grounds of appeal. GROUND 1 The Commission at first instance did have regard to inci- dents involving the appellant, but his evidence was not uncontradicted. In fact, it was even, in part, contradicted by the evidence of Mr Leitch, as I read it. Mr Le Miere QC, on behalf of the appellant, submitted that we ought to take a dif- ferent view of Mr Leitch's evidence, but, on a plain reading of it, I cannot. I have already explained my views above. In any event, if the Commission did not accept the evidence of Mr Miskiewizc in those respects it was a course open to him so to take. I should say now that in terms of the principles laid down in Devries and Another v Australian National Railways Com- mission and Another (op cit), Gromark Packaging v. FMWU (lAC) (op cit) and FMWU v. Board of Management, Narambeen District Hospital (lAC) (op cif), the Commission at first instance did not, in my opinion of the evidence, misuse its advantage in observing the witnesses. The Commission was accordingly entitled to have regard to the fact that there were a number of incidents of frequent occurrence over sev- eral months, lasting in each instance between three and 10 min- utes, without taking account of any misuse of a vehicle where Mr Miskiewizc had deviated from the path which he ought properly to have been taking in the course of his employment. This observation applies even if some of the visits were in his lunch hour and were not therefore to be included. There was evidence of at least a number of such visits, according to Mr McLean' s evidence, read with that of Mr Leitch' s, because they occurred at various times of the day. It is quite clear, too, on Mr Miskiewizc's own evidence that his visits were not for employment purposes, even though he differed from other evidence as to the times when he went to Westline Security Pty Ltd. Ground 1 is not made out. GROUND 2 The Commission at first instance clearly took into account and gave due weight to the limited literary and comprehen- sion abilities of the appellant. Further, the evidence was quite clear from Mr Payne that he had alleged that on 1 December 1993 Mr Miskiewizc and his crew were outside Westline Security Pty Ltd. In any event, as I have said, the memorandum of 2 Decem- ber 1993, which was referred to Mr Miskiewizc's solicitors by him, was very clear. The allegation that he was engaged in private business was not, in my opinion, confusing. Mr Miskiewizc later admitted that he was outside Westline Security Pty Ltd, but for eight to 10 minutes, not 20 minutes and not on the Council's business. It was perfectly clear, I think, that private business meant not on the Council's busi- ness. As to the breach of dispute settlement procedure, it is true that the Commission failed to give any sufficient considera- tion to it. However, what occurred in a situation where solici- tors and the Australian Industrial Relations Commission were involved and occurred as part of a process where negotiations and other events were occurring as if a dispute procedure had been invoked, was, in my opinion, of little weight (abnor- mally so), having regard to that situation and having regard to the other evidence. It would not be sufficient to vitiate the decision of the Commission at first instance in this matter. On the evidence, too, which I have outlined, there was little attempt to. genuinely solve the dispute on the part of Mr Miskiewizc, nor was there any co-operation or any real co-operation between the appellant in the investigation, on any of the evidence, but particularly that of Mr Payne and Mr Rolfe. The events of 2 February 1994 further confirm this view. Ground 2 is not made out. GROUNDS 3 AND 4 The Commission at first instance was right in having regard to the memoranda issued to Mr Miskiewizc in the course of his employment and the subjects thereof, even if the only ones to which he could properly advert were those referring to Mr Miskiewizc leaving his work and misinterpreting the situ- ation involving Mr Jimmy Taylor. Those were sufficient to attach some weight to. As to his previous employment from when he was engaged in 1988, that was such a brief period and nothing was said before the Full Bench which would persuade me, in any event, that any real weight should have been attached to it, having particular regard to the evidence in this matter as a whole. Grounds 3 and 4 are not made out. GROUNDS The Commission at first instance did have regard to Mr Miskiewizc's employment history and proper regard, as I have just explained. The main question this ground raises is whether the incident or incidents justified summary dismissal or whether the incident referred to, namely that of 1 Decem- ber 1993, was minor. Certainly, there was evidence that the incident of 1 December 1993 could have stopped where it did after the issue of the memorandum of 2 December 1993. Mr Payne gave some evidence to that effect. However, the event of I December 1993 was a breach which was condoned for the purposes of any right to summary dismiss (see Federal Supply and Storage Co of South Africa v. Angehrn (1910) 103 LT 152 and McCasker v. Darling Downs Co-Op Bacon Association (1988) 25 IR 107). However, previous and waived misconduct may be taken into account in determining whether fresh misconduct justi- fies summary dismissal. Accordingly, the Commission was entitled to have regard to the incident of 1 December 1993 (as was the employer in deciding whether to summarily dismiss), and fresh conduct occurred to revive it (see John Lysaght (Aus- tralia) Ltd v. Federated Iron Workers; Re York (1972) 14 AILR 517, McCasker v. Darling Downs Co-Op Bacon Association (op cit) and Australasian Transport Officers Association v. Department of Motor Transport (1988) 25 IR 235 at 244-245) in considering whether the summary dismissal was justified. Mr Miskiewizc's failure to honestly admit what had oc- curred, his failure to properly discharge his duty therefore as a Leading Hand, his attempts to discredit Mr Rolfe and Mr Payne and his failure to properly supervise his gang, and, indeed, to carry out his own duties or delaying them in the course of their employment, were matters which the Commission was entitled to consider. The Commission was also entitled to take into account the evidence that before December 1993 Mr Miskiewizc had in- terrupted his work, albeit for brief periods, but, as a matter of probability, on a number of occasions, to visit the