AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
PR942601 issued by Commissioner Raffaelli on 16 January 2004
Xiu Zhen Huang
(C2004/1773)
Xiu Zhen Huang
and
Rheem Australia Pty Ltd
(U2003/96)
VICE PRESIDENT LAWLER |
|
DEPUTY PRESIDENT LEARY |
|
COMMISSIONER DEEGAN |
MELBOURNE, 9 FEBRUARY 2005 |
Termination based on employee's failure to adhere to reasonable time periods away from her work and failure to inform supervisory staff of absences - whether it was open for the Commissioner to make findings that the relevant absences occurred - whether Commissioner failed to take account of alleged breach of procedure in certified agreement - whether termination disproportionate to conduct - whether adequate reasons given - consideration of the rule in Browne v. Dunn - consideration of the rule in Jones v. Dunkel - open to Commissioner to make relevant findings of fact - no breach of certified agreement - termination not harsh - adequate reasons given - leave to appeal refused.
DECISION
[1] This is an appeal against the decision given by Commissioner Raffaelli1 on 16 January 2004 ("Decision") dismissing an application by the Appellant made pursuant to section
17OCE of the Workplace Relations Act 1996 ("the Act").
[2] The Commissioner commenced his Decision by summarising the issues between the parties:
"[2] The applicant was terminated on 16 May 2003. Broadly Rheem terminated her employment following what it said was the applicant's failure to adhere to reasonable time periods away from her work and failure to inform appropriate supervisory staff of such absences from her work area. Rheem relied on a series of counselling and warning sessions prior to her dismissal."
[3] As noted by the Commissioner2, an important background fact is that at the Respondent's factory there used to be a practice whereby employees could leave their work areas for two `unofficial' breaks of 20 minutes in each shift. This was in addition to the two tea breaks and one meal break to which the employees were entitled. The employees had no legal entitlement to the two `unofficial' breaks. In about mid 2002 the Respondent, in the interests of improving the efficiency of its assembly line, decided to put an end to the `unofficial' breaks. The Commissioner noted that "There does not seem to be any doubt that the policy then became that employees who had to leave their work areas (usually to attend
the toilet) could do so after informing their leading hand. The break was to be as short as was necessary". The evidence suggests that most of the employees complied with the new policy while, it appears, a small number of employees continued to take `unofficial' breaks in defiance of the new policy. The Respondent's case was that the Appellant was one of these recalcitrant employees.
[4] The Commissioner noted:3
"[5] The series of transgressions alleged by Rheem and generally denied by the applicant need to be considered. This is because they were referred to in the final counselling session involving the applicant on 16 May 2003 and relied on by Rheem in dismissing her (see Exhibit R5/5.9 appendices I and J)."
[5] The Commissioner then detailed a series of incidents that occurred between August 2002 and Easter 2003. On 19 November 2002 the Appellant was given a written warning in relation to unauthorised absences from her work station during working time. On 3 December 2002 the Appellant was given a written instruction to seek the permission of a supervisor before leaving her work station during working time:4
"Nora,
This note confirms our position following representations from Dave Henry, AMWU Organiser regarding the counselling meetings on 12th and 19th November 2002.
As you know the main issue is our aim to run the Rydalmere factory from `siren to siren' with employees remaining at their work station during this time, except for genuine needs to be absent, such as going to the toilet. Therefore, we have highlighted to you and all employees that we do not recognise the practice of taking two 20 minute unofficial toilet breaks each shift.
We have also highlighted to you and all employees the need to seek approval to leave the work station so that relief can be arranged, etc. On the 19th November we asked that you talk with the Supervisor prior to leaving over the next 3 mths. This can be done by approaching the area leading hand who will use the `walkie talkie' to immediately contact either Supervisor. After 3 mths of monitoring this procedure, we will consider reverting to only needing to talk with the area leading hand.
...
Because the Formal Stage One - Counselling of 12th November 2002 was preceded by numerous information chats, this warning stands. However following representations from Dave Henry, the Formal Stage Three - 2nd Written Warning of 19th November 2002 has been scaled back to a Formal Stage Two - 1st Written Warning. You will be given a revised interview record and asked to sign it & asked if you wish to retain a copy.
