Appeal - application for relief in relation to termination of employment - Workplace Relations Act 1996 - s.170CE - no-case submission - procedural fairness.

[1] This is an appeal, for which leave is required, by Mr Devaraj Govender (the appellant) against a decision by Commissioner Foggo in Melbourne on 15 May 2003.[1] In that decision the Commissioner dismissed the appellant's application pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) for a remedy in relation to the termination of his employment by the Department of Education and Training, a department of the State of Victoria (the respondent).

[2] The appellant had been employed as a teacher by the respondent for some 27 years prior to the termination of his employment on 21 November 2002. The termination followed an inquiry into his performance as a teacher. In his application the appellant alleged that the termination was harsh, unjust and unreasonable. The grounds for that allegation included grounds related to the manner in which the inquiry into his performance was conducted, the findings made by the inquiry and a further allegation that he had been discriminated against on the basis of race. The Commissioner dismissed the application. In order to deal with the grounds of the appeal it will be necessary to set out what happened in the proceedings before the Commissioner in some detail.

[3] Prior to the hearing before the Commissioner she gave directions for the filing of submissions and material by both sides. Each party filed witness statements which included a great deal of documentary material relating to the appellant's teaching record, including in particular material relevant to the 5 years immediately preceding the termination of his employment, and the inquiry which led to the termination.

[4] The appellant was represented by Mr Dircks and the respondent by Mr Lawrence of counsel. The appellant commenced giving his testimony on the first day of the hearing before the Commissioner. A comprehensive witness statement and a large number of documents were tendered through him. Cross-examination commenced on the first day and continued on the second day. Before the conclusion of cross-examination the Commissioner inquired of Mr Lawrence whether it was part of the respondent's case that there was a valid reason for the termination of the appellant's employment constituted by the poor quality of the student reports the appellant prepared. When Mr Lawrence replied in the affirmative the Commissioner asked the appellant to leave the witness box.

[5] After a short conference off the record the Commissioner indicated that she intended to make a "finding":

THE COMMISSIONER: I indicated to the parties some time ago that I wished to make a finding at this stage, but I want to seek the response of the parties in relation to this. If I proceed to make a finding which I believe provides a valid reason for the termination of employment of Mr Govender, and is consistent with the other provisions of section 170CG, what would be the view of the parties? My view is if that proceeded that that would be the end of this matter. Mr Lawrence perhaps."

[6] Mr Lawrence indicated the respondent's position on the Commissioner's proposal in these terms:

MR LAWRENCE: Commissioner, the applicant's case is just about finished. Obviously, there are some further matters that I could cross-examine on that would go beyond this question of the generic reports. There are some other - - -

THE COMMISSIONER: Well, generic reports is only one element of assessment.

MR LAWRENCE: Yes. And there would be re-examination. But obviously re-examination would be limited because clearly a lot of the evidence that has been given by Mr Govender has been by way of admissions to certain things.

MR LAWRENCE: And the documents speak for themselves.

MR LAWRENCE: So, therefore, the case of the applicant is almost complete. There won't be any new substantive matters. There is no other witness and the witness they did propose calling they won't be calling because he is not able to attend. So it would be possible and appropriate in this case for me to at the end of the applicant's case to submit a no case to answer set of submissions.

THE COMMISSIONER: Yes, I may have been hasty in saying that I would issue a finding at this stage, but primarily that is where I am headed.

MR LAWRENCE: Yes. So my submission is that the way in which we would suggest the matter be dealt with is at the end of the applicant's evidence I be granted leave to make a submission that there is no case to answer; that in the circumstances I should not be put to an election. That is I shouldn't have to waive the right of calling evidence in the event that I am unsuccessful.

MR LAWRENCE: And if that submission is accepted then that would be the end of the matter."

