Abdullah Al-Shennag v Bankstown City Council Civic Services Group

LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel Solicitors: MLJ Lawyers

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

Coram: Walton, J. Vice-President Grayson, DP Redman, C

ABDULLAH AL-SHENNAG V BANKSTOWN CITY COUNCIL CIVIC SERVICES GROUP

Application to appeal against a decision of Commissioner Tabbaa given on 18 December 2000 in matter IRC 2000/2447

1 This matter concerns an application for leave to appeal and if leave be granted, an appeal against the decision of Commissioner Tabbaa given on 8 December 2000 in which the Commissioner dismissed an application by Mr Abdullah Al-Shennag for relief from alleged unfair dismissal by Bankstown City Council Civic Services Group, the respondent in these proceedings.

2 We adopted the course of hearing the parties as to the question of leave and at the same time as to the merits of the appeal and the question whether the appellant should be permitted to adduce fresh evidence in the course of these proceedings.

3 We note the appellant represented himself at hearing and was assisted, as was the Commission, by the services of an accredited Community Relations Commission interpreter.

4 We further note in that context, the unusually lengthy process leading to and including the substantive hearing of the matter, such process involving among other things a contested application to extend time to appeal and the appellant's decision in the interlocutory stages of proceedings to dispense with the services of his legal representatives, we apprehend for reasons of impecuniosity.

5 The application to extend time was decided in the appellant's favour on 16 July 2001 and directions were made going to the issues of leave to rely on fresh evidence and preparation for hearing.

6 It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing.

7 Indeed at the conclusion of the hearing of the matter the appellant was not called upon to address, as would ordinarily be the case, but was afforded an opportunity by way of adjournment of the proceedings to prepare (with the benefit of transcript) and to file written submissions in support of the propositions for which he contends.

8 In the course of that adjournment he twice sought and was granted extensions of the time originally fixed by the Full Bench for the filing of such submissions.

9 The appellant was furthermore offered an opportunity to seek to supplement his written submissions orally, if he so chose. He filed extensive written submissions in reply but did not seek a hearing to make oral submissions. In any event, the appellant wrote to the Commission on 28 June 2002 seeking judgment in these proceedings, a request to which we now accede on the assumption that, by his request, he confirmed that he does not wish to avail himself of the opportunity for oral supplementation of his written submissions.

10 Section 188(1) of the Industrial Relations Act 1996 (the Act) provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench.

11 Section 188(2) requires that leave be granted if the Full Bench is of the opinion that the matter is of such importance that in the public interest, leave should be granted.

12 We have come to the view after careful consideration of the submissions and the material before us, that no case has been established sufficiently to meet the requisite degree of importance such as to warrant the grant of leave. Accordingly, we propose to refuse leave to appeal. In doing so we have decided to admit the further evidence relied upon by the appellant for the purposes of determining the question of leave. The question of the admission of such evidence does not otherwise arise as, upon the refusal of leave, the appeal is incompetent.

13 The long-standing and settled practice of the Commission in matters requiring leave to appeal is to rule on the question of leave but to refrain from giving reasons.

14 However, more recently a Full Bench of Commission in Court Session has considered that practice and raised doubts about its appropriateness. In Mitchforce v Starkey and Anor [2002] NSWIRComm 85 (Wright J. President; Walton J. Vice-President; Boland J), the Full Bench at [31] said this: Although the convention of this Court is not to provide reasons for refusing leave to appeal the appropriateness or availability of that practice is now doubtful since the judgment of the High Court last year in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 75 ALJR 1342: see particularly the passages at [26] and [32] to [36]. Accordingly, we propose to give short reasons for our decision to refuse leave.

15 As was observed in Mitchforce, the principles applicable to the granting of leave were settled by the Full Bench in Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 (which judgment has been approved in Sykes v Allan East Pty Ltd (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130, Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 144 and Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons)(2001) 104 IR 204 at 206).

16 In Knowles the Full Bench stated at 381: We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by the appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle. Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer [(1999) 92 IR 264] the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same… We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principles or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

17 The appellant raised, in essence, an issue as to procedural fairness. He argued that the Commissioner had excluded evidence which should have properly been before her. That evidence, it was submitted, was material to the appellant's case and would have significantly impacted upon the disposition of the proceedings.

18 We have closely examined the record of the proceedings in order to assess this contention. However, we are unable to find any error of that kind in the proceedings. True it is, certain evidence was not produced to the Commissioner, but that situation arose because the representative of the appellant elected not to introduce the evidence. The Commissioner did raise some matters with the parties but was never asked to rule upon the evidence in question as none was led by the appellant's representative. It was appropriate for the Commissioner, having regard to the course of the proceedings at first instance and as a matter of general principle, to act upon the representations made on behalf of the appellant by his union. We note, in this respect, that s 84(2) expressly contemplates that industrial organisations will act on behalf of employees in unfair dismissal proceedings.

19 We would also observe, as Mr Warren of counsel for the respondent submitted, that there is nothing in the challenged decision or in the transcript of proceedings below which would lead us to conclude that there was an erroneous exercise of discretion to exclude evidence or that the circumstances leading to a decision on the appellant's side of the record in the course of those proceedings not to rely on certain evidentiary material renders the decision below vulnerable to appeal.

20 In any event, we have allowed fresh evidence in the proceedings (for the purposes of the consideration of the application for leave) which we understood to be the evidence the appellant intended to adduce at first instance. We would add that the fresh evidence did not disclose to us a sound basis for concluding that, had it been before the Commissioner, the outcome should have been different.

