Dec 1023/00 M Print S9280
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against order Print S4968
issued by Senior Deputy President Acton on 12 May 2000
Fastidia Pty Ltd
(C No. 33477 of 2000)
s.170CE application for relief in respect of termination of employment
J B Goodwin
Fastidia Pty Ltd
(U No. 30272 of 2000)
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT WILLIAMS
MELBOURNE, 21 AUGUST 2000
Alleged unlawful termination - appeal - whether transmission of matter under s34 between hearing and determination at first instance warrants departure from traditional role of appeal bench in relation to findings of fact at first instance - procedural fairness - warnings - criterion for type of warning contemplated under s170CG(3)(d) - remedy - lost remuneration - calculation by reference to anticipated period of employment - whether discount for contingencies appropriate.
 This decision deals with an appeal by Fastidia Pty Ltd (Fastidia) against an order made by Senior Deputy President Acton on 12 May 2000 (Print S4968). The order arose out of an application for relief filed by Mr John Goodwin in respect of the termination of his employment. In the decision which led to the making of the order subject to appeal, her Honour found that the termination of Mr Goodwin's employment was harsh, unjust or unreasonable. In relation to remedy Acton SDP concluded that reinstatement was inappropriate and decided to make an order requiring Fastidia to pay Mr Goodwin an amount in lieu of reinstatement. The order subject to appeal is in the following terms:
"1. I FIND that the termination of Mr John Barry Goodwin's employment by Fastidia Pty Ltd was harsh, unjust or unreasonable.
2. I ORDER that Fastidia Pty Ltd pay to Mr John Barry Goodwin, within 21 days of the date of this order, the sum of $8,200.44 gross in lieu of reinstatement, with such sum being subject to the deduction of taxation as required by law."
 The background to this matter is set out in the decision of Acton SDP of 12 May 2000 (Print S4581). We note that Mr Goodwin commenced employment with Fastidia as labourer on 9 September 1998. On 8 January 1999 Mr Goodwin was given one weeks notice of the termination of his employment and he last worked for Fastidia on 12 January 1999.
 Mr Goodwin's application for relief was heard by Commissioner Frawley. On the death of the Commissioner the President appointed Acton SDP to determine the matter pursuant to s.34 of the Workplace Relations Act 1996 (the WR Act).
 In her decision Acton SDP found that:
· there was a valid reason for the termination of Mr Goodwin's employment (s.170CG(3)(a));
· Mr Goodwin was not notified of that reason (s.170CG(3)(b));
· Mr Goodwin was not given an opportunity to respond to any reason for his termination which was related to his capacity or conduct (s.170CG(3)(c)); and
· Mr Goodwin was not warned about the unsatisfactory performance that led to termination of his employment (s.170CG(3)(d)).
 Pursuant to s.170CG(3)(e) her Honour also had regard to the fact that "Mr Goodwin was not told his employment was being terminated until just after the conclusion of his probationary period of employment because Fastidia did not want to cause any hardship or grief over the festive season of 1998/99"1.
 A number of the above findings are challenged on appeal.
 Before we turn to examine the grounds advanced in support of the appeal we propose to deal with two preliminary points. The first concerns the appellants application pursuant to Rule 11(2) for an extension of the time period within which the appeal was to be instituted.
 Rule 11(2) relevantly provides that an appeal must be instituted before the end of 21 days after the date of the order appealed against. In this case the date of the order was 12 May 2000. The 21 day period prescribed in Rule 11(2) expired on 2 June 2000. On that day the appellant's solicitors wrote to the Commission indicating that:
· instructions had been obtained to institute an appeal;
· there had been a difficulty in obtaining the transcript of proceedings;
· there had been difficulties in obtaining instructions about whether to institute an appeal; and
· seeking an extension of the time period for the institution of an appeal, until 9 June 2000.
 The transcript of the proceedings below was received by the appellant on 30 May 2000 and instructions to institute the appeal were given on 2 June 2000. The appeal was sent to the Registry by ordinary post under cover of a letter dated 8 June 2000. The letter was received in the Registry on 14 June 2000. The appeal was instituted some 12 days out of time.
 The appellant bears the onus of persuading the Commission to extend the 21 day period prescribed in Rule 11(2). In exercising the discretion to extend the time prescribed the Commission will have regard to: "whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended."2 Any prejudice the respondent might suffer, if time were extended because of developments after the time for lodgement had expired, is also relevant.3
 The appellant submits that in the circumstances of this case we should exercise our discretion in favour of the extension sought. At paragraphs 41 and 42 of the written submission filed in support of the appeal the appellant says:
"41. The death of Commissioner Frawley meant that there was a delay between the hearing of this matter and the handing down of a decision. This delay in turn increases the time that the respondent took to revisit the issues raised by the Application and formulate its grounds for appeal. While instructions to file an appeal were received within the 21 day time limit, the necessary documentation was not prepared within that time frame. However, the Appellant notified both the Commission and the Applicant of its intention to file an appeal.