[7] It is clear that the respondent's position, expressed by its counsel, was that the proper approach was to await the end of cross-examination and re-examination and at the end of the appellant's evidence to hear a submission that there was no case for the respondent to answer. Mr Dircks then indicated his client's position:

MR DIRCKS: Commissioner, we have discussed the situation thoroughly and I am fully representing my client's wishes, and they are that my client wishes to and is prepared to continue with the case with full examination of all witnesses and full submissions. However, in circumstances where or if the Commission has reached a definite conclusion on the evidence at this stage, then we submit that the Commission has prejudged and pre-empted the matter; therefore, making a decision on all the evidence a foregone conclusion. We submit that in those circumstances it is not appropriate to continue with the Commission as currently constituted.

Whether the Commission makes a formal finding, then that may give us a right of appeal or if the Commission believes that the matter should continue with the Commission differently constituted, they are matters for the Commission. We would draw attention to - while from the background in education you may have a more subjective view of the issue that has led to this, we say that that is but one of a number of factors and that on any assessment of the matters, particularly the matters that were discussed in the termination - the meeting that led to the termination decision, those issues were of minor importance.

We say that beyond that if the Commission felt that the production of generic reports, if that - so called generic reports - that is what the allegation is - we would have much to say about that. If that is then valid reason for termination, then that is simply one of the matters that needs to be taken into account in determining whether a termination is harsh, unjust or unreasonable. We say it is quite clear that there was no warning in relation to that particular matter and the other matters - the last part of the section is extremely relevant in this case in that we see there is a totally disproportionate response to a person who has worked in the teaching service for 30 years, where the realities of working in that profession means that when he is out of this profession - out of this job there are no other jobs available to him.

It is a markedly different matter than most matters that would come before you. The issue of the claimed harassment and the issue that we see the way the applicant was dealt with was very harsh, that even in the situation where there is a valid reason this could be a situation where it is still a disproportionate response of the type that has been found by the Commission and the Federal Court in a variety of cases. So that is our position, but we say that where the Commission has reached a conclusion, then, we say it is not appropriate to have the whole of the matter determined, that the matter is effectively prejudged and pre-empted. If the Commission pleases."

[8] The appellant's representative indicated that while his client was prepared to continue with the evidence and submissions, "where or if" the Commission had reached a definite conclusion on the evidence "at this stage" the Commission had prejudiced the case. While Mr Dircks submitted that even if the Commission made a finding that there was a valid reason for the termination of the appellant's employment related to the poor quality of his student reports, it did not follow that the application must be dismissed, he returned to his principal point, that the Commissioner had prejudged and pre-empted the case.

[9] In light of the appellant's position the Commissioner sought the respondent's submission on the suggestion that she should not continue to sit on the application. It is not necessary to set the respondent's position out in detail. It is sufficient to note that it opposed the appellant's submission. The Commissioner then ruled on the suggestion that she had prejudged the application.

THE COMMISSIONER: Yes, thank you, Mr Lawrence. I do not intend to withdraw from this case and I think there are simple reasons for that. The very brief manner in which I indicated that I had reached a view in relation to valid reason has not certainly done any favours to the parties and perhaps was open to misinterpretation. Nevertheless, I stand by that decision and I stand by the decision that the assessment procedures alone have been - which have been alleged, have been proven to my satisfaction and the reporting aspect of the assessment procedures has been a very important point raised throughout the processes leading up to termination and the termination of employment process itself.

Now, there was evidence from the applicant himself yesterday and there was evidence yesterday and today in relation to the keeping of records. On that particular issue the applicant has contradicted himself. He has given answers which in my view just do not add up because I believed he was well aware of the importance of the records and keeping the records, and to say that they were tossed out (a) by himself; secondly, by his nephew, unable to be found, I think on balance indicates that there was at least a lack of attention to that, making a very poor judgment on the keeping of those records. But I have a very strong question whether in fact the applicant has been truthful on that issue.