21 Aside from the procedural fairness issue, the case for the appellant essentially involved a challenge to findings of fact by the Commissioner (which included a failure to consider relevant facts). We have examined those contentions but they do not, in our view, amount to a sufficient basis for the grant of leave. We adopt, in this matter, the statement by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4] as follows: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.

22 Before leaving the matter, we would also say, as a matter of initial concern in our deliberations (which we raised with the parties during the course of submissions), that the challenged decision appeared not to deal definitively with a substantial complaint raised by the appellant in these proceedings and that is, the apparent reliance by the employer on the appellant's "failure to meet the Council's representatives during the first week in May 2000" as a ground for dismissal when, on the face of it, the appellant was at the time unwell and in the hands of his medical carers.

23 We have reviewed that matter closely in the light of what we may describe as the cryptically economical analysis of that issue by Tabbaa C. We are persuaded, however, by Mr Warren's submissions that firstly, the medical evidence relied upon by the appellant in the proceedings below is characterised by an element of inconsistency as to his inability to attend such a meeting and secondly, that the limited analysis of that issue at first instance must be viewed in the context of the entirety of the circumstances of the employer's decision to dismiss on the stated ground of 'frustration' of the employment contract. When viewed in that context, no demonstrated error which would render the Commissioner's decision unsustainable is found.

24 We refer, in this respect, to following extracts from the transcript of hearing: WALTON VP: The difficulty I am having following the submissions you make about this point is that the letter of termination from the council would seem to fix itself upon a meeting in the first week of May? WARREN: Yes, because no other meeting was organised. WALTON VP: It does not talk about any other meeting being organised. WARREN: Yes, because no other meeting was able to be organised, yet it appears that Dr Lenane at least knew, or was told by Mr Al-Shennag that he was going to have a meeting the following week. The following week came and went. WALTON VP: How could it be said that the medical report of Dr Mattar did not connect itself relevantly by date and by duration to the period specified as the relevant failure in the letter of termination? That is what I am having difficulty understanding in your argument. … WARREN: …Now, there was no medical report, I don't believe, about that heart condition but it is then said in paragraph number 2, "We need a …medical certificate". In other words, one certificate is saying he is fit for certain duties over this period of time, and that is earnestly given by the doctor, and there is other oral advice saying he has a heart problem and then another certificate from Dr Mattar saying: "Oh well, in his opinion, not Dr Lenane's opinion, in his opinion Mr Al-Shennag is unfit to attend that meeting this week. WALTON VP: So you say there is an inconsistency? WARREN: There is clearly an inconsistency and it not as clear cut as your Honour has suggested and it is clear from all of that that Tabbaa C going back to your Honour's original question, that certainly she didn't analyse it as we have just analysed it.

WALTON VP: It might be stating, Mr Warren, on one view that we don't have the benefit of a first instance analysis on this issue. That is one of the reasons I raised the question. WARREN: Certainly your Honour. I understand what your Honour is saying to me but it occurs to me that Tabbaa C clearly considered the situation and said that the medical report from Dr Lenane did not stipulate that he could not attend such a meeting. So there is contention (sic) in the medical reports. They will all be before the Commissioner and the Commissioner came to that consideration and we say that was reasonably open to her. WALTON VP: I understand. WARREN: I think I was moving to the issue of frustration. Now, with respect to the issue of frustration, it was clearly addressed by the Council in their letter of termination and if your Honour wishes me to take you to that, I will. They list a number of things that have occurred and they say: "As result of frustration your contract is terminated". … and later: WALTON VP: The issue I was raising with you earlier is that there is this unusual interspersing of issues relevant to frustration, non-attendance, extended illnesses, not presenting to work, conditions of return, etc. WARREN: It is almost an impossibility of carrying out a contract. WALTON VP: As opposed to other opinions, it is in the nature of repudiation. WARREN: Yes, your Honour is probably quite correct. I cannot cavil with that at all. Some of the elements would lead to frustration, other elements would lead to a repudiation and at the end of the day would lead to a termination with some amount of time being paid in lieu of notice and it is that very termination that was decided before the Commission. GRAYSON DP: But are you there submitting that we should not be unduly concerned or preoccupied with the notion that His Honour the Vice President raised in that presumption (sic), and that is the seemingly precise targeting of failure, and I use the words used in your clients correspondence, "to meet council's representative in the first week of May?" WARREN: Yes. GRAYSON DP: Are you saying that we should not be unduly concerned or preoccupied or limited by that seemingly precise focus on the failure to meet with council representatives in May 2000 and, in consequence, should direct our attention to the wider canvass of failures to meet on other occasions? WARREN: Including those, your honour, and not just those. I answer your Honour's question, I suspect in the affirmative and I say that because one has to look at, once again, the context in which the failure to meet in the first week of May is put. It is not put as an issue alone, it is put as bricks in a wall and that alone either sinks or swims the case, we say; because clearly he had had a long absence from the work place. That is probably where the frustration comes in. There was the condition as stated by the medical practitioner. In other words, that it was an ongoing illness and there was no apparent end to it. The Council's letter said: "Your failure to …return to work," bearing in mind his two prohibitive preconditions he had put on his return to work and then that all led to the termination. While yes, indeed one could look at this point and say that this particular element does not lead to a termination, or this particular repudiation could be coloured with a different brush, at the end of the day, you have an employee who, we say, caused to be suffered all of those issues. As a consequence of that, the termination cannot be held to be harsh, unjust or unreasonable.

25 Having reviewed the evidence in the proceedings at first instance, and having considered the full evidence in those proceedings we consider that those submissions are, in substance, well-founded.

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