42. It is submitted that in the circumstances no prejudice would be occasioned by the extension sought and that the fair and practical conduct of the proceedings would be facilitated by the grant of the extension sought."4
 The respondent opposes the extension sought. It submitted that there is no evidence before the Commission as to why there were such difficulties in obtaining transcript and instructions. To the extent that there were such difficulties it was argued that the appellant has failed to explain why the Applicant was not informed of the intention to institute an appeal until 2 June 2000 or why it took a further six days for the appeal to be filed. The respondent did not contend that it was prejudiced by the delay, but did rely on the appellant's failure to comply with Rule 11(5)(a) in a timely manner and the delay in the implementation of an agreement between the parties arising from the stay of the order subject to appeal.
 We are somewhat surprised that, although the appellant's solicitors had, at least by the last day upon which a notice of appeal could have been lodged, received instructions to appeal, a choice was made not to do so at that time in favour of notifying the Commission and the respondent that it was their client's intention to lodge an appeal. We are even more surprised that, despite the fact that the appeal was being lodged out of time, it was lodged by ordinary mail. However, the circumstances are unusual in that, due to the death of Commissioner Frawley, there was a significant delay between the hearing of the matter at first instance and the decision. Further, the length of the delay was modest and the respondent was not prejudiced because of developments after the time for lodgement had expired. We are, therefore, prepared, albeit with some reluctance, to exercise our discretion and grant an extension of time for the lodging of the notice of appeal.
 The second preliminary point concerns the approach to be taken to the determination of the appeal. The appellant submits that the fact that the matter was determined pursuant to s.34 warrants a departure from the traditional role of an Appeal Bench in relation to findings of fact by a member at first instance. At paragraphs 8 and 9 of the written submission filed in support of the appeal the appellant says:
"8. . . . It is submitted that in a case such as this an error will be disclosed if the Full Bench would, on the evidence, have come to a different conclusion than the tribunal at first instance.
9. Alternatively, it is submitted that when regard is had to the fact that the Senior Deputy President did not have the advantage of forming an assessment of the witnesses based on the presentation of their evidence, a number of the findings of the Senior Deputy President were not reasonably open to her."5
 It is common ground that the order subject to appeal arose out of the exercise of a discretion. The nature of the appellate jurisdiction of the Commission in respect of appeals against the exercise of a discretionary power was recently considered by a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Giudice6. In that case the Court held:
"Section 45 enables an appeal to be brought against the exercise of a discretionary power as well as powers which involve no discretion ... If the power, act or function [subject to appeal] is one that is truly discretionary ... then the appellate function of the Full Bench, if leave to appeal is given, involves ascertaining whether the exercise of the discretion was attended by appellable error of the type discussed in House v The King....
 In relation to the question of leave to appeal the Court said:
"It can be seen from s.45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and s.45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, s.45(2) provides a further, and obligatory, basis for the grant of leave."8
 We also note that in Norbis v Norbis, Mason and Deane JJ, having categorised the order in that case as discretionary because it depended on the application of a very general standard, said:
"The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal."9
 In determining an appeal the Commission would usually be very reluctant to reverse a finding of fact and would only do so if satisfied that any advantage enjoyed by the member below as a result of hearing the relevant evidence was not sufficient to justify the findings made.10 In the circumstances of this case, as pointed out by the appellant, the Senior Deputy President enjoyed no special advantage as she did not hear the relevant evidence but simply determined that matter on the basis of the exhibits and transcript of the proceedings before Frawley C. It is possible that the Commission's traditional reluctance to reverse a first finding of fact may not apply with the same force. But, if so, what is the test to be applied?
 We were not taken to any authority dealing with the approach to be taken by an appeal bench in determining challenges to findings of fact made pursuant to the procedure in s.34 of the WR Act. But it is relevant to note that in a number of cases - including Whiteley Muir and Zwanenberg Ltd v Kerr11; Da Costa v Cockburn Salvage & Trading Pty Ltd12 and Edwards v Noble13 - Barwick CJ expressed the view that even where an appellate court was authorised to substitute its view of the facts for that reached by the trial judge, there being no relevant restraint of witness credibility or demeanour, it should not do so if the findings made by the trial judge were "reasonably open on the evidence"14. The situation referred to by Barwick CJ is relevantly indistinguishable from the circumstances before us, there being no relevant constraint of witness credibility or demeanour. But does it follow that we should only disturb her Honour's findings of fact if we are satisfied that they were not "reasonably open on the evidence"? The views of Barwick CJ referred to above had been rejected at the time by Walsh J15 and were ultimately rejected by the High Court in Warren v Coombs16. In that case the majority, per Gibbs ACJ, Jacobs and Murphy JJ, said:
"The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In doing so, it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision they consider that it was wrong, they must discharge their duty and give effect to their own judgment."17
 The determination of this question should await a case in which it has been more fully debated. From an abundance of caution, however, we have been prepared to apply the above observation from Warren v Coombs to the resolution of the matter before us. It follows that, in the particular circumstances of this case, if we think that a finding of fact challenged on appeal was wrong, we would give effect to our own judgment. In the final analysis, we have concluded that the challenged findings were both reasonably open and correct.
Grounds of Appeal
 The grounds of appeal challenge three aspects of her Honour's decision:
· procedural fairness issues and in particular the approach taken to s.170CG(3)(d);
· the way in which Acton SDP dealt with issues of credit; and
· the approach taken to the assessment of compensation.