The second matter goes to the handbooks and the instructions and the directions which were issued in meetings and through letters and in printed brochures, which the applicant himself has said occurred, were available, that he knew about in relation to assessment procedures. The third issue is that having known about the requirements, having been coached in relation to the requirements, having been - had a discipline process commence with one of the elements being assessment procedures, the fact that the applicant was unable or unwilling to keep proper records, to follow the policies, to follow the recommendation, the instructions that he has been given in relation to record keeping and in relation to the instruments of assessment and the overall assessments for students, including the progress reports, leads to the finding or is - and in addition to is a very strong basis upon which the Department - and they do through Mr Henry' report - makes a finding that his performance did not meet the standards required for a teacher within the employ of the Department.

Now, I shorthanded that previously to assessment but I think the generic reports were the last straw in relation to a number of others in that regard. I have before me, although I note they have still not been marked, the outline of submissions for the applicant. There is nothing in those or in the arguments that have been so far advanced which suggests to me that there are any other significant reasons which would overturn a decision to terminate employment on the basis there was a valid reason for one.

Now, I think the course that has been suggested by Mr Lawrence is the preferable one, that we proceed with whatever cross-examination that he has remaining, you have re-examination and I would then invite the parties to provide me submissions in relation to whether there is a case to answer."

[10] It can be seen that at this point the Commission had decided to continue to hear the case and that the procedure she intended to adopt was to permit the completion of the appellant's cross-examination and then to hear the parties on whether the respondent had a case to answer. It appears to have been common ground, it should be said, that at that stage the appellant did not intend to call any witnesses other than the appellant. Mr Dircks' response was to indicate that he did not see it as appropriate that the evidence continue because he understood the Commissioner had reached a conclusion already. The Commissioner responded as follows:

THE COMMISSIONER: Yes, I can understand the point you make, Mr Dircks. Well, if that is the case then I will hear directly from the parties in relation to the case to answer. Perhaps you could be guided by the fact that I have never in the hundreds and hundreds of arbitrations that I have had to - ever found myself in this situation and I think that might speak volumes for the fact that the documentation which has been lodged by both sides is exceptional insofar is that it - its breadth of coverage is extensive and the detail is similarly extensive."

[11] There was then an exchange between the Commissioner and Mr Dircks at the conclusion of which the Commissioner indicated that she intended to adjourn for the luncheon break and would hear the no case submissions on the resumption. To this Mr Dircks said:

MR DIRCKS: Commissioner, I am at a loss, I thought you, in an ex tempore way, had made the decision that there is a valid reason for termination and that - and there is no factors that would mitigate against termination being the result. If that is your decision at this stage - and that is what I clearly understood - I can see there is no point in going any further at all."

[12] The Commissioner indicated that while she agreed with Mr Dircks' position in relation to cross-examination she did not agree that there was no point in going any further, she then again asked Mr Lawrence the respondent's position. Mr Lawrence said:

MR LAWRENCE: Well, Commissioner, my submission is that you do hear submissions from the parties as to whether there is a case to answer and you make a decision on that basis. And the question arises as to whether the cross-examination of the applicant should continue at this stage and whether there should be re-examination of the applicant. One matter which I will give some consideration to over lunch time is whether we should press for the submissions on the no case to answer straight after lunch or put to you that the cross-examination finish and then re-examination take place so that the applicant's case can be concluded."

And then, in those circumstances, tomorrow morning, we - or later today if there is sufficient time - we could put the submissions that there is no case to answer......."

[13] After the luncheon adjournment the Commissioner marked a number of witness statements and documents. These included the unsworn witness statement of the respondent's 3 principal witnesses, various documents and the respondent's written submissions. When the documents had been marked Mr Dircks said:

....Commissioner, I would just say - to make the obvious point, of course, these are unsworn statements and unidentified exhibits and so we would see them as being marked for identification rather than being exhibits."

Mr Lawrence concurred but pointed out that some of the documents had been adopted by the appellant during his oral evidence.

