C2004/1301, Transcript of Proceedings [2004] AIRCTrans 2063 (3 June 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 11418
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER HARRISON

C2004/1301

APPEAL UNDER SECTION 45 OF THE ACT
BY DAVID MICHAEL FOSTER AGAINST THE
ORDER BY COMMISSIONER REDMOND AT SYDNEY
ON 28 NOVEMBER 2003 AND THE REASONS
FOR DECISION GIVEN BY COMMISSIONER
REDMOND AT SYDNEY ON 18 MARCH 2004
IN U2003/6400 RE TERMINATION OF
EMPLOYMENT

SYDNEY

10.07 AM, MONDAY, 24 MAY 2004

PN1

VICE PRESIDENT LAWLER: Appearances, thanks.

PN2

MR MOORHOUSE: Yes, your Honour, I appear for the appellant.

PN3

MR MAYELL: If the Commission pleases, I appear for the respondent.

PN4

VICE PRESIDENT LAWLER: I take it there is no objection to leave being granted in each case.

PN5

MR MAYELL: We seek leave.

PN6

MR MOORHOUSE: We seek leave as well.

PN7

VICE PRESIDENT LAWLER: Leave is granted in both. Yes, Mr Moorhouse?

PN8

MR MOORHOUSE: Thank you, your Honour. The bench should have a copy of the appellant's outline of contentions and submissions and a revised list of authorities and I'll commence by handing up a bundle of those authorities, three bundles. I note that I'm also handing up an affidavit of Darren John Hockey, that is an affidavit that is referred to in paragraph 11 of the decision below but was not included in the Appeal Book. I'm instructed that in addition to the appellant's affidavit there were three supporting affidavits filed on behalf of the appellant and only two of those are referred to in paragraph 11 of the decision, but a third one, an affidavit of Rory Sebastian is enclosed in the Appeal Book. I hand that up for completeness and I don't say a lot turns on that that is part of the material that was not put into evidence and it is not fair that the Commission make reliance on any of those additional three statements.

PN9

MR MAYELL: Yes, I have no objection.

PN10

VICE PRESIDENT LAWLER: Thank you.

PN11

MR MOORHOUSE: In relation to the outline of contentions I would note that there is two typographical errors on page 4 of that and I might correct those to commence with. Page 4, starts with a quote from the transcript and at the end of that there is reference to transcript paragraph number 34 and 35 of Appeal Book, says 23 that should be 29, and similarly at the end of the following paragraph it says, Appeal Book 23 that should be 29, I apologise for that.

PN12

I also note before I commence that, with respect the respondent's submissions, they don't address the basis of the appeal that is put by the appellant as set out in the outline of contentions. So it may be necessary for me to place more emphasis than usual on submissions in reply once we know more about the respondent's argument in relation to the appeal. The appellant relies essentially on two procedural fairness failings, the most important of which is set out at paragraph number 2 of the submissions. At the motion below the respondent sought to argue that there had been no termination of the employment at all, that is, no cessation of the employment and the respondent only sought to argue that in support of its motion.

PN13

The Commissioner, in his decision rejected that argument, but then went on to find that there had been no termination at the initiative of the employer and the appellant says it was an error of law for the Commissioner to find in favour of the respondent's motion on a basis other than that put by the respondent and to do so without the appellant having had the opportunity to present evidence to cross-examine and to make submissions in relation to the matters decided by him.

PN14

For that reason the proceedings below miscarried. The extent to which they miscarried was compounded by the fact that the Commissioner had regard to a significant amount of material that was not put into evidence and primarily that's the appellant's affidavit - I'll go further to both of those things - and It is appropriate for me to address briefly on the principles to be applied in relation to this appeal and the question of leave to appeal, and I'll do that now.

PN15

In relation to the principles to be applied I refer to the Chellow Full Bench decision that I included in the authorities, and unfortunately it is not the top authority but there is an index. Paragraph 9 of that decision, the Full Bench, that is a decision of the Full Bench of this Commission, of 2 April 2004. At paragraph 9 of that decision the Full Bench says:

PN16

However, where an appeal is directed against a finding of jurisdictional fact it is necessary not to lose sight of the necessity ...(reads)... jurisdictional fact.

PN17

Then quoting from that decision:

PN18

If the grounds of the appeal are of significant substance to be arguable and leave to appeal is granted ............ decisions in Powell v Samatino.

PN19

Skipping the rest of the quote and moving down to paragraph 10:

PN20

The grounds of appeal in this matter do not contest the finding of jurisdictional facts ...(reads)... of jurisdictional fact.

PN21

In this particular appeal, the appeal relates to procedural fairness failings in relation to a question of jurisdiction and, in my submission, it is clear that the approach the Full Bench adopted in that case then the Chellow case should be followed, the Full Bench is entitled to determine the issue itself if leave to appeal is granted.

PN22

In relation to the question of leave to appeal, the appellant submits that the matter is of such importance that in the public interest leave to appeal should be granted. The way the proceedings below operated, including the decision of the Commissioner and the scope of the matters determined by him, means that if someone was denied procedural fairness in relation to the matters determined by the Commissioner the failure to afford procedural fairness provides a basis for granting leave to appeal. I've given in my contentions TWU v Northern Territory Electricity, Commissioner's authority for that, and I won't go to that. The Chellow case that I just took the bench to is also authority for that proposition.

PN23

In this case the denial of procedural fairness means that the appellant's application has been determined as falling outside the jurisdiction of the Commission without the appellant having the opportunity to put evidence or submissions or cross-examine the respondent's witness in relation to the matters that were ultimately the subject of the decision and the matters which ultimately lead to the application being dismissed. In my submission, it is in the public interest that that be corrected and on that basis leave to appeal should be granted.

PN24

Turning to the substance of the appeal, I want to look initially at the point that material which was not in evidence was referred to. As I say in paragraph 5 of the contentions, in reaching the decision the Commissioner is not entitled to rely on material that is not placed into evidence, with a certain number of exceptions. There is also an exception, not listed there, for uncontested submissions, and the Commissioner being able to retire them, but that's not relevant in this case, I give re Tramway Employees Melbourne Award as an authority for that. I've included that authority but I don't propose to go to it in my submission, that's a fairly non-controversial proposition.

PN25

The affidavits filed by the appellant, and in particular the appellant's own affidavit, were not read or otherwise placed into evidence at first instance and if we go to the transcript, which is Tab D of the Appeal Book, pages 73 and 74, we see this starting at paragraph 569, two-thirds of the way down the page the witness withdrew, that was the respondent's only witness, Mr Fulton, Mr Moore, who appeared on behalf of the appellant, the applicant at first instance. He is asked if he will call his witnesses, he seeks to tender two documents, those documents having been put to Mr Fulton, there is no objection to that. Then over the page, Mr Moore says, paragraph number 582, following the exchange down:

PN26

No, I'm quite happy to in view of the cross-examination and the tendering of those documents we are quite content to address on the matter, that is the only evidence.