 We propose to deal with each of these aspects of the appeal in turn.
Procedural Fairness Issues
 The thrust of the appellant's challenge under this heading related to the way in which her Honour dealt with the question of whether Mr Goodwin had received any warnings in the course of his employment with Fastidia. In this regard s.170CG(3)(d) states that in determining whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
". . . (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination."
 In the proceedings at first instance the question of whether Mr Goodwin had been warned about unsatisfactory performance was contested. Acton SDP dealt with this issue and the relevant evidence at paragraphs 74-84 of her decision of 12 May 2000:
" I am not satisfied Mr Goodwin had been warned about his unsatisfactory performance before the termination of his employment.
 In concluding Mr Goodwin was not warned about his unsatisfactory performance, I have attached no weight to the evidence on this factor of Mr Carter, Mr McCarthy and Mr Shallies. Mr Carter indicated he had not personally given warnings to Mr Goodwin and was not present when any were given. Under cross-examination, Mr McCarthy indicated all he could remember about the warning he had heard Mr Hazelhoff give to Mr Goodwin was that the word "warning" was used. Yet in Mr Hazelhoff's evidence on this warning he does not suggest the word "warning" was used, rather Mr Hazelhoff says he told Mr Goodwin, "Look, this wasn't what I asked you to do. I asked you to go and work with Ian and do the pipes. John (Mr Goodwin) if you're going to behave like this you won't have a job". Under cross-examination, Mr Shallies conceded he did not hear what was said between Mr Hazelhoff and Mr Goodwin during the incident that he regarded as Mr Hazelhoff giving Mr Goodwin a warning.
 Ms Carter's evidence is that Mr Goodwin was given a number of warnings regarding his frequent telephone usage.
 Mr Hazelhoff's evidence is that he warned Mr Goodwin on three occasions:
· Once was when he had directed Mr Goodwin to help another employee glue pipes together and instead Mr Goodwin went to repair something and on that occasion Mr Hazelhoff said to Mr Goodwin, `Look, this wasn't what I asked you to do. I asked you to go and work with Ian and do the pipes. John [Mr Goodwin], if you're going to behave like this, you won't have a job'.
· Another time was when there was an altercation between Mr Goodwin and Mr McCarthy and on that occasion Mr Hazelhoff said to Mr Goodwin something along the lines of, `Look, you've got to work as a team, like we're working as a team. It's just not good enough'.
· Yet another time was in the presence of other workers when he warned Mr Goodwin about letting other employees complete his work and refusing to work with certain employees.
 The evidence of Ms Carter and Mr Hazelhoff contains no detail about the form or terms of the warnings given to Mr Goodwin about his telephone usage or his letting other employees complete his work and refusing to work with certain employees.
 Given this lack of detail, the absence of supporting evidence and Mr Goodwin's evidence that his use of a telephone was not raised with him as being a problem and his denial that he was ever warned his work was unsatisfactory and about his employment being in jeopardy, I do not consider I should regard Mr Goodwin as having been warned about his telephone usage or his letting other employees complete his work and refusing to work with certain employees.
 Further, I do not regard the words Mr Hazelhoff spoke to Mr Goodwin when there was an altercation between Mr Goodwin and Mr McCarthy as a warning within the meaning of s.170CG(3)(d) of the Act. Words along the lines of, "Look, you've got to work as a team, like we're working as a team. It's just not good enough", do not make sufficiently clear that Fastidia regarded Mr Goodwin's performance as so unsatisfactory that it placed his continuing employment in jeopardy.
 Moreover, given Mr Goodwin's denial that he was ever warned his work was unsatisfactory, the lack of precision about what Mr Hazelhoff said to Mr Goodwin following the altercation between Mr Goodwin and Mr McCarthy and the absence of supporting evidence, I consider I should not regard Mr Goodwin as having been warned at all after the altercation.
 Finally, assuming the words Mr Hazelhoff spoke to Mr Goodwin after he directed Mr Goodwin to help another employee glue pipes together and instead Mr Goodwin went to repair something are accurate, I do not regard them as constituting the warning referred to in s.170CG(3)(d) of the Act. Paragraph (d) of s.170CG(3) of the Act requires the Commission, if an employee's termination related to unsatisfactory performance by the employee, to have regard to whether the employee had been warned about that unsatisfactory performance before the termination.
 The evidence of Mr Hazelhoff about what he said to Mr Goodwin when he went to repair something instead of helping another employee and the conclusions I have reached in the course of considering the other evidence relevant to s.170CG(3)(d) of the Act [paragraphs 75-81] indicate that, at best, Mr Goodwin was only warned the once by Fastidia about repairing equipment instead of working as directed. He was not warned about the other unsatisfactory performance matters that I have found contributed to there being a valid reason for his termination.
 Accordingly, I find that Mr Goodwin had not been warned about the unsatisfactory performance related to his termination before the termination."
 The appellant challenges her Honour's conclusions under s.170CG(3)(d). There are two bases to the challenge:
· failure to apply the relevant principles; and
· it was not reasonably open to her Honour to attach no weight to the evidence of Messrs Carter, McCarthy and Shallies.