Peter Ross
General Manager Human Resources
Rheem Australia Pty Ltd"
[6] On 23 January 2003 the Appellant was given a second written warning. On 29 April 2003 the Appellant was given a final warning. The Appellant was dismissed on 16 May 2003. The Commissioner dealt with the Easter period and the dismissal in the following way:5
"[17] According to the evidence of Ms Lejtman (Exhibit R5/5.7, PN1408, PN1599, PN1764) on 23 April, the applicant had several breaks without the approval of her supervisor. On 24 April she left her work site again without approval. Ms Lejtman approached her and sought an explanation. The applicant was un-cooperative and Ms Lejtman asked her to go home and return when a meeting with delegates was possible on 29 April 2003. The applicant refused to leave, even when asked to do so by a security officer. On 29 April 2003, a meeting occurred involving Ms Lejtman, the applicant, union delegates, Mr Meyer and Mr Ross. She was given a final warning for her failure to obtain prior approval for her absences. Mr Meyer's evidence (Exhibit R11/5.7) was that at the meeting on 29 April 2003 the applicant was uncooperative.
[18] The applicant's evidence (Exhibit H1/63, PN239, PN634, PN645) was that Ms Lejtman abused her. Her evidence also was that she had informed her leading hand who could easily have told her supervisor of her absence. The fact is that the applicant was informed in writing by Mr Ross on 3 December 2002 that she needed to inform supervisors of her absences (Exhibit R5/appendix D). Her evidence attempted to portray her actions as reasonable and Rheem's conduct unfair and overbearing. In fact the applicant directly disobeyed a lawful direction given to her.
The Dismissal on 16 May 2003
[19] According to the evidence of Ms Lejtman (Exhibit R5/5.0) on 16 May 2003 she attended a meeting at which were also present the applicant, several delegates, Ms Meyer and Mr Ross. At this meeting the company tabled a history of incidents and warnings (Exhibit R5/appendix I) and asked the applicant to explain several incidents since the counselling on 29 April 2003. These incidents involved absences without approval and/or of lengthy periods. The applicant disputed all that was put to her. She was dismissed for failure to respond to Rheem's desire for an explanation for the recent absences and in the context of the past six month's conduct. Mr Reardon gave evidence (Exhibit R7/5.7) that he monitored the applicant's absences in May 2003. The evidence of Mr Meyer (Exhibit R11/5.9) was that the applicant was dismissed for the continuation of her misconduct and failure to provide satisfactory explanations. The applicant's evidence (Exhibit H1/77) disputed Rheem's claims. She indicated that on all occasions she "had various people coming forward to provide witness statements in support of my story". (Exhibit H1/84)
[20] I observe that in this respect no such witness was presented to the Commission in support of her story concerning the many incidents. The evidence of a delegate Mr Zhang (Exhibit H5/37) who attended the meeting, was that Rheem was not interested in resolving the problem. He doubted the accuracy of various time records. I am prepared to accept the evidence of Mr Reardon who said he was involved in monitoring her absences through May 2003. I am not satisfied that the applicant took steps at the meeting of 16 May 2003 (or in the Commission proceedings) to directly challenge the information put by Rheem. I do not rely on the applicant's evidence that the incidents in May 2003 were not as identified by Rheem." (emphasis added)
[7] The Commissioner held that the Respondent had a valid reason to terminate the employment of the Appellant [cf. s.170CG(3)(a)]:6
"[22] Firstly, as to whether the termination was for a valid reason related to the conduct of the employee, I consider that a valid reason did exist. The reason for the applicant's termination was her continued transgression throughout May 2003 as to the length of her absences from the job and her failure to obtain supervisory approval as was required by Rheem. I consider that she did transgress, and I rely on the evidence of Rheem which I have identified above. Additionally, her shortcomings were in the context of six months of disregard for Rheem's policy and lawful directions. The policy as to limited absences from the work site was an important issue for Rheem and it was entitled to expect that employees would adhere to it. The fact that even after many months during which the applicant was warned and counselled she would still transgress on many occasions in May 2003, provided Rheem with a valid reason to dismiss the recalcitrant offender."
