C2414/100, Transcript of Proceedings [2001] AIRCTrans 296 (20 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER LAWSON

C NO 24141 OF 2000

APPEAL UNDER SECTION 45 BY
MR E. MULLINS AGAINST THE
DECISION OF COMMISSIONER WILKS
MADE IN SYDNEY ON 11 DECEMBER 2000
IN MATTER U NO 20480 OF 2000

SYDNEY

10.00 AM, WEDNESDAY, 28 FEBRUARY 2001

RESERVED FOR DECISION

PN1

BOULTON J: Can we have the appearances please?

PN2

MR I. LATHAM: If the Commission pleases, I appear instructed by Mr Shoebridge of Taylor and Scott, for the appellant.

PN3

MR N. DAWSON: If it please, I am instructed by Mr Murray of the Master Builders Association.

PN4

BOULTON J: Yes, leave is granted in each case. Mr Latham?

PN5

MR LATHAM: Your Honour, could I take it that the written submissions are before the members of the Bench? They have been read?

PN6

BOULTON J: Yes.

PN7

MR LATHAM: Perhaps it might be easiest, your Honour, or members of the Bench if I gave a quick summary of the issues that we say are in play and then perhaps we can go to them in some type of detail. The summary of the factual issues I think is fairly straight forward. The appellant was employed by the respondent for a number of years at a number of different sites. The appellant was terminated by the respondent on - - -

PN8

BOULTON J: Well, when you say a number of years, it is about two and a half years, is it?

PN9

MR LATHAM: Yes, I think that is correct. Yes, that is correct. The appellant was terminated by the respondent on the purported grounds of redundancy. The appellant applied to the Commission for relief in relation to that termination and the decision of the Commission, which you should have before you, is one that is I think skeletal at the best but it seems to make the following conclusions in order.

PN10

Firstly, that the redundancy itself was a bona fide redundancy and it may be just put into question at some stage as to whether the words, bona fide, add anything to the term, redundancy. I will leave that to one side. Secondly, there was a conclusion made that the termination was for valid reason, presumably on the basis that the redundancy itself was bona fide. The third conclusion was then made apparently on the basis of the earlier two propositions that the termination was not harsh, unjust or unreasonable.

PN11

We say the issues on appeal are not many but there are some of them are of some complexity. The first issue we say the Commission should deal with is whether the appeal involves discretionary principles or principles relating to errors of fact and law and that distinction, we say, will determine whether the test used in House v King will apply. I do not think it is necessary to restate that test except to say that if the appeal is of a discretionary nature there is a need to show more than the Appeal Bench would have reached different conclusions, they need to show an error in the exercise of that discretion. If the nature of the appeal is not discretionary, we say it is only necessary to show error either of fact and/or of law.

PN12

We say that decision can most easily be established in this way. Which is just to break down the elements that the Commissioner was required to determine. The first element we say is what is meant by the words, harsh, unjust or unreasonable.

PN13

BOULTON J: Well, what do you say? What principles do you say should be applied?

PN14

MR LATHAM: We say it is a non-discretionary appeal.

PN15

BOULTON J: So, you do not apply House v King?

PN16

MR LATHAM: Do not apply House v King, no, your Honour. Could I just add at this stage, even if House v King is applied we say that there is still sufficient error that an Appeal Bench could and should intervene but we say it is not even necessary to get to that argument.

PN17

BOULTON J: Well, House v King is usually applied in unfair dismissal appeals, is it not?

PN18

MR LATHAM: Occasionally, but we say if you look at the reasons for that in some greater detail, if it is applied it is applied unnecessarily and wrongly. I will take you to those decisions in just a moment, your Honour, but perhaps if I can just go back to those elements. We say the first is to reach a conclusion as to what is meant by harsh, unjust or unreasonable. We say that is just a conclusion of law. The second thing we say is to make a determination as to the facts. The third issue is to determine whether those facts as found establish that the termination was harsh, unjust or unreasonable.

PN19

We say each of those three steps involved no discretion at all and there is some considerable authority for that position which I might just go to on an initial basis. If I could hand up three decisions, your Honour? The decision of Samartino and Foggo JJ.

PN20

BOULTON J: Are you going to take us to the recent High Court decision?

PN21

MR LATHAM: Which particular one was that, your Honour?

PN22

BOULTON J: The CFMEU and - - -

PN23

MR LATHAM: Sorry, that is easily distinguishable, your Honour. That is in relation to an entirely different provision. It has got an entirely different test. I will go to that in the course of a later discussion, your Honour. Sorry, the decisions were the decision of Samartino, Outboard World and Gregory. If I could go to Samartino and Foggo first which is cited in 93 IR 52. I should make clear at the outset that this is a slightly different issue in that the question here was whether the applicant, or appellant, in fact, in that case, was a contractor or an employee. Having said that, it is in relation to the same series of provisions. But the Full Bench of the Federal Court in that case discussed this point at some length on page 54, at about line 10 - sorry, in paragraph 8 at about line three of that paragraph, in the words starting: The question - where the Full Bench said:

PN24

The question whether a person is an employee for the purposes of division 3 ...(reads)... no exercise of discretion is involved.

