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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
ADMINISTRATOR APPOINTED
Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N 12079
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DUNCAN
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER REDMOND
C2004/3253
APPEAL UNDER SECTION 45 OF THE ACT
BY HARRY VDOUKAKIS AGAINST THE
DECISION AND FINDINGS BY
COMMISSIONER RAFFAELLI AT SYDNEY ON
2 APRIL 2004 IN U2003/4711
RE TERMINATION OF EMPLOYMENT
SYDNEY
10.15 AM, MONDAY, 28 JUNE 2004
PN1
SENIOR DEPUTY PRESIDENT DUNCAN: May I have appearances please?
PN2
MR P. MOORHOUSE: I seek leave to appear on behalf of the appellant, your Honour.
PN3
MS N. RUDLAND: If the Commission pleases, I seek leave to appear for the respondent.
PN4
SENIOR DEPUTY PRESIDENT DUNCAN: Leave is granted. Mr Moorhouse? Before you start I should indicate as you no doubt would realise - I think I speak for us all - we have read the submissions. So to the extent that that expedites proceedings for both of you we would be grateful for your consideration.
PN5
MR MOORHOUSE: Thank you, your Honour.
PN6
MS RUDLAND: If it pleases, your Honour.
PN7
MR MOORHOUSE: And the bench should have documents entitled, the Appellant's Submissions and the Appellant's Submissions in Reply.
PN8
SENIOR DEPUTY PRESIDENT DUNCAN: Yes, I believe that is right. Do you want them marked?
PN9
MR MOORHOUSE: If your Honour wishes, I would be happy for that to happen.
PN10
PN11
PN12
MR MOORHOUSE: I also have a bundle of authorities that might be appropriate to hand up at this stage. Concluding the formal matters, in relation to the appeal-book index there is one error I will draw the benchs' attention to. The respondent's exhibits list the statement of Lisa Curran as exhibit RH2 omitting annexure A; that should be, omitting annexure B. Annexure B was a hearsay document that was allowed into evidence; not much turns on that but I thought I should correct it. I should also note the respondents have filed a full copy of exhibit RH3 which was a management diary. The appeal book contains merely a bundle of pages from that, that was relied on by the respondent. It was produced by the respondent and relied on at first instance they were put in the appeal book, the respondent has chosen to make all of the pages available to the bench and we don't quibble that they were properly in evidence at first instance.
PN13
SENIOR DEPUTY PRESIDENT DUNCAN: I think the one advantage is, not so much the full set, but it is a much clearer copy than the one I have. I note what you are saying, Mr Moorhouse.
PN14
MR MOORHOUSE: I propose to commence by giving an overview of the facts and the basis of the appeal and then moving on to the question of leave to appeal. I hear what your Honour has said and the comment your Honour has made obviously makes it clear that you have looked at the appeal book as well.
PN15
The appellant worked for the respondent company for a little under two years. For the first 16 months of that he worked as a bottle-shop attendant and was then promoted to a duty managing; managing three night shifts a week for almost exactly six months. On June 18, and confirmed by letter on June 19, the appellant was removed from his duty manager position and was required to return to his bottle-shop position; I will come, shortly, to the reasons for that. The appellant, Mr Vdoukakis, did not accept that demotion and did not work at the hotel again.
PN16
Commissioner Raffaelli at first instance accepted that this forced demotion amounted to a constructive dismissal and a termination of the type required by the Act; that can be found at paragraph 28 of his decision. He also held, in reaching that conclusion, that Mr Vdoukakis was not a true casual - relying on the Full Bench decision in Seton to that effect - but rather that his employment was reasonable and systematic with the expectation of continuing employment. So the analysis of constructive dismissal - that is more correctly, unilateral repudiation of the employment - could apply to him.
PN17
The reasons for the dismissal are summarised briefly but accurately at paragraph 33 of the decision. Commissioner Raffaelli says:
PN18
As to whether there was a valid reason related to the applicant's conduct it seems that the reason for dismissal ...(reads)... secondly he is said to have acted inappropriately towards a female subordinate.
PN19
That was an incident of alleged sexual harassment that occurred the weekend before he was dismissed:
PN20
Finally he worked extended shifts.
PN21
Now, as I said, that is a brief but accurate summary of the reasons. Although we say that it is an error to give that third reason the same weight as the two other reasons when looking at the facts. I will develop that later. The Commissioner goes on to find that the decision to dismiss was made without giving the appellant a chance to respond to the reasons for dismissal, and he finds that the dismissal was harsh, unjust or unreasonable. The appellant says that finding was inevitable in all of the circumstances. The Commissioner then goes on to examine the section 170CH(2) factors and determines he is not satisfied that it was appropriate to give a remedy. And the appellant appeals against the decision in relation to remedy.
PN22
SENIOR DEPUTY PRESIDENT DUNCAN: Just so that we are all clear, that is the appeal?
PN23
MR MOORHOUSE: Yes. The appellant accepts that, that remedy decision was a discretionary one for the appellant and therefore in order for the appellant to succeed it is necessary to show error of the type set out in House v R. In order to satisfy that test the appellant puts forward two erroneous findings on which the remedy decision was based. A further failure to have regard to a material matter; that is a matter that wasn't, in our submission, necessarily relevant to the question of whether the remedy was appropriate. And also relies on the fact that in all of the circumstances the decision as to remedy was unreasonable or plainly unjust which is also a basis on which discretionary decisions can be overturned. I have given House v R in my authorities. The respondent's submission summarised the bases on which a discretionary decision can be overturned but leave out of that summary the final point. That is, if in all of the circumstances the decision was unreasonable or unjust. House v R is very clearly authoritative for that and that has been followed on numerous occasions.
PN24
The appellant, I should point out, did not seek reinstatement at first instance. So in looking at remedy the Commissioner was really considering whether any compensation was appropriate. I should also point out, on the Full Bench authorities it might be arguable that the Commissioner at first instance should have had a look at the section 170CH(2) factors as to the question of reinstatement, primarily, and then as to the question of compensation. If that is the case, we make nothing of it because reinstatement was not pushed. It would have inevitably been the case that the Commissioner would have moved on to a consideration of whether any compensation was appropriate using those factors.
PN25
SENIOR DEPUTY PRESIDENT DUNCAN: I think it is a proper course because if it hadn't been raised below and was being raised now in a discretionary matter.
PN26
MR MOORHOUSE: Yes. As to the approach to leave to appeal, if I could refer to the decision of Chellow v Australian Railroad Group Employment in the bundle of authorities. At paragraph 7 the Full Bench in that case adopts the observations of another Full Bench in Smith v Moore Paragon, as follows:
PN27
An appeal to the Full Bench lies only with the leave of the Full Bench section 45(1). A Full Bench must grant leave to appeal ...(reads)... substantial injustice may result if leave is refused.
PN28
The appellant says that the decision is attended with sufficient doubt, and that is because of the matters I have already briefly mentioned and will develop further. The appellant also says that an injustice will result to Mr Vdoukakis is leave is not granted. That injustice being the failure to award any compensation in circumstances where he was effectively summarily dismissed and where the Commissioner found that the dismissal was attended by procedural fairness and not based on any valid reason. Despite all of that, Mr Vdoukakis, received no remedy. We say that amounts to an injustice.
PN29
The appellant also submits that the matter is of sufficient public interest to justify a grant of leave for two reasons. The first is that it concerns the proper application of section 170CH, perhaps more particularly 170CH(2), and it concerns it in this respect: in relation to any onus to show mitigation of loss. That is a factor that needs to be taken into account in determining whether any remedy is appropriate, section 170CH(2). And, again, in determining what amount of compensation is appropriate, section 170CH(7). I don't take the bench to those sections, I assume it is familiar with them.
PN30
The respondent says in its submissions there's an onus on an applicant to show attempts to mitigate. We'd submit that's not correct. The decision at first instance doesn't expressly state such an onus but effectively it creates that onus because the finding of a failure to mitigate loss is made in the face of evidence that the appellant was actively looking for work for approximately a four month period. That evidence was not contradicted or destroyed in cross-examination and yet it was still held that there was a failure to mitigate loss.
