CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia - [2001] NSWIRComm 287 - NSWIRComm 1994 case summary — Zoe

NSWNSWIRComm

CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia

[2001] NSWIRComm 287

Industrial Relations Commission (NSW)|1994-09-08|Before: Wright J, Walton J, Fisher P, Schmidt J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-09-08

Before

Wright J, Walton J, Fisher P, Schmidt J

Source

Original judgment source is linked above.

Judgment (86 paragraphs)

[1]

CITATION : CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287 APPELLANT: CGEA Transport Ltd t/as Southtrans PARTIES : RESPONDENT: Transport Workers' Union on behalf of its member Boldizsar Boglari FILE NUMBER: IRC 5397 of 2000 CORAM: Wright J President; Walton J Vice-President; Neal C CATCHWORDS : Unfair dismissal - Appeal by employer - Confrontation between bus driver and manager concerning complaint by motorist - History of tension - Driver dismissed - Dismissal found to be harsh, unreasonable or unjust - Commissioner observed that record of complaint in register may have been fabricated - Motorist not called - Inference that evidence of motorist would not have helped employer's case - Whether matters raised during hearing at first instance - Whether denial of procedural fairness - Commission required to afford procedural fairness - Fairness requires that a party be given the opportunity to meet the case put against it - Question of veracity of complaint or fabrication of register not raised at hearing - Denial of procedural fairness - Observations made not critical to decision - Commissioner found that dismissal was not justified by conduct of driver - Decision open to Commissioner on the evidence - Appeal dismissed. LEGISLATION CITED : Industrial Relations Act 1996 s84 s89 s187 s188 s191 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994) Jones v Dunkel (1959) 101 CLR CASES CITED : Kioa v West (1985) 159 CLR 550 Laws v London Chronicle Ltd [1959] 2 All ER 285 Marelic v Comcare (1993) 47 FCR 437 North v Television Corporation (1976) 11 ALR 599 Re Australian Railways Union, Ex parte Public Transport Corporation (1993) 117 ALR 17 Stead v State Government Insurance Commission (1986) 161 CLR 141 Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 HEARING DATES: 02/08/2001 DATE OF JUDGMENT: 11/29/2001

[70]

42 The example given by the High Court in Stead of a circumstance where a new trial would not be ordered because of futility may be thought to be a rather particular or rare situation. It does not, however, follow that a breach of procedural fairness, regardless of its actual circumstances or actual effect on the result of the initial proceedings, will in other circumstances invariably result in the original decision being set aside and a new hearing. 43 For example, the Court of Appeal in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 337 - 338 rejected an argument that a breach of the duty to accord natural justice (now more usually referred to as procedural fairness) rendered an exercise of power ultra vires and held that the consequences of a breach depends on its nature and substance, rather than its form. Glass JA (with whom Samuels and Priestley JJA agreed) said: It seems to me that the proposition is inconsistent with the statement of Lord Wilberforce in Malloch [ v Aberdeen Corporation [1971] 1 WLR 1578; [1971] 2 All ER 1278] previously referred to viz (at 1595; 1294): "… A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by failure." If the breach of duty is of no consequence when no prejudice ensures, the performance of the duty cannot be an a priori condition upon which the validity of the exercise of power depends. It is a source of potential invalidity only depending upon the circumstances of the breach. The submission also runs counter to the doctrine that the act is valid until successfully challenged and the subrules that a denial of natural justice will not affect validity where there has been waiver: R v Williams; Ex parte Phillips [1914] 1 KB 608, or no prejudice, Malloch . Notwithstanding the denial, the exercise of power is not ultra vires as in the case of jurisdictional error or exercise of power for a purpose extraneous to the scope of the grant: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170.

[73]

46 In these proceedings it is therefore necessary to assess whether the findings made in denial of procedural fairness played a significant part in the decision under review. In Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354, for example, the Court of Appeal considered an appeal from a decision of the Government and Related Employees' Tribunal ordering that the dismissal of an employee be set aside. The tribunal determined that the dismissal was too harsh in the circumstances of the case. In the course of its decision, however, the tribunal had made comments critical of the management of the employer in that it had been deficient in failing to detect the non-observance of the budgetary constraints which were claimed by the employer to justify the dismissal. The employer claimed that it had been denied the opportunity to make submissions in relation to these matters. The majority (Priestley and Meagher JJA) dismissed the appeal on the grounds that the comments did not play a material role in the tribunal's decision. Priestley JA stated (at 365): I do not think the idea embodied in the remarks played any material part in the Tribunal's decision. They were in my opinion in the nature of reflections on what the position in the case would have been if one aspect of the Totalisator Agency Board's organisation were managed in a particular way. To make such incidental reflections in the process of deciding the case on the basis of what actually happened could not, in the circumstances of the case, amount to such a denial of procedural fairness on any aspect of the case which had any bearing on the Tribunal's decision. It is perhaps possible to imagine a case where some extraneous remark by a tribunal, although not relevant to any issue before the tribunal, so clearly showed prejudice or misunderstanding likely to affect the tribunal's decision, that it could be attacked on the ground (among others) that if the party affected had not had a chance to deal with the subject matter of the remark, the decision must be set aside on the ground of denial of procedural fairness. I do not think the facts in the present appeal are of that kind.

[74]

47 A careful analysis of the decision of Connor C and particularly the way in which he reasoned his consideration of the basis for finding that the statutory criteria for relief were met, demonstrates the errors which the appellant properly complains of, were not crucial but rather peripheral to the decision made. There are two key passages in the decision to which reference must be made. The first is that emphasised in paragraph [15] above, and the second in paragraph [21]. Those passages represent the foundations of the decision made and neither of them depended for its validity on the errors identified. 48 The first passage, and the subsequent conclusion as to the propositions posed in it, were based on Connor C's assessment of Mr Boglari's "extraordinary conduct" on the relevant day which the Commissioner pointedly criticised as "unwise and excessive" but also held occurred "in the heat of the moment and … did not effect (sic) his contract of employment in any fundamental way". Although he found that the conduct of Messrs Richards and Kidd may have caused or contributed to Mr Boglari's conduct he made clear that he did not find that was done intentionally. He described it occurring "whether by design or not". 49 Although the decision then refers to certain "other issues" which make the dismissal unfair so as to attract a remedy under the statute, reference to the second emphasised passage shows that the statute was held to be relevantly attracted because of procedural unfairness caused by the flaws in Mr Croft's investigation of the matter. Neither of the Commissioner's errors was material to that finding. Although he referred to Mr Croft's lack of awareness of all of the details of the driver complaint and of the discrepancies between the complaint form and the entry in the register, there is no reliance on the supposed fabrication or on failure to call the complainant driver. 50 Similarly, neither of Connor C's errors is material to the finding of substantive unfairness. That finding turned essentially on the Commissioner's assessment of the employee's conduct at the time, both in terms of its actual seriousness or gravity and the penalty imposed for it, and on whether the penalty, when assessed against the conduct and in the context of the employee's employment record, was severe or harsh.