[8] The Commissioner found that the Appellant was notified of the reason for her termination and was given an opportunity to respond to the Respondent's concerns as to her conduct.7 The Commissioner considered the evidence of various witnesses. He found the evidence of witnesses called on behalf of the Respondent to be "unhelpful".8 He rejected any suggestion that the Appellant had been singled out by the Respondent or its relevant manager Ms Lejtman.9 He noted that "there was no evidence presented or even suggestions made that other Rheem employees were continuing to observe lengthy unauthorised absences and were not being dealt with by Rheem".10 The Commissioner formed a favourable view of the evidence of Ms Lejtman.11 He pointed to aspects of the Appellant's evidence which he clearly regarded as unsatisfactory.12 The Commissioner concluded as follows:
"[40] It is said that Rheem had no data on which it could base its disciplinary actions on the applicant. I am satisfied that in some instances supervisors observed the applicant's transgressions. In other instances they relied on information from others. While the applicant now challenges that data, the evidence indicates that in most cases the applicant said nothing at the relevant interviews.
[41] If the applicant disputed the facts at the time she did so with glib denials. On one occasion, 23 January 2002 she sought to rely on two colleagues. (I have already commented on the unhelpfulness of the material concerning those workmates). Rheem was entitled to rely on direct observation by supervisors and also on what supervisors were made aware of by shop floor workers, particularly where no attempt was made to challenge the observed times and shortcomings relied on by Rheem.
[42] On balancing all the considerations that the Commission considers relevant, I determine that the termination of the applicant was not harsh, unjust or unreasonable.
[43] In so finding I have also given due regard to the need for a "fair go all round" to be accorded to both parties as necessitated by section 170CA(2).
[44] The application is dismissed."
[9] It is now well established that where a termination of employment is for reasons related to conduct, the relevant test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct that resulted in the termination. Rather, where a dismissal is based on misconduct the Comimssion is required to determine for itself, on the evidence before it, whether or not the alleged conduct occurred.13
[10] The principal ground of appeal was that the Commissioner erred in finding that there was a valid reason for termination because there was no evidence on which it was open to the Commissioner to make a finding that the misconduct on which the termination was based (ie. the Appellant's absences from her worksite in May 2003 following the final warning on 29 April 2003) in fact occurred. The Appellant argued that:
In the alternative, the Appellant submitted that the Commissioner made the following errors:
Evidence of absences in May 2003
[11] Exhibit R2 before the Commissioner was a spreadsheet that listed the dates on which representatives of management spoke with the Appellant in the period November 2002 to May 2003 and the dates and duration of absences including eleven incidents in the period between 29 April 2003 and 16 May 2003 where the Appellant was allegedly absent for a period longer than 10 minutes without having first sought approval. Objection was taken to the tender of that document before the Commissioner. It is apparent from the transcript that the tender was then limited so that the document was admitted as a summary only and not as evidence of the facts it purported to summarise. We agree that, in those circumstances, the Respondent was not entitled to rely upon Exhibit R2 as evidence of unauthorised or excessive absences in May 2003. Nevertheless, in our opinion, there was evidence before the Commissioner which entitled him to make the finding that he did in relation to the absences in May 2003.
[12] The witness statement of Ms Lejtman was attended and admitted as Exhibit R5. Paragraph 5.9 of that statement is as follows:
"As previously arranged, we met with Nora, Delegates Jo Sultana & William Zhang, plus Rob Meyer & Peter Ross. We tabled the history of warnings to date (Appendix I) and asked Nora to explain the date relating to absences since the last warning whilst working in the burner cell under Ming Lam. These absences showed 11 separate incidents over the 9 continuous working days with absences of greater than 10 mins each. Additionally, there were at least 3 unauthorised absences in that time. This data had been verified by supervision and co-workers. The meeting was held over to the 16th to allow the senior delegate to attend. Nora disputed all the data and denied she was absent at the times indicated. Faced with this pattern over the past 6 months the management decided to terminate Nora's employment. The termination letter is Appendix I and the termination pay advice is appendix K."