PN31
The second reason why we say this matter has sufficient public interest to justify a grant of leave to appeal is that it operates as a precedent to suggest that or to support an argument that an opportunity to respond to reasons for dismissal have no bearing on whether a dismissal subsequently occurs and to suggest or support that an argument that it's not appropriate to award any remedy in particular any compensation where a dismissal is harsh, unjust or unreasonable because of a lack of valid reason and a lack of opportunity to respond.
PN32
Now the respondent in its written submissions correctly says that it is well settled in this area that each case turns on its own facts. Nonetheless individual cases can be used to provide guidance to the Commission and to litigants in subsequent matters and the appellant submits at a minimum a Full Bench would want to grant leave to appeal and consider those issues raised by this case and this decision at first instance very closely before allowing the decision to stand as potential guidance to the Commission and to future litigants.
PN33
I now move on to deal with the substantive grounds for the appeal. The first is a challenge to what the appellant says is the erroneous finding of a manifest failure to mitigate his loss. That finding is found in paragraphs 47 and 48 of the decision. I won't read the two whole paragraphs but it may be worthwhile if the bench quickly refreshes its mind as to those two paragraphs before I move on as I will be looking at the reasoning given closely.
PN34
SENIOR DEPUTY PRESIDENT DUNCAN: Yes.
PN35
MR MOORHOUSE: We say first of all that that finding was against the weight of evidence and I'll commence by going to the appellant's statement in reply, exhibit HV2, the final paragraph which is paragraph 28. I note the appeal book is not numbered but it is all in a very appropriate and logical order, the documents are relatively easy to find, the appellant's exhibits are behind the green tab, the fourth tab in the book, the second one being his statement in reply, exhibit VH2.
PN36
His evidence in that statement which was adopted on oath is as follows:
PN37
Since my dismissal I have only worked for four weeks of consulting work...
PN38
I pause to note that in oral evidence-in-chief it was confirmed that that was merely a 4-week block of work:
PN39
...for the establishment of a new liquor store in February 2004. For the first three months after ...(reads)... under at the Royal Hotel.
PN40
I again to pause to note at paragraph number 140 and following of the transcript, I won't go to it but evidence is given that the appellant would not have had to take time off work for that matter, other than to have an operation for which he required two weeks in hospital and recuperation but for the allegations made against him in the dismissal which he says, directly contributed to the stress-related condition. Continuing with the evidence:
PN41
...it was necessary for me to undergo surgery on 3 September 2003 and was unfit to work ...(reads)... while I was actively looking for work...
PN42
I emphasise those words:
PN43
...in the liquor industry.
PN44
At paragraph number 136 of the transcript the appellant gave oral evidence that up to the date of the hearing which was March of this year, he had not been employed subsequent to the 4-week block that he gave evidence about.
PN45
At paragraph 7 of my submissions I've set out the relevant transcript references where this is dealt with during the hearing. There was no evidence put to contradict this final point, the appellant's oral evidence confirmed that he'd been applying for jobs and I take the Bench to transcript paragraph 197, question:
PN46
You haven't applied for other jobs? The jobs that I applied for I notified Centrelink about, so all the jobs I applied for usually appeared on the Centrelink document that I had to put in every fortnight.
PN47
Paragraph 202 over the page, in answer he refers to jobs that he made efforts to find, either through advertisements in the newspaper or a noticeboard at Centrelink or through word of mouth:
PN48
People would advise me there might be a job going somewhere.
PN49
Paragraph 207, a further reference to applying for jobs and not receiving them and there's a further reference at paragraph 674 in the re-examination, I won't take the Bench to that.
PN50
COMMISSIONER REDMOND: So am I to take from that he only applied for jobs in the liquor industry?
PN51
MR MOORHOUSE: I think that's the case.
PN52
COMMISSIONER REDMOND: So he never actively tried to get a job anywhere else?
PN53
MR MOORHOUSE: Probably correctly speaking the evidence didn't define that sufficiently. As I say in paragraph 7 of my submissions, under cross-examination the appellant acknowledged he had not produced his job applications or job advertisements in response to a notice to produce - the Bench will no doubt want to have a read of the evidence around the areas I've taken you to where this also appears - this was because he believed that if he had satisfied Centrelink he was looking for work it would be sufficient to satisfy the Commission and the respondent.
PN54
I acknowledge that this rationale is not entirely satisfactory but I submit that it does not amount to evidence that he had not been seeking employing and there simply was no evidence that he had not been seeking employment.
PN55
SENIOR DEPUTY PRESIDENT DUNCAN: That's a fairly awkward sentence, is it not? I'm not speaking of the style. There was no evidence of not seeking. They are proving a negative, are they?
PN56
MR MOORHOUSE: I was going to go on and say, it was not put to him in cross-examination that he had not been seeking work. His evidence in the statement was, "I have been actively looking for work" for the period he describes. In evidence he talks about various job applications in answer to questions, nowhere in the evidence does he say, I haven't been looking for work, other than the period he explains by reference to sickness.
PN57
SENIOR DEPUTY PRESIDENT DUNCAN: But he wouldn't, would he?
PN58
MR MOORHOUSE: No, he wouldn't but the point is, there was no evidence to that effect.
PN59
COMMISSIONER REDMOND: But on his own evidence he only sought work in the liquid industry, there is a lot of other work out there. Could the Commissioner have been considering that, do you think?
PN60
MR MOORHOUSE: He doesn't expressly say so, in fact his finding is the other way, the second point that I rely on is that he had regard to or relied on substantial employment opportunities in the hospitality industry as a basis for finding he'd failed to mitigate. I challenge that finding in two ways; one because it's contrary to the evidence that he had been looking for work and two, as I go on to say in paragraphs 8 and 9 of the submissions, it relied on a matter in respect of which there was no evidence nor was there even any uncontested statement from the bar table to the fact that there is a lot of employment within the hospitality industry. It was simply a matter that the Commissioner had regard to in reaching his conclusions.
PN61
The appellant says that it was an error of law for the Commissioner to rely on his own knowledge or assumptions about the state of employment in the hospitality industry to the detriment of the appellant in circumstances where there was no evidence of that matter. Now, the respondent's written submissions refer to an onus on the appellant to satisfy the Commission that he had attempted to mitigate, in my submission that is not correct.
PN62
Section 170CH(2) requires the Commission to have regard to certain matters listed and any other matters that it considers to be relevant, so far as they are relevant to the particular case.
PN63
It does not create an onus on an applicant to satisfy the Commission that he or she has attempted to mitigate his loss. It can't be the case that any failure to satisfy such an onus, if it did exist, would lead to a finding of a failure to mitigate. The appellant says, the correct position is the Commission should look at the evidence in relation to those matters listed in section 170CH(2), including the question of the extent of efforts to mitigate loss when considering as an exercise of discretion, whether it is appropriate to grant a remedy.
PN64
In support of that submission I rely on the decision of Henderson and The Department of Defence, a full bench decision of 28 July 2000, in particular at paragraph 18. This, as I understand it is the leading authority on the proper approach to applying the section 27CH(2) factors. The full bench says at paragraph 18:
PN65
It is equally clear that making a decision as to remedy the Commission is obliged to consider each of the matters listed in section 170CH(2) and to treat them as matters of significance in determining whether any and if so what remedy is appropriate.
PN66
At the end of that paragraph the full bench says:
PN67
The Commission in determining under section 170CH whether or not a remedy is appropriate is only required to have regard to these matters in so far as they are applicable or are relevant to the particular circumstances of the case.
PN68
I also refer to the decision of Chellow that I have already relied on. Paragraph has a discussion. The full bench raises the question of onus in relation to remedy.
PN69
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Moorhouse, you referred us earlier to the transcript at paragraph 197. If I continue further on into that paragraph there is around paragraph 207 through to 210, perhaps 213 a debate over why it was that Mr Vdoukakis didn't provide evidence to the Commission relative to the actual endeavours that he took to obtain alternative employment.
PN70
MR MOORHOUSE: That's correct.