 The first point advanced is that Acton SDP failed to give effect to the principles outlined by Wilcox CJ in Gibson v Bosmac Pty Ltd. In that case his Honour said:
"In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 CLR 233 at 243 I discussed the significance of s.170DC. I observed that the section imposed an important limitation on an employer's power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section."18 [emphasis added]
 The appellant contended that the principles set out by Wilcox CJ had particular application where warnings are being conveyed to an employee who has only recently been engaged and is serving a period of probationary employment. In this context it is contended that comments such as those described by Mr Hazelhoff in his evidence were sufficient to put Mr Goodwin on notice that his continued employment was in jeopardy.
 In our view this submission is misconceived. In Gibson v Bosmac Pty Ltd Wilcox CJ was not dealing with the question of what constituted a warning within the contemplation of s.170CG(3)(d) of the WR Act, he was interpreting s.170DC of the Industrial Relations Act 1988. Section 170DC of that Act is in quite different terms to s.170CG(3)(d) of the WR Act, it states:
"170DC An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity."
 Section 170DC contains some of the elements of what now appears in s.170CG(3)(b) and (c). It does not purport to deal directly with the issue of whether an employee had received a warning about unsatisfactory performance in circumstances where the termination of their employment related to unsatisfactory performance.
 Later in this decision we deal with the criterion associated with a warning of the type contemplated by s.170CG(3)(d). Contrary to the appellant's submission we do not think that the relevant criterion should vary simply because the employee was on probation at the relevant time.
 The second basis for the appellant's challenge relates to her Honour's assessment of the witness evidence. In this regard it was submitted that as her Honour did not have the advantage of assessing the veracity of the witnesses giving viva voce evidence it was not reasonably open to her to attach no weight to the evidence of Messrs Carter, McCarthy and Shallies. In this context the appellant acknowledges that none of these witnesses were in a position to wholly corroborate the evidence of Mr Hazelhoff. But it is argued that in the context of the conflict between the evidence of Messrs Goodwin and Hazelhoff, the evidence of these witnesses was not without weight. To the extent that these witnesses observed warnings being given to Mr Goodwin their evidence was said to be significant, even if their ability to comment on the precise words used was limited.
 It is apparent from the transcript and exhibits in the proceedings at first instance that there is a conflict between the evidence of Mr Hazelhoff and Mr Goodwin regarding the issuing of warnings. According to Mr Hazelhoff he gave Mr Goodwin an "official warning" on one occasion and an "unofficial warning" on another occasion. The circumstances relating to the "official warning" are set out in Mr Hazelhoff's evidence in the following terms:
"There was one day where it was raining and when it's wet we don't work out in the manufacturing area, we usually go into the shed and help, at that stage it was Ian working in the shed doing all the paperwork for the treatment plants, and I directed John to go and help Ian with the gluing all the PVC Pies together, all the fittings . . . after I came back into the shed and he was trying to repair something and I said to John, I said, "Look, this wasn't what I asked you to do.' I said `I asked you to go and work with Ian and do the pipes' and I became, I suppose I got pretty angry at that because I'd been ignored, and I said `John, if you're going to behave like this,' I said, `you won't have a job.'"19
 Mr Hazelhoff was unable to recall the date the above incident took place, he presumed it was in early October 1998.20 Nothing was put in writing about the incident.21
 On another occasion Mr Hazelhoff said that he gave Mr Goodwin an "unofficial warning":
"Mr McEachern: . . . did you warn him unofficially on occasions?
Mr Hazelhoff: Unofficially?
Mr McEachern: Right, did . . .?
Mr Hazelhoff: There was one occasion where we had been working down in the moulds and we were getting ready to pour concrete and I wanted to change things around . . . Some altercation happened down there and I took John into the lunchroom and I said, `Look, John,' I said - I'm not exactly sure what I said to him, but I basically said to him, `Look, you've got to work as a team, like we're working as a team,' and I said, `It's just not good enough'."22
 In his evidence Mr Goodwin denied receiving any warnings about his work performance.23
 In her decision Acton SDP concluded:
· assuming that the "official warning" was given in the terms set out in Mr Hazelhoff's evidence it did not constitute a warning within the meaning of s.170CG(3)(d) because it only dealt with one of the performance matters which led to Mr Goodwin's termination; and
· the "unofficial warning" was not a warning within the meaning of s.170CG(3)(d) as it did not make it sufficiently clear that Fastidia regarded Mr Goodwin's performance as so unsatisfactory that it placed his continuing employment in jeopardy.
 In the unusual circumstances of this case the question for us is whether her Honour's findings were correct. We have reviewed the evidence and we accept Mr Hazelhoff's testimony in relation to the "official" and "unofficial" warnings.
 During the course of oral argument Mr Gray, counsel for the respondent, sought to attack the credibility of Mr Hazelhoff's evidence. The basis of this attack was that in his witness statement Mr Hazelhoff said that Mr McCarthy was present when he gave the "official warning" to Mr Goodwin.24 When giving his oral testimony about the circumstances in which this "warning" was given Mr Hazelhoff did not mention Mr McCarthy's presence at the relevant time. This omission was said to be inconsistent with his witness statement and brought his credit worthiness into question. We reject this proposition. Later in his evidence Mr Hazelhoff was asked if the "warning" was given in Mr McCarthy's presence, he replied "Everybody was there."25 In our view this response was consistent with his witness statement.