[13] Section 110(2)(b) of the Act provides:
"(b) The Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just;"
[14] On its face, the evidence in paragraph 5.9 of Ms Lejtman's statement as to absences in May 2003 is clearly hearsay. By virtue of s.110(2)(b) the Commissioner was not precluded from acting on that evidence merely because it was hearsay. The Appellant's representative took no objection to paragraph 5.9 at the time Ms Lejtman's statement was tendered. Had such an objection been taken it may well have been upheld on the basis that, being hearsay evidence, the Appellant could not effectively test it in cross-examination. Be that as it may, no such objection was taken. The evidence having been admitted, the Commissioner was entitled to rely upon it.
[15] Appendix I to Ms Lejtman's statement is entitled "PERFORMANCE COUNSELLING RECORD" and contains a detailed chronology. The entry for 13 May 2003 includes the following:
"13th May 2003
a. Monitoring meeting as discussed
b. Reaction/reasons sought from Nora re Company record since last warning on 29th April of long breaks every working day since then.
c. Meeting held over to 14th May for Snr Delegate to attend
d. Meeting deferred to 15th for Organiser to attend
e. Meeting deferred to 16th for Snr Delegate to attend."
[16] Exhibit R7 before the Commissioner was a witness statement of Mr Roy Reardon. Mr Reardon is the afternoon shift supervisor and reports to Ms Lejtman. In paragraph 5.7 of that statement Mr Reardon states:
"In May 2003, I was involved in monitoring [the Appellant's] absences from the job."
[17] Paragraph 7.3 includes the following:
"I personally made special efforts to get [the Appellant] to change her behaviour. I spoke with her many times, asked "what's the problem?" and appealed for her to cooperate, like others had.
...
Another time just before termination, Nora was absent from the burner table & I noticed her in the press shop. Her explanation was that she was talking about CD's for her radio. I suggested she do this in her own time. The fact that this was still occurring so late in the disciplinary process was alarming."
[18] Finally, we note that the advocate for the Appellant effectively cross-examined relevant entries in Exhibit R2 for May 2003 into evidence.14
[19] In our opinion the evidence to which we have referred was evidence that enabled the Commissioner to make the findings recorded in paragraph [19] of the Decision.
Failure to cross-examine the Applicant/Failure by Respondent to call witnesses
[20] The Appellant's statement, inter alia, contains a denial of unauthorised absences from her work station in May 2003. She was not cross-examined on that denial. The Appellant submits that in these circumstances, the rule in Browne v. Dunn prevented the Commissioner from finding that the conduct on which the termination was based, that is, absences without approval and/or for lengthy periods in May 2003, occurred. The Appellant submits that since the Respondent failed to call employees who witnessed the unauthorised and/or lengthy absences in May 2003 the Commissioner erred in not drawing a Jones v. Dunkel inference which should have resulted in the Commissioner finding that the Respondent had not established the May 2003 absences that ultimately resulted in the Appellant's dismissal.
The Rule in Browne v. Dunn15
[21] The rule in Browne v. Dunn is much misunderstood. Advocates frequently assert that the rule obliges the Commission to accept evidence not challenged in cross-examination or prevents the Commission from making a finding contrary to evidence not challenged in cross-examination. We hasten to add that those remarks do not apply to counsel for the Appellant in this case. In R v. Birks16 Gleeson CJ, with whom McInerney J agreed, provided a thorough exposition of the rule. The passage is lengthy but it is desirable to set it out in full:17
"Since so much was made at the trial of what is often called the rule in Browne v Dunn it is necessary to make some observations upon four matters: first, the nature of the "rule" itself; secondly, its application to criminal trials; thirdly, the remedies that are available in the event of a breach of the rule, and fourthly, the scope for drawing inferences of fact based upon a failure of counsel to cross-examine.
It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.
Browne v Dunn was a case in which there was an issue as to whether a document was genuine or a sham. Counsel for the appellant, in the House of Lords, put an argument to the effect that it should have been concluded at first instance that the document was a sham. However, a number of persons who had signed the document as witnesses had been called at the trial and it had never been suggested to them that the document was anything but genuine. The House of Lords regarded the appeal as hopeless and counsel for the respondent was not called upon. Lord Herschell LC said (at 70-71):
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. ... Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted."