PN25

The Full Bench go on to say that:

PN26

On an appeal from such a decision if leave to appeal is given ...(reads)... powers under section 45.

PN27

It goes on to say:

PN28

It will find that an error or law or an error of fact ...(reads)... by the primary decision maker.

PN29

A clear rejection of House v King. The second decision that I would refer you to is Gregory v Phillip Morris, also a decision of the Full Bench of the Federal Court decided in 24 IR 397. I do not think it is necessary to go into the complexity of the facts in this case but simply to say that the issue here was about a termination being harsh, unjust or unreasonable and a number of other issues obviously as well. But that was dealt with at page 419 by the majority in very similar terms to the Federal Court in Samartino which at the first full paragraph on page 419 Wilcox J and Ryan J say:

PN30

In the present case the question for the Court is whether the dismissal of the appellant was harsh, unjust or unreasonable. These words -

PN31

and then leaving aside Antonovich:

PN32

...require a process of judicial evaluation of proved facts but ...(reads)... ultimate evaluation of reasonableness.

PN33

And we do not cavil with that at all. It is quite clear that in matters involving a single Commissioner that questions like credit and demeanour are significant issues that are very difficult to overturn on appeal. But the Full Bench goes on to say:

PN34

Such cases stand apart ...(reads)... conclusion of the Trial Judge.

PN35

We do not argue with that. The crucial point, though, is the next sentence:

PN36

But where the final decision depends upon the Court's evaluation ...(reads)... have no application to -

PN37

I think there is a word in error there but I think it should say: to this court's consideration -

PN38

whether the learned Judge at first instance was correct in holding that the dismissal of the appellant was not harsh, unjust and unreasonable.

PN39

The final case in this triumvirate is not a case of this Commission but a case of the State Commission which is the case of Outboard World and in that decision, cited at 51 IR 167, the Full Bench in the State Commission dealt with these issues by reference both to state and federal judicial pronouncements. In particular at page 179 they go through the same threefold test that the Federal Court indicated was not only the appropriate but the correct way to proceed.

PN40

On the first full paragraph of page 179 at about line 5 the Commission stated - this was in relation to the duties of the Full Bench in terms of unfair dismissal cases. It stated:

PN41

First the Tribunal will be required to ascertain or determine the facts. This will usually involve ...(reads)... their demeanour.

PN42

Then the next full paragraph the Commission states:

PN43

Upon those facts being established the second issue arises for determination, was the dismissal ...(reads)... section 246.

PN44

They say interestingly, whether that be a mixed question of facts or law or one of fact - and I just leave that issue to one side - is found by Jenkinson in Gregory v Phillip Morris:

PN45

The appellant tribunal will be as well placed as a primary tribunal to make its own decision on that question and should do so.

PN46

There is then a reference to Phillip Gregory, in fact the same reference that I referred to earlier on.

PN47

We say on the basis of that thinking, the three steps required for the Tribunal to look at in terms of determining the appeal are all non-discretionary issues and we say on that basis finding any error, either of fact or of law or of both, will lead to a situation where the Appeal Bench must intervene.

PN48

Perhaps if I could go to that three part process and just refer to the Commissioner's decision to explain what we say some of the errors are. If I could take you to the decision itself which is set out at print T4297, I think that's at tab 2 of the Appeal Book. The first question we ask is:

PN49

What determination was made as to the meaning of harsh, unjust or unreasonable?

PN50

We say at best it's not entirely clear what meaning was given to that term. It seems the decision as to the meaning was based on a finding of valid reason which in turn was based upon a finding of redundancy, and we say the lack of clarity as to the meaning of that phrase in itself is a ground of appeal and is an error of law, as set out in the case of Pettit v Dunkley. I just hand up a copy of that. It's a decision of the Supreme Court of New South Wales, in different circumstances admittedly, but the principles we say are the same. That decision is set out at (1971) 1 NSWLR 376.

PN51

The important part of this decision, which involved the adequacy of reasons being given and whether the lack of adequacy of those reasons meant that there was an error, it was dealt with in particular at page 382, in the first full paragraph which I might just read. His Honour, Asprey J stated:

PN52

In my respectful opinion the authorities to which I have referred and ...(reads)... constitutes an error of law.

PN53

We say it is impossible to determine from the face of the decision a proper understanding of the basis upon which the decision was made, and we say that in itself is an error of law, and that in itself is a decision that should entitle this Commission to intervene - sorry, I'll say that again, should require this Commission to intervene.

PN54

The second question we say was required to be determined by the Commissioner were the issues about findings of fact. The findings of fact made by the Commissioner seemed to have been as follows. Firstly, that there was a bona fide redundancy and that is disputed and was disputed at first instance. And secondly, that the applicant was notified of the reason. There is no doubt that the applicant was notified of the reason.