PN27

The Full Bench will also notice that the statements filed by the appellant, and in particular again I'm focussing on the appellant's affidavit, and not listed as exhibits in the proceeding. I will refer to one other matter that is disclosed by the transcript and the matter can be found at Appeal Book page 26. There was a reference to Mr Foster, the appellant, being sworn in, that is an incorrect transcript entry, that clearly should be Mr Fulton, the only witness who was examined and cross-examined on the day.

PN28

If the bench looks at paragraph number 8, Mr Mayell, goes to call his witness who about half-way down that paragraph is referred to as Mr Faulkner. Then the transcript refers to David Michael Foster, being sworn in. The bench will see very clearly - - -

PN29

VICE PRESIDENT LAWLER: Mr Mayell, do you agree that that's a mistake.

PN30

MR MAYELL: Yes, that's a typographical error.

PN31

MR MOORHOUSE: Looking now at the decision below the Commissioner clearly had regard to the appellant's affidavit in making his decision. Paragraph 11, which I've already briefly noted says:

PN32

The applicant provided an affidavit, he was not required to give ...(reads)... evidence.

PN33

Then refers to the other affidavits, and says again they were not required to attend for cross-examination. The correct position is those documents were not tendered in evidence before the Commission. The summary of the facts provided immediately below that paragraph also makes this abundantly clear, for example, paragraph 17 through to 20 in case there are references to matters that are only available to the Commissioner by the appellant's affidavit and the footnotes at the end of paragraphs 17, 18 and 20. The Commissioner expressly refers to particular paragraphs of the appellant's affidavit.

PN34

SENIOR DEPUTY PRESIDENT DRAKE: Footnotes, what?

PN35

MR MOORHOUSE: Footnotes, at 8, 9 and 10, that's correct. At the end of 17, 18 and 20 are reference to what is there called the applicant's affidavit.

PN36

SENIOR DEPUTY PRESIDENT DRAKE: And 18.

PN37

MR MOORHOUSE: There are others, Senior Deputy President, as well, and there are other facts in that summary of facts that could only have come from the appellant's affidavit. So, the four that I have taken you to including the three footnotes provide a very clear example of that and I wasn't going to take you to any specific other entries.

PN38

VICE PRESIDENT LAWLER: Was this material that at the end of the day though adverse to your client?

PN39

MR MOORHOUSE: No, it wasn't, your Honour. It wasn't tested and it remains to be seen how much that it would ultimately mean if it had been put in evidence if my client had of known the argument that was going to be used against him to dismiss the application. On one view of it would be possible to say I acknowledge, well, ultimately his evidence was take at its highest. I say that's not the case and it is not a basis for rejecting the appeal and I'm happy to address that now, and I say that for two reasons.

PN40

VICE PRESIDENT LAWLER: But it may be a basis for declining to grant leave. If we came to the view that if that particular mistake, assuming there is a mistake, had not been made would the outcome have been different or could it have been different and would that not be a basis for defining leave.

PN41

MR MOORHOUSE: That could be, your Honour, I accept that. Bearing in mind this is, if you like, the subsidiary mistake made, the primary error that the Commissioner addressed is deciding the matter on a basis different from the basis put at first instance and without giving my client any warning that the matter was going to be decided on that basis. Connected to that it could be said, well, he had the applicant's evidence at its highest before him to enable him to go ahead and do that.

PN42

In my submission the authority that I will take you to, and first of all I make it very clear that that particular primary procedural fairness failing, that is, the inability to address a new argument that was ultimately used to reject the application, a new argument meaning an argument that wasn't put by the other side at first instance. It is not necessary to show that it would have made a difference if one had have had the opportunity to address that argument, it is a question of whether the party was in fact aware of that new argument, including whether it had the opportunity to put submissions in relation to it, and I'll take the bench to some authorities on that.

PN43

VICE PRESIDENT LAWLER: Perhaps if you could assist me by taking me through the basis of this argument, where are the parts of the decision that you specifically rely upon?

PN44

MR MOORHOUSE: I will do that. Paragraph 8 sets out the law in relation to that point and I will that leave that to side having heard what your Honour said, and I do what to come back to some of those authorities. Then paragraph 9, that commences - - -

PN45

VICE PRESIDENT LAWLER: No, I think, well, for my part you can proceed upon the assumption that there if were material adverse to your client relied upon by the Commissioner which was not admitted into evidence then there would be a denial of procedural fairness. But it doesn't appear that this material is in fact adverse to your client.

PN46

MR MOORHOUSE: The primary problem that my complaint contains of is that an argument that wasn't put at first instance was relied on and he didn't have the opportunity to address that and to put evidence in relation to it, cross-examine the witness in relation to it. At the hearing below the motion was put solely on the basis that the court lacks jurisdiction because the employment of the employee has not been terminated. Tab G, of the Appeal Book is the form R21A, the motion that is used in this Commission, and the bench will see very clearly in the typed in part the Court lacks jurisdiction because the employment of the employee has not been terminated. If I could also go to Tab F, which is the - - -

PN47

VICE PRESIDENT LAWLER: Which is the same thing as saying, isn't it, that in this particular case there has been no termination at the initiative of the employer.

PN48

MR MOORHOUSE: It could be given that the legislation clearly defines termination that way, that's correct. But it becomes very clear from the way the matter is run at first instance that that's not what was meant by this. If I could just go to the employer's response at Tab F, it is set out even more clearly there, that's appeal book page 91. Question 15, reasons for termination, the employer says:

PN49

The employee has not been terminated and his position remains available.

PN50

Now if we then look at the way the matter ran below, commencing in Appeal Book, page 25. We say at paragraph number 4, Mr Mayell, for the employer saying, about half-way down that paragraph:

PN51

As far as we are concerned still works for the company.

PN52

Going over to Appeal Book, page 27, still in the introductory submissions, the Commissioner gives the parties an opportunity to see if they can resolve the matter and there is approximately an half hour delay. The parties come back and say, no, it hasn't been able to be resolved. Mr Moore, who appeared for my client at first instance says at paragraph number 20:

PN53

It has been indicated to us that one of the matters that is to be raised today is a question as to whether my client abandoned his employment or not.

PN54

Mr Moore, notes that there were no outline of submissions provided and that doesn't appear itself on the face of the motion. Then he says at paragraph 22:

PN55

We've come today in terms of the motion which was filed, Commissioner, which quite simply had upon it the bare assertion that the Commission ...(reads)... as to whether or not there was a termination of the employment.

PN56

SENIOR DEPUTY PRESIDENT DRAKE: Did you distinguish that from being a termination.

PN57

MR MOORHOUSE: It becomes very clear that both parties - and I'll take you, Senior Deputy President, to certain parts of the transcript. At the moment, perhaps yes, there is an argument that all they are talking about is termination as defined by the act and it becomes very clear that that's not the argument that is being put by the - now the respondent.

PN58

SENIOR DEPUTY PRESIDENT DRAKE: You say that that wasn't anticipated by Mr Moore at the hearing?

PN59

MR MOORHOUSE: That's correct.