Lord Halsbury said (at 76-77):
"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross- examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
Lord Morris expressed qualified agreement. His Lordship said (at 79):
"My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross- examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness's credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit." (emphasis added)
[22] We interpose to observe that the speeches in Browne v. Dunn recognised a key issue will be whether the witness had notice of what was to be alleged against them. The archetypal circumstance of unfairness is where adverse matters are (later) alleged without them being put to the witness in cross-examination and where the witness had no notice that those allegations would be made. We also note that Lord Morris suggested that a witness' evidence may be so "incredible and romancing" that it can properly be attacked in submissions without there having been any cross examination. Gleeson CJ continued:18
It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non- observance, including the remedies that are available to deal with a problem so created.
...
The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237):
"This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness's evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In other cases, the problem may arise only on appeal. This, in my opinion, is what happened in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. The appellant had argued successfully before the Court of Appeal that the amount awarded to her by the jury was so small that it was out of proportion to her injuries. The respondent defendant had apparently argued before the High Court that the amount awarded would not have been out of proportion if the jury had concluded that the plaintiff, uninjured, would not have continued to work as she had sworn that she proposed to do. Gibbs J (at 370-371) pointed out that the plaintiff had not been cross-examined upon her evidence in that regard and that therefore it would not have been open to the jury to reject that part of her case. It would have been 'unreasonable' for them to have taken a contrary view, and his Honour concluded that it was not open to the respondent to support its case upon the basis that it had."
The above passage indicates the variety of circumstances in which a failure to observe the rule can manifest itself, and the ways in which a significant unfairness may be avoided.
However, as in the present case, it is often suggested that the practical effect of the rule goes a good deal further. It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a "comment" following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394." (emphasis added)
[23] Some of the comments extracted relate to directions to be given to a jury sitting as the tribunal of fact. In a hearing before the Commission, the Commission is the tribunal of fact. The comments apply with appropriate adjustment.
[24] In White Industries (Qld) Pty Ltd v. Flower & Hart19 Goldberg J analysed the requirement that a party or witness be put on notice of a proposed challenge to a witness' evidence, where that challenge is not otherwise apparent to the witness. His Honour noted:20
"It is apparent, from the judgment of Lord Herschell that notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made. This proposition was picked up by Hunt J in his extensive analysis of the rule and the cases which had considered it in Allied Pastoral Holdings Pty Ltd v FCT where he said at 623:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn [1894] 6 R 67.
But as Hunt J pointed out (at 630):
In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge.
The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15."
[25] An appeal against his Honour's decision was dismissed although the Full Court of the Federal Court held that it was unnecessary for his Honour to make findings about the purpose of a particular witness. The Full Court held that those findings had no bearing on the result but proceeded to make some comment on the submission that to make such findings involved a procedure that was basically unfair to the witness and involved a breach of the rule in Browne v. Dunn. That submission was rejected. The Full Court noted:21
"As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; 44 ALR 607; R Cross, Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991, para 17445."
[26] A particular consequence of this summary of principle by the Full Court is that there may often be little scope for the operation of the rule in Browne v. Dunn in relation to matters clearly placed in issue in statements or affidavits filed and served before a hearing. Whether there is any scope for the application of the rule in such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case.
[27] The consequences of a breach of the rule in Browne v. Dunn will also vary depending upon dictates of fairness in the particular circumstances. The proposition that the rule in Browne v. Dunn requires the decision maker to accept evidence not the subject of cross-examination has been expressly rejected by Samuels JA in Ellis v. Wallsend District Hospital22 with whom Kirby P and Meagher JA relevantly agreed.23
"The appellant challenged his Honour's rejection of the necessary causative link between breach and damage upon two grounds. First, it was submitted that because the appellant's evidence about running to Bourke, that is her assertion that had she been warned of the possibility of paralysis she would have declined the procedure, was not challenged in cross-examination, it followed as a matter of law that the judge was bound to accept it and therefore to find the causative link established. For this proposition reliance was placed upon Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371 per Gibbs J, as he then was, with whom Stephen J and possibly Murphy J agreed; and upon Paterson v Paterson (1953) 89 CLR 212 at 223. I am unable to see that the submission derives any support from the decision in Paterson which I can therefore put aside.