PN71
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: What do you say to us about the extent to which as the applicant in the matter who was under an obligation to do just that in the context of the findings in Henderson?
PN72
MR MOORHOUSE: I say that there is no onus on an applicant to establish attempts to mitigate loss but that matter, or the evidence as to that matter is in accordance with Henderson, a matter that the Commission must have regard to as part of its discretion in looking at whether in all the circumstances it satisfied a remedy as appropriate. There is no onus and if you fail the onus there is automatically a finding that you've failed to mitigate loss or failed to attempt to mitigate loss that then works against an applicant in assessing whether and how much compensation or whether remedy is appropriate. It is merely that the Commission looks at all of the matters including the matters listed in the section or the subsection.
PN73
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: If I apply that logic then, does it not lead me to a conclusion that the applicant was on notice that the evidence of his attempts to mitigate his loss were to be provided, that either as a result of his own conclusions or as a result of advice provided to him he decided that it was too difficult to do that or that it wasn't necessary for him to do that and as a result why was it that Commissioner Raffaelli wasn't entitled to draw a conclusion which he outlined in paragraph 47 of his decision?
PN74
MR MOORHOUSE: All that you say about the notice to produce is correct. There is a further discussion of that in re-examination including the text of the notice to produce goes into evidence which might assist the Commission. I think starting at paragraph 670 and that evidence shows that the notice to produce did not require lists of jobs he had applied for which is what Mr Vdoukakis said he had at home. Mr Vdoukakis' evidence was that he didn't readily to hand have the actual job applications that he generally threw them away but he could have perhaps gone to Centrelink to recover various things except for the fact that the notice to produce was only served on him - - -
PN75
SENIOR DEPUTY PRESIDENT DUNCAN: I think it's on the Friday.
PN76
MR MOORHOUSE: Last week and this hearing is on a Tuesday. Nonetheless, as I said in my written submissions, it is not entirely satisfactory that he didn't make more effort to respond to the notice to produce but it doesn't over-ride the fact that the only evidence was that he had been looking for work. As I said before there was no evidence that he had not been looking for work, that matter was not even put to him in cross examination.
PN77
The second reason why I say that's binding and manifests failure to mitigate loss involves an error of law is because of the reliance on a matter within the Commissioner's own knowledge, a matter that wasn't in evidence and that is the reference to:
PN78
The hospitality industry does offer substantial employment opportunities.
PN79
And the Commissioner then relies on that to say he is not prepared to accept the proposition that Mr Vdoukakis had been unable to secure employment other than for four weeks.
PN80
SENIOR DEPUTY PRESIDENT DUNCAN: There can be no doubt on the transcript that this point was raised by the Commissioner. It is not something that appeared in the decision.
PN81
MR MOORHOUSE: It is raised not as an evidentiary point but - my friend had included it among his submissions. It is raised in submission, or exchanged during submission, paragraph No. 1216. The Commissioner says:
PN82
SENIOR DEPUTY PRESIDENT DUNCAN: Yes, it surprises me.
PN83
MR MOORHOUSE: Yes:
PN84
He seems as very unlucky person in this industry.
PN85
My answer is:
PN86
That may be so. His evidence was tested in relation to that. and that evidence stands as it is. I am not going to give evidence from the bar table, Commissioner.
PN87
In my submission that doesn't allow the Commission to rely on that matter effectively as a point of evidence in assessing or in coming to a conclusion that Mr Vdoukakis manifestly failed to mitigate his loss. In the written submissions I have given two authorities for the proposition that the Commission is not entitled to rely on matters other than evidence or uncontested factual submissions. I won't go to those. I think that is a fairly non-controversial point.
PN88
In reply the respondent says it was a matter that the Commissioner was entitled to have judicial notice of and I have included the decision of McHugh J in Woods and Multi-Sports Holdings in relation to the question of judicial notice and I will take the bench to page 478. The authority given is only an extract from what is quite a long High Court decision concerning negligence. McHugh J was in fact in the minority on the question whether there was a duty of care but the decision provides a fairly rigorous analysis of the doctrine of judicial notice. Only one other justice of the High Court dealt with the same issue. At page 478 under the subheading, The Doctrine of Judicial Notice Generally, there is this quote:
PN89
As a general rule facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule ...(reads)... reasonably presumed to be aware of it.
PN90
The appellant submits substantial employment opportunities in the hospitality industry doesn't fit into that category and, further, it is not a sufficiently precise fact for it to be appropriate for it to be had regard to in that way. One might rhetorically ask what particular jobs was it the Commissioner had in mind that were available to Mr Vdoukakis that he didn't take up. It may well be that the concept of judicial notice doesn't strictly apply to this Commission, it is not a Commission that is required to follow the rules of evidence but nonetheless, it was not appropriate and an error for the Commissioner to have regard to a matter that was not in evidence when making this finding of fact that then led to the decision that there was no entitlement to a remedy.
PN91
We move on to the next substantive issue raised and that is a failure of the Commissioner to have regard to a relevant matter, that relevant matter being the fact that Mr Vdoukakis was dismissed summarily, that is, with no notice or no payment in lieu of notice. Section 170CH(2) provides:
PN92
In determining whether as remedy is appropriate the Commission must have regard to any other matter the Commission considers relevant.
PN93
Section 170CH(7) imposes the same requirement in relation to determining the amount of compensation and that the way those paragraphs should be approached is discussed by the full bench in Henderson. It is clear that Mr Vdoukakis was not given any notice or payment in lieu. He was merely told to go back to the bottle shop, refused to accept that, that was found to be a dismissal, and he didn't work again.
PN94
The summary nature of the dismissal and the failure to make any payment in lieu of notice was a relevant matter. It was a matter that was necessarily relevant, in my submission. A submission to that effect was made at first instance. That can be found at transcript paragraph number 1215, and it was an error for the Commission to not have regard to that matter in considering whether a remedy, and in particular whether an order for compensation was appropriate, and then again if he moved on to the next step of considering the amount of compensation.
PN95
I accept that Mr Vdoukakis was classified as a casual under the award, the hospitality industry award, and for the purposes of that award he would not be entitled to notice. However, it's interesting to note that if the Commissioner earlier in his decision held that he was not a casual employee within the meaning of - at that time the regulations to the Act, those provisions have now been moved into the Act itself for the purpose of exclusions from the unfair dismissal provisions. Meaning that section 170CM of the Act would apply to him and require him to be given two weeks notice given his period of employment, or a payment in lieu.
PN96
No application was made under section 170CM but the fact that the Act would require that notice or payment in lieu supports a view that a failure to have regard to that matter was a relevant consideration, it was necessarily a relevant consideration, and the finding that there were no other relevant matters in the face of a submission to that effect was an error.
PN97
SENIOR DEPUTY PRESIDENT DUNCAN: Isn't that subject to the proposition that the characterisation of a person for the purposes of the Act is related to the convention on termination? Finding that a person is not a casual for those purposes doesn't necessarily alter the incidences that attach to a casual in other respects.
PN98
MR MOORHOUSE: That's correct, but with respect, your Honour, isn't section 170CM in the Act and exactly the same words in the Act that are interpreted in Seddon's case.
PN99
SENIOR DEPUTY PRESIDENT DUNCAN: Seddon has had a bit of a bash of late. I'm thinking of Nightingale v - I shouldn't forget the respondent because it's such a fascinating - Little Legends. If it's taken you both a bit by surprise, it in effect says that Seddon may have been right at the time it was decided because of the regulation in existence at the time. The Act now contains the provisions about the exclusion of casuals, and under the Act Seddon doesn't rate. We're back to Blue Suits, Mr Moorhouse.
PN100
MR MOORHOUSE: That has taken me by surprise, your Honour, and it's useful to know. I suppose all I can say is that this case concerned a time period when the regulations were in force and in relation to that time presumably then the regulations would not exclude Mr Vdoukakis from the notice requirements under section 170CM.
PN101
In any event, that's not a strict test, no application was made under section 170CM. I put that to rely on the fact that the Act supports the view that it was necessarily relevant to have regard to the fact that Mr Vdoukakis was not given any payment in connection with his unfair dismissal. That's a matter that should have weighed in the question of whether any compensation was appropriate in all of the circumstances.