PN60

SENIOR DEPUTY PRESIDENT DRAKE: The question of whether or not there was a termination at the initiative of the employer was not anticipated by Mr Moore or dealt with.

PN61

MR MOORHOUSE: No evidence was put by either side in relation to it.

PN62

SENIOR DEPUTY PRESIDENT DRAKE: He didn't know about it or deal with it.

PN63

MR MOORHOUSE: He didn't deal with it and he deliberately decided not to lead the evidence as I've shown you, that wasn't lead because it was understood that that was the only matter that was put against them at first instance. In fact, there is a comment from the Commissioner that I'm coming to that reflects that understanding. If we go to Appeal Book 29, Mr Mayell, is responding to what Mr Moore has said about what the issues for today are. Second sentence in he notes:

PN64

My friend has said he has been prejudiced by the fact there's an allegation of abandonment of the employment ...(reads)... is that the employee was not terminated.

PN65

Skipping to the next paragraph:

PN66

However, I don't intend to push that today in respect to the motion, what I do intend to push today quite firmly ...(reads)... abandoned his employment.

PN67

In the circumstances of this case where it is said that the applicant walks away from his employment alleging a repudiation, alleging a breach of a fundamental term entirely into repudiate. Saying there is an abandonment is effectively the same as saying the termination was at the initiative of the employee, the employee walked away, that is an issue. The Commissioner, flags his understanding and that is an issue to be determined for another day.

PN68

As the matter goes on at first instance it continues to be the case that both parties proceed only on the basis that the questioned to be determined, and the only argument that is put is whether there has been a termination at all, that is whether there has been a cessation of the employment.

PN69

I've already taken you to the opening submissions for the respondent and I will go now to the closing submissions for the respondent. I've given some references to the relevant paragraphs in paragraph 11 of my contentions, in particular, I will go to Appeal Book 76.

PN70

VICE PRESIDENT LAWLER: Just a problem at the moment, Mr Moorhouse. At paragraph 30, Mr Moore says, this is the sole issue we have come today, and the issue is whether or not there has been a repudiation which has been accepted.

PN71

MR MOORHOUSE: As I read that paragraph, you're looking at paragraphs 24 through to 28 of Mr Moore's submissions, your Honour.

PN72

VICE PRESIDENT LAWLER: Yes, 24 and 25.

PN73

MR MOORHOUSE: As I read that, Mr Moore, needs to establish for the purpose of arguing that there has been a cessation or termination of the employment at all. Mr Moore, needs to establish a basis for the employee being able to walk away and so he needs to establish that the employee is entitled to walk away from a repudiation, and he sets out the legal position that allows my client to walk away from that employment and for that employment to be then terminated, as in fact the correspondence being the two letters that were put into evidence made it clear that he asserted he was doing. I don't read the comment, that is, the sole issue we have come today, to mean the issue of the repudiation, I read it to mean the issue of whether there has been a termination at all.

PN74

VICE PRESIDENT LAWLER: Yes, you were taking us to what?

PN75

MR MOORHOUSE: Appeal book 76. Paragraph number 594, the final paragraph of Mr Mayell's submissions in closing"

PN76

It indicates that on the employer's side he is willing to continue those arrangements ...(reads)... the orders on the motion.

PN77

The appellant, that is, the applicant at first instance, didn't seek to meet any argument that a termination had occurred but not a termination - - -

PN78

VICE PRESIDENT LAWLER: But when you say you would accept the evidence given by the applicant what is Mr Moore referring to?

PN79

MR MOORHOUSE: Where is that, your Honour?

PN80

VICE PRESIDENT LAWLER: Where he says in paragraph 594, he submits on the balance of probabilities you would accept the evidence given by the applicant in this matter, but on his part there has been no termination of employment. What is the evidence of the applicant that Mr Moore is referring to?

PN81

MR MOORHOUSE: That is, Mr Mayell, I apologise if I didn't make that clear, that's the final part of Mr Mayell's closing submissions.

PN82

VICE PRESIDENT LAWLER: Sorry, yes. What is Mr Mayell referring to?

PN83

MR MOORHOUSE: It would appear that it was intended, whether it is a transcript error or otherwise, it was intended to be a reference to the evidence given by his client, that is the employer.

PN84

VICE PRESIDENT LAWLER: The applicant on the motion.

PN85

MR MOORHOUSE: Yes, the applicant on the motion.

PN86

VICE PRESIDENT LAWLER: Sorry, Mr Moorhouse, you were saying?

PN87

MR MOORHOUSE: The appellant didn't seek to meet any argument that a termination had occurred but not a termination at the initiative of the employer because that argument was never put. For that reason the appellant didn't lead any evidence including evidence going to the matters that were at the heart of repudiation, that is, evidence going to the reconciliation of expenses required by the appellant, deduction of wages from the appellant or the alleged incorrect calculation of the group sick leave. The Full Bench will see from the decision and from the two letters which were tendered by Mr Moore on behalf of the applicant at first instance, that's exhibit A1 and A2, that those were the matters that were in dispute between the parties that lead to the applicant walking away from the employment and alleging a repudiation.

PN88

The fact the limited nature of the respondent's case is also demonstrated by the evidence it put in support of that case, and that was evidence given by Mr Fulton. His affidavit can be found at Tab H of the Appeal Book, and the bench will notice straight away that's a very brief affidavit. It starts at paragraph 6:

PN89

The employment of the applicant has not been terminated and his position as sales manager remains available.

PN90

Paragraph 7, 8 and 9, he deposes to instances where it is said that the applicant, or his solicitors, that the position has not been terminated and remains available. In paragraph 10:

PN91

The applicant is free to return to his position as sales manager as soon as he is certified medically fit to do so.

PN92

There is no material in that affidavit that goes to any of the issues between the parties that lead to the applicant, the appellant now, walking away from the employment. There is no attempt to, if I might play down the importance of the failure to grant a reconciliation, or any attempt to support the deduction of wages that the employers alleged to have committed, or any reference to the incorrect calculation of accrued sick leave and the fact that the employer ceased paying sick leave.

PN93

Mr Fulton's brief affidavit is reflected again in his evidence-in-chief, Appeal Books page 30 to 35, Mr Fulton is effectively taken through the same matters again. I won't take the bench to that in particular but the bench will see that the matters I just said that weren't in evidence or again not in evidence in that oral evidence-in-chief, it is merely - - -

PN94

VICE PRESIDENT LAWLER: Mr Moorhouse, can I just interrupt for a moment, I'm having a small difficulty getting my head precisely around what it is that you're submitting. Your client submits that his employment was terminated by the employer, Glen Fulton Motors Pty Limited, correct?

PN95

MR MOORHOUSE: That's correct.

PN96

VICE PRESIDENT LAWLER: He submits that on the basis of an alleged repudiation by the employer, which has been accepted by your client, as indicated with the two letters exhibits A1 and A2.

PN97

MR MOORHOUSE: That's correct.

PN98

VICE PRESIDENT LAWLER: It was on that basis that he commenced his application under section 170CE.

PN99

MR MOORHOUSE: That's correct.