The dictum in Precision Plastics Pty Ltd v Demir is founded upon Browne v Dunn (1893) 6 R 67 and, in particular, upon what was said by Lord Halsbury (at 76-77). However, neither Precision Plastics Pty Ltd v Demir nor Browne v Dunn authorises any rule of law that a judge is bound to accept any evidence which is not challenged by cross-examination. Gibbs J said (at 371):
"..._In these circumstances, in my opinion, the jury, acting reasonably were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five."
The circumstances which Gibbs J took into account were that the evidence was not "inherently incredible" because the plaintiff had in fact been regularly employed and had given up work only when it was necessary to care for her child. His conclusion was therefore that the jury's refusal to accept the evidence would, in the circumstances of that case, have been unreasonable; and in that event, would have amounted to an error of fact and not of law." (emphasis added)
[28] The rule in Browne v. Dunn is fundamentally a rule of fairness in relation to the way in which the fact finding process ought proceed. It should not be applied in some mechanical fashion compelling a particular outcome whenever a witness is not cross-examined on aspects of his or her evidence. As Gleeson CJ in R v Birks notes24 "the central purpose of the rule [in Browne v. Dunn] is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of a rule in a given case, and to the consequences which may properly flow from its non-observance".
[29] Pursuant to section 110(2)(b) the Commission is "not bound by any rules of evidence". Pursuant to that provision the Commission "may inform itself on any matter in such manner as it considers just" and pursuant to section 110(2)(c) the Commission must "act according to equity, good conscience and the substantial merits of the case". It is fundamental to the statutory remit of s.110(2) that the Commission deal with matters before it in a manner that is fair. It is precisely because the `rule' is fundamentally concerned with issues of fairness that the Commission will apply it in an appropriate case.
[30] Equally, the impact on the fact finding process of a failure to cross-examine a witness on aspects of his or her evidence is ultimately a matter in the discretion of the member hearing the case at first instance. A `breach' of the `rule' will only give rise to error on the part of the member at first instance if the member acted unreasonably in that regard resulting in factual findings that are relevantly unfair. These observations apply equally to the rule in Jones v. Dunkel to which we will shortly turn.
[31] In the present case we are not satisfied that the Commissioner erred in this way. In the present case we are firmly of the view that the rule in Browne v. Dunn, properly understood, did not require the Commissioner to accept and act on the unchallenged evidence of the Appellant denying the May 2003 absences. The case falls squarely within the passage from the speech of Lord Herschell LC in Browne v. Dunn where the Lord Chancellor said:25
"Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which [the witness] is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to [the witness] upon it."
The filing and service of witness statements in the present matter had put the Appellant squarely on notice that unauthorised or unduly long absences from her work site, including in May 2003, were a central allegation against her. In the particular circumstances of this case we see no manifest unfairness in the Commissioner failing to place significant weight on the failure by counsel for the Respondent to cross-examine the Appellant on her denials in relation to the May 2003 absences, particularly in light of the extensive challenge to other evidence of the Appellant in her cross-examination and the adverse view the Commissioner had formed as to her credit.
The rule in Jones v. Dunkel26
[32] The Appellant submitted that the Commissioner erred in not drawing a Jones v. Dunkel inference from the failure of the Respondent to call employees who had witnessed the appellant's absences, particularly in May 2003.
[33] The rule in Jones v. Dunkel is a rule of commonsense and fairness in relation to the fact finding process. The rule was considered at length by a full bench of the Commission in Tamayo v Alsco Linen Service Pty Ltd27 and we respectfully endorse that analysis. The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's `camp'. However, the rule also extends to an unexplained failure to tender documents within the party's control. A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case.28 A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.
[34] The impact on the fact finding process of an unexplained failure by a party to call or tender apparently relevant evidence within that party's control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of commonsense and fairness. Absent an error of principle, a breach of the rule in Jones v Dunkel will only give rise to error on the part of a member at first instance if the member acted unreasonably in drawing or failing to draw the relevant inference resulting in factual findings that are manifestly unfair.
[35] In the present case it was not unreasonable, and thus not relevantly unfair, for the Commissioner to act on the evidence led by the Respondent that was before him in relation to the May 2003 absences notwithstanding that the Respondent did not call evidence from one of the two supervisors who monitored those absences, or from co-workers.