PN102
SENIOR DEPUTY PRESIDENT DUNCAN: This is in the other considerations?
PN103
MR MOORHOUSE: In section 172CH(2) factors, and the final factor of course is any other matters that are relevant. I say this is a necessarily relevant matter, and a failure to have regard to it is an error.
PN104
The third way in which the remedy decision is challenged - sorry, I withdraw that. I have included in the authorities a decision of McIntosh v Harness Racing of Victoria, and I've included it to support this particular point. This is a slightly unusual decision. It involves a summary dismissal following an issue of involvement in corruption by Mr McIntosh as a horse owner. If the Bench at paragraph 3 of the decision, the third sentence in:
PN105
Commissioner Smith considered whether the termination was harsh, unjust ...(reads)... without notice was harsh.
PN106
Commissioner Smith then gave consideration to whether it would be appropriate to reinstate Mr McIntosh. He concluded that the reasons Mr McIntosh was dismissed made it impractical for him to be reinstated. He referred to two cases dealing with the calculation of compensation, concluded that an appropriate period of notice should have been given and the compensation of 13 weeks was appropriate and ordered accordingly. There's further discussion that makes it fairly clear that the period of 13 weeks is based on what was considered to be reasonable notice in the circumstances of that employment.
PN107
One of the grounds of the appeal is that Commissioner Smith did not apply the manner of calculating compensation required by the Full Bench authorities, and if we move to paragraph 33 we see in that paragraph. In the final sentence the Full Bench says:
PN108
Commissioner Smith's reference to Stevens appears therefore to indicate ...(reads)... endorsed in Sprigg.
PN109
The Full Bench goes on to find, and this goes right through and in particular in paragraph 36, that was a matter that justified a grant of leave to appeal and it was arguable that Commissioner Smith did not approach the calculation of compensation in the proper way. But then they go on to find:
PN110
We are satisfied that the order could have been properly arrived at ...(reads)... determined by Commissioner Smith.
PN111
There's no express statement in that Full Bench decision that in cases of incorrect summary dismissal but where there is a valid reason for dismissal, and that's very similar to what we have here, or how the Commissioner at first instance characterised what we have here in any event, the amount of notice not given will always be a relevant factor. That's not expressly said, but the case nonetheless appears to stand as authority for that proposition, that the - - -
PN112
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Moorhouse, have you got authorities in this package you've given us that go to establishing the reverse argument that you now appear to be putting? It does appear that there are authorities that establish that when the Commission is applying the steps inherent in Sprigg that it is appropriate to consider the issue of notice or payment in lieu of notice. What I'm wondering is whether or not you were referring, going to be referring us to an authority that is analogous to this particular matter, in that the Commissioner didn't quite get to the various steps inherent in Sprigg. He reached a conclusion that on the basis of the consideration of the factors inherent in section 170CH(7) no payment was appropriate. To what extent are you going to be directing us to authorities that go to the consideration of notice in those circumstances?
PN113
MR MOORHOUSE: I must concede I don't have an authority to that express effect, and the Commissioner is correct to - - -
PN114
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I couldn't find any either, and that's why I was asking the question. It wasn't a trick question.
PN115
MR MOORHOUSE: The Commissioner is correct to say that McIntosh does consider that matter as relevant in the Sprigg formula calculation. It may be that that can be used as a guide to the relevance of that matter in the appropriateness of a remedy at all.
PN116
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: What might become relevant in that regard is that there are a number of decisions of the Commission, I think commencing with Annetta, that appear to differentiate consideration of the question of termination on notice, or without notice, from consideration of the validity of the reason for termination, and I wonder as to why it is that you say that there was an error in this regard in terms of the decision inherent in the Commissioner's decision not to recognise the absence of payment.
PN117
MR MOORHOUSE: I say there was an error because that matter was in the circumstances of this case necessarily relevant to the question of whether compensation was appropriate. There's a finding of unfair dismissal in circumstances that it would seem to not justify summary dismissal, no notice or payment is given. A submission is made to the Commissioner that he should have regard to that matter in determining the amount of compensation and whether the compensation is appropriate, and there's an express finding that no other matters are relevant to the question of whether compensation is appropriate.
PN118
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Where was that submission actually made in the proceeding before Commissioner Raffaelli?
PN119
MR MOORHOUSE: It's at paragraph number 1215, and on reviewing that I must acknowledge that it is made in the context of addressing the Sprigg quantification, or perhaps more correctly in the context of section 170CH(7) rather than expressly section 170CH(2).
PN120
If I could move on now to the third basis, the third erroneous finding on which the remedy decision is attacked and to do that I refer the Bench to paragraph 46 of the decision, in that paragraph the Commission says:
PN121
I consider that on the evidence of Ms Cussan...
PN122
That was the only employer witness, the manager of the hotel:
PN123
...the applicant would have remained in employment for about one or two more weeks ...(reads)... the applicant failed to comply.
PN124
Skipping, Ms Cussan's evidence was that the applicant just did not respond positively to her approaches:
PN125
I consider it likely the hotel would have made the consequences of his continuing ...(reads)... harsh, unjust or unfair would occur.
PN126
There are three bases for challenging this finding that the applicant would have remained in employment for abut one or two more weeks, first is that it relies itself on the erroneous finding that numerous concerns had been expressed to the appellant about the length of his shifts. Paragraph 16 of my written submissions I have in quotes used the phrase "numerous complaints," that's a slight mis-quote of the Commissioner's decision, he refers to numerous concerns.
PN127
That finding of numerous concerns expressed to him was contrary to the appellant's evidence, this was a matter on which the parties differed greatly in their evidence and was made without giving any reasons for preferring Ms Cussan's evidence. That finding that he would have only remained employed for one or two more weeks also fails to have any regard to the possibility that an opportunity to respond to the reasons for dismissal, remembering that that is accepted or it is found that that wasn't given inevitably, having regard to the evidence, there is no regard given to the possibility that that opportunity would have affected, avoided or postponed the dismissal.
PN128
Thirdly because that finding of, would have remained in employment for one or two weeks, elevates the length of shifts concern to a substantive reason for dismissal when the evidence clearly showed that it was really a lesser reason and not a triggering reason and I do develop each of those a bit more in my written submissions. At paragraph 17 of the written submissions I summarise the evidence as to what the Commissioner calls the "numerous concerns," so Ms Cussan did give evidence that she raised the appellant's excessive hours on a frequent basis, the relevant references are in the written submissions and later, on many of the occasions she saw the applicant.
PN129
The appellant denied that those issues were raised with him prior to June 2003, he considered that he was doing his duties properly whereas, other managers were using staff to count money. Under cross-examination the appellant denied that that the issue of excessive hours was raised with him on a regular basis, the transcript reference is given. Ms Cussan gave evidence under cross-examination that she did raise the mater on a frequent basis although she had no evidence so support having done so, in the sense of no documentary evidence or warnings or notes.
PN130
There was also a related issue about an explanation for certain of the additional hours and to draw the Bench's attention to that I would take you to first of all, the statement of Ms Cussan which is exhibit RH2 at paragraph 14. You will see there Ms Cussan says in her statement which was adopted on oath:
PN131
I also raised with him on a frequent basis the fact that he worked in excess of 10 hours per week ...(reads)... with his paperwork.
PN132
In response to that in his statement in reply Mr Vdoukakis said, that is exhibit VH2, paragraph 16, the written submission incorrectly refers to paragraph 14 there, it should be paragraph 16. He says he denies the contents of that paragraph of Ms Cussan's statement:
PN133
In fact it was Lisa herself who increased my hours by asking me to take over ...(reads)... I started my shifts at 5 pm.
PN134
You'll see there at (a) he deposes he was later asked to commence at 4 pm rather than 5 pm on those Thursdays and at (b) he raises the issue of the fact that the gaming room closed an hour later on one of his late night shifts at one point through and then an additional reason for further hours. You will see there he produced pay slips to show those changes to his hours. Ms Cussan clearly was more directed at the question of taking too long to finish up early in the morning effectively but nonetheless, the Commissioner has no regard to any of that material in his decision.