PN55

In relation to the question of bona fide redundancy, for the reasons set out in the written submissions, we say that that decision itself was not supported by the evidence. If I could take you to those written submissions. There is some reference to the transcript - - -

PN56

BOULTON J: You are taking us to what?

PN57

MR LATHAM: Sorry the written submissions for the appellant.

PN58

BOULTON J: I might mark them at this stage as exhibit L1.

EXHIBIT #L1 WRITTEN SUBMISSIONS OF APPELLANT

PN59

MR LATHAM: Sorry, unfortunately these pages are not numbered. If I could take you to page 8 of those submissions. There is a heading there Was There a Bona Fide Redundancy, does your Honour have that page before you?

PN60

BOULTON J: Yes.

PN61

MR LATHAM: There are references to the transcript which summarise the essence of the argument here. I will not go to the transcript unless your Honour particularly requires me to. But the points set out in the second half of that page is that the evidence shows quite clearly that there was still work to be done. It shows that he had worked on a number of different projects and that is set out in the transcript. And then it was also made clear and this was the evidence of the respondent, the respondent's witnesses:

PN62

Was there further work ahead of Mr Mullins?---Yes there was, there's like it still had to go up 1½ levels.

PN63

So a level and a half, that is the building that they were working on. The evidence I think then of the appellant which was uncontroverted was that other people around the area were working overtime and then the further evidence set out on the next page is that the company policy was that retrenchments occurred when an employee had finished a project or part of a project and could not be placed elsewhere. There is further evidence that other workers were retrenched after the appellant and that the evidence again of the applicant which was uncontroverted, was that some workers were dismissed and some workers went to other sites off the Burwood site, the Burwood site being the site where he was working.

PN64

We say that that unchallenged evidence shows clearly that at the time of his retrenchment there was still work to be done that the appellant could have done. It shows also that even if there had not been work for him and we do not concede that and do not put it, that there were alternatives to his retrenchment available. And we say if one uses the traditional determination of what is a redundancy, that the work no longer be required to be done by anyone, that there was no bona fide redundancy when in fact could probably just use the word redundancy with the words bona fide. We say that without having to rely on the submission faintly put that the redundancy or termination might have been due to the injury at work.

PN65

The final step that we say the Commissioner should have gone to which did not happen was to determine whether the facts themselves established a conclusion or went to the legal conclusion here reached on the term harsh, unreasonable and unjust. And there is a number of steps in that. The first step we say is whether the facts themselves lead to a conclusion that there was a valid reason as the Commissioner found and secondly, once the Commissioner reached a conclusion on that, whether that was then the end of the debate or whether other matters should have been further looked at.

PN66

We say in relation to the question of the factual basis for the conclusion, we say there is a number of points that must be gone through in some order. We say the termination itself cannot have been valid if the redundancy - sorry, if a genuine redundancy had not occurred. If the redundancy was manufactured to be able to terminate this person, we say that cannot be for valid reason. And we in fact say that is exactly what occurred. As a further submission though we say this, if there is a factual situation whereby there are to be a number of genuine retrenchments if I can refer to them in that way, the Commission still has to determine whether the retrenchment of the individual involved is for a valid reason or not and that is discussed in some detail in both Kosko v Windsor Smith which perhaps I might just go very briefly to if you could just bear with me for a moment.

PN67

I will come back to that your Honour. I do not think it is an issue in dispute. All we say is that it is necessary to look at the circumstances of the individual retrenchment even if the retrenchment as a whole are for a valid reason. And the third point we say is even if the Commissioner properly came to a conclusion that the termination was for a valid reason, we say that that in itself does not show that the termination was not harsh, unreasonable or unjust. And that is perhaps the greatest error that the Commissioner fell into. And if I could just refer to a number of cases in relation to that. The case of Quality Bakers which I will hand up, if I could hand up a copy of Quality Bakers and also Wynns Winegrowers.

PN68

Perhaps if I could start with Quality Bakers. That is a decision of a single Judge of the Federal Court, Beazley J in 60 IR 1995. That is dealt with - sorry, that deals with an issue about redundancies essentially in a baker. But as set out on page 337, counsel for Quality Bakers, the appellant in that case, essentially stated that the redundancy itself was genuine and therefore that was the end of the matter so far as they were concerned. Now her Honour in this case said that that is not the end of the matter by any stretch and from page 334 dealt with the issue of whether the termination was harsh, unjust or unreasonable. She began by saying at the second full paragraph:

PN69

Even the case of a genuine redundancy, the termination of a particular employee may be harsh, unjust or unreasonable.

PN70

And it goes on to say:

PN71

A failure to consult with an employee or union about the issue of redundancy may mean that a termination on that ground is harsh, unjust or unreasonable.

PN72

She goes on to say:

PN73

A termination may also be harsh, unjust or unreasonable because the employee may have been but was not offered suitable employment with the employer.

PN74

And refers to Wynns Wine Growers. Goes on to refer to the need for consultation with employees and if applicable, the employee's union and that that is recognised an essential element of fairness. Refers to a number of decisions which I will not go to in any detail. At page 335, refers in further detail to that same principle but refers to the decision of Corkery v General Motors Holden, the decision of the South Australian Industrial Commission stating that or quoting with approval Stanley J in that case:

PN75

That the employer should give as much warning as possible of the ...(reads)... consult with the union to seek to establish a criteria.