[14] Mr Lawrence then reiterated his proposal that the appellant's evidence be completed prior to the Commissioner hearing the foreshadowed no case submission. The Commissioner said that she was sympathetic to Mr Dircks' view that it would be pointless proceeding with the evidence as she had already expressed a view. She ruled that Mr Lawrence should put the no case submission forthwith saying:

........I think you (Mr Dircks) are correct and I think the easiest thing to do consistent with that would be to ask the respondent to proceed with the application there is no case to answer. Now, there are dangers in doing this, I realise this, and the very last thing I wanted to do in this matter was to prolong a case that I don't believe will succeed. There are a number of reasons why I made the decision which I did and I believe that - I know that I will be able to show that I have done it on the basis of principles such as fairness and equity and natural justice."

[15] Following Mr Lawrence's submissions Mr Dircks made it plain that he was uncomfortable responding to a no case submission which had been made following findings.

[16] At the conclusion of the submissions the Commissioner dismissed the application with short reasons and in due course handed down the decision against which this appeal is brought. That decision traversed in detail the events leading up to the termination of the appellant's employment including the conduct and findings of a disciplinary investigation established under section 9(8) of the Teaching Service Act 1981.

[17] There are four grounds in the notice of appeal. At this stage it is necessary to refer only to the first of them. It reads:

"The Commissioner failed to afford the Appellant natural justice by:

(a) failure to inquire into all matters affecting the merits, and right settlement, of the case;

(b) failure to provide for re-examination of the Appellant and examination of the Respondent's witnesses before reaching a decision; and

(c) the reasonable apprehension by the Appellant that the Commissioner did not come to the hearing with an open mind in relation to teaching processes and standards."

[18] We should indicate at once that there is no substance in paragraph (c) of this ground. It is based on the fact that prior to her appointment to the Commission the Commissioner was a teacher and that during the hearing she indicated a familiarity with the work of teachers and the requirements upon them. It was also suggested, that the Commissioner should have disclosed her background and experience to the parties before commencing the hearing.

[19] We think the objection, to have any force, should have been made during the course of the proceedings. It is now too late to take the point. We add that it was not suggested that the appellant or his counsel were not aware of the Commissioner's background at the time the proceedings commenced.

[20] We now turn to the issues raised by paragraphs (a) and (b) of ground one.

[21] Speaking generally, if a no-case submission is to be made it should either be made before proceedings commence or at the end of the applicant's case. If the application is made before the applicant commences its case, it could only be on the basis that the materials filed by the applicant do not disclose an arguable case that the application will succeed. Such an application would normally be dealt with on the assumption that the allegations made by the applicant are correct. In the second category of case, the application would be based on a contention by the respondent that the applicant's legal and evidentiary case is so weak that even in the absence of evidence from the respondent the application could not succeed.

[22] To these two categories must be added a third: the statutory entitlement of a respondent, subject to conditions, to move for the dismissal of an application at any time on the ground that the application is outside the jurisdiction of the Commission: s.170CEA. It was not suggested that in this case s.170CEA is relevant and we do not think it is.

[23] In this case the no case application was not dealt with either prior to the commencement of the evidence or at the conclusion of the appellant's case, but part way through the appellant's cross-examination.

[24] It is clear that the procedure which the Commissioner adopted was an unusual one. She invited the respondent to make a no case submission and she did so, in the circumstances we have set out, prior to the closure of the appellant's evidentiary case. In doing so the Commissioner indicated that she had formed a concluded view on one of the issues that the Commission is required to consider in deciding an application pursuant to s.170CG(3). She held that there was a valid reason for the termination of the appellant's employment: s.170CG(3)(a). The appellant's counsel said that no further evidence should be heard and that the Commissioner should cease hearing the application on the basis that she had pre-empted the evidence and submissions. After some discussions the Commissioner agreed that the appropriate course was to deal with the no-case application forthwith. That was done.

[25] There are sound reasons why a no case submission of the kind we are considering should not be dealt with until the applicant has closed his or her evidentiary case. The most obvious reason is that it is not possible to gauge the strength of the applicant's case until all of the applicant's evidence is in. A second reason, which is just as important, is that unless the applicant is permitted to put the whole of his or her case, any adverse decision might properly be open to attack on the basis that it was reached without hearing the applicant's case in full.

