Dec 068/00 M Print S2639
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against orders: Print Nos. S2023 and S2024
issued by Commissioner Blair on 20 December 1999
Kellow-Falkiner Motors Pty Ltd
(C No. 30054 of 2000)
s.170CE application for relief in respect of termination of employment
P Edghill
and
Kellow-Falkiner Motors Pty Ltd
(U No. 31912 of 1999)
VICE PRESIDENT ROSS |
MELBOURNE, 24 JANUARY 2000 |
Application for stay of orders - not granted.
DECISION
Introduction
[1] Kellow-Falkiner Motors Pty Ltd (the appellant) filed a notice of appeal on 10 January 2000 against two orders made by Commissioner Blair on 20 December 1999.1 The proceeding before me is an application under subsection 45(4) of the Workplace Relations Act 1996 (the Act) for a stay of orders subject to appeal.
[2] The orders subject to appeal arose out of an application for relief filed by a Mr Peter Edghill in respect of the termination of his employment. Mr Edghill was a former employee of Kellow-Falkiner Motors Pty Ltd. The application was listed for arbitration on 15 December 1999 before Commissioner Blair. At the conclusion of proceedings on that day the Commissioner issued a decision in transcript in which he found that "the termination of Mr Edghill was at the instigation of the employer" and that the termination of Mr Edghill's employment was harsh, unjust and unreasonable.2 The Commissioner awarded Mr Edghill nine weeks' pay at the rate of $596 per week. On 20 December 1999 the Commissioner issued the following order:
"The Commission, having determined that the termination of the Applicant's employment by the Respondent was harsh, unjust or unreasonable, hereby orders that the Respondent pay to the Applicant on or before Friday 24 December 1999, compensation in lieu of reinstatement, being nine weeks' pay, at a rate of $596 gross per week, less the appropriate tax."
In this decision I refer to the order in Print S2023 as the first order.
[3] During the proceedings on 15 December 1999 the Commissioner also heard and determined an application for costs made on behalf of Mr Edghill. The Commissioner awarded costs against Kellow-Falkiner Motors Pty Ltd. On 20 December 1999 the Commissioner issued an order in the following terms:
"1. The Respondent is to pay the Applicant's legal and professional costs and disbursements associated with his application for relief in relation to termination of employment, being application number U31912 of 1999.
2. The Applicant is directed to file with the Commission, and serve upon the Respondent, by no later than 5.00pm on Monday 20 December 1999, a schedule of costs and disbursements that are claimed in relation to the abovementioned order.
3. If the Respondent files and serves objections to the Applicant's memorandum of costs and disbursements, then the memorandum and objections are to be referred to the appropriate Presidential member for settlement of a final sum payable."3
In this decision I refer to the order in Print S2024 as the second order.
[4] On Tuesday 18 January 2000 I heard the appellant's application that the orders subject to appeal be stayed pending the determination of the appeal. At the conclusion of the proceedings on that day I informed the parties that I had decided not to grant the application and I would provide reasons for my decision in due course. In this decision I set out those reasons.
Relevant Principles
[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.4
[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.5
[7] It is convenient to deal with the application of these general principles to the matter before me by addressing the first and second orders separately.
The First Order
[8] In respect of the first order Mr Shellard, on behalf of the appellant, advanced two points in support of his contention that an arguable case existed in respect of leave to appeal and the substantive merits.
[9] First, it was submitted that the appellant was denied an opportunity to be heard in the proceedings below. In this context the relevant factual matrix is not in dispute. Mr Edghill's s.170CE application for relief was originally set down for hearing at 9 am on 19 November 1999. The case was on the reserve list for that weeks' arbitration roster. On 18 November 1999 the hearing was adjourned to a date to be fixed.
[10] On Friday 3 December 1999 the parties were sent a notice of listing advising that the application would now be heard on Wednesday 15 December 1999 at 10.00 am. On Monday 6 December 1999 the hearing time was amended from 10.00 am to 9.30 am on 15 December 1999.
[11] Mr Shellard submitted that on Monday 6 December 1999 he spoke to Mr Kevin Donnellan, an employee of the Australian Industrial Registry (the Registry), and informed him that he could not attend the hearing on 15 December 1999. According to Mr Shellard, Mr Donnellan suggested a new hearing time of 4.30 pm on 15 December 1999, to which Mr Shellard agreed.6
[12] After this telephone conversation Mr Shellard sent a facsimile message to Mr Donnellan, in the following terms:
"I would like to confirm our recent telephone conversation regarding adjournment of hearing on the 15th December 1999.