 We note that in his witness statement Mr Hazelhoff refers to a second warning and "other warnings in the presence of other workers"26. We have already dealt with the second warning - referred to as the "unofficial warning" in Mr Hazelhoff's oral testimony. The "other warnings" referred to in his witness statement were not the subject of any elaboration in the course of Mr Hazelhoff's oral testimony. In our view there is no sound evidentiary basis for concluding that Mr Goodwin was given any warnings other than the two we have referred to.
 During the course of oral argument Mr O'Grady, counsel for the appellant, contended that the evidence of Messrs Carter, McCarthy and Shallies supported a finding that Mr Goodwin had in fact received other warnings. We disagree. The evidence of each of these witnesses on this point can be summarised thus:
- only heard Mr Hazelhoff giving Mr Goodwin a warning on one occasion27;
- the warning which he gave evidence about was the "official" warning referred to in Mr Hazelhoff's evidence28;
- he only heard the last part of the conversation between Messrs Hazelhoff and Goodwin. He could not recall exactly what was said but the final words were "That this is a warning", or words to that effect29;
- he had no recollection of the time of day or even the month during which the incident took place. He could recall that it occurred inside the shed because it was a wet day and where he was standing at the relevant time30.
- he witnessed a conversation between Messrs Hazelhoff and Goodwin;
- at the time he was some six metres away and he could not hear what was said31.
- did not personally issue any warnings to Mr Goodwin32;
- was not present when Mr Hazelhoff gave warnings to Mr Goodwin33.
 In our view the evidence of Messrs Shallies and Carter is of no assistance on this point. Mr McCarthy provides some corroboration of Mr Hazelhoff's evidence regarding the "official warning". But there is a difference between the evidence of these two witnesses. Mr McCarthy says that the word "warning" was used. In his account of the incident Mr Hazelhoff does not say that he used this word. We prefer Mr Hazelhoff's evidence on this point - he was the one directly involved and Mr McCarthy seemed to have difficulty recalling when the incident took place, indeed he said that he had "no idea whatsoever".34
 As we have indicated, we accept that Mr Hazelhoff gave Mr Goodwin the "official" and "unofficial warnings" referred to in his testimony. Were they warnings of the type contemplated by s.170CG(3)(d)?
 In the context of s.170CG(3)(d) we think that a warning must:
- identify the relevant aspect of the employee's performance which is of concern to the employer; and
- make it clear that the employee's employment is at risk unless the performance issue identified is addressed.
 In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.
 Applying these criterion to the two "warnings" here it is apparent that the "unofficial warning" is not a warning of the type contemplated by s.170CG(3)(d). It does not make it clear that Mr Goodwin's employment was at risk. The "official warning" does not suffer from the same defect. It is a warning of the type contemplated by s.170CG(3)(d).
 Our conclusion that Mr Goodwin was only given one warning of the type contemplated by s.170CG(3)(d) is consistent with Mr Goodwin's reaction when told of his termination. According to Mr Hazelhoff, Mr Goodwin seemed "shocked" and "stunned"35. Mr Hazelhoff presumed that Mr Goodwin reacted in this way because the decision had come as a surprise to him.36
 Acton SDP concluded that Mr Goodwin had not been warned about the unsatisfactory performance which was related to the termination of his employment. The "official warning" did not satisfy the requirements of s.170CG(3)(d) because it only dealt with one of the performance matters which led to Mr Goodwin's termination.
 Her Honour's conclusion in respect of the "official warning" is based on the following analysis of s.170CG(3)(d):
"Paragraph (d) of s.170CG(3) of the Act requires the Commission, if an employee's termination related to unsatisfactory performance by the employee, to have regard to whether the employee had been warned about that unsatisfactory performance before the termination. . . . at best, Mr Goodwin was only warned the once by Fastidia about repairing equipment instead of working as directed. He was not warned about the other unsatisfactory performance matters that I have found contributed to there being a valid reason for his termination."37
 Earlier in her decision Acton SDP had found that:
· When Mr Hazelhoff conducted inspections, which he did on many occasions, he found Mr Goodwin not performing the duties given to him, instead Mr Goodwin was trying to repair Fastidia equipment which Fastidia employs a qualified fitter and turner to do.
· Mr Goodwin did not always follow instructions given to him by Mr Shallies, a longer serving employee.
· Mr Goodwin frequently managed to get other employees to climb up on the tanks in his place.
· Mr Goodwin eased off on his work a bit when Mr McCarthy went to assist him in his work on the small moulds.
· Mr Goodwin refused to work with Mr Shallies sometimes.
· Mr Goodwin wandered around the workplace site and was slow to recommence work after work breaks.
 Having regard to these findings, in combination, her Honour was satisfied that there was a valid reason for terminating Mr Goodwin's employment relating to his capacity or conduct. Her Honour found that Mr Goodwin was only warned once and only in relation to the first matter.