PN135
The Commissioner than says he prefers in the relation to the question of excessive hours, he preferred the evidence of Ms Cussan to that of the appellant but he doesn't explain his reasons for doing so. It is my submission that the Commissioner had an obligation to give reasons addressing material issues of fact, including this disputed fact. Now, the leading authority on that is Edwards v Guidice, the Full Federal Court decision and I refer the Bench to paragraph 10 Moore Js decision:
PN136
While the Full Bench did not say so expressly, it appears to have proceeded on the basis that ...(reads)... it was correct in taking this approach.
PN137
Paragraph 44 Marshal Js decision:
PN138
In a seriously contested case before a Tribunal which is required to afford procedural fairness ...(reads)... that full reasons should not be given.
PN139
Then paragraph 47:
PN140
It should be noted that Full Benches of the Commission have thoroughly reviewed the obligation ...(reads)... accord with the views expressed above.
PN141
I also have regard to the Full Bench decision in Ellawallah, an Australian Postal Corporation, another of the authorities I've provided. At paragraphs 64 and 65 of that Full Bench decision it's said:
PN142
In our view Edwards and Guidice is authority for the proposition that in determining ...(reads)... and which deal with the matters the Commission must consider because of sections 170CG and 170CH.
PN143
I've given another case, I won't go to it, Britax v Rainford or Jones v Britax Rainford, the Commission might want to have regard to paragraphs 34 and 35 of that decision which in fact suggests a somewhat less stringent obligation to disclose reasoning process while acknowledging the binding force of Edwards v Guidice. In my submission the dispute over whether the appellant was told abut concerns regarding his extended shifts emerged and was in the way that Commissioner Raffaelli analysed the case, a key factual issue, it was the factual issue perhaps more than other, that ultimately led to his discretionary decision not to award any remedy and the failure to disclose reasoning in relation to that, other than to say simply, Ms Cussan was a witness of credit, was an error of law in accordance with Edwards v Guidice.
PN144
I return to my written submissions starting at paragraph 20. The finding that the appellant would have remained in employment for about one or two more weeks was not based on direct evidence. That matter of how long he might have otherwise remained in employment was not canvassed in evidence so it was an inference finding drawn by the Commissioner from other facts. The Commission is effectively obliged to do that by the Sprigg formulation but that means an appeal bench is in as good a position as the Commissioner at first instance to determine the proper inference to be drawn from primary facts. I have given the Phyllis decision. At paragraph 18 in particular of that decision there is authority for that; I won't go into that.
PN145
It is submitted that it was not open to the Commissioner to determine that the appellant would have remained in employment for only about one or two more weeks, firstly, because it's based upon this erroneous finding of numerous concerns and that finding is erroneous expressly because there are no reasons given for it despite the fact that it was a contested issue and emerged as a key issue in the way Commissioner Raffaelli analysed the case.
PN146
Secondly, because as I said it ignores the possibility that a warning to the appellant about this aspect of his performance and a discussion on the issue would have altered his performance and would have avoided or postponed termination. In relation to that I would also note that another way of putting the submission I put earlier is even if the Commissioner is correct that in one or two more weeks this issue could have properly been relied on following a discussion as a basis for dismissal the appellant should then have been given an appropriate period of notice which would seem to have been two weeks. So even on that limited basis there would have been a further period of employment of two weeks which was not had regard to in determining the one or two week period of employment that the appellant would have remained for.
PN147
The third reason that is challenged is that it is not consistent with evidence that excessive hours were not the motivating reason for the dismissal. In that regard I will go to some of the evidence starting with exhibit V1, the appellant's primary statement at paragraph 6. Both the appellant and Ms Cussan give fairly consistent accounts of the discussion that occurred on 18 June where the appellant was told that he was being demoted back to the bottle shop, to paraphrase it. Reading from Mr Vdoukakis' statement, paragraph 6, that is exhibit V1. He says:
PN148
Ms Cussan said words to the effect "We are not satisfied with your performance as manager. We were quite happy with your performance ...(reads)... in the liquor store".
PN149
So the reference there is to the first two of the three reasons going back to my summary at the beginning of the three reasons for the dismissal. One then has to go over the page and one finds that further on in the conversation Mr Vdoukakis says that Ms Cussan said words to the effect - this is the second paragraph in, about half way down:
PN150
We are also unsatisfied that you're clocking up too many hours. The previous manager was clocking up 10 hours less than you.
PN151
Ms Cussan's version of that conversation is exhibit RH2 at paragraph 31. I note in the written submissions at paragraph 24 that is incorrectly referred to as exhibit VH2; that should be RH2, paragraph 31. Quoting from that Ms Cussan says:
PN152
On Wednesday 10 June 2003 a conversation to the following effect took place "Lisa, we're not happy with the say you're performing ...(reads)... to the bottle shop".
PN153
Again, one goes over the page and finds at a later point in the conversation, on Ms Cussan's account, she says:
PN154
I have also raised with you time and again that you're clocking up too many hours.
PN155
The timing of this also clearly supports an inference that it was primarily based on the appellant's alleged poor handling of staff and in particular the sexual harassment incident. If we go to paragraph number 1028 of transcript, this is in the cross-examination of Ms Cussan, she's been asked previously - sorry, if I start at paragraph 1027 she's asked the question:
PN156
One of the reasons was the fact that he was taking longer than you wanted to close up to count the money it would seem; is that a correct statement, the reason why he is being dismissed.
PN157
Paragraph 1028:
PN158
One of the reasons you moved him off the duty manager position?---That's one of the reasons. The main reason was he was very difficult ...(reads)... suffering from it.
PN159
Next page, paragraph 1039 she's asked a question about the Alicia McCann sexual harassment incident and she says:
PN160
Yes, I guess that was the last straw.
PN161
The timing of the dismissal clearly supports that inference in any event, as I have said. The appellant submits that a more appropriate inference to draw from all of the evidence is that in the absence of the unfair termination of the employment as duty manager that the employment would have continued for some time but then, following the Sprigg formulation, allowing a higher than usual discount for the possibility that the excessive working hours issue would have remained a problem and would have led to termination at some future time. That's my submission as to a more appropriate finding for the Full Bench to make in relation to this issue rather than the finding that the appellant would have remained employed for only one or two more weeks.
PN162
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Isn't the evidence of Ms Cussan in this regard further expressed in the paragraphs that follow 1093 such that it is indicative of a high level of frustration on her part to which Commissioner Raffaelli alluded in arriving at his conclusion that Mr Vdoukakis' employment would last for only that one or two weeks?
PN163
MR MOORHOUSE: The evidence is indicative of a level of frustration, certainly. As I read the Commissioner's decision the only reason he relies on for concluding that the appellant would remain employed for about one or two more weeks is the numerous concerns expressed to him about the extended length of his shifts and the fact that he failed to comply with those.
PN164
One must have regard to the fact that the other two reasons for dismissal they were pressed at the hearing but no direct evidence was brought to support them, that is only hearsay evidence of those matters was brought to this Commission to support the alleged inability to deal with other staff and to support the sexual harassment allegation. In those circumstances the Commissioner inevitably found that he couldn't rely on those as a valid basis for dismissal and only had the third reason before him and then, appropriately, doesn't rely on those matters in determining because they're not proved before him in any substantive way, in any way that he can rely on them, doesn't rely on those matters in having regard to remedy.
PN165
The final way that the Commissioner's remedy decision is challenged is by saying that it's unreasonable or unjust in all of the circumstances. This is a case where the evidence establishes that the appellant was dismissed primarily because of alleged complaints about him by other staff and in particular an allegation of sexual harassment made by Ms Alicia McCann in the weekend prior to his dismissal.
PN166
The appellant denied there was any substance to those allegations and the respondent brought no direct evidence to support them. In those circumstances the Commissioner could not be satisfied that those matters constituted a valid reason for dismissal and found to that effect.