I am unable to attend this hearing and would appreciate an adjournment to a later date.
Any queries please contact myself on 9563 0177 or fax 9563 0277."7
[13] The following day, Tuesday 7 December 1999, a further notice of listing was sent to the parties advising that the time of the hearing on 15 December 1999 had been amended from 9.30 am to 9.00 am on that day.
[14] Mr Shellard acknowledged that he received all of the relevant notices of listing.8
[15] No appearance was made on behalf of the appellant at the hearing on 15 December 1999. As Kellow-Falkiner Motors Pty Ltd had been notified of the hearing the Commissioner proceeded to deal with the application in their absence.
[16] In the grounds of appeal it is said that the appellant was not represented at the hearing due to a belief that the hearing had been rescheduled for 4.30 pm on the same day.
[17] It is against this factual background that the appellant contends that it was denied procedural fairness in the proceedings below. I now turn to deal with the general principles in respect of procedural fairness.
[18] The procedure of the Commission is, subject to the Act and AIRC Rules, within the discretion of the Commission. The Commission is not bound by the rules of evidence but is obliged to act according to "equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms."9
[19] Despite the fact that members of the Commission are not bound by the rules of evidence it is clear that they are bound to act in a judicial manner and that the principles of natural justice are applicable to hearings before the Commission.10 The term "natural justice" in the context of administrative decision making has been essentially equated to an obligation to act fairly or to accord procedural fairness.11
[20] The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk12 Tucker L.J. said:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."
[21] Similarly, in Mobil Oil Australia Pty Ltd v FC of T Kitto J. said:
"What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."13
[22] In the context of this matter the particular powers of the Commission which are set out in s.111 of the Act are also relevant. Section 111(1)(h) provides:
"(1) Subject to this Act, the Commission may, in relation to an industrial dispute: ...
(h) hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear; ..."
[23] Subsection 111(2) provides that a reference in s.111(1) to an industrial dispute includes a reference to "any other proceeding before the Commission."
[24] In applying these general principles to the matter before me the central question is whether the Commissioner provided the appellant with procedural fairness, or to put it more simply whether he acted fairly in proceeding to determine the application before him on 15 December 1999 in the absence of the appellant.
[25] It is contended on behalf of the appellant that it was denied procedural fairness. To succeed in these stay proceedings the appellant is only required to show that there is an arguable case, with some reasonable prospect of success, in support of its contention. I am not
satisfied that the appellant has established the requisite arguable case. I have reached this conclusion having regard to all of the circumstances in this case. The following points are particularly relevant in this regard.
[26] First, the appellant failed to attend the conciliation conference convened in respect of this matter. The conference was to take place before Mr Tom Talbot on 14 July 1999. It is apparent that Mr Shellard received notice of this conference, because on 9 July 1999 he wrote to Mr Talbot in the following terms:
" RE: Listing 31912 of 1999
Hearing listed for 14th July 1999
I refer to the above case listed to be heard on the 14th July 1999. I will not be able to attend this hearing as I have another case listed at [t]he Magistrates Court on the same day.
Could you please re-list this case and advise accordingly, by fax to 9563 0277."
[27] Senior Deputy President Watson subsequently issued a certificate pursuant to s.170CF(2) of the Act. The assessment of the merits on the face of the certificate is in the following terms:
"The Respondent failed to attend the conciliation conference listed.
It is not possible to make an assessment due to a conflict in the factual position and the necessity to hear evidence."
[28] The relevance of this is that it should have put Mr Shellard on notice that it was not sufficient to simply advise that he was unavailable to attend on the day where proceedings had been set down. It cannot be presumed that the Commission will simply act in accordance with a party's wishes.
[29] Second, the conversation which Mr Shellard says he had with an employee of the Registry took place on 6 December 1999. It is not suggested that an adjournment was formally granted on that occasion. Indeed any such suggestion would be inconsistent with the facsimile message Mr Shellard subsequently sent to Mr Donnellan (see paragraph 12 above). In that message Mr Shellard says that he is unable to attend the hearing on 15 December and "would appreciate an adjournment to a later date". The language used suggests that Mr Shellard was seeking an adjournment - not confirming one that had already been granted.