PN100

VICE PRESIDENT LAWLER: The employer's response to the filing of that application was to move the Commission, pursuant to section 170CE(a), for what is in effect a hearing of a separate question and summary dismissal upon the resolution of that separate question on the basis that there has been no termination of employment. Doesn't that necessarily mean there has been no termination of employment by the employer, that's the way anyone has to read it.

PN101

MR MOORHOUSE: The act does require that but the fact is the way the argument is put, both in evidence and in submissions, because the only argument put in support of that is that there has been no termination at all, that is, the employment continues.

PN102

VICE PRESIDENT LAWLER: But let's us assume for a moment that we're not interested in whether or not there has been a termination at the initiative of your client, but only with whether or not there has been a termination at the initiative of the employer. Isn't the question that was answered in substance, put aside how it is expressed, in fact that very question.

PN103

MR MOORHOUSE: The question that was answered in the decision, certainly that's the question that's answered.

PN104

VICE PRESIDENT LAWLER: Whether or not there was a termination at the initiative of the employer?

PN105

MR MOORHOUSE: That's right, but that question has been answered in circumstances where my client has not put any submissions in relation to that question nor lead any evidence in relation to that question nor cross-examined, Mr Fulton, the employer's witness, in relation to that question, and hasn't done so because the only argument that was put in support of the motion is that the employment has not ceased at all, the employment is ongoing.

PN106

VICE PRESIDENT LAWLER: But if it is ongoing and by definition it can't have been terminated at the initiative of the employer.

PN107

MR MOORHOUSE: That's correct and that is the argument the respondent sought to run at first instance and that is the only argument sought to run, but that is not the argument that the Commissioner addresses in his decision. In the decision he does say that he finds that the employment has come to an end but he says that only as almost an incidental step in getting to the final decision that he makes that there has been no termination at the initiative of the employer.

PN108

VICE PRESIDENT LAWLER: How could, Mr Moore, not appreciate that what he was confronted with in the motion was an argument about whether or not there had been termination at the initiative of the employer and therefore made his forensic and tactical decisions about what evidence he would call, what cross-examination he would engage in on that basis.

PN109

MR MOORHOUSE: He didn't appreciate that because of the way the matter is run in opening and the way the evidence is put on behalf of his party. It is the submissions on behalf of my client that are put at first instance, that is Tab N of the Appeal Book do suggest that my client had come prepared to meet that broader argument.

PN110

SENIOR DEPUTY PRESIDENT DRAKE: His earlier submissions?

PN111

MR MOORHOUSE: The document at Tab N, had the applicant's submissions that were filed in advance at the hearing at first instance.

PN112

VICE PRESIDENT LAWLER: Just bear with me for a minute, I don't have - - -

PN113

SENIOR DEPUTY PRESIDENT DRAKE: Those dated 14 November.

PN114

MR MOORHOUSE: It hides behind the grey numbered tabs.

PN115

SENIOR DEPUTY PRESIDENT DRAKE: They are dated 14 November.

PN116

MR MOORHOUSE: They are.

PN117

SENIOR DEPUTY PRESIDENT DRAKE: Paragraph 3?

PN118

MR MOORHOUSE: Yes. So it would appear from those that the applicant at that time had come prepared to meet that argument about termination at the initiative of the employer. That would also appear from the applicant's affidavit which does, that's Tab I, and all the numbered exhibits to it which does address all the various issues about the reconciliation that he says wasn't given to him and the deduction of wages from his employment and the incorrect calculation of sick leave that lead to his sick leave being stopped. So the applicant came understanding that that may well be the case it had to meet, however, it wasn't faced with that case and therefore limited its evidence and submissions in cross-examination.

PN119

VICE PRESIDENT LAWLER: Why wasn't it placed for that case because you say of the references on paragraph 20 and 22 and 36 in the transcript.

PN120

MR MOORHOUSE: In particular, yes, 35 and 36, 33, 34, 35 and 36. The opening reference that I put at paragraph number, I think it was four, as far we're concerned he stills works for the company, and of course the fact that Mr Fulton's evidence - - -

PN121

VICE PRESIDENT LAWLER: As far we're concerned he still works for the company (because we haven't terminated his employment). In context it has to mean that doesn't it, as far as we're concerned he still works for the company, because notwithstanding we're here facing a case that alleges he has been terminated, we in fact haven't terminated his employment.

PN122

MR MOORHOUSE: That's not said, well, it is not said that he has no entitlement to walk away from the employment or the matters he relied on do not amount to a fundamental breach of the contract.

PN123

VICE PRESIDENT LAWLER: Just pardon me one a moment, Mr Moorhouse. Thank you, Mr Moorhouse, so you say paragraphs 33 through to 36 represent the confining of the issues before the Commissioner in such a way as to exclude the Commissioner from entering upon a consideration of whether or not your client's employment was terminated at the initiative of the employer.

PN124

MR MOORHOUSE: That's correct, your Honour, along with other parts of the hearing are consistent with that confining and the authorities I'll take the bench to make it clear that the Commissioner is not entitled to then go ahead and make a decision based on a different argument to that which was put at first instance.

PN125

SENIOR DEPUTY PRESIDENT DRAKE: Mr Moorhouse, before reply. Do you say that when Mr Moore was making his submissions at the conclusion of the matter he dealt with a number of cases where the issue you say that had been excluded by the confining of the issues, was in fact the issue in the cases put to the Commissioner, directly those issues, and in particular in paragraph 596 of the transcript, Mr Moore says:

PN126

Really what we're dealing is whether the contract of employment and the relationship of the employment ...(reads)... as to who terminated.

PN127

If the issues were so confined why would, Mr Moore, think that termination was a live issue to be agitated.

PN128

MR MOORHOUSE: Mr Moore, as I understand that again is whether there is a live issue to be agitated in the sense of whether that remains a live issue.

PN129

SENIOR DEPUTY PRESIDENT DRAKE: A live issue to be agitated today?

PN130

MR MOORHOUSE: Today, no, the question is - - -

PN131

SENIOR DEPUTY PRESIDENT DRAKE: But then it goes on and can be included in your general submissions. I don't want you to answer it now, but he goes on to deal with cases that might be cases on which you would rely as a result of that very question.

PN132

MR MOORHOUSE: Certainly Daw v Flynton, the case in particular is a question in that territory no doubt.

PN133

VICE PRESIDENT LAWLER: What was being decided then?

PN134

MR MOORHOUSE: Merely the motion that has been put by the respondent, the question of whether the employment had ceased at all.

PN135

VICE PRESIDENT LAWLER: Isn't that what was decided?

PN136

MR MOORHOUSE: No, what is decided is whether there had been termination at the initiative of the employer.

PN137

VICE PRESIDENT LAWLER: But that's a subset of the first question. The first question whether the employment had ceased encompasses, amongst other things, whether or not it ceased at the initiative of the employer, does it not, a matter of logic?

PN138

MR MOORHOUSE: Yes, it does it is a second step.

PN139

VICE PRESIDENT LAWLER: So how can it be said that answering a narrower question is outside the ambit of a broader question.