PN167
The respondent also relied on the fact that the appellant worked extended shifts and had been told of its concerns about this. The appellant denied that matter had been raised with him prior to the month of dismissal and brought evidence to explain much of the difference between his hours and those of his predecessor and the respondent brought no direct evidence to support this reason for dismissal again beyond the statements of Ms Cussan.
PN168
In light of all of that evidence it is submitted that the Commissioner's discretion miscarried in determining that despite the clearly harsh and unreasonable nature of the dismissal no remedy was appropriate. I don't submit that it can never be the case that a remedy is not ordered where there is found to be an unfair dismissal but in the circumstances of this case where the dismissal was made summarily without payment, where there was no valid reason for the dismissal and, if you like, no serious attempt was made to support the primary reasons for the dismissal it was unreasonable and unjust to the appellant to go on to find that no remedy was appropriate in the circumstances.
PN169
The outcome that was determined by the Commission had the effect of putting the appellant in the position he would have been in if the Commissioner had accepted an evidentiary case that had been made out justifying the primary reasons for dismissal. that is despite the inevitable finding that he couldn't accept that and those primary reasons for dismissal were not made out, didn't constitute a valid reason for dismissal.
PN170
My written submissions finally address the appropriate course if leave to appeal is granted and the appeal is allowed. Of course it is then open to the full bench to consider for itself the appropriate remedy in accordance with the principles set out in section 170CH and this brief formulation. As to that I rely on my submissions at first instance and they can be found at paragraph 1190 and following and this was said in the submissions at first instance:
PN171
There was evidence that the appellant's weekly pay
PN172
The appellant was a casual, his pay varied week to week because his hours in particular the ending time, changed slightly, particular shifts:
PN173
There was evidence that the hours increased over the six months that he was in the duty manager position so it's only appropriate to take an average of, for example, the last six weeks pay.
PN174
Those payments can be found at Exhibit RH(1), there is a complete pay history at least during the period of duty manager. The average of the last six weeks gross payments and superannuation amounts is $1090.70. I give that to the full bench, that wasn't put at first instance although the same basis for calculation was put. Then finally: If the full bench is of the view that because of an absence of factual material it is not able to make finding necessary to determine an appropriate remedy it could refer the matter back to a member of the full bench or another member of the Commission but the appellant is happy for the full bench, if it is comfortable, to make its own finding as to remedy based on the material at first instance. Those are my submissions.
PN175
SENIOR DEPUTY PRESIDENT DUNCAN: Very well. Ms Rudland.
PN176
MS RUDLAND: If the Commission pleases. The respondent's submissions have been filed and the Commission as constituted has indicated it has read them. I don't intend going through them in any great length.
PN177
PN178
MS RUDLAND: In relation to the Hotel Diary with the cleaner copy that was filed with the respondent's submission, is your Honour wanting to mark those separately or merely replace that for the one that was filed in the appeal book.
PN179
SENIOR DEPUTY PRESIDENT DUNCAN: They are, strictly speaking, different from the earlier exhibit so perhaps we should mark them. I certainly believe in marking these things to make it a little easier to refer to them, so I will mark the copy of the appointment diary for 2003 for the Royal Hotel, Randwick filed in these proceedings, Exhibit Respondent 2.
EXHIBIT #R2 COPY OF 2003 APPOINTMENT DIARY FOR ROYAL HOTEL RANDWICK
PN180
MS RUDLAND: It is respectfully submitted on behalf of the respondent that the appellant in this matter has not shown that in the public interest leave to appeal should be granted. The respondent submits that the decision of the Commissioner at first instance is not remarkable and his reasoning shows that he approached his task in accordance with the requirements set out in section 170CG and section 170CH and that the decision of the Commissioner takes into account all the relevant facts of the case.
PN181
In relation to the propositions put forward by my friends in support of the public interest reasons for granting leave it is submitted that where the appellant says that the failure to provide an opportunity to respond will have no bearing on whether a dismissal subsequently occurred. In my submission that is already the case. I don't wish to be appearing cute when I say that but the reality is the opportunity to respond to allegations put by an employer to an employee does not necessarily mean that a termination is avoided.
PN182
In the appellant's submissions in reply it was put that it is of public importance because the decision raises the issue as to whether as to remedy had the effect of imposing substantial burden on an applicant to prove that he or she had attempted to mitigate the loss resulting from the dismissal. My learned friend has made both written and oral submissions on this point in that there is no onus on the applicant to show mitigation.
PN183
In my respectful submission the knowledge as to mitigation is peculiarly within the knowledge of the applicant. It is not in the knowledge of the other party in such a proceeding and, therefore, the only person who can show mitigation or attempt at mitigation is the applicant and it is not for the respondent to show that there was no mitigation because the respondent is not necessarily in a position to have that knowledge, particularly in circumstances where there has been a long period of time post termination.
PN184
In any event, even if there has been in any period of time it is not within the respondent's knowledge as to what the applicant has or hasn't done. Because there is a positive, in a sense, requirement on the Commission at first instance to take that factor into account in determining whether or not there is a remedy, the applicant has to put that information forward.
PN185
SENIOR DEPUTY PRESIDENT DUNCAN: I think it might be put as being there is a tactical onus. That's something which is considered in the feel good cases.
PN186
MS RUDLAND: It's certainly a tactical onus, your Honour, that's true but where section 170CH makes abundantly clear that it is a factor to be considered in determining whether a remedy is appropriate, in my respectful submission, it places the obligation higher than tactical.
PN187
In relation to the issue as to whether or not the applicant put forward evidence, and whether or not it was open to Commissioner Raffaelli to determine that the applicant had manifestly failed to mitigate, my learned friend has taken the Commission to the oral evidence of the applicant: at first instance in the transcript, and also his statement in reply which was filed and adopted in the proceedings.
PN188
Now, Commissioner Raffaelli made clear in his decision that there was no real evidence, it was merely the statements of the applicant as to what he had done. He took no opportunity to show what the requirements were, for example, to meet Centrelink requirements. There was no evidence put forward by the applicant as to his medical condition; he claimed in his oral evidence that there was an exacerbation of a previous condition that required surgery. There was no documentary evidence put forward by the applicant to show that there was a medical condition and that it was an exacerbation caused by his termination and treatment by his previous employer. On each occasion when he could have had the opportunity to put real evidence before the Commission he did not do so.
PN189
Now in relation to whether or not Commissioner Raffaelli was entitled to take into account his own knowledge of the industry, and employment opportunities in the industry. Without conceding the point, it may be that the submission of the respondent that the Commissioner was entitled to take judicial notice, that submission may be too high and may be extending the point too far, but in any event the Commissioner was entitled to take into account his own knowledge of the industry. In my respectful submission, he put the applicant squarely on notice that he had some knowledge of the industry and that he had a view about it. At no time was he challenged on his entitlement to do that, or in fact that, "there may be substantial employment opportunities in the industry", that that view is wrong.
PN190
So, in my respectful submission, Commissioner Raffaelli was entitled to take into account his own knowledge -that comes from his interaction with the industry as a Member of the Commission and prior experience and knowledge before he became a Member of the Commission.
PN191
My learned friend has submitted on behalf of the appellant that Commissioner Raffaelli was required under the principles of Edwards v Guidice and subsequent decisions to give reasons as to why he preferred the evidence of Ms Cussan's to Mr Vdoukakis. In my respectful submission the authorities that my learned friend relied on do not stand for the proposition because - I am sorry I withdraw that. The Commissioner's preference or finding that Ms Cussan's was a credible witness, on a witness of credit, is not a finding of fact; it is a finding of credit as a witness. For that reason he was not required under the principles of the authorities referred to, to state why he found her a witness of credit and, as follows, accepts her evidence.
PN192
Now, in my respectful submission, to put a finding of credit of a witness to the level of finding of fact requiring a reason would place an unreasonable burden on a Member of the Commission to state the reasons as to why one witness is preferred to another. Which in itself could lead to appeal and subsequently, in essence, the Appeal Bench having to hear matters de novo to determine whether or not a finding of credit of a witness was reasonably open.
