Abboud v The State of New South Wales

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Coram: Walton J, Vice-President Staff J Ritchie C

Application by Jason Roy Williams for Leave to Appeal and Appeal against the Decision of Commissioner Connor given on 28 April 2004 in Matter No IRC 4368 of 2003

1. Jason Williams ("the appellant") was employed by Pigment Dispersions Pty Ltd ("the respondent") as a paint technician from 21 May 2002 until his services were terminated on 16 July 2003. He made application for relief under s 84 of the Industrial Relations Act 1996 ("the Act").

2. After hearing the parties, in a decision handed down on 28 April 2004, Commissioner P Connor dismissed Mr Williams' application for relief. Subsequently, Mr Williams applied for leave to appeal and, if leave is granted, to appeal the Commissioner's decision.

The Proceedings Below 3. The proceedings were brought by the appellant who was dismissed by the respondent for misconduct. Evidence was given by Mr Williams that he approached Mr van Brink, the owner of the respondent, on Wednesday 16 July 2003, seeking his wages be paid to him saying: Look, I need my cheque today. I have family financial commitments. 4. An issue arose as to whether employees were paid on a Wednesday or a Thursday by the respondent which was not resolved by the Commissioner.

5. Mr van Brink's evidence was that the appellant sought an advance on his wages.

6. Mr van Brink was required to leave the factory but undertook to pay Mr Williams his wages upon his return. By 3.00 pm, Mr van Brink had not returned to the factory. Mr Williams' evidence was that his wages cheque had been made up by the bookkeeper but was awaiting Mr van Brink's signature. Mr Williams was concerned that his wages cheque would not be handed over to him until after the bank closed at 4.00 pm. He therefore contacted Mr van Brink by telephone to ask him when he would be returning to the factory.

7. Mr Williams' evidence was that Mr van Brink told him he would try to get back in time. Mr van Brink claimed that he was approximately 15 minutes away and that he informed Mr Williams that he would be at the factory shortly. According to Mr van Brink, Mr Williams was agitated and aggressive on the telephone and threatened to sabotage his business, saying: I hope you get back soon as there is a lot of expensive machinery around here and that could get damaged. 8. Mr van Brink took the threat by Mr Williams seriously enough to contact the local police. Upon his return to the factory, Mr van Brink directed Mr Williams to wait outside the factory until the police arrived. Mr van Brink's evidence was that he raised with Mr Williams the alleged threat he had made on the telephone and he claimed that Mr Williams responded: It's just your word against mine. 9. In evidence before the Commissioner, Mr Williams denied that he had made any such threat although he did not deny that he spoke to Mr van Brink using the words "it's just your word against mine". This appears to have occurred later than the original conversation.

10. Mr van Brink made up Mr Williams' wages, dismissed him and instructed him to leave the premises immediately.

11. In his decision, the Commissioner, after referring to Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 and noting that the onus of proof in respect of the alleged misconduct fell upon Mr van Brink stated: I have concerns over the paucity of the evidence before me from either side to reach a definitive conclusion in this matter. Neither Mr Williams nor Mr van Brink have advanced much in this hearing to take the matter beyond a straightforward contest between them over whom I should believe - Mr Williams or Mr van Brink: either man is not being truthful. On balance, I prefer the evidence of Mr van Brink over that of Mr Williams. When Mr van Brink raised the alleged threat with Mr Williams, his response, which Mr Williams does not deny - ... "it's just your word against mine ..." - can logically mean only one thing, ie that Mr Williams had actually made such a threat. What other reason would he have to make such an assertion? By speaking as he did he, in effect, gives substance to Mr van Brink's otherwise unsubstantiated allegation. I therefore conclude that the threat was actually made. It seems likely to me that Mr Williams simply made that threat in the heat of the moment without any intention of giving effect to it but Mr van Brink was not prepared to take the risk of damage to the expensive equipment he held. In the circumstances, I am satisfied that he was entitled to take the action he did and dismiss Mr Williams. I see no grounds for my intervention on behalf of Mr Williams in this hearing and I decline to do so.

12. We turn firstly to the Commission's findings of fact.

13. In Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 44, Wright J President, Walton J Vice-President, (Schmidt J dissenting) observed: Some additional considerations may arise where the findings of fact are based substantially upon perceptions formed by a trial judge as to the credibility of a particular witness or witnesses. It has frequently been observed that a trial judge possesses a considerable advantage over an appeal court by virtue of having seen and heard the witnesses give evidence and it would be wrong to overlook "the subtle influence of demeanour" upon the resolution of conflicts between evidence: see, for example, Jones v Hyde (1989) 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 14. In Devries, it was held (at 479) "that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact": see also Outboard World Pty Ltd (t/as Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 179; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154.

15. In State Rail Authority (NSW) v Earthline Constructions Pty Ltd & Ors (1999) 160 ALR 588: Kirby J expressed the view (at 614-615) that cases such as Abalos did not alter the traditional view of the role of an appellate court. It has always been to respect the opportunity of a trial judge to observe the witnesses who have given evidence but the application of this principle requires an analysis of the actual advantages enjoyed by a trial judge. His Honour concluded (at 620) that there may be some cases in which an appellate court cannot overcome the advantage of the trial judge in having observed the witness, but this conclusion is "true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath".