PN76

And then sets out the sort of criteria looking at length of service, efficiency, experience and attendance records, by reference to objective criteria. Further sees that the selection was made fairly in accordance with the established criteria and considered any representations and see whether there are alternatives to dismissal, in particular alternatives of alternate employment and goes on at page 336 to re-state those positions and also at page 337 most particularly in the first full paragraph, but about halfway down that starting with the words "in my opinion" and this is obviously a conclusion about those particular facts, but we say it is relevant to this matter:

PN77

In my opinion, notwithstanding that there were negotiations ...(reads)... of his employment harsh, unjust or unreasonable.

PN78

We say those sorts of criteria should have been looked at by the Commissioner in this case. The Commissioner failed to do so. We say that again is an error. And just quickly too, the case of Wynns Wine Growers which is set out at 16 IR 381 admittedly as already mentioned the case of the Industrial Commission of South Australia at page 384, the Full Bench stated that, in the first full paragraph:

PN79

We entertain no doubt that even if where there is a genuine need ...(reads)... of notice given might have been totally inadequate.

PN80

As we say was clear in the case in this case. All because the redundancy payment was, in all the circumstances, totally inadequate. What these cases say, we say, is that there are a wide array of criteria to look at even in the case of a genuine redundancy. And that that wider array of criteria was simply not referred to at all by the Commissioner in this matter. And we say that is a secondary proposition to our primary proposition that there was no bona fide redundancy.

PN81

The issues that we say should have been looked at in particular and they are referred to in the written submissions, are these. Firstly, whether the process whereby the reason was notified to the employee as adequate. There is a finding also fairly skilful that while the period of notice was very short, it was in accordance with the notice requirements of the relevant award being the National Building and Construction Industry Award, that is at paragraph 2. We say simply because a notice period is in accordance with the award does not make that notice period adequate.

PN82

We say the second thing that the Commissioner should have looked at was the opportunity to respond and as set out in the written submissions, it is quite clear that there was no opportunity to respond or to be able to provide an alternative and to have any of those views taken into account by the respondent. And that is set out at the second last page of the written submissions where - sorry third last page, where after reference to the notice provision which I will go back to in just a moment, states:

PN83

Was the employee given an opportunity to respond to any reason ...(reads)... was there any other ground taken into account.

PN84

And the answer there was "no". We say that the opportunity to be notified that is referred to in the Act implies an opportunity to properly be able to respond and we say no such proper opportunity was given.

PN85

COMMISSIONER LAWSON: But Mr Latham, does that not only go to the issue of whether the reason related to the capacity or conduct of the employee, I refer you to 170CG(3)(c), the opportunity to respond applies in a set of circumstances.

PN86

MR LATHAM: That is true.

PN87

COMMISSIONER LAWSON: So you are extending that to a general proposition that there should have been an opportunity to respond in a manner that is not perceived and not dealt with in the legislation?

PN88

MR LATHAM: I would not go that far. I think what is fair to say about the legislation is that it sets out a number of criteria and then says any other matters that are relevant and we say that is clearly one of the other matters that is relevant, an opportunity to respond. It is just a standard principle of justice that people should be given the reasons why something detrimental is to happen to them and the opportunities to be able too change it.

PN89

COMMISSIONER LAWSON: Yes, but it happens to be specifically referred to in this section of the Act related to an employees capacity or conduct.

PN90

MR LATHAM: I accept that. We say what should have also been looked at in particular was the effect upon the applicant. Now there is an arcane and ongoing debate about whether the term valid reason applies to one or the other parties to a termination, but leaving all of that argument to one side, the evidence which is referred to briefly in the second page of the decision of the - sorry, there is a reference to the workers compensation history of the applicant. But there was also some discussion on the transcript about the fact that the appellant had actually taken out a loan just prior to his termination, that that was known by the respondent and in fact a copy of the letter was upon their file I think.

PN91

It was never referred to in the decisions of the Commissioner, but we say that the impacts of the termination upon the appellant in those circumstances was far more serious than it would be upon a person who hadn't taken the same action. So we say that's a further ground that the Commissioner should have looked at and should have referred to in its decision and failed to.

PN92

The final point we make in relation to those matters is the question of the lack of consultation, and while there was doubt about this in terms of the evidence the issue that was referred to briefly also by the Commission was a question of modus which I referred to before and the Commissioner found that the period of notice was very short but was in accordance with the notice requirements of the award. Well we say that is not the full question that the Commissioner was required to ask. As is quite clear since Byrne v Frew in the High Court there are statutory provisions in the terms of awards that apply to things like notice. There are also common law requirements as to adequate notice for example.

PN93

That issue was simply never adequately explored by the Commissioner, as to whether the notice in his situation was adequate or not, the notice given was one day's notice and we say that is hopelessly inadequate in terms of normal employment principles.