[30] In the proceedings before me Mr Shellard relied on the fact that the letter concluded in the following terms "Any queries please contact myself on 9563 0177 or fax 9563 0277." As there was no contact with him he presumed that his request had been granted.14
[31] The difficulty with this proposition is that Mr Shellard did receive a subsequent communication from the Commission. On 7 December 1999 - the day after his conversation with Mr Donnellan - he received a notice of listing informing him that the hearing would take place at 9.00 am on 15 December 1999. There is no suggestion that Mr Shellard took any action after receipt of the notice to ascertain whether an adjournment had been granted. He
apparently simply proceeded on the basis that his request had been granted. In my view, having regard to the notice of listing of 7 December 1999, such an approach was patently unreasonable.
[32] In this regard I have taken into account that although the appellant was not legally represented, Mr Shellard is a company director and should be familiar with the legal process through his involvement in other court proceedings. In a letter to Mr Tom Talbot dated 9 July 199915 Mr Shellard stated that he would be unable to attend a conciliation conference scheduled for 14 July 1999 "as I have another case listed at [t]he Magistrates Court on the same day." In the stay proceedings Mr Shellard relied on his own experience "with Court matters" in the course of his submissions16 and also stated that the appellant is currently involved in proceedings in the Victorian Supreme Court.17
[33] The third point relates to the nature of unfair dismissal proceedings. A statutory ceiling applies to the amount which the Commission may award a successful applicant, in lieu of reinstatement. The amount awarded may be significantly eroded by an application's legal costs.18 In such circumstances it is necessary to ensure that applications are determined quickly and with a minimum of cost to both parties.
[34] The appellant submits that the Commissioner should have adjourned to proceedings on 15 December 1999 when it became apparent that the appellant would not be represented on that day. But such an adjournment would have added to the applicant's costs in circumstances where no reason for the adjournment request was put to the Commissioner.19
[35] The final point I have had regard to is the manner in which the proceedings below were conducted. In particular when Mr Edghill gave evidence the Commissioner put the allegations contained in earlier material filed by the appellant to Mr Edghill.20
[36] The Commissioner, in my view, did everything that could be expected of him to ensure that the appellant had a fair opportunity to present his case. He was not required to ensure that the appellant took the best advantage of the opportunity presented.
[37] In Sullivan v Department of Transport Dean J stated:
" ... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."21(emphasis added)
[38] In my view the appellant was given a reasonable opportunity to present its case to the Commission and Mr Shellard must bear responsibility for the fact that he failed to take the best advantage of the opportunity presented.22
[39] The second point advanced in support of the contention that an arguable case exists in relation to the appeal against the first order relates to the manner in which the Commissioner conducted the proceedings.
[40] In the matter below summonses to appear were issued to two witnesses, a Ms Joan Fraser and a Ms Elizabeth Symonds. A summons to produce certain documents was issued to Mr Shellard. The two witnesses were summonsed to give evidence on behalf of the applicant, Mr Edghill. The witnesses did not attend the hearing on 15 December 1999. After the applicant's representative outlined his case at the commencement of the proceedings below he went on the make the following statement:
"In these circumstances, Commissioner, I don't wish to call upon the summons to witness upon Joan Fraser and Elizabeth Symons [sic]. Joan Fraser was a former, employee of the company. She - I am instructed that she has recently started a new job and is currently on a trial period. She is available and if you desire it we can get her here at very short notice. Elizabeth Symons [sic], well, she I understand is working - still working with the respondent.
We don't have any explanation as to why she hasn't - she is not here. In the circumstances we will call on - I call on the applicant to give evidence."23
[41] The appellant contends that the Commissioner should have insisted that the two witnesses attend and give evidence. The essence of Mr Shellard's submission on this point is set out in the following extract from the transcript of the stay proceedings:
"His Honour: All right. But, really, the heart of it is that you say Ms Fraser and Ms Symonds should have given their evidence.
Mr Shellard: Definitely. The Commissioner should have made himself aware of the - I am not saying the evidence is pertinent, good, bad or indifferent, but the Commissioner had before him this letter and various other correspondence to indicate to him that there was some form of evidence that may be worthwhile hearing. He may have disregarded the lot but I believe he should have put himself in the position of being able to make that decision rather than deny himself and everybody else that particular decision and clutter this Court up with additional cases."24
[42] In my view the appellant's submission on this point is misconceived and does not support the proposition that an arguable case exists in respect of the appeal from the first order. Unfair dismissal proceedings are essentially adversarial in nature, not inquisitorial. The Commissioner was not obliged to require Ms Fraser and Ms Symonds to give evidence in circumstances where they had been summonsed to give evidence on behalf of the applicant and the applicant no longer wished to call upon them.