PN193
In my written submissions I have referred to a number of decisions and set out relevant parts of those decisions, and I don't take the Commission to them any further than what is in the written material. Can I say that I respectfully submit that the appellant is essentially in this proceeding trying to persuade the Full Bench to exercise the discretion in another way, as if the matter was being considered at first instance. That is, another way from the exercise of discretion exercised by Commissioner Raffaelli.
PN194
In my respectful submission Commissioner Raffaelli made findings that were reasonably open to him and his decision was unremarkable and involved no error of principle or misapprehension of the relevant factual considerations, and no error in the exercise of his discretion. In my respectful submission, leave appeal should not be granted and the appeal on all counts dismissed. In relation to the erroneous finding of manifest failure to mitigate loss, I have taken the Commission, orally, to the issues as well as in the written submissions.
PN195
In relation to the issue that Commissioner Raffaelli decided that the applicant would have remained in his job for no longer than one or two weeks. Notwithstanding that the Commissioner found that the issues raised on termination were not valid reasons, the Commissioner did so in relation to the issue of the sexual harassment allegation and not getting along with other staff, that information was not in the direct knowledge of Ms Cussan at the time that she gave evidence and that it wasn't a valid reason.
PN196
In my respectful submission in terms of the hours issue the Commissioner determined it wasn't a valid reason because the termination had not been afforded procedural fairness. He doesn't use the words "procedural fairness" but in essence that is what he has done. And it is because of the failure to afford procedural fairness the Commissioner found that it was not a valid reason for termination and that it was a termination that was harsh, unjust or unreasonable.
PN197
None of that finding negates the evidence of Ms Cussan which was accepted by the Commissioner as to her frequently raising issues with the applicant not just confined to the hours issue but including the hours issue. And that on each occasion she found the applicant not responsive to the approaches that she made and that he would not accept there was any failing in his performance and, therefore, not open to suggestion to change.
PN198
Now, that evidence was quite clear all the way through. Both in terms of the written statement and in her oral evidence. And it was quite clear on the evidence of the applicant orally in the proceedings below that that continued to be the case. There was no acceptance that there may have been failures in his performance.
PN199
Now, it is quite clear that the submission put on behalf of the appellant that the Commissioner's decision didn't take into account the fact that if the issue was raised on the hours he may have been responsive, and he may have improved his performance. Well that in my respectful submission is completely contrary to the evidence that was put by Ms Cussan. And, on the issue of whether the hours were raised, the hotel diary showed that at least on one occasion the issue was raised; that was on Thursday, 23rd. It appears on the clean copy. It has written on the top of the page - - -
PN200
SENIOR DEPUTY PRESIDENT DUNCAN: Which month?
PN201
MS RUDLAND: Of May. The sheet is confusing because it has "May - week 21 - Friday" and then it has "25" on the righthand corner. But it has written above it "Thursday, 22". Then, at the bottom, "Friday, 23". Nevertheless, the page is there. It says:
PN202
No it is not necessary. The security bill has crept up. Security finished 8.00am last Sunday ...(reads)... an hour earlier, please cut it back.
PN203
And then on Monday, 26 May, which is three or four pages over:
PN204
Lisa I'll be in to explain what's happening with the security man hours that's been identified as the applicant's handwriting.
PN205
In the witness box under cross-examination the applicant denied it had been raised and then was taken specifically to that page. Now, the Commissioner was entitled to take the view that it had been raised and that it was an issue for the hotel and it was one of the issues leading to the decision to terminate his employment but in any event the applicant would not improve his performance. Therefore, it was open to find that he would not respond if it had been raised in the termination process because that was the history as shown by the evidence. It was also the case that on that point submissions were made, both by myself on behalf of the respondent and in answer by Mr Moorhouse on the question of the period that the applicant could have remained in employment and the Commissioner has clearly taken those into account in determining or in coming to his decision.
PN206
Further, under the award, while the Commission has found that the applicant was not a casual in the sense recognised by the regulations for the purpose of determining jurisdiction to hear an application as to alleged unfair dismissal, it doesn't alter the fact that under the award the applicant was classified as a casual, was paid as a casual, his hours varied from week to week and he was paid accordingly and he received no sick pay, no holiday pay and so on and therefore, in my respectful submission, that had a bearing on how much notice he could be given.
PN207
So for Commissioner Raffaelli to say that he could have remained in employment one to two weeks, in my respectful submission, was open to him to make that finding.
PN208
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Was that issue debated in the course of the hearing before Commissioner Raffaelli?
PN209
MS RUDLAND: No, it wasn't, your Honour. The issue of the casual nature of the employment really was about whether or not he was a casual for the purpose of jurisdiction. Well, actually, it was to the extent also that the question of jurisdiction wasn't raised by the respondent. The respondent recognised or acknowledged that there was jurisdiction in the Commission to hear the application, notwithstanding that he was classified a casual for the purposes of the award.
PN210
The issue that was put by the respondent was that the relevance of that was in relation to whether his engagement terminated at the end of each engagement. Commissioner Raffaelli was taken to provisions of the award that talked about a casual engagement being from engagement to engagement but you could get paid fortnightly or weekly by arrangement. So, in a true sense, it wasn't raised at first instance. There are some points raised by Mr Moorhouse in his oral submissions that I wish to make submissions upon.
PN211
In relation to the provisions of section 170CH(2) the Commissioner was required to have regard to all the matters set out in that subsection. The Commissioner was required to do so having regard to all of the circumstances of the case and also within the context of the Act and in particular having regard under the provisions of the Act relating to unfair dismissals or alleged unfair dismissals requiring a fair go all round. Commissioner Raffaelli in his decision made specific reference to that being considered in meeting that requirement.
PN212
Now, by looking at each of those matters set out under section 170CH(2) the Commissioner went through each of those individually and made clear in his decision he'd taken into consideration all the matters he considered relevant and he specifically said he did not see any other matter as relevant than those that he set out. Now, it was quite clear on the Commissioner's decision that the failure of the applicant to mitigate his loss was a significant factor in coming to his decision. It was one that was reasonably open to him.
PN213
Now, it may well be that from the applicant or the appellant's point of view he considers an injustice has been done but in the context of a fair go all round, that is a fair go for an applicant and a respondent, the obligation to mitigate, in my respectful submission, is important. If you look at those decisions that my learned friend took the Commission to and put forward in his bundle of authorities, there is nothing in them which takes away the obligation to mitigate and more importantly all of them make clear that each of the factors set out in section 170CH(2) including looking at mitigation is of significance in the decision making process and that is what Commissioner Raffaelli did.
PN214
There is nothing in that decision which shows that he did not understand his obligations under the Act in forming the decision he did. There is nothing to show that he did not apply what was required of him under those provisions and there is nothing that would show that the issue of the summary nature of the dismissal as put by my learned friend detracted or overrode in any way the failure by the applicant to mitigate his loss.
PN215
In my respectful submission the decision that Commissioner Raffaelli came to was reasonably open to him and there was no miscarriage of the exercise of his discretion.
PN216
Mr Moorhouse submitted that even if the Commissioner was correct in coming to the view that the application would've only remained in employment of one to two more weeks if proper procedure had been followed, the appellant still should've been given two weeks notice. In my respectful submission that is not the case under the award but in any event the failure to mitigate for many months overrides that notice period of an extra two weeks, or put together an extra four weeks wages.
PN217
On that basis, on a purely numerical basis, there is no reason why this appeal bench would come to the conclusion that there has been a miscarriage of the exercise of discretion by the Commissioner at first instance.
PN218
In conclusion it is respectfully submitted that in light of the evidence and a proper analysis of Commissioner Raffaelli's decision, it is clear that he had regard to all of the evidence and the circumstances of the case in formulating his decision. His findings were open to him on the material available and he exercised his discretion judicially and in accordance with the obligations created by the Act.
PN219
The appellant's grounds of appeal are unsubstantiated and do not warrant the Full Bench intervening in the decision, and it is respectfully submitted that Commissioner Raffaelli's decision is not attended with sufficient doubt for leave to appeal being granted, nor the appeal being upheld. Those are my submissions orally, unless the Commission has any questions.