PN140

MR MOORHOUSE: By answering the narrower question the Commissioner has gone on to exclude the appellant's application to find that the appellant is outside the jurisdiction. He has done that in circumstances where that argument was not put to him because the argument at first instance was limited to a question of whether there had been a - I'll call it a cessation of the employment at all - not merely by the opening, although in my submission it is clear from the opening, in particular, the submissions of Mr Mayell and the exchange with the Commissioner, also by the evidence of Mr Fulton that I've taken you to.

PN141

I will take the bench shortly to one exchange with Mr Fulton in cross-examination, and in my submission also makes it clear what was being decided on that first instance that is consistent with the submissions put in closing. It is clear that both parties understood the only matter being determined was the question of whether there had been a cessation of employment.

PN142

VICE PRESIDENT LAWLER: Mr Moorhouse, let me see if I can struggle to articulate the difficulty that I'm having so you can address it. Please don't assume that I have some antipathy to your client's position and I can see some considerable merit in the complaint about the failure to account in this case, pre-whether this it the correct remedy, but that's the remedy your client has chosen to pursue. When employment is terminated relevantly for present purposes it can either be terminated at the initiative of the employer or it can be terminated at the initiative of the employee. So if you want it to be complete can be terminated by virtue of a circumstance of frustration that is terminated by operation of law, those are three alternatives for termination of employment.

PN143

When the question was posed as to whether or not this employment had been terminated, as it was posed by the respondents, 170CE motion, it necessarily then had to be - if it had been terminated you could only have been terminated in one of those three fashions. There's no question in this case of termination by operation of law and that only leaves the other two alternatives.

PN144

I can understand that the alternative as to whether or not it had been terminated at the initiative of the employee, your client, through abandonment, or something that was postponed for another day, but didn't that leave logically as the only way in which the question of termination could have arisen, termination at the initiative of the employer.

PN145

MR MOORHOUSE: Isn't the question, with respect, your Honour, of abandonment, abandonment is necessarily a termination by the employee or the employee incorrectly walking away perhaps to put it colloquially. If that issue is not to be determined in my submission that's a clear indication that the question of who caused the termination or how to characterise the termination is not to be determined today.

PN146

VICE PRESIDENT LAWLER: Well, what was going to be determined today?

PN147

MR MOORHOUSE: Merely whether there had been a cessation of employment. It was clearly open to the respondent to put the argument, no, this is not a termination as defined in the act, this is not a termination at the initiative of the employer. That would have involved evidence and submissions as to the matters at the heart of the alleged repudiation and whether those matters entitle the employee to treat the contract as at an end. None of that appears in the first instance hearing and that is because from the outset of the hearing, and perhaps contrary to the expectation that no submissions were filed by the respondent prior to the hearing.

PN148

The applicant prior to the first instance hearing may have had an expectation that the question of termination at the initiative of the employer was to be determined. It becomes very clear as the hearing goes on that that is not the case and the only argument that is being run by the respondent is there has been no cessation of the employment at all.

PN149

VICE PRESIDENT LAWLER: How can you answer the question as to whether there has been a cessation of employment without answering the one or other of the alternative questions, whether there has been a termination at the initiative of the employer or a termination at the initiative of the employee.

PN150

MR MOORHOUSE: I'll accept that it is an unusual way for this motion to have been put and an unusual argument for the Commission to be dealing with, however, the transcript shows that is what was being put. There is a prior issue of course and before we get to the characterisation of the termination there is a question of whether there has been an ending of the employment at all, and in this instance the respondent was merely content to stop with that question or to only deal with that question.

PN151

SENIOR DEPUTY PRESIDENT DRAKE: Mr Moorhouse, paragraph 5, getting back to, there was previously a question asked by the evidence of the applicant and whose evidence that was by the Vice President and that turned out to be Mr Fulton's evidence, do you recall?

PN152

MR MOORHOUSE: Yes.

PN153

SENIOR DEPUTY PRESIDENT DRAKE: Mr Moore, also makes a reference to the evidence of the applicant in his submissions. Yes?

PN154

MR MOORHOUSE: Where is that?

PN155

SENIOR DEPUTY PRESIDENT DRAKE: 594.

PN156

VICE PRESIDENT LAWLER: No, 594 is Mr Mayell.

PN157

SENIOR DEPUTY PRESIDENT DRAKE: No, another one, I'll have to find it. I'll come back to you, Mr Moorhouse.

PN158

MR MOORHOUSE: I can only assume it is a reference to the applicant on the motion in any event.

PN159

SENIOR DEPUTY PRESIDENT DRAKE: No, it is another one. I'll come back to you, Mr Moorhouse. Right?

PN160

MR MOORHOUSE: Appeal Book at page 54, is the cross-examination of Mr Fulton, or is part of the cross-examination of Mr Fulton by Mr Moore and I won't go right through it. But the Full Bench will see that Mr Moore is attempting to get Mr Fulton to acknowledge that the employment has come to an end. In paragraph number 338, Mr Fulton refers to the fact that he didn't know, as I understand that evidence, what repudiation meant and he says at 339:

PN161

I got out a book and checked out what it was.

PN162

Then:

PN163

You understood what it was?---Yes.

PN164

Paragraph 342 at the bottom of that page, a book:

PN165

And you understood from the book that if you had repudiated it was up to Mr Foster to accept that?---I didn't repudiate.

PN166

Mr Moore says:

PN167

Well, that is what you assert here, sir, but isn't that the whole issue that's going to be determined at trial.

PN168

Now, perhaps that's only Mr Moore's understanding of what is going on rather than anyone else's but it is consistent with the whole case as it is run that the issue that is being determined here is solely whether there has been a cessation and if the applicant is successful in defending that motion the question of whether there has been repudiation sufficient to amount to a termination at the initiative of the employer is for another day.

PN169

If I could go to the authorities at paragraph 8 of my contentions; I won't go to all of them but I wish to go to some of them. In the first one there is the Australian Railways Union case, the High Court decision. In the headnote the bench will see in the second paragraph:

PN170

The relief granted by the Commission in the form of the award was not the relief sought by any of the parties to the application ...(reads)... to the apprentices.

PN171

That's a summary of the issue that the High Court was dealing with. If we move to page 23, bottom of the page commencing at line 40:

PN172

But the wide scope given to the Commission in determining the relief it will give does not absolve it from an obligation to observe the rules or procedural fairness in exercising its arbitral discretion.

PN173

The Citicorp case is cited as authority for that. Going over the page, continuing that paragraph:

PN174

The court went on to point out that one aspect of the duty to act judicially is a duty to hear a party and to allow him or her reasonable opportunity ...(reads)... consider the case put.

PN175

It goes on to note in the following paragraphs on page 24:

PN176

In this instance while there had been an adequate opportunity to call evidence and put submissions that evidence and those submissions ...(reads)... the apprentices.