[43] I am not satisfied that the appellant has established an arguable case in relation to the appeal against the first order. The absence of a real prospect of succeeding on appeal is fatal to the appellant's application for a stay order.25 Accordingly I dismiss the application in respect of the first order.
The Second Order
[44] In relation to the second order Mr Shellard contended that the appellant had been denied an opportunity to be heard in the proceedings below. It will be recalled that the second order imposed a requirement that the appellant pay Mr Edghill's legal and professional costs and disbursements associated with his application for relief. Unlike the position in respect of the first order I think that there is some substance to the appellant's arguments in relation to the costs order.
[45] In essence the appellant's case is that it had no notice of the s.170CJ costs application. The cost application was made in transcript on 15 December 1999 at the conclusion of the arbitral proceedings. The following extract from the transcript is relevant:
"Mr Gray: But in respect of remedy, the appropriate principles as applied from Sprigg ... Licensed Festival Grocers, is that when you boil it down it is basically economic loss for that - that would amount to the sum of $596 multiplied by eight weeks in this case. That is a fairly moderate outcome for the applicant. His costs in the matter could well be two thirds to three quarters of that, well, actually after - when you take tax into consideration, the costs would be almost equivalent to that and that is a difficulty that suggests that the Commission ought to seriously considering departing from the simple principle of economic loss. ...
The Commissioner: Why don't you make an application for costs?
Mr Gray: Well, I think we will, Commissioner, if you are inclined to - - -
The Commissioner: I think the principles in terms of calculating the method - the method in which you calculate the amount I think have been pretty well established as you have just indicated and I am not inclined to depart from that.
Mr Gray: Yes.
The Commissioner: If there is an issue of costs, then make a claim for costs.
Mr Gray: Yes.
The Commissioner: And I will deal with it.
Mr Gray: Certainly, Commissioner. Well, if you are able to hear that application, I would like to make that application now.
The Commissioner: Sure."26
[46] The notices of listing in respect of the proceedings below refer to Mr Edghill's s.170CE application for relief (U No. 31912 of 1999), they do not make any reference to an application for costs. The applicant's costs application was not formally made in accordance with the Rules of the Commission;27 nor was a copy of the application served on the appellant.
[47] The respondent contends that the appellant was given notice of its intention to pursue a costs order. In this regard the respondent relied on two items of correspondence sent to the appellant by Mr Edghill's solicitors. The first document is a letter dated 3 August 1999 which says, among other things:
"... we wish to put you on notice that should this case proceed to arbitration, and our client is successful, these costs will be claimed. Currently our clients' legal costs stand at $1,200.00 and will be likely to be approximately $4,000.00 after the matter is arbitrated."28
[48] On 8 November 1999 the applicant's solicitors sent the appellant a further letter, in the following terms:
"Your failure to attend the Conciliation Conference, failure to comply with Directions and failure to respond to our correspondence of 3 August 1999 containing an offer of settlement has resulted in our client incurring unnecessary expenses in addition to the financial loss he has suffered as a result of the termination. We again draw your attention to the decision of Andrew Betts -and- Madafferi Haulage Pty Ltd which was handed down on the 9 April 1999 by Commissioner Smith and wish to put you on notice that should this case proceed to arbitration, and our client is successful, an application for costs will be made. Currently our client's legal costs stand at approximately $2,000.00 and are likely to be approximately $4,000.00 after the matter is arbitrated."29
[49] In my view the correspondence relied on by the respondent simply informs the appellant of an intention to make an application for costs. I doubt that this is sufficient such that it can be said that the appellant was not denied procedural fairness.
[50] The failure to provide a party with notice of the time and venue of a hearing and the issues to be considered denies that party the opportunity to present his case. In R v. North; ex parte Oakley the link between the need for notice and the right to be heard is made clear in the judgement of Scrutton L.J.:
"... one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it." (emphasis added).30
[51] I am satisfied that the appellant has established an arguable case in relation to the appeal against the second order.