PN94

BOULTON J: But it is the standard in the building industry?

PN95

MR LATHAM: Yes, that's correct, yes your Honour. And as a standard it may be relevant in determining what appropriate notice is. But the Commissioner never even did that your Honour.

PN96

BOULTON J: Well you don't know do you?

PN97

MR LATHAM: Sorry, I accept that your Honour, but that is a better way of putting it. It is unclear from the decision as to whether the Commissioner did that or not. Your Honour perhaps in terms of the issue of leave which is a matter that I think my friend wants to discuss in some detail, as set out on the fourth page of the written submissions and I won't read these, but it is quite clear that there are two heads of power in terms of leave for appeal such as this. One is a power to grant leave and the second is a requirement to grant leave. If the Commission forms the opinion that the matters are of such importance that the public interest requires that leave should be granted, that is dealt with in CFMEU against the Commission which I refer to, I won't take the Commission to against asked to. What is, I think important in those submissions at the bottom paragraph are the words about half way down that paragraph:

PN98

The conventional considerations for the granting ...(reads)... are not replaced by a different test.

PN99

That is in relation to the second leg of that power. We say in this case that the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Bench. We say in terms of the appellant there will certainly be a substantial injustice if leave is refused on the supposition that the decision is wrong. We say that there is a matter of discretion under section 45(1) leave should be granted, but we also say under 45(2) that leave should be granted on a non discretionary basis and the reasons for that, in addition to all the errors that we have referred to before is that this decision, small as it may be - or sorry, the entitlement being sought, small as it may be involves the interaction of a number of different entitlements and it involves the question as to whether retrenched employees essentially are denied access to the provisions relating to termination of employment and we say there is no such exception in the Act and we say there would need to be clear legislative exception for that to occur.

PN100

We say there is also the serious issue about what is meant by reasonable notice in situations like this. We say there is significant issues in relation to the relationship between the term valid reason and harsh, unjust or unreasonable in the Acts. We say that the process by which selection occurred in this process was unfair and that is an issue that the Commission should be rightfully concerned with and that the Commission should also be rightfully concerned with the impact of the termination upon the individual employee himself.

PN101

We say that on both of those two criteria leave can be granted and should be granted. Beyond that your Honour, unless there are any questions from the Bench they are the submissions for the applicant, I am happy to let the respondent go now or answer any questions that the Bench might have. Sorry, could I just add one final point. As sought in the last paragraph, the remedy we seek would be that the decision of the Commissioner be quashed and that the appellant be awarded the sum of $7800 by way of compensation.

PN102

COMMISSIONER LAWSON: Doesn't that require a whole range of quite separate findings by this Bench before a Bench can conclude that a remedy ought to be granted?

PN103

MR LATHAM: Yes, I accept that.

PN104

COMMISSIONER LAWSON: So you are really seeking a re-hearing of the whole issue, of all the matters dealt with at first instance?

PN105

MR LATHAM: To the extent necessary to reach that remedy, yes that is correct. Just perhaps as a qualification on that, we say in terms of the written submissions there is already sufficient evidence before the Bench to substitute its own opinion, but there are obviously different ways of dealing with it. There is a possibility of remittal or there is a possibility of a further hearing if necessary to determine the facts and more on the matter. We would say given the small amount of money involved that a remitter would be the least practical of those options.

PN106

BOULTON J: Mr Dawson?

PN107

MR DAWSON: My friend is right in certainly saying that the respondent is of the view that this is a matter where leave should not be granted. He is not correct in saying that I intend to address it at any further length, my submissions I rely on and - - -

EXHIBIT #B1 OUTLINE OF SUBMISSIONS

PN108

MR DAWSON: And I go no further than to say that the approach which your Honour noted has been adopted on many occasions by this Commission in relation to appeals from unfair dismissal hearings is the correct one that that is that it is an approach ultimately based on a House V King approach. There is no doubt that there are questions of fact and findings of fact which are made which subsequently lead to the Commission having to make some judgment which we say is clearly a discretionary judgment in terms of the House v King type model.

PN109

In this case the questions of fact are fairly simple and straightforward, but it is important to put them perhaps in a slightly more detailed context before addressing each of the individual matters which my friend raises. As your Honour noted this person is a daily hire worker where a days notice is the norm in the industry. The Workplace Relations Act provides of course separately to awards at section 70CL and CM to make particular provisions in relation to redundancy and in particular in section 170CM provisions that go to the issue of notice.

PN110

Importantly the parliament in making this legislation provided for regulations which specifically exclude this applicant from the provisions of section 170CM and that context has to be considered when we are looking at the industry in which this person worked and the circumstances which surround this person. It is my submission that the legislation takes that into account because of what else exists in the industry and although it is not particularly relevant because it wasn't considered by the Commissioner in his decision, the legislation can be seen in my submission to be based, not only on the redundancy scheme which is known to exist in the industry to provide for redundancy payments to building workers, but also based on the award itself which provides for a particular payment for periods of unemployment following daily hire work and that sits at clause 18.3.1A of the National Building and Construction Industry Award.