[36] The co-workers were not witnesses that the Respondent in this case would necessarily be expected to call. In relation to the absent supervisor, evidence was given by the other supervisor, Mr Reardon that he was involved in monitoring the Appellant's absences in May 2003. While Mr Reardon did not monitor all of those absences29, it was not suggested to him that he monitored none of them. The reliability of Ms Lejtman's hearsay evidence as to the May 2003 absences was not materially undermined in cross-examination. If the hearsay evidence from Ms Lejtman had been expressly, or by necessary implication, confined in its source to the absent supervisor that would have been a different matter. However, it was not so confined.
[37] Of course, even if the Jones v. Dunkel inference were to be drawn in relation to the supervisor who was not called by the Respondent, the appropriate inference in this case is that his evidence would not have assisted the Respondent and not an inference that his evidence would have harmed the Respondent's case or positively supported the Appellant's case. That is, the Jones v. Dunkel inference is not an inference that the absent supervisor would have given evidence that the May 2003 absences did not occur.
Failure to take account of alleged breach of procedure in certified agreement
[38] Exhibit R10 was an extract of clause 9 of a certified agreement agreed by the parties to be identical to a provision in a certified agreement that applied to the Appellant's employment at the time of her dismissal. Clause 9 is in the following terms:
"9. Counselling and Disciplinary Procedure
9.1 Absenteeism
In addressing absenteeism, the following Counselling and Disciplinary Procedure will apply to employees with poor attendance records in terms of excessive absenteeism and/or poor timekeeping where the absences are without pay, without approval or without reasonable cause:
1. In the first instance, the employee will be counselled by his Supervisor regarding his poor attendance and asked for an immediate improvement.
2. If this does not occur, and the poor attendance continues, the employee will be issued with a first written warning.
3. If subsequently there is still no improvement in attendance, the employee will be issued with a second and final written warning.
4. If subsequently there is still no improvement in attendance, then it is open to the Company to dismiss the employee.
During the operation of this procedure:
(A) Every opportunity, and where appropriate assistance, will be afforded to employees by the Company to improve their attendance. Where employees may have a genuine personal problem which affects their attendance at work the Company will assist within reason (eg. Referral to Community Assistance Programs), as spelt out in the site Alcohol and Other Drugs Policy.
(B) The employees shall have the right to have a union delegate or safety representative present through all stages of this procedure.
(C) There shall be a reasonable time period (at least four weeks) for the employee at each stage of the procedure to demonstrate an improvement in attendance.
(D) Any written warning shall have a life of 12 months from the date it was entered on the employee's record and not be utilised for future warnings.
(E) The Pay Office shall maintain the attendance/timekeeping records and Supervision shall be responsible for administering this procedure to ensure a fair and consistent approach.
9.2 Misconduct
Where employees need to be counselled/disciplined for misconduct, the framework outlined in Steps (1) to (4) above in regard to poor attendance will be followed in regard to misconduct, according to the severity of the misconduct. For example, minor misconduct may require counselling to start with, whereas in the event of serious misconduct the Company may exercise the option of summary dismissal.
The employee shall have the opportunity to have a union delegate present during any discussions with the employee concerning their misconduct.
Copies of any written warnings shall be given to the employee and also held on the employee's record."
[39] It was submitted by the Appellant that the procedure in clause 9.1 applied to the present case and had been breached because the requirement in (C) of clause 9.1, that there be at least four weeks for the employee at each stage of the procedure to demonstrate an improvement in attendance, had not been complied with in the present case. The construction of clause 9 is not without its difficulties. In our opinion, the conduct that resulted in the dismissal of the Appellant was not absenteeism in the sense in which that term is used in clause 9.1. In our opinion the term "absenteeism" in clause 9.1 refers to attendance at work late, leaving work early or failing to attend work at all. The actions of the Appellant that led to her dismissal were, as the Commissioner preferred, more properly characterised as misconduct and therefore covered by clause 9.2.
[40] The misconduct in question was the failure of the Appellant to comply with directions that she seek the permission of a supervisor before leaving her workstation to attend the toilet or for other purposes and that such absences be limited to 10 minutes. While clause 9.2 provides that the steps (1) to (4) in clause 9.1 "will be followed in regard to misconduct" this obligation is immediately qualified by the words "according to the severity of the misconduct". The explanatory "example" expressly acknowledges that "in the event of serious misconduct the Company may exercise the option of summary dismissal" - an option incompatible with the procedure in steps (1) to (4).