[26] The question which arises in this case is whether there were circumstances which justified a departure from the normal approach. The requirements for a fair hearing must depend on the circumstances of each case. As was stated by Lord Justice Tucker in Russell v Duke of Norfolk[2]:

There are in my view no words which are of universal application to every kind of enquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter being dealt with and so forth.

[27] It was submitted by the respondent, relying to some extent on the Commissioner's reasons for decision, that it was clear from the evidence that the appellant's case could not succeed, that no other evidence could have altered the position and that very little remained of the applicant's evidence and that the appellant had indicated that he did not intend to call any other witnesses. It was also suggested that given the very large number of relevant documents and the number of days likely to be required for the hearing, it was appropriate to deal with the no-case application at that time.

[28] We do not think that the circumstances justified the course which the Commissioner took. Until the appellant had closed his case it was not possible to say with certainty what evidence would be relied upon. The appellant was not bound by his contentions and his indication of the witnesses he would seek to call. Until its evidentiary case is closed a party may ask the leave of the Commission to call additional evidence including persons who have not been previously identified as witnesses. And despite the matters advanced by the respondent, the appellant in this case is rightly able to claim that his case was dismissed without being fully heard.

[29] In her reasons for decision the Commissioner dealt at some length with issues arising in relation to the no-case submission. The following is relevant:

"[77] Mr Lawrence cross examined the applicant for over three hours prior to the Commission indicating that she had a number of issues to raise with the parties. Mr Govender was excused from the witness box. The Commission as presently constituted stated that she had taken the unusual step of interrupting the evidence from the applicant to express some views to the parties. Mr Lawrence submitted that the respondent had no case to answer.

[78] Having found that there was a valid reason for the termination of employment of the applicant, was it open to the Commission to make a finding prior to the applicant having completed their case? In my view it was. The documentation was thoroughly prepared, voluminous in extent and given to extraordinary detail. The vast majority of the information filed had been available to the parties at the time of the execution of the disciplinary process against Mr Govender. The Commission had available before it information regarding the applicant's mark sheet, College policies, dozens of copies of the generic reports which had been compiled by the applicant and reports of numerous meetings and correspondence dealing with the failure of the applicant to reach or maintain a satisfactory level of performance.

[79] In the Commission's view, the evidence of the applicant during examination and cross examination, even though the respondent stated that there were some further questions to be put to the applicant and re-examination was not carried out, put it beyond doubt that there was a valid reason for the termination of employment of Mr Govender.

[80] Great care must be taken to ensure that the applicant and the respondent are given ample opportunity to provide their case to the Commission. Great care must be, and is taken by the Commission, to ensuring that principles of fairness, equity and natural justice are afforded to parties before the Commission. In the extant application before the Commission as currently constituted, that care has been exercised. Once a valid reason for the dismissal has been found, and in this matter, confirmed beyond any doubt, there is no stated requirement that the case should continue. The particular circumstances of this case showed that there were no other witnesses other than Mr Govender in support of his application."

[30] It is clear from these passages that the Commissioner had formed the view, based on the appellant's own evidence, including extensive cross-examination in relation to his teaching record, attempts to assist him and the details of the Departmental investigation which resulted in the termination of his employment, that the application would not succeed. She then referred to the fact that the respondent had supplied statements by a number of witnesses it intended to call. They were two teachers who had worked with the appellant, the principal of his last school, a Departmental Investigations Officer and an Acting Regional Director. The Commissioner indicated that the appellant had already been cross-examined about many of the documents referred to in those statements. She found that the appellant's evidence failed to challenge the documents effectively. She further found that the Departmental investigation was also beyond challenge. The Commissioner then continued:

"[84] On the basis of the Commission expressing the view that she wanted to hear the parties on why there was no case to answer, Mr Dircks submitted that the Commission should withdraw on the basis of bias. This submission was rejected by the Commission not least because the parties were provided an opportunity to present submissions on there being no case to answer, the evidence of the applicant was unequivocal in substantiating the reasons for his termination of employment and the cross examination of witnesses for the respondent, particularly Mr Finnerty, was in Mr Dircks own statements, likely to be focussed on the issue of possible racism which has been dealt with earlier.