17. We are not satisfied that this is a case in which the Full Bench is required to intervene to correct factual findings.

18. In our view, it was open to the Commissioner to prefer the evidence of Mr van Brink and to conclude that a threat was actually made by Mr Williams. There was no other objective evidence before the Commissioner that would have led to a different conclusion.

19. However, in reaching his determination, the Commissioner has failed to apply the statutory test which is set out in s 84 of the Act. The phrase "harsh, unreasonable or unjust" is an important key to the jurisdiction and requires some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. In Bankstown City Council v Paris (1999) 100 IR 363 at 371 Wright J President, Peterson J, Bishop C noted at 373: We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 20. A classic exposition of principles applicable to unfair dismissal matters was given by Watson J in Metropolitan Meat Industry Board v Australasia Meat Industry Employees Union, New South Wales Branch [1973] AR 231 at 233, which principle, while stated in relation to proceedings under the Industrial Arbitration Act 1940 (NSW), is equally applicable to the proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 21. In Entertainment Distributors Company Pty Limited and Anor v Burnard (1993) 49 IR 446, a Full Bench of the Commission (Hill and Peterson JJ, Connor CC) considered s 246 and s 250 of the 1991 Act which were predecessor provisions to s 84 and s 89 of the 1996 Act. The Full Bench said at 453: In our opinion, having regard to the provisions of Part 8 and in particular ss 246 and 250 it is fundamental to the proper exercise of the jurisdiction that the Commission should first make a finding whether or not the employee has been harshly, unreasonably or unjustly dismissed or threatened with dismissal by the employer and set out the reasons for that finding prior to making any order disposing of an application under s 246. It is not sufficient in our view for this merely to be left as a matter of inference from the fact that the Commission decides to dismiss the application or alternatively make orders pursuant to s 250. In this case the Commissioner made orders under s 250, including an order for re-employment without any finding or conclusion that the employees had been harshly, unreasonably or unjustly dismissed and without setting out any reasons for decision in which such a finding and the reasons therefor were implicit.

Furthermore, in our opinion, s 250 requires a finding that it would be impracticable to reinstate the applicant prior to the making of any order of re-employment in lieu of reinstatement ... but having regard to the terms of s 250 considered as a whole, it is necessary in our view, for the Commission when ordering reinstatement or re-employment to give reasons in the case of reinstatement why such reinstatement is appropriate and/or reasonable in all of the circumstances or where re-employment is ordered why reinstatement is not practicable but re-employment is practicable and justified. Similarly in a case where an order is made for compensation, it is necessary that a finding be made that the dismissal was harsh, unreasonable or unjust and the reasons therefor should be set out together with the reasons why in the circumstances it is not practicable to order either reinstatement or re-employment but that it is just an (sic) appropriate to order compensation. 22. The decision under appeal in this case contains no findings whether or not Mr Williams was harshly, unreasonably, or unjustly dismissed, nor are reasons for such a conclusion provided.

The debate before us as to the proper analysis of the Commissioner's decision demonstrates the importance of the Commission indicating clearly in terms of the statute, the conclusions which are reached and the reasons for such conclusions. For example, was consideration given to the employee's length of employment; was consideration given to whether the employee was acting out of character; was the employee under financial time pressures; had there been delays in the past in receiving his wages.

More importantly, the Commissioner, having concluded that Mr Williams made the threat observed: It seems likely to me that Mr Williams simply made that threat in the heat of the moment without any intention of giving effect to it, but Mr van Brink was not prepared to take the risk of damage to the expensive equipment he held.

In other words, the Commissioner found that Mr Williams' behaviour did not amount to a threat to damage the company's equipment, but rather amounted to something less serious.

An important requirement that a commissioner has once a question is posed by the member hearing the matter is that it must be answered.

The force of this principle is amply demonstrated in this case where the Commissioner makes a finding material to the statutory test but does nothing to resolve it.

The Commissioner was required to determine the issue raised by the factual finding made by him as described in paragraph 24 above. The Commissioner did not indicate how the finding was relevant to the consideration as to whether the dismissal was harsh, unreasonable or unjust.

We consider that the decision of Commissioner Connor demonstrates significant errors of law and principle which when combined with the interests of justice in this case warrant the granting of leave to appeal and ultimately upholding the appeal.

We have also formed the view that the appropriate course is to remit this matter for re-hearing by a Member of the Commission. We do so having regard to Mr Williams' application to call further evidence and some of the earlier questions identified by us.

In these circumstances, leave to appeal is granted, the appeal is upheld and the matter is remitted to a Member of the Commission for re-hearing.

ORDERS 32. We make the following orders: 1. Leave to appeal is granted.

3. The matter is referred to Ritchie C for re-hearing. He will give directions to the parties as to introducing any further evidence in addition to the existing record of the proceedings before Connor C.

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