PN111

That award provides for a payment referred to as a follow-the-job loading which takes into account an extra eight days salary per annum - calculated back into the hourly rate of pay - to provide, the award says: for periods of unemployment between jobs. So this worker had benefited from a provision specifically in the award to provide for periods of unemployment between jobs.

PN112

It is my submission that the regulation takes into account the award provisions that sit next to the one-day notice award provision. For the assistance of the Commission, I should hand up copies of the award, it seems they weren't handed up below.

PN113

MR LATHAM: No objection to that.

PN114

MR DAWSON: Now, it's in that context in relation to the issue of merit that the appellant argues basically that it was unfair, certainly in part, and it would be my submission in substantial part because notice was short. It's then perhaps - considering that context - necessary to move through the arguments that my friend puts. He took the Tribunal to Pettit v Dunkley in relation to the issue of giving reasons, but there is of course some comments specifically in relation to this Tribunal which sits in a case that my friend refers to - I can hand up three copies - and that's the decision of Edwards v Judachet and others FCA [1999] FCA 1836; 169 ALR 89, at page 99 at paragraph 44 and following, Marshall J notes:

PN115

In a seriously contested case before a Tribunal which is required to afford procedural fairness ...(reads)... that full reasons should not be given.

PN116

And in 44, his Honour notes:

PN117

The obligation to give adequate reasons may more readily arise when a right of appeal lies.

PN118

We say, that that's correct and that there was no requirement on the Commissioner to give any more detail than is set out in his decision which shows that he properly applied those sections of the Act which he was required to apply.

PN119

My friend says that the issue of whether or not is was a bone fide redundancy is disputed and that that is not supported by the evidence. Well, exhibit M, M for M-a-r-y 2 in the proceedings which sits at tab nine, which was, I believe, ultimately admitted without objection, was ample evidence of the decline in work which was occurring. The project was nearing completion and evidence is given in relation to that graph, but it really speaks for itself. By the time of the appellant's dismissal, work is certainly slowing down. Similarly, the exhibit record of terminations which sits at tab 11, shows that there were a considerable number of terminations occurring during that period, and that the finding of the Commissioner that the redundancy in particular was based on a valid reason there is ample evidence for the Commissioner to make that finding.

PN120

It's not, of course, the position of this Commission to be asked to simply substitute its own finding when there is evidence there that the Commissioner is entitled to have relied upon.

PN121

The appellant makes some issue of the affect on individuals, and that the effect on the individual should have been considered. It's raised in a number of circumstances; the failure to consider the effect on the applicant makes it a non-valid reason; the failure to consider that he'd taken a personal loan etcetera.

PN122

But, of course, in another decision that the appellant relies on - Kosko I believe has already gone up - and that's the decision of Kosko Holdings.

PN123

BOULTON J: No, no, sorry.

PN124

MR DAWSON: It hasn't gone up? At 108 at about point 7 his Honour, Northrop J, says in the second sentence of that paragraph:

PN125

The valid reason must be based on the operational requirements of the employer ...(reads)... operational requirements.

PN126

Similarly, at page 115 of that decision, at about halfway down the main paragraph, it says:

PN127

In the absence of considering whether the determinations were harsh, unjust or unreasonable ...(reads)... employer to do this.

PN128

There is evidence of the employer's policy that the employer retrenches workers as that part of the work they're doing is finished. It was clearly open to the Commissioner to find that that was an acceptable policy which was implemented, clearly, we can see that from the charted work and from the number of terminations which occurred and that the termination therefore was in itself valid.

PN129

It is suggested that the decision of the Commissioner leads us to the view that simply because the Commissioner found that it was valid then automatically it is not harsh or unfair. That's not necessarily what the Commissioner says. The Commissioner makes separate findings. He finds that it's a bona fide redundancy and he finds, in light of all of the above, that the termination of employment was not harsh, unjust or unreasonable. That finding is set out at paragraph 6 of his decision and it says, "In light of the above", and it would be my submission that you would read in terms of: all of the above, not just the finding that it was a valid - or as he says, "bona fide redundancy".

PN130

The claim that, although the legislation only requires employees who are terminated because of capacity or conduct to be given the opportunity to respond - I'm sorry, perhaps if we go to section 170CG(3)(c), which is the requirement to respond. That provision clearly has to be read as being there for a purpose and that qualification which the Bench raised also has to be considered to be there for a purpose, and the qualification is that the opportunity to respond applies in circumstances where it's related to the performance, one might say, in general, of the employee, and not in general terms.

PN131

So far as an attempt to provide other work, the evidence is before the Commission at page 39 of the transcript at 396 - or perhaps at 394. The answer in terms of what was happening:

PN132

The foreman rang up and said, "Look, work is slowing down. I've got a couple ...(reads)... terminated, you know."

PN133

So clearly, there is some attempt by the employer to provide alternate work, and if it's found that that is something that the employer needed to do then there is evidence before the Commissioner that that attempt was clearly made. It's my submission that that evidence went unchallenged by the applicant.