[85] In addition, the Commission is bound ". . . according to equity, good conscience and the substantial merits of the case" pursuant to s.110 (2)(c) of the Act. Having reached a finding that the applicant had proved that the reason for the termination of employment was valid on the applicant's own evidence, it is in my view of little assistance to the applicant to continue to hear the prepared case to its conclusion. To do so would incur additional financial cost to the applicant when he had no chance of winning his case and obviously additional legal costs to the respondent.

[86] Further, the applicant had been the subject of an extensive investigation by the Department, with the benefit of representation from his union, on the matters which were before the Commission. Entitlements accrue under the Act, for a person to seek redress over the termination of their employment which they believe to be "harsh, unjust or unreasonable" but having failed to find one singular element of harshness, unjustness or unreasonableness in the termination of Mr Govender, after one and a half days of hearing primarily in his giving of evidence, it is open to the Commission to seek submissions on whether there is a case to answer. It is not incumbent on the Commission to extend the hearings, particularly where, in addition to the applicant's evidence, the extensive outline of arguments and the plethora of documentation filed by the parties, of which they were both aware, provides not one skerrick of support for the application."

[31] It is beyond doubt that the Commissioner had formed the view that the appellant's case could not succeed. Taking into account the reasons in the paragraphs we have set out, it is also apparent that it was an integral part of her reasoning that there was no need to hear the conclusion of the appellant's evidence, nor the respondent's evidence, because she had reached the unshakeable conclusion that there was a valid reason for the termination of the appellant's employment. This conclusion is specifically stated in paragraphs [78], [79] and [80]. It is also referred to in paragraph [85].

[32] In our view the Commissioner's approach, as reflected in these passages, was unsound for two reasons. The first is set out above. It concerns the undesirability of dealing with a no-case submission before the applicant's case has been closed. The second is that whether or not there is a valid reason for the termination of the employment in question is not the only issue which the Commission is required to consider in deciding an application pursuant to s.170CE. A number of considerations are set out in s.170CG(3). A further consideration which may be relevant is that set out in s.170CA(2). While on one view it might be thought unlikely that a termination of employment would be found to be harsh, unjust or unreasonable when there was a valid reason for the termination, it is clear that the drafting of s.170CG(3) leaves that possibility open. And experience indicates that such cases do arise. Inconsistency of treatment between employees, for example, might constitute a basis for such a finding. It follows that even if the Commissioner's view was correct, that there was a valid reason for the appellant's termination related to the manner in which he carried out his student reporting obligations, there were other matters which the Commission might be required to consider and upon which findings might be made. To give one example, it was part of the appellant's evidence that his report writing practice was consistent with the practice of his peer group at the relevant time.

[33] In the circumstances we have concluded that, viewed objectively, the appellant did not receive a fair hearing. For that reason the Commissioner's decision should be quashed.

[34] There is one additional matter. We noted earlier that the witness statements which had been filed by the respondent were received as exhibits by the Commissioner. In her decision the Commissioner adopted part of one of the witness statements of one of the persons to be called by the respondent. In the circumstances reliance on that statement was an error. The statement was not evidence and was untested by cross-examination. We understand the contention advanced by the respondent that the Commissioner may have quoted the statement as a convenient summary of her views. Even so, any reliance on the respondent's untested assertions in upholding a no-case submission is likely to give rise to an implication that it has been taken into account against the applicant. Looking at the circumstances we think such an implication arises in this case.

[35] For this reason also the Commissioner's decision was materially affected by error.

[36] The appellant submitted that we were in a position to decide the application ourselves. It is clear to us that evidence will be required and no doubt there will be issues of fact to be resolved, and perhaps issues of credit. It is appropriate that the matter be remitted to another Member of the Commission for hearing.

B. Lawrence of counsel, for the Department of Education and Training.

2 [1949] 1 All ER 109, 118 (CA).

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