PN220
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Ms Rudland, can I take you to paragraph 46 of the Commissioner's decision and to what I understand to be one of the arguments put by Mr Moorhouse. To what extent do you say to me that the Commissioner has, in that paragraph 46, limited his conclusion about the likelihood of the applicant remaining in employment for only one to two weeks to the concerns expressed about the extended length of his shifts?
PN221
MS RUDLAND: I'm sorry, your Honour, I don't quite - could you ask me that again.
PN222
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I'm sure Mr Moorhouse will correct me if I'm wrong in a moment, but my understanding is that one of the arguments put in support of the appeal is that the conclusion that Mr Vdoukakis' employment would last for only one to two weeks is fundamentally based on the numerous concerns expressed by the hotel about the extended length of his shifts. In effect, there are two questions that I have in that regard. Firstly, to what extent do you say to me that the respondent in the matter agrees that that is, in effect, the construction that I should put on paragraph 46, and secondly, that it is underpinned by the evidence before Commissioner Raffaelli?
PN223
MS RUDLAND: In my respectful submission paragraph 46 goes further than what your Honour has indicated. Commissioner Raffaelli says that he accepts that there were numerous concerns expressed by the hotel, that is he accepts the evidence of Ms Cussan which he has found to be a witness of credit, and on her evidence he's accepted that on those occasions it was raised the applicant failed to comply.
PN224
What paragraph 46 does further is says that on that basis, that is the acceptance of Ms Cussan's evidence, that he failed to comply or failed to be responsive, he would continue to fail to comply, and it's because of the failure to comply that a termination would've occurred in the event procedural fairness had been afforded, in my respectful submission. He does it on the basis of Ms Cussan's evidence both in terms of her written statement filed in the proceedings and her oral evidence. In the course of her oral evidence she relied on the diary entry that I've taken the Commission as presently constituted to.
PN225
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: But each of the references to RH2 that are cited in the Commissioner's decision at paragraph 46 appear to be limited only to the duration of the shifts, do they not?
PN226
MS RUDLAND: Yes, that's correct, however in paragraph 46 Commissioner Raffaelli is accepting her evidence that is contained at times in her written statement but clearly on her oral evidence that he failed to comply and failed to respond positively when issues were raised.
PN227
SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes, thank you.
PN228
MS RUDLAND: If it pleases.
PN229
SENIOR DEPUTY PRESIDENT DUNCAN: Mr Moorhouse.
PN230
MR MOORHOUSE: Perhaps dealing with that last point of debate first. If it is the case that the Commissioner has relied for his conclusion that the appellant would've remained in employment for only about one or two more weeks on concerns expressed about other things, that is other than the extended lengths of shifts and Mr Vdoukakis' denial of those things, then in my submission that's a clear error because the Commissioner had nothing before him, as he acknowledges in paragraph 34 in particular of his decision, he had nothing before him to form a view that those complaints were validly based, and the appellant denied those matters. The appellant denied he was unable to get on the staff, he denied that that was put to him regularly by Ms Cussan.
PN231
So if that matter somehow permeates the finding that he would have remained in employment for only one or two more weeks and I must admit, on the Commissioner's express wording at paragraph 46 it doesn't necessarily permeate that, if the Commission has a concern that perhaps it does, then that would be an error and that may be an explanation for what we put as the plainly unreasonable nature of the outcome in this case, having regard to all of the circumstances.
PN232
It was put at first instance that it was not appropriate to penalise the appellant in relation to questions of remedy or compensation calculation by having reference to the unproven matters that were relied on as a basis for dismissal, that be towards the end of the first day, I haven't got the specific paragraph reference at the moment. Dealing with a couple of matters my friend raised, it was noted that an opportunity to respond to the reasons for dismissal does not necessarily mean that termination will be avoided. I accept that that must be the case, nonetheless, section 170CH of the Act entrenches an opportunity to respond as a relevant matter in deciding whether a dismissal is unfair.
PN233
That reflects a policy that employees should generally be given, a policy that must be read into the Act was more express in earlier versions of the Act but continues to be there in the fair go all round version of the Act that is now in place, a policy that employees must be given an opportunity to respond. The reason for that policy is that in some cases that opportunity will be fruitful and will lead to a resolution of the issues and the employment will continue.
PN234
In relation to the question of mitigation and onus on an applicant to demonstrate attempts to mitigate, this is not a case where the Commissioner has said, the applicant led evidence that he actively sought work but there were certain issues about producing documents and I'm fully satisfied that that is the case and I'm going to give a discount. This is a case where the Commissioner has found at a much higher level of that, he's found the applicant manifestly failed to mitigate his loss and in my submission, that finding was not open on the evidence and I addressed that previously.
PN235
My friend referred to the fact that there was no evidence of looking for work or no real evidence, I dispute that, the evidence was the appellant, that the applicant's oral evidence that he had been actively looking for work and the applicant's oral evidence about his job applications of the type that I took the Commission to previously. In relation to the question of being put on notice about the Commissioner's knowledge of substantial employment opportunities in the industry, I note that that exchange occurred in final submissions, that is, after evidence had closed.
PN236
My primary submission is it's not an exchange that assists or overcomes the deficiency on relying on a matter that is not in evidence. In any event, the logical conclusion of that is that the representative, myself on the occasion, would have been required to seek at that time in submissions to perhaps bring expert evidence to counter the Commissioner's view that there was substantial employment opportunities or at a minimum, to seek to recall the applicant to have put to him the notional substantial employment opportunities that were said to have been open to him to take.
PN237
Now, that is the job of the respondent to put those things to him if that's the case, they weren't put to him. In my submission it would not have been appropriate at that stage of the hearing to address the matter in that way and that's perhaps the only matter those comments could have been addressed. My friend made some comments about the finding that Ms Cussan was a witness of credit as being a finding for which reasons are required to give and I submit that is not a correct characterisation of the argument that is put.
PN238
If finding for which reasons are required on the authority of Edwards v Guidice and the other cases I took the Bench to, is the finding of fact that the appellant was informed about concerns about his extended shifts, that finding of fact in particular, appears at paragraph 36 of the decision and then a paragraph 46 it's referred to as the "numerous concerns" expressed by the hotel about that matter. The statement that Ms Cussan was a witness of credit is perhaps a reason for that but it's the only reason given and in my submission, it's not sufficient in circumstances where the evidence of the parties was clearly contrary to each other in relation to that issue.
PN239
It is not sufficient to simply say Ms Cussan is a witness of credit and I think at another place in the decision it's said, I believe her evidence which amounts to the same thing. There needs to be reasons given for why her evidence was preferred to the contrary evidence on that point expressed by the applicant. My friend referred to two diary entries on the question of whether extended hours were put to the applicant, those diaries entries of late May, the applicant did acknowledge that the issue had been put to him some time in June.
PN240
In any event, those diary entries are merely about security hours being increased, they are not a concern directly expressed to him about his extended hours although I must acknowledge to the Bench that or the Bench should have regard to Ms Cussan's statement at paragraph 19 which attempts or perhaps does link those issues. She says:
PN241
As he was staying at the premises later and dealing with money later ...(reads)... which meant that our security bill increased.
PN242
Nonetheless, the diary entries are not saying to him, you are staying there too long or you are working longer than other managers, they merely say on each occasion, we need to cut the security costs back or we need to cut the security hours back. It was also said by my friend that those diary entries were put to the appellant in cross-examination. They were put to him but only to the extent of confirming particular handwriting as being his or Ms Cussan's, I refer the Bench to paragraph 464 and then down to the bottom of that page and over the next page, it was not put to him that that was raising the issue of extended hours with him.
PN243
The questioning, what the Bench will see, if one goes to it, is merely about, whose writing is this? Mine. Whose writing is this?
PN244
Ms Cussan and so on. If that's putting to them, my friend is referring to, then it is not putting the issue. Those are my only submissions unless I can assist the Bench further.
PN245
SENIOR DEPUTY PRESIDENT DUNCAN: Thank you, Mr Moorhouse. We reserve our decision in this matter. We thank the advocates for their contribution and we adjourn the Commission indefinitely.
ADJOURNED INDEFINITELY [12.12pm]
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