premises of Westline Security Pty Ltd in a Council truck in the company of other employees. (It is to be noted that he could not drive the B class truck which had a driver). It was not essential to the Commission's ultimate finding that Mr Miskiewizc had 75 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1819 been formally warned in the past about similarly abandoning his duties by memorandum. There was ample evidence on which, applying the test in BIyth Chemicals Ltd v. Bushnell (op cit), that one could say that a summary dismissal was justified. There was ample evi- dence on which one could say that the event of 1 December 1993, revived after it had been previously condoned, and that Mr Miskiewizc's failure to honestly deal with the matter mani- fested an intention to breach the contract of employment in such a manner as to justify repudiation (see the evidence of his behaviour on 2 February 1994) and his behaviour to Mr Payne and Mr Rolfe when he was first approached by them indirectly. However, as well, there was ample evidence of concealment of misuse of the truck by going to Westline Se- curity Pty Ltd's premises when he should have been working, in a Council vehicle with other employees on occasions be- fore 1 December 1993, as I have observed. Even if Mr Miskiewizc used the Council truck and driver during lunch hours to pick up his pay there is the question of the use of the Council's vehicle and driver for private purposes still involved. It was open to the Commission to find that the summary dismissal was justified. All of the circumstances, too, prop- erly led to the conclusion that the dismissal was not harsh and unfair or oppressive in terms of the Undercliffe Case (lAC) (op cit). There was ample evidence on which the Commis- sion might find that the summary dismissal was justified and that the onus to establish, which lay upon the respondent, was discharged. Ground 5 is not made out. GROUND 6 In the context of all of the evidence, the Commission at first instance properly considered the principles relating to unfair dismissal cases, as] have observed. The attendance at 241 Ep- som Avenue, Belmont by Mr Miskiewizc occurred, on the evidence, at the very least once a month over several months before 1 December 1993 and lasted between three to 10 min- utes. Undue regard was not paid to these visits. Ground 6 is not made out. GROUNDS 7 AND 8 I now turn to the question of whether the dismissal was un- fair, having regard to the procedural unfairness involved. The Commission at first instance properly found that there was procedural unfairness. However, Shire of Esperance v. Mouritz (lAC) (op cit), not Byrne and Another v. Australian Airlines Ltd 120 ALR 274, was applicable in this matter. I am not able to say from the reasons for decision of the Commission that the Commission gave too little weight to the unfairness in procedure occasioned by a degree of vagueness in the allegations and the unreasonable time from which Mr Miskiewizc was required to respond to allegations made against him. In this respect I refer to Gronow v. Gronow 29ALR 129. (l should also observe that grounds 7 and 8 really run into each other). However, Shire of Esperance v. Mouritz (lAC) (op cit), per Kennedy J at page 895 and per Nicholson J at page 899, is authority for the proposition that any breach of the rules of natural justice (procedural fairness) is a relevant circumstance in determining the critical question as to whether a dismissal is harsh or unjust. Whether an employer in bring- ing about a dismissal adopted procedures which were fair to the employee is an element in determining whether the dis- missal is harsh or unjust. In this case, procedural fairness could not be said to be the main element in so determining, having regard to all of the other evidence ofMr Miskiewizc's conduct. Grounds 7 and 8 are not made out. I am of the opinion that the Commission at first instance did not err in the manner referred to in House v. The King (op cit) in the exercise of its discretion, or in any other matter of fact or law contained in the grounds of appeal. In particular, I should observe that there was insufficient evidence upon which the Commission might find that the appellant had established at first instance that the dismissal was unfair. The appeal is not made out, in my opinion, and I WOUld, for those reasons, dismiss the appeal. COMMISSIONER BEECH: I have had the advantage of reading in draft form the Reasons for Decision of His Honour the President. I agree with him that the appeal should be dis- missed. In doing so I wish to comment upon one matter which arose during the course of the proceedings before the Full Bench. It was argued that Mr Miskiewicz did not know the allega- tions against him when he gave his evidence. It is common ground that Mr Miskiewicz was summarily dismissed. In those circumstances the respondent should have been required to present its case first and show that the circumstances existed to warrant the summary dismissal (Winkless v. Bell (1986) 66 WAlG 848; Shire of Esperance v. Mouritz (1.991) 71 WAIG 891 at 895; and see too Pastrycooks Union v. Gartrell White (No.3) (1990) 35 IR 70 at 83). That did not happen here because by the agreement of the parties Mr Miskiewicz elected to present his case first (AB 35). Moreover, he did so submit- ting that if fresh matters were raised during the course of the case he would be content with the opportunity to call rebuttal evidence. But no application for leave to bring rebuttal evi- dence was made by Mr Miskiewicz following the respond- ent's case. If indeed Mr Miskiewicz was disadvantaged in the manner submitted then he should have sought to give evi- dence in rebuttal. The disadvantage was remediable before the Commission at first instance. Mr Miskiewicz is bound by the conduct of his own case (University of WolJongong v. Metwally No 2 (1985) 59 ALJR 481). It is simply too late now for Mr Miskiewicz to raise that issue upon appeal given the agreed manner of proceedings. I agree with the orders proposed. COMMISSIONER PARKS: I have read the draft reasons prepared by the President. I agree therewith and the decision that the appeal be dismissed. THE PRESIDENT: For those reasons, the appeal is dis- missed. Order accordingly Appearances: Mr R L LeMiere QC by leave and with him Mr B L Tee (of Counsel) by leave on behalf of the appellant. Mr S J Kenner (of Counsel) by leave on behalf of the re- spondent.