PN134

In relation to the general issue of reasonable notice and what arises from Byrne v Frew, and my friend's submissions about the common law, I think your Honour's question was obviously well timed. The common law would look to see, in my submission, as to what the general practice in the industry is and that was a question your Honour asked. The general practice in the industry is daily hire and daily termination; that was conceded.

PN135

If that's the general practice then in my submission that's what the common law would say is reasonable notice. Now, there might be a submission to say that that makes the common law unfair but that's quite a different submission to the one my friends puts because the common law would consider a proper notice to be the notice to be that generally exists in the industry. We say that point, nothing particularly turns on it, but it certainly needs to be addressed.

PN136

There is no suggestion in relation to my friend's submissions about leave that this worker was denied access to a consideration in relation to the unfair termination provisions because the redundancy was found to be valid. So to say that leave should be granted because it raises the issue of whether or not retrenched employees are denied access, in my submission, is simply wrong. The Commissioner doesn't say that at all. The Commission follows the steps and finds that it wasn't harsh, unjust or unreasonable based on the evidence he heard. There is no suggestion from his decision that the worker is denied that consideration in relation to harsh, unjust or unreasonable simply because he's retrenched.

PN137

In relation to selection procedures, well, Kosko, upon which my friend relies, the Court says before it moves on in Kosko that:

PN138

It was uncontroverted that the appellant adopted a haphazard method in determining which employee should have their employment terminated.

PN139

And the Full Court of the Federal Court ultimately found it no problem with that process. Haphazard, there's nothing to suggest that this was anywhere near haphazard, but rather an implementation of a policy which the Commission was open to find was reasonable. I believe again my friend referred to the effects on the individual, well, if the Court says that you don't have to necessarily consider the effects on the individual, then to propose that as a ground for leave would certainly be at odds with the decision in Kosko. The application should be dismissed if leave is granted. If it is pleases.

PN140

MR LATHAM: Members of the Bench, there's one point that I failed to properly make, which was in response to a question by your Honour about the decision of the High Court, I assume, in Coal and Allied was the decision you were referring to, but perhaps if I could just hand a copy of that up. I assume everyone has probably got a fairly deep knowledge of the factual background to that case, but the High Court, in fairly delphic utterances, looked at whether the decision by your Honour in that case should have been properly looked at in terms of a discretionary one or not.

PN141

In the decision which I have got which is set out in the ALR at Volume 174, page 585, there is a decision by Gleeson CJ, Gaudron and Hayne JJ, which seems to refer to this particular point in the context of that particular section. It's just worth noting too that there is what could only be called a very strident dissent by Kirby J on this particular point, and then there's a further decision by Callen J that seems to adopt the same sort of thinking as the majority. Anyway, at page 591 at paragraph 19 the High Court discusses the notion of discretion as they refer to it, stating that it signifies a number of different legal concepts, and I think in this passage it's quite clear that the High Court is grappling with the notion of what is a discretionary judgment. It's not an easy issue to grapple with, as they made clear.

PN142

The High Court goes on to say:

PN143

In general terms it refers to a decision making process in which no one consideration, ...(reads)... opinion of value judgment.

PN144

We'd say in relation to that passage that that passage is unexceptional but not particularly helpful. It doesn't really define what is a discretionary decision as opposed to a non discretionary one.

PN145

At paragraph 20 the majority went on to say:

PN146

In the present case the decision by Boulton J to terminate the bargaining period ...(reads)... a threat for the purposes of MW -

PN147

and refers to how that is determined, but in particular states:

PN148

The threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity.

PN149

In a broad sense there, that decision can be described as a discretionary decision. Then I think it goes on to what they say is the second leg of that decision that was discretionary, which was:

PN150

And if Boulton J was satisfied that there was a threat for the purposes of MW that necessitated ...(reads)... be terminated.

PN151

Now, at the next paragraph, paragraph 21, the Court go on to say:

PN152

Because the decision maker charged with the making of a decision ...(reads)... error in the decision making process.

PN153

We say that's really a circular detour to where the Court began, but it really restates the House v King principle.

PN154

But the point about this decision is this. Section 170MW is an entirely different section to the that we're referring to. MW has got quite specific wording that is set out as far as the majority was concerned, quite clearly discretionary criteria. It states:

PN155

The Commission may, by order, suspend or terminate the bargaining period ...(reads)... exist or have existed.

PN156

We say that is clearly set out in the criteria of discretion.

PN157

170CG sets out quite a different process. It sets out a process whereby the Commission must determine whether the termination was harsh unjust or unreasonable. Now, those terms may have some elasticity involved but so does every legal term. The term "income" has some elasticity about it, as does the term "trading corporation", for example, but they are still terms that have a legal meaning no matter how broad it may be, and the determination of that legal meaning is a determination that we say involves no discretion at all, it's simply an application of the law as it may be to those words.