[52] In relation to the balance of convenience two broad points were advanced by Mr Shellard:
· the respondent's solicitors were engaged on a contingency basis and hence a stay of the order would not disadvantage the applicant as he would not be obliged to pay his legal fees until the sum awarded by Commissioner Blair was paid; and
· the appellant company is not "financially strong at this time, but is working to recover it's position".31 It was said that a costs order could push the appellant "over the edge"32 and "could very well put the company into administration".33
[53] No financial information was provided in relation to the second contention34 and Mr Shellard stated that "there is quite a considerable amount of work in progress that when that is completed will generate funds."35
[54] As yet no order specifying an amount in respect of the costs to be paid by the appellant as been issued. The quantification of the amount to be paid by the appellant has been referred to Senior Deputy President Watson for determination. In these circumstances I am not satisfied that the balance of convenience favours the granting of a stay at this time. In my view the quantification of the relevant costs should be finalised and an order specifying an amount issued.
[55] I also note the following submission put by Mr Shellard:
"... I would prefer not to drag the applicant and his legal people back again, or myself, for another application in 3 - 6 weeks' time about the stay of costs, when they have determined and become due and payable, and how quickly the Commission could actually hear that application, because I, in practical terms, think one would have to wait until it's been assessed."36
[56] In the proceedings before me the respondent indicated that it would consent to the costs order being prospective. This would allow the appellant to seek to have the stay application relisted and determined before the costs order became operative. Such stay proceedings could be dealt with by telephone hearing to minimise the inconvenience to the parties.
[57] I have decided not to grant the application to stay the second order, at this time.
BY THE COMMISSION:
VICE PRESIDENT
Decision Summary
Termination of employment - unfair dismissal - appeal - application for stay order - appellant sought to appeal against decision awarding compensation to respondent and awarding costs against appellant - appellant sought stay of orders pending determination of appeal - whether arguable case exists in respect of question of leave to appeal and substantive merits of appeal - appellant claimed it was denied an opportunity to be heard - Commission found appellant was given reasonable opportunity to hear its case and must bear responsibility for failure to take best advantage of opportunity presented - application in respect of first order dismissed - arguable case established in relation to appeal against second order - order specifying amount in respect of costs to be paid not yet issued - application to stay second order not granted at the time. | ||||
Appeal by Kellow-Falkiner Motors P/L against orders of Blair C of 20 December 1999 [Prints S2023 and 2024] | ||||
C No 30054 of 2000 |
Print S2639 | |||
Ross VP |
Melbourne |
24 January 2000 | ||
Printed by authority of the Commonwealth Government Printer
<Price code D>
** end of text **
2 See transcript of the proceedings below at p.14.
4 See generally McAdam v Swersky and Velos, Print P3937, 12 August 1997 per Williams SDP; Franklin and Porcheron v Gainot and Zamos Pty Ltd t/as White Ibis Partnership, Print P7985, 12 January 1998 per Munro J.
5 Independent Schools Staff Association ACT v Comalco Aluminium Ltd, Print K0963, 10 December 1991 per Moore DP, Williams DP and Palmer C.
6 It was submitted on behalf of the respondent that they were not in a position to know what was said during this conversation as they were not party to it.
7 See Exhibit A1 in the stay proceedings.
8 Transcript, 18 January 2000, p.3 at lines 13-22; p.4 at lines 25-31 and p.5 at lines 1-7.
10 R v The Commonwealth Conciliation and Arbitration Commission and others; Ex parte Angliss Group (1962) 122 CLR 546; Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513.
11 Kioa and others v. Minister for Immigration and Ethnic Affairs and another (1985) 62 ALR 321 at 347 per Mason J.
12 (1949) 1 All ER 109 at 118.
14 Transcript, 18 January 2000, p.6 at lines 1-3.
15 Copy on the file in respect of U No. 31912 of 1999.
16 Transcript, 18 January 2000, p.15 at lines 16-20.
18 Indeed in this case Mr Edghill's representative estimated that more than 75 per cent of the amount awarded would be absorbed in meeting such costs. See transcript, 15 December 1999 at p.11.
19 See transcript, 15 December 1999, p.14 at lines 10-17.
20 Transcript, 15 December 1999 at p.8.
21 (1978) 20 ALR 323 at 343; Cf: Gaudron J, in Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305.
22 See Cf: Australian Theatrical Employers Association v. Hayden Pty Ltd & Others (1983) 5 I R 335.
23 Transcript, 15 December 1999, p.2 at lines 35-37 and p.3 at lines 1-7.
24 Transcript, 18 January 2000, p.15 at lines 24-33.
25 Re: Australian Meat Industry Employees Union Appeal, Print J0906 21 December 1989 per Boulton J, Polites DP and Frawley C.
26 Transcript, 15 December 1999, p.11 at lines 2-33.
Transcript, 18 January 2000, p.30 at lines 4-5.