PN177

That is, there were no submissions and evidence put to the issue that the Commission ultimately determined in that case. In my submission this has quite a strong analogy with what has happened in this instance where the motion has been put on quite a limited basis. On that understanding the appellant has not pub submissions or evidence in relation to a different question and the Commissioner has gone on to accede to the motion on the basis of that different question. If I could take the bench to the Fletcher decision of a Full Bench of the Federal Court which is the next decision in the bundle of authorities.

PN178

VICE PRESIDENT LAWLER: Why isn't it more characterised as by Mr Moore rather than a mistake by the Commissioner though?

PN179

MR MOORHOUSE: If the Bench is of the view that it should have been clear to Mr Moore what was being decided then it would be open to come to that conclusion I accept. However, it is my submission that on the basis of the way the case was run by the respondent, including the matters I have taken the Bench to, I won't go to them again, it was reasonable for Mr Moore to do what he did. He only had to answer, and the authorities I'm going through will make that clear, he only had to answer the case that was put against him and not a broader case that could have also been put as an additional basis for keeping them out.

PN180

VICE PRESIDENT LAWLER: The case put against him was, the employment hasn't been terminated and that had to mean, if it meant anything, those letters that you sent to us asserted repudiation which you have accepted, we don't accept. It had to mean that, it couldn't mean anything else because if what was put in those letters was correct then the employment had come to an end because there had been a repudiation which had been accepted. Implicit it seems to me in the proposition that there's been no termination of employment is a rejection of the sole basis put by your client in the solicitor's letters are contending that the employment has been terminated.

PN181

MR MOORHOUSE: Mr Moore doesn't address those specific issues because they are not raised in any way by the other side. Those issues of the basis for the repudiation or the alleged repudiation are not raised in any way in evidence or submissions.

PN182

VICE PRESIDENT LAWLER: I can see that from the paragraph you took us to, particularly 343 demonstrates that Mr Moore doesn't see it the way I just articulated it.

PN183

MR MOORHOUSE: Yes and in my submission has taken that view because that's all that's put against him.

PN184

VICE PRESIDENT LAWLER: Yes I understand. We'll need to think about that Mr Moorhouse.

PN185

MR MOORHOUSE: I accept that. I was going to take the Bench to a couple more of these authorities and then merely note some of them as further examples of the issue. The Fletcher decision, the Full Court of the Federal Court dealing with a decision of the Administrative Appeals Tribunal. The Bench will see from (v) of the headnote that it is decided that:

PN186

PN187

The course taken in the present case involved a denial to the applicants of procedural fairness because the applicants did not have a proper opportunity to address the possible application to the case of the provisions of part 4(a) of the Tax Act, being the part relied on by the AAT ultimately in its decision.

PN188

I'll just quote from page 309 of the decision, starting at line 37:

PN189

It is not clear to us that the applicants would have adduced additional ...(reads)... of a fair trial.

PN190

That is particularly relevant given that the Commissioner allowed himself to have regard to the appellant's affidavit, even though it wasn't put into evidence in order to decide the question he went on to decide. It doesn't take away from the fact that the appellant wasn't given the opportunity to make submissions on that question, wasn't given the opportunity to cross-examine Mr Fulton in relation to those issues and of course the Bench doesn't know whether all or some of the appellant's affidavit would have been read, or whether as often happens in first decisions of this Commission, further oral evidence would have been led from the applicant at the time of introducing his affidavit.

PN191

The Goldie decision is further authority for the same point, that it is not appropriate, and it is a denial of procedure fairness and an error of law, to decide a matter on the basis that it is not put at first instance without giving the party against who it is decided the opportunity to address on the issue. The DNR Commercial Pty Limited v Flood decision is an example of the Full Bench of the New South Wales Commission dealing with the same point.

PN192

The final submission I'll go to, or the final authority I'll quote from perhaps is the Aronson v Dire textbook on administrative law because it sets out the point very neatly. I've extracted four pages from that in the bundle. Go to 421, the third page in, I've given from the beginning of that section but at the very top of 421 the authors say:

PN193

But there is no obligation in the ordinary case to allow comment on proposed findings or conclusions in adversarial proceedings.

PN194

But one will note footnote 289 where the authors say:

PN195

Unless of course the decision maker goes beyond what the parties have addressed in their submissions as to which see below footnote 295.

PN196

Still on page 421, the paragraph that starts towards the bottom of that page:

PN197

In adversarial proceedings uncertainty as to the possible range of conclusions available to a decision maker is limited since the decision maker is precluded from addressing issues not raised by the charges or pleadings and submissions of the parties at the hearing.

PN198

That is in essence the point we rely on and then at 295 a whole range of authorities are given including some of the ones that I have taken the Bench to this morning.

PN199

VICE PRESIDENT LAWLER: Mr Moorhouse this situation is nothing short of bizarre - - -

PN200

MR MOORHOUSE: It is unusual.

PN201

VICE PRESIDENT LAWLER: The basis upon which your client contends that his employment was terminated harshly and unjustly and unreasonably was because an alleged repudiation by the employer. That is the affirmative basis asserted by your client. The employer bring, as it is entitled to, a motion to, as it were dispose of the matter summarily through answering a separate question and says there has been no termination. The only way that can join issue with your client's case is by rejecting the alleged repudiation and acceptance of that repudiation by your client. I just don't see how anyone sitting down and thinking about this logically could have considered that there was any other issue that was alive before the Commissioner at this time. The Commissioner clearly thought it was a live issue because that is how he determined the case.

PN202

MR MOORHOUSE: Ultimately yes. He gives no indication he is going to go on and consider that matter and the respondent doesn't address in submission or evidence the question of repudiation at all and therefore my client merely put submissions and cross-examination in relation to the matter that is put against it. There would be a number of ways, in this case, that the respondent could have supported an argument that there had been no termination. It could have gone and said despite the fact that the parties have clearly separated their relationship, this wasn't at our imitative but it didn't do that. It merely put a case that the employment relationship has not concluded at all, and that is the case, the limited case, that my client therefore met. I can only perhaps suggest that the Full Bench look through the transcript. I've taken you to the high points of it, but it's very clear from the transcript that that is what the parties understood they were arguing about, that is the question of cessation of the employment.

PN203

Mr Fulton's cross-examination involves continual assertion by him that the employment has not come to an end and Mr Moore, attempting to take him to, for example, the letters asserting repudiation and getting him to understand what that meant and the fact that the employee had returned his car and the fact that the employer had paid long service leave, including on the basis paid it in a lump sum taxed as per a termination of the employment. Equally telling is the absence of any material going to the matters at the heart of the alleged repudiation.

PN204

So in summary the appellant submits that the Commissioner's decision, to the extent that it goes beyond the question of whether there had been a termination at all, involved an error of law and I rely on the authorities I've taken you to as encapsulated by the Aronson and Dire text book extract. The course adopted during the hearing when combined with the decision means that that hearing miscarried. The appellant submits that the finding of an order made by the Commissioner on 28 November 2003 should be set aside and the matter referred to conciliation.