 We see the force in the approach adopted by her Honour to the construction of s.170CG(3)(d), but that approach was not the subject of submissions on appeal. Unless compelled to do so we are reluctant to determine this point in the absence of submissions. We have concluded that it is not necessary for us to determine this issue in order to determine the appeal. It is apparent from her Honour's decision that she found that Mr Goodwin had received one warning in respect of one of the performance matters which led to his termination. He was not warned about the other unsatisfactory performance issues which her Honour found had contributed to there being a valid reason for his termination. We agree with these findings for the reasons we have given. Acton SDP had regard to these findings in deciding that the termination of Mr Goodwin's employment was harsh, unjust or unreasonable. In our view this approach does not disclose an error warranting correction on appeal.
 The final point advanced by the appellant in relation to the issue of procedural fairness was put in the following terms:
"... it is submitted that the defects in the procedure found by the Senior Deputy President were not of sufficient seriousness to warrant tipping `the balance' in favour of a finding that the termination was harsh, unjust or unreasonable, keeping in mind the fact that Mr Goodwin was a probationary employee at the time that these warnings were being given to him."38
 The essence of this submission is that Acton SDP's discretion miscarried because her Honour:
· failed to give any or any sufficient weight to:
- her finding that there was a valid reason for the termination of Mr Goodwin's employment; and
- the fact that Mr Goodwin was a probationary employee at the time he received a warning from Mr Hazelhoff; and
· gave too much weight to her findings relating to whether Mr Goodwin's termination was procedurally fair (s.170CG(3)(b), (c) and (d)).
 We do not accept the argument advanced by the appellant. In our view her Honour's conclusion that the termination of Mr Goodwin's employment was "harsh, unjust or unreasonable" was reasonably open to her. In this regard we note that the appellant does not challenge her Honour's findings pursuant to s.170CG(3)(b) and (c).
Issues of Credit
 The essence of the appellant's submissions relating to the issue of credit is the proposition that in the proceedings below Acton SDP preferred the evidence of the respondent's witnesses to that of Mr Goodwin in respect of a number of the matters in issue. On this basis it is contended that the credibility of Mr Goodwin's evidence was impugned generally and her Honour erred in relying on his evidence in determining the question of remedy.
 It is apparent from her Honour's decision that in relation to a number of issues the evidence of other witnesses was preferred to that of Mr Goodwin. The following findings made by her Honour are relevant in this regard:
· When Mr Hazelhoff conducted inspections, which he did on many occasions, he found that Mr Goodwin was not performing the duties which had been assigned to him - Mr Hazelhoff's evidence was accepted because he was not cross examined on this point39.
· Mr Goodwin did not do everything he was instructed to do and on occasion refused to take instructions from more long serving employees - evidence of Messrs Hazelhoff and Shallies preferred to that of Mr Goodwin because they were not cross examined on this part of their evidence and Mr Goodwin admitted to refusing to work with Mr Shallies40.
· Mr Goodwin eased off on his work a bit when Mr McCarthy went to assist him in his work on the small moulds - Mr McCarthy's evidence was preferred to that of Mr Goodwin because Mr McCarthy was not cross examined on this point41.
· Mr Goodwin wandered around the workplace site and was slow to recommence work after work breaks - the evidence of Ms Carter and Messrs Hazelhoff, McCarthy and Shallies was preferred to that of Mr Goodwin. Of the witnesses called by Fastidia, only Mr McCarthy was cross examined on this issue42.
· Warnings - Mr Hazelhoff's evidence was preferred to that of Mr Goodwin.
 In our view these findings do not warrant a general rejection of Mr Goodwin's evidence. But for the finding relating to the warnings given to Mr Goodwin, each finding is based on the uncontested evidence of other witnesses. In relation to the warnings issue we note our earlier finding that the word "warning" was not used by Mr Hazelhoff when he delivered what we have referred to as the "official" and "unofficial" warnings. Mr Goodwin denied that he had ever been given a warning. The only "warning" which was a warning of the type contemplated by s.170CG(3)(d) was the "official warning" given in early October. Mr Goodwin's denial is explicable on the basis of either the passage of time or the fact that he did not regard the relevant conversation as a warning. Support for the latter proposition is obtained from Mr Hazelhoff's evidence to the effect that Mr Goodwin appeared "shocked" and "stunned" when told of his termination. These reactions are consistent with Mr Goodwin's position that he had not been previously warned in relation to his performance.
 There is one further matter which counts against the acceptance of the appellant's proposition. At paragraph 30 of her decision Acton SDP says:
" I am not satisfied Mr Goodwin refused to climb up on the tanks but I am satisfied from the evidence of Mr Goodwin and Mr McCarthy on this point that he frequently managed to get other employees to do it in his place. While Mr Hazelhoff and Mr Shallies evidence was that Mr Goodwin refused to climb up on the tanks, that evidence is not supported by Mr McCarthy who was also called by Fastidia or by Mr Goodwin. I prefer the evidence on this point of Mr McCarthy and Mr Goodwin over that of Mr Hazelhoff and Mr Shallies given Mr McCarthy and Mr Goodwin were called by opposing parties."
 The above finding was an instance where Acton SDP preferred the evidence of Messrs Goodwin and McCarthy to that of Messrs Hazelhoff and Shallies. It was not challenged on appeal.