PN158

In relation to the points raised by my friend, which were done simply in order, we say the reference to the regulations in relation to daily hire have no relevance to this matter at all. They are provisions that relate to notice provisions under the Act and the appellant is not seeking orders under that section, the appellant is seeking orders in relation to a dismissal which he says is harsh, unreasonable and unjust. We say he is not excluded in any sense by those regulations.

PN159

In relation to the issue of the reduction of work, my friend says I think quite properly that there was evidence before the Commission that showed that there was a reduction of work. Now, it is put by the appellant of course that there was other evidence that showed that there was no such reduction of work or that the reduction of work had no impact upon, or should have had no impact upon himself. But all of those points still lead to this ultimate conclusion that in his decision the Commissioner never looked at any of those complexities at all and never made any proper findings that set out the proper reasons as to his conclusion.

PN160

BOULTON J: Have you taken us to that other evidence? This is in the outline, is it?

PN161

MR LATHAM: It's referred to briefly in the outline. Perhaps if I could take you to page 59 of the Appeal Book which is not 59 of the transcript.

PN162

BOULTON J: I'm sorry, which tab in the evidence?

PN163

MR LATHAM: Sorry, that's tab 3. It doesn't seem that this transcript is paginated at all, but page 59 of the - - -

PN164

COMMISSIONER LAWSON: Unfortunately, the transcript is not paginated at all. It all relies on paragraph numbers.

PN165

MR LATHAM: Yes. If I could take you to paragraph numbered 652 and onwards there's references to - sorry, Mr Murray is the advocate for the respondent. The Commissioner says:

PN166

Was he constructing or stripping formwork?---He was constructing.

PN167

It's a question put by Mr Murray:

PN168

By the third week of April approximately what stage was that work up to?---That would have been up to level 3, level 4.

PN169

And what there further work ahead for Mr Mullins?---There's - sorry, I don't want - there was.

PN170

The question is asked again:

PN171

Was there further work ahead of Mr Mullins?---Yes. Well, there was, there's like ...(reads)... That section, maybe a week and a half.

PN172

and it's referred to in the written submissions.

PN173

BOULTON J: Sorry?

PN174

MR LATHAM: The relevant parts of that transcript are set out in the written submissions at - sorry, your Honour.

PN175

BOULTON J: This is in your written submissions?

PN176

MR LATHAM: Yes, at page 8 and onwards. After the words, "was there a bona fide redundancy", which actually sets out the relevant parts of the transcript. Could I just also add too, in relation to a point raised by my friend which was a graph set out at page - sorry, at tab nine, which my friend relied on to say that work had finished. This was construction work to be done. There was still rectification work that was not included in this graph, as I understand it, and that evidence was challenged at the time, not that that really goes to very much given the transcript references anyway.

PN177

In relation to all of those issues though, the submission is simply this: the Commissioner had an obligation to look at those issues and make findings and set out reasons, and never did so. My friend also said it was open to the Commissioner to find that the policy of the respondent was justified. Well, it may have been open to the Commissioner to do so, but the Commissioner never did so. We say that the Commissioner adopted a skeletal and mechanistic approach to the determination that he was required to make, that was inadequate in terms of the reasoning required under the Act. We say on that basis, the Full Bench should intervene as well, obviously as being able to intervene itself.

PN178

There's just one point about Kosko that my friend referred to, and he referred in it to the decision of Northrop J, that's actually the decision of the minority. What is perhaps a more useful phrase - sorry, if you could just bear with me for a moment - sorry, I withdraw that. The point I was going to raise, is that Kosko makes it clear at page 104 in Northrop Js decision in the final full paragraph that under section 170DE(2) as it then was:

PN179

The decision to be made is whether the termination is harsh, unjust or unreasonable.

PN180

This is a reformulation of a proposition I put a number of times today.

PN181

This involves a consideration of the effect of the termination of employment on the employee . In making a decision that the termination is harsh, unjust or unreasonable, the decision maker -

PN182

There must be a word missing, there I think, your Honour - but the intent is clear.

PN183

...the Court must have regard in the manner discussed to the other wide valid reason for the termination ...(reads)... is not valid.

PN184

We say, finally too, which is a case I referred to in my submissions, but I haven't up - I'll perhaps just do that now. It's only an Internet copy and I apologise for that but it's just a case of Windsor-Smith, a Full Bench of this Commission.

PN185

In the last paragraph of that decision restates the proposition that's been put a number of times, based upon largely the sort of reasoning set out in Beasley Js decision. About half way down the last paragraph:

PN186

We're not satisfied that the appellant's reason for terminating the employment ...(reads)... to adjust their affairs accordingly.

PN187

It says that the Senior Deputy President in that case was clearly entitled to take that into account, and we say that should be taken into account in this matter too. Nothing further, your Honour, unless there's any question from the members of the Bench?

PN188

BOULTON J: Yes, sir, thank you for your submissions in this matter. The Bench will reserve its decision. We'll adjourn therefore to a time and date to be fixed. Thank you.

ADJOURNED ACCORDINGLY [11.26am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 WRITTEN SUBMISSIONS OF APPELLANT PN59
EXHIBIT #B1 OUTLINE OF SUBMISSIONS PN108