PN205

Strictly speaking, if the Full Bench allows the appeal, it's up to it to determine again the matter that was argued at first instance that is whether there has been a termination of the employment at all or a cessation of the employment. The respondent would remain entitled to seek to argue at a future time, either at a final hearing or otherwise, that the circumstances didn't amount to a termination at the initiative of the employer. If the Bench is going to decide that matter for itself, it's not clear from the respondent's submissions whether they continue to assert that there's been no termination at all.

PN206

I can take the Bench in summary to the evidence that we say supports the fact there clearly has been a cessation of the employment, but I think at this stage, it's appropriate to hear what my friend has to say and if that is put as a live issue I can address it in reply.

PN207

VICE PRESIDENT LAWLER: There has been a cessation of employment because - - -

PN208

MR MOORHOUSE: Well that issue wasn't argued at first instance, your Honour.

PN209

VICE PRESIDENT LAWLER: No, but you said you were in a position to put it to us.

PN210

MR MOORHOUSE: Merely the evidence as to whether there has been a cessation. Clearly my client asserts there has been a cessation, a repudiation that he was entitled to accept, however that argument hasn't been run yet in an evidentiary or submission sense.

PN211

VICE PRESIDENT LAWLER: I, for my part, think that if you're correct, it will go back for rehearing perhaps before another member, but I don't think we're in a position to determine the issue because your client still hasn't had an opportunity, on your argument, to put his full arguments and evidence in relation to the critical question of repudiation.

PN212

MR MOORHOUSE: That's correct and in my submission that argument hasn't yet been raised by the other side. All that has been raised and all that should have been determined is whether there was a cessation of the employment. The Bench may feel it's able to determine that issue for itself or the Bench may feel it's more appropriate to make directions that the whole issue, arguably the issue that should have been put at first instance, be heard again. Clearly the Bench isn't in a position to do the latter at this time. Those are my submissions.

PN213

VICE PRESIDENT LAWLER: Yes, thank you, Mr Moorhouse.

PN214

MR MAYELL: Vice President, I wonder if I could just have an adjournment for a couple of minutes for personal reasons before I start my submissions.

PN215

VICE PRESIDENT LAWLER: Certainly. We'll adjourn for a few moments.

SHORT ADJOURNMENT [11.12am]

RESUMED [11.17am]

PN216

VICE PRESIDENT LAWLER: Yes, Mr Mayell?

PN217

MR MAYELL: The first question I wish to address the Tribunal on, your Honour, is in relation to the application before the Commissioner on the last occasion. In saying that, I wanted to make this point clear, that we rely upon Commissioner Redmond's findings. We believe, contrary to my friend, that the Commissioner got it right. The Commissioner had before him only one question, was there an unfair dismissal? This was the issue and parties were well aware of this because the various preliminary forms, the application itself, claimed that there had been an unfair dismissal.

PN218

VICE PRESIDENT LAWLER: Mr Mayell, he can't have had that question before him because that's the ultimate question and that's not a question that's dealt with under a section 170CE(a) motion. What he had before him was an issue as to whether or not there had been, putting it at its highest in your favour, whether there had been a termination at the initiative of the employer.

PN219

MR MAYELL: Well, perhaps that being the case, if I could take you to the respondent's submissions. In respect to ground 1 of the notice of appeal which alleged that the Commissioner erred in arriving at the conclusion that the applicant's employment had been terminated, it would be our submission in respect of that that on the evidence before the Commissioner, he had no other alternative but to come to that particular finding. The transcript clearly indicates that the only evidence that was called before the Commissioner was that of the respondent to the case and the applicant to the notice of motion.

PN220

In his evidence, which was accepted by the Commissioner, in his evidence the respondent was quite clear and forceful in the fact that there had been no termination of employment of the applicant. There was an opportunity for the applicant to call evidence which would refute the findings which the Commissioner ultimately made and that was that the respondent had determined or put in force a series of events which could have amounted to a dismissal. But as far as the respondent was concerned, despite vigorous cross-examination by Mr Moore, he did not resile from the evidence throughout the whole of his evidence in chief in cross-examination and that was that there was no termination of employment.

PN221

Now, if we look at what the applicant says, it seems that he has decided unilaterally, so to speak, on 4 September of that year, 2003, he seems to have decided unilaterally that his employment has been terminated and he accepts that his employment has been terminated. Now, this is despite the evidence of the respondent in the matter, which is clearly outlined in the transcript that there were many meetings between the solicitors of the parties in which it was made quite clear to the applicant that his position remained. He could come back to work when he wanted to. If he received a medical clearance, he could resume the next day.

PN222

It was also made quite clear to him when he applied for long service leave and was granted long service leave that he could come back to work at any occasion in the future. There was no suggestion and no dispute that they weren't actually the facts before the Commissioner. The interpretation of the facts may be an argument, but certainly not the facts that were put to the Commissioner.

PN223

What was put to the Commissioner was we have an employee, we want him to come back to work, he went on extended sick leave, we paid him to the extent of his credits, he then went on long service leave, we paid him that and then unilaterally, on 4 September, he says to us "I'm no longer employed".

PN224

Now, we would argue to you, members of the Tribunal, that the Commissioner was correct in finding that the conduct of the applicant in this matter gave the Commissioner no other alternative but to make the finding that he did and that was that the termination was not at the initiative of the employer.

PN225

As far as the issue of procedural fairness is concerned, I draw your attention to the matters which have been submitted by the respondent in his summary of submissions. In that you will note that the respondent after giving evidence and being cross examined for a lengthy period of time, at that particular time Mr Moore was invited by the Commissioner to call evidence.

PN226

Earlier in the transcript you will note that the applicant was asked or requested to leave the courtroom whilst Mr Fulton gave evidence and one would have expected that it could be anticipated that after Mr Fulton's evidence that the applicant would have given evidence himself. However, it was decided that the applicant wouldn't be called. Of course this is a conscious decision which was made by the applicant's legal advisers and if I could take you to the transcript. It's outlined in the submission of the respondent at paragraph 5 on page 2 and at 569 of the transcript the Commissioner asked counsel for the respondent:

PN227

Are you going to call your witness?

PN228

Then of course at that particular point in time a decision had to be made as to whether or not the applicant would be called. Now, you can't accept that there was no evidence in respect of the respondent's proposition in support of the motion that there was no evidence in there that the applicant would have not wanted if felt necessary, would have not wanted to take issue with. But the question when asked of the Commissioner as to whether he wished to call evidence Mr Moore made it quite clear he said, No. Then again at 582 he said, inter alia:

PN229

We are content to address on the matter. That is the only evidence.

PN230

It would be my submission that the words, that is the only evidence, relates not to the evidence given by the respondent to the motion, that is, the applicant of the motion, because he has already given evidence. Those words would only relate to the applicant in this matter who was the respondent before the Commissioner. So, it's a bit difficult to say that there was a lack of procedural fairness or natural justice when in one instance one of the parties gives evidence and is cross examined and the other party consciously determines that they are not going to give evidence.