 We do not think that there is any substance to the appellant's challenge on this point.
 The appellant challenges the approach taken by her Honour to a number of the matters arising under s.170CH(7). Subsection 170CH(7) is in the following terms:
"(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant."
 The appellant contends that:
· Acton SDP erred in concluding that but for the termination the applicant would have been employed by Fastidia for at least the period up to the date of the hearing below, that is 7 September 1999 (s.170CH(7)(c));
· Acton SDP failed to give any or any sufficient weight to the length of Mr Goodwin's service with Fastidia and the fact that for 12 of the 18 weeks in which he was employed Mr Goodwin was serving a period of probation (s.170CH(7)(d));
· Acton SDP failed to give any or any sufficient weight to the fact that the decision to terminate Mr Goodwin's employment had been made during the currency of his probationary period but was not implemented until 8 January 1999 to spare him the trauma of being terminated prior to Christmas. It was contended that the employer's kindness in this regard should have been taken into account as a relevant matter pursuant to s.170CH(7)(e).
 We deal with each of the matters in turn. In relation to the first point her Honour's conclusions are set out at paragraph 105 of her decision:
"With respect to the remuneration Mr Goodwin would have received or would have been likely to have received if his employment had not been terminated, I am satisfied his employment would have continued for a reasonable period of time if his employment had not been terminated. I am so satisfied because, as I indicated earlier, I am satisfied Mr Goodwin was not unsuitable for the work to be performed and the factors which in combination constituted a valid reason for Mr Goodwin's termination are all factors which, but for the lack of procedural fairness in the termination, were capable of rectification or resolution by Mr Goodwin. Further, there was no evidence before the Commission to the effect that there was no longer any need for an additional employee to perform that work or, in other words, that Mr Goodwin would have been made redundant. Conservatively, I assess that he would have been employed by Fastidia for at least the period up to the date of the hearing in this matter, being 7 September 1999."
 As was noted in Ellawala v Australian Postal Corporation43 (Ellawala), lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. This period is referred to as the "anticipated period of their employment". Such an assessment is often difficult, but it must be done. As the Full Bench in Sprigg v Paul's Licensed Festival Supermarket said:
"...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihood is integral to most assessments of compensation or damages in courts of law."44
 In our view her Honour's conclusion that but for the termination of his employment Mr Goodwin would have been employed by Fastidia until at least 7 September 1999 was reasonably open on the evidence. If we were required to determine the matter for ourselves we would have found that Mr Goodwin's "anticipated period of employment" would only have been six months, rather than the eight months period determined by her Honour. But this difference of view would not have altered the amount awarded to Mr Goodwin because:
- lost remuneration would have been $11,845 gross, being $455.58 per week x 26 weeks;
- no deduction would have been made for monies earned since termination because Mr Goodwin did not obtain further employment until 24 July 1999 which is after the "anticipated period of employment"45;
- we would deduct $2277.90, being 5 weeks at $455.58 per week, pursuant to s.170CH(7)(d); and
- we would make no deduction for contingencies.
 In relation to mitigation and our deduction of $2277.90, we agree with her Honour's conclusions on this point as set out at paragraph 108 of her decision.
 In relation to the last point we note that a discount for contingencies is a means of taking account of the various probabilities which might otherwise affect earning capacity. At the time of hearing any such impact on an applicant's earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant's earning capacity has in fact been affected during the relevant period46. In this case the hearing took place in September 1999 eight months after termination. We would have found that but for the termination of his employment, Mr Goodwin would have been employed until 12 July 1999, that is for a further six months. In these circumstances it is not appropriate to make any deduction for contingencies.
 The application of the statutory cap would result in an order requiring Fastidia to pay Mr Goodwin $8,200.44 less applicable tax. Acton SDP reached the same conclusion in the proceedings below.
 The appellant's second contention was that Acton SDP failed to give any or any sufficient weight to the length of Mr Goodwin's service with Fastidia or to the fact that for 12 of the 18 weeks in which he was employed Mr Goodwin was serving a period of probation. Section 170CH(7)(b) requires the Commission to have regard to the "length of the employee's service with the employer" in determining the amount to be paid by the employer to the employee in lieu of reinstatement. Acton SDP dealt with this issue at paragraph 111 of her decision:
" Mr Goodwin worked for Fastidia for some 18 weeks before his employment was terminated. It was not put in the proceedings that I should discount any amount in lieu of reinstatement because of the length of his service with Fastidia and in the circumstances of this case I can apprehend no reason why I should discount the amount because his service with Fastidia was 18 weeks."
 The Senior Deputy President had regard to the length of Mr Goodwin's service with Fastidia but decided not to reduce the amount to be awarded in lieu of reinstatement as a consequence. In our view her Honour's conclusion on this point was reasonably open to her. Further, assuming that Mr Goodwin was engaged on the basis of a three month probation period, we have not been persuaded that such a circumstance would warrant any reduction in the amount to be awarded in lieu of reinstatement.
 The appellant's last contention was that her Honour had failed to give any or any sufficient weight to the fact that the decision to terminate Mr Goodwin's employment had been made during the currency of his probationary period but was not implemented until 8 January 1999. In our view this contention is devoid of merit. We make two points in this regard.