[41] Counsel for the Appellant correctly conceded that, even if there were a breach of the certified Agreement, this could not be determinative but was merely a factor to be considered in the overall determination of whether or not the dismissal was harsh, unjust or unreasonable. More important for present purposes is the concession by counsel for the Appellant that this point had, in any event, not been taken before the Commissioner. Putting aside appeals in relation to matters going to jurisdiction (where the issue is always whether the Commission in fact had jurisdiction), a member of the Commission at first instance will not err by reason of failing to take account of a matter not argued by either party. At the level of determining whether leave to appeal ought be granted, therefore, this matter is irrelevant. If leave to appeal were granted then, on the rehearing, it would be open to the Appellant to rely upon this matter.
Termination disproportionate to offence
[42] The Appellant also submitted that the Commissioner erred in finding that the termination of the Appellant was not harsh within the meaning of section 170CE because all but a small number of the May 2003 absences occurred with the approval of the leading hand or supervisor and the small number of absences that were not approved were not conduct justifying dismissal. That is, the penalty was disproportionate to the `crime'. We reject that submission. Counsel for the Appellant himself characterised this as a case of "the straw breaking the camel's back". That characterisation is accurate. The Appellant's unapproved or lengthy absences occurred repeatedly over a period of six months and in spite of a formal counselling session and three written warnings. Given that we have upheld the Commissioner's finding that the May 2003 absences occurred, it was well open to the Respondent to treat even a single unauthorised absence that was not properly explained as a proper basis for dismissing the Appellant.
Adequacy of reasons
[43] We do not think there is any substance in the grounds of appeal going to the adequacy of reasons. The brief conclusion in paragraph [42] of the Commissioner's decision cannot properly be regarded as a conclusion stated without the provision of adequate reasons. On any reasonable view of the Commissioner's reasons the "considerations that the Commission considers relevant" are the matters addressed by the Commissioner in the balance of his decision. Similarly, we are not persuaded that the Appellant had demonstrated error in relation to the alleged failure of the Commissioner to provide reasons for preferring the evidence of Rodel and Nina Hua Zhao. It is tolerably clear from the Commissioner's decision that the Commissioner's assessments of the credibility of Mr Reardon on the one hand and Rodel and Ms Zhao on the other were the basis of this preference.
Conclusion
[44] We are not satisfied that the matter is of such importance that, in the public interest, leave to appeal should be granted pursuant to section 45(2) of the Act. Accordingly, the question of leave is discretionary and falls to be determined pursuant to section 45(1) of the Act. We are not satisfied that this is an appropriate case in which to grant leave to appeal pursuant to section 45(1). Leave to appeal is refused.
Appearances:
Mr A. Britt of counsel for the appellant
Mr J. Murphy of counsel for the respondent
Hearing details:
2004.
Sydney:
March 31
Printed by authority of the Commonwealth Government Printer
<Price code C>
13 Caspanello v. Telstra Corporation (PR922915, Williams SDP, Lacy SDP and Simmonds C, 27 September 2002) at para [12] citing Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; Edwards v Giudice and Others (1999) 169 ALR 89; King v Freshmore (Vic) Pty Ltd, 17 March 2000 (Ross VP, Williams SDP and Hingley C).
14 Transcript PN1383FF esp. at PN1411 and transcript PN2138FF esp. at PN2188, and PN2178.
15 Browne v Dunn (1893) 6 R 67.
21 Flower & Hart v White Industries (1999) 163 ALR 744 at 757
22 (1989) 17 NSWLR 553 at 586D-588B
23 Kirby P at 561E and Meagher JA at 607E.
27 Print P1859, Ross VP, Drake SDP, Cargill C, 4 November 1997 at pp 3-4. See also the useful exposition of the rule given by Mahoney JA in Fabre v. Arenales (1992) 27 NSWLR 437 at 444ff
28 Brandi v Mingot (1976) 12 ALR 551 at 559-560 per Gibbs ACJ, Stephen, Mason and Aickin JJ; R v Buckland [1977] 2 NSWLR 452 at 457