PN231

It's a matter for them but if they don't give evidence then it's very harsh on the applicant of he motion to come back and say, look, we were placed in a position of prejudice because we weren't allowed to give evidence. The fact of the matter was they were allowed to give evidence. They could have called evidence at any particular time during the proceedings but they declined to do so and if we go further down the applicant's contentions to paragraph 5, and again at TN582, Mr Moore, inter alia, again said:

PN232

We are content to address on the matter, that is the only evidence.

PN233

Now, there was a tendering of certain documents which my friend made mention of here earlier in the opening remarks and apart from that I would ask you to accept that that was the only evidence before the Commissioner. It wasn't the fact that the Commissioner didn't invite the applicant to give evidence, he certainly did but the decision was made consciously, clearly and without reservation that no further evidence was going to be called.

PN234

Now, when I initially began my address on this matter your Honours drew my attention to the fact that there were issues that I was raising that were not within the province of the Tribunal to determine but I ask the Tribunal to accept this: overall in looking at this particular case what was the only issues between the parties? The only issues between the parties was that of the dismissal or alleged dismissal or termination, not dismissal, alleged termination of the applicant.

PN235

Each party understood that. The various forms that had been sent out clearly indicated to both parties what the issue was. Now, whilst my friend says that the issues were somewhat narrow, the reply of the respondent, and that was that there was no termination, that is termination of any kind although it doesn't say that, it doesn't go as far as that but he says there was no termination.

PN236

That makes the issue extremely wide and would permit the applicant to raise any issues that he may feel that he wished to bring before the Tribunal in respect to the one decision that the Tribunal had to make and that one decision was whether or not the applicant's application fell within or without the jurisdiction of the Tribunal. It would be my respectful submission, Members, that there can be no argument about what was before the Commission, it is quite clear and the Commissioner in making his determination, having looked at the evidence before him in my respectful submission would be entitled to find that there was no termination and at the initiative of the employer.

PN237

That being the case if one accepts that, that the Commissioner was able to find that, then the Commissioner brought down the only decision upon the evidence that was available to him. Now, the applicant had every opportunity of raising any matters that were raised in evidence in chief or challenging any evidence and challenging also any evidence that may be intended in support of the respondent's motion. Indeed, they did this for quite a lengthy period of time. Mr Fulton in the witness box was subjected to a very critical examination of his evidence and if I might say so, quite a vigorous cross examination and of course in the transcript it will be noted that this has also been commented upon by the Commissioner.

PN238

There is one further issue that I wish to draw your attention to and it's in the exhibit M which is in the applicant's submissions of 14 November 2003, which were the submissions to the Commission.

PN239

I take you then to paragraph 3 of that document. Perhaps I won't go to 3 at this stage. I'll take you to paragraph 1. Paragraph 1 clearly - this is, by the way, the applicant's submissions - and that is that the respondent, Glen Fulton Motors Pty Limited, seeks to have the application to the Commission dismissed on the basis that the Commission lacks jurisdiction because the employment of the applicant, David Foster, has not been terminated. That's quite clear. Everybody understands that. Then if we go a little bit further, in paragraph 2:

PN240

Otherwise there is no jurisdictional impediment to the application going forward to conciliation and if required arbitration.

PN241

Clearly that's spelt out:

PN242

The application as submitted by the respondent ...(reads)... making the application to the Commission.

PN243

So it seems clear in those first two paragraphs that the applicant was aware of exactly what he had to meet in respect to the motion of the respondent before the Commissioner, and then it's again clearly set out at paragraph 3 that the issue as to whether or not there had been a termination at the initiative of the employer is a mixed question of fact and law. At that stage the applicant accepted that one of the issues that was going to be raised was whether or not there had been a determination at the initiative of the employer. That's precisely what the Commissioner ruled on.

PN244

The Commissioner said there has, in his opinion, been no termination of the employee by the employer at the initiative of the employer, and consequently made the orders that had been sought. In relying upon the Commissioner, he has given a very considered judgment, a lengthy judgment, and has referred to authorities which his acceptance of are also accepted by the respondent. It would be my respectful submission that leave should not be granted and that the Commissioner's decision should be confirmed. Thank you.

PN245

VICE PRESIDENT LAWLER: Yes, Mr Moorhouse?

PN246

MR MOORHOUSE: Thank you, your Honour. We don't say that we weren't allowed to give evidence. Rather, the appellant says that he didn't call evidence in relation to the issue that was put against him because it was unnecessary and because the question of termination at the initiative of the employer and whether there was a valid basis for accepting a repudiation was simply not put by the respondent before, and that's why the election to call evidence was not put, why it was elected not to call evidence.

PN247

In my submission the first part of my friend's submissions give some sort of flavour of what when on at first instance. Again my friend referred to the fact that at first instance it was clear from Mr Fulton's evidence that employment was still on foot and that the applicant had gone on long service leave. My friend referred to the fact that the applicant applied for long service leave. To the extent if the bench decides to redetermine this matter themselves, I should note that that's not correct. It's rather the case that the applicant sought his statutory entitlements and was paid an amount of long service leave. That's all available in the appeal book if the bench wants to look at that.

PN248

My friend admits that the only evidence called was that of Mr Fulton, as I understand it, and that no evidence was led from our side, and that the applicant's affidavit didn't go into evidence. My friend referred to the applicant's submissions as they were at first instance. Those submissions were put on prior to the hearing, as was the appellant's affidavit, as I said in my submissions at first instance.

PN249

It may well be the case that the appellant came to the first instance hearing prepared to meet the question of whether there had been a termination at the initiative of the employer and whether the acts of the employer were sufficient to amount to a repudiation, but it became clear that he didn't have to meet that case, he only had to meet a much more limited case, and appropriately the appellant therefore addressed both in submissions and evidence a far more limited matter.

PN250

I should address the Senior Deputy President's point about the cases such as Daw v Flynton referred to as Mr Moore handing up in final submissions. That may have been a hangover from what he had expected to meet, perhaps the fact that he had those cases with him in the first place. It also would appear it was probably necessary for him to at least establish - it's a fairly non controversial point - but to at least establish that it is open for there to be a termination of employment or a cessation of employment in circumstances as a result of a repudiation by an employer that is accepted by an employee, and those cases we'll put for that basis.

PN251

Finally, I would note that the bench will note from the submissions we've put that there's been no attempt to, or there's been an abandonment of the grounds of appeal which sought to argue that having regard to all of the evidence below, the Commission's decision that there was no termination at the initiative of the employer was wrong, it was not open to him. That necessarily follows from the way the appeal ran below.

PN252

That's because it simply, in the light of the fact, there was no evidence before the Commissioner properly about that matter. There was only the limited evidence of Mr Fulton that went to the question of whether the employment continued, whether the employee was open to walk back into his job and whether he was on long service leave or whether that payment was a payment of long service leave on termination. There was no evidence about the question, the issues that led to the alleged repudiation from either the respondent's side or the appellant's side, so it's simply not open to us today to come before a Full Bench and say the Full Bench should revisit that issue itself, because the evidence isn't there for it to do so. Those are my submissions.

PN253

VICE PRESIDENT LAWLER: Thank you, Mr Moorhouse. We will reserve our decision in this appeal. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.40am]