 First, the fact upon which the contention is prescribed has not been established. On the appellant's case in the proceedings below Mr Goodwin's probationary period would have expired on 9 December 1998. Mr Carter, the Managing Director of Fastidia, gave evidence as to when the decision to terminate Mr Goodwin's employment was made. At paragraph 6 of his witness statement Mr Carter says:
"A decision to terminate his employment was taken at Christmas time in 1998."47 [emphasis added]
 During the course of his oral testimony Mr Carter was questioned about this part of his statement and he said:
"... I felt that that would be a bad time to put him off just before Christmas which he would have problems perhaps finding a job during the Christmas period so I decided to do it after Christmas, after the holiday period."48 [emphasis added]
 In our view Mr Carter's evidence does not support the appellant's contention that the decision to terminate Mr Goodwin's employment was taken prior to the expiration of his period of probation on 9 December. Mr Carter's evidence is that this decision was taken either at or just before the commencement of the Christmas holiday period. We were not taken to any other evidence which might have supported the appellant's contention on this point.
 Second, the appellant says that Acton SDP should have regarded the timing of the decision to terminate Mr Goodwin's employment and the implementation of that decision as a relevant matter within the context of s.170CH(7)(e). Had it been so regarded her Honour would have been obliged to take it into account in determining the amount to be awarded in lieu of reinstatement. The difficulty for the appellant is that this proposition was never advanced in the proceedings below. We fail to see how the failure to regard a matter as relevant pursuant to s.170CH(7)(e) can give rise to an error warranting correction on appeal in circumstances where the appellant was represented by counsel in the proceedings at first instance and yet failed to even advance the point now relied on. It is not the function of the appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in this manner in which their case was run in the proceedings at first instance.
 We are not satisfied that the appellant has established an arguable case that Acton SDP made an error warranting correction on appeal. Leave to appeal is refused and we dismiss the appeal. The stay order issued by consent on 20 June 2000 [Print S7250] is set aside.
BY THE COMMISSION:
C. O'Grady of counsel for the appellant.
J. Gray of counsel for the respondent.
Printed by authority of the Commonwealth Government Printer
<Price code F>
1 Print S4581 at paragraph 86.
2 Re Advanced Australian Workplace Solutions Pty Ltd, unreported, Print S0253, 25 October 1999 per Giudice J, McIntyre VP and Redmond C.
3 T. Symonds v HY Ting and Sons, unreported, Print S8497, 25 July 2000 per Watson SDP, Acton SDP and Gay C.
4 Exhibit A1.
5 Exhibit A1.
6 (1998) 159 ALR 1.
7 Ibid at 28 and 32.
8 Ibid at 20
9 (1986) 161 CLR 513 at pp 518-9.
10 Rode v Burwood Mitsubishi, Print R4471, 11 May 1999 per Ross VP, Polites SDP and Foggo C; Tenix Defence Systems Pty Ltd v Fearnely, Print S6238, 22 May 2000 per Ross VP, Polites SDP and Smith C.
11 (1996) 39 ALJR 505 at 506.
12 (1970) 124 CLR 192 at 199.
13 (1971) 125 CLR 296 at 307.
14 Edwards v Noble (1971) 125 CLR 296 at 304.
15 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192.
16 (1979) 142 CLR 531.
17 (1979) 142 CLR 531 at 552.
18 (1995) 60 IR 1.
19 Transcript, 7 September 1999, p.38 at lines 9-23.
20 Transcript, 7 September 1999, p.45 at lines 16-21.
21 Ibid at line 31.
22 Transcript, 7 September 1999, p.38 at lines 24-35 and p.39 at lines 1-7.
23 Transcript, 7 September 1999, p.10 at lines 1-7.
24 See exhibit Mc 2 at paragraph 4.
25 Transcript, 7 September 1999, p.45 at lines 26-27.
26 Exhibit Mc 2 at paragraph 5.
27 Transcript, 7 September 1999, p.49 at lines 17-19.
28 Ibid, p.45 at lines 26-27.
29 Ibid, p.49 at lines 22-26 and p.53 at lines 27-31.
30 Ibid at pps. 54-55.
31 Ibid p.65 at lines 3-14 and p.69 at lines 1-7.
32 Ibid p.80 at line 3.
33 Ibid p.81 at lines 20-23.
34 Ibid p.54 at lines 8-10.
35 Transcript, 7 September 1999, p.40 at lines 3-5.
36 Ibid p.46 at lines 5-10.
37 Print S4581 at paragraphs 82 and 83.
38 Exhibit A1 at paragraph 28.
39 Print S4581 at paragraphs 20-21.
40 Ibid at paragraph 22.
41 Ibid at paragraph 31.
42 Ibid at paragraphs 47-48.
43 Print S5109, 17 April 2000, per Ross VP, Williams SDP and Gay C
44 (1998) 88 IR 21 at 32
45 See Ellawalla, Print S5109 at paragraph 35.
46 Ibid at paragraphs 36-43.
47 See Exhibit Mc7.
48 Transcript, 7 September 1999, p.81 at lines 34-37.