Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial. (emphasis added)
54 We consider that the denial of procedural fairness in this matter warrants appellant intervention. It is plain that the error affected the decision at first instance. It is also clear that the removal of that procedural unfairness would affect the result at first instance. It is, therefore, necessary to consider the effect the errors had on the disposition of the matter below and the way in which the matter should be dealt with on appeal: see, for example, Price v Box Valley Pty Ltd (1999) 90 IR 480 at 485.
55 Despite the findings made in favour of the appellant's submissions, we do not, however, consider that it is appropriate to set aside the decision in whole and to remit the matter for redetermination. Rather, we consider that the commissioner's finding that the dismissal was harsh, unreasonable or unjust is still available, albeit on a somewhat different basis. Having established appellable error warranting intervention, the general principle is that an appellate tribunal may be in as good a position as the trier of fact to decide the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings made. In deciding what inferences are to be drawn, the appeal body will give due weight to the conclusions at first instance, and, having reached its own conclusion, should not shrink from giving effect to it: for example, Burge at 327 - 328 in [7] and cf Warren v Coombes (1978) 142 CLR 531 at 551.
56 Having regard to the above findings of error, the situation which arises, is as follows. The claim by the respondent, successful at first instance, alleged that her dismissal was harsh, unreasonable or unjust on the basis of both procedural and substantive grounds. The appellant, at first instance, conceded (appropriately in our view) that the dismissal of the respondent occurred in a manner which denied her procedural fairness. The appellant resisted the claim by submitting that any procedural unfairness would be overcome by considerations of the dismissal having been warranted on the basis of alleged misconduct. The misconduct alleged was essentially the issues earlier identified as to the lease fee work issue and that relating to payslips. At first instance Cambridge C found that the appellant had not been guilty of misconduct as to either matter. The finding in respect of the second issue has not been challenged on appeal.
57 The appellant submits that the finding as to the lease fee work issue was plainly the most significant matter relied upon by the commissioner in making the finding that the dismissal was substantively unfair. The finding against the credit of Mr Raw, made as the result of error, was the basis of the commissioner's rejection of the alleged misconduct. The finding against credit was an important part of the consideration, which led to the rejection of the most significant misconduct allegation. The finding of unfair dismissal is therefore affected accordingly.
58 However, the appellant conceded both at first instance and again on appeal that the dismissal of the respondent was procedurally unfair. Indeed, on appeal counsel for the appellant, quite properly in our view, conceded that it was open for the Full Bench to find that the dismissal was harsh, unreasonable or unjust on the basis of procedural unfairness alone, although he strongly urged the Full Bench not to adopt that course.
59 That the adoption of an unfair process when making a decision to dismiss an employee may be the foundation for a finding of harsh, unreasonable or unjust is plain: see, for example, Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Wilson v Department of Education and Training. In our view, in the circumstances of this case, the failure to provide the respondent with an opportunity to respond to the allegations levelled against her was enough to warrant the dismissal being considered unreasonable and unjust.
60 Further, when regard is had to the circumstances surrounding the lease fee issue (that is, that the appellant was aware the lease work was to be performed, that the appellant condoned the circumstance of performing the work at a reduced rate and that the appellant was prepared to offer a reduced rate on the basis of receiving further work from the client), the dismissal of the respondent was so severe a penalty as to warrant a finding that the dismissal was harsh: see, for example, Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231; and particularly so, when considered with the situation where Cambridge C's finding as to the other aspect of alleged misconduct was not challenged on appeal. We consider that it is not only available to deal with the matter in this way but that it is appropriate to do so in the exercise of our discretion having regard to the circumstances of the matter, including the way the appeal was conducted and the undesirability, in the public interest, of having, in effect, a third proceeding as to a s 84 application, when it is avoidable in the context of a final determination that fairly adjusts the respective interests of the parties: cf Price v Box Valley (at 485).
61 This does not, however, finally dispose of the matter on appeal. The appellant has contended that the commissioner fell into further error by ordering the respondent to pay 23 weeks of the respondent's full wage in lieu of reinstatement. The error was said to be that in doing so the commissioner had ignored the evidence of Mrs Flood, tested under cross-examination, in relation to her subsequently obtaining work and the remuneration received in that alternative work. Mr Knoll submitted that the commissioner preferred statements made at the heel of the hunt in closing submissions by the respondent's representative, which clearly were not made out on the evidence in the proceedings. Counsel submitted that the commissioner, despite having heard the appellant's objection as to the new material, and having recognised then that it arose in the submissions went on to make a money order based on those submissions notwithstanding having expressly stated in his decision that he had not considered the matters of new evidence raised in closing submissions,. In doing so, it was submitted, the appellant was not afforded the opportunity to bring evidence in response to, or deal with, those submissions. In taking that course, the commissioner had again denied the appellant procedural fairness.
62 Further, the appellant contended that the commissioner had committed further error, when making money orders, in not complying with the requirements of s 89(6) of the statute.
63 Section 89 provides that where reinstatement is considered impracticable the Commission may order the payment of compensation "not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed". Section 89(6) provides for matters which the Commission "is to take into account" when determining the amount of compensation. The provision is expressed in mandatory language and requires there be taken into account in assessing compensation "whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment".
64 The power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by s 89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in s 89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made. We would thus accept the submissions of the respondent to the extent that it was contended that the way in which, and the extent to which, those matters are in fact taken into account is ultimately a matter of discretion in the circumstances of the instant case. See, for example, the decision of the Full Bench in Sunny Queen Limited t/as Australian Quality Egg Farms v Reilly [2000] NSWIRComm 1128.
65 However, in the present circumstances, we accept the appellant's submission that it was not appropriate in the circumstances to make an order requiring the payment of 23 weeks remuneration. The respondent was dismissed from her position as a property consultant on 30 June 2000. The respondent's evidence at first instance was that she had obtained employment on 24 August 2000, some seven weeks after her dismissal by the appellant, with another real estate agent as a property manager. That employment was at a rate approximately $85 per week less than the rate she was receiving with the appellant. Due to the location of that agency the respondent sought other employment closer to home. The position she was then able to obtain, some two months later in November 2000, was with yet another real estate agency as a receptionist. Her remuneration in this position was again some $85 per week less than that received through her employment with the appellant. The respondent continued in that employment.
66 The commissioner's order was premised on a finding that the respondent "would have likely enjoyed many years further employment with the employer". This finding has not been challenged on the appeal and we consider it was open and thus an appropriate basis on which to found our orders. Indeed, having assumed that it failed on its primary submissions and that the finding of harsh, unreasonable or unjust was not disturbed by the Full Bench, the appellant conceded that the respondent ought be entitled to payment in an amount of $6,163. That figure approximates an amount that would have been received during the respondent's initial period of unemployment, had she remained employed with the appellant, and an amount equivalent to the difference between the remuneration received in her new employment and that received whilst employed by the appellant, for the period of six months following the dismissal. Section 89(5) does not, however, limit the compensation which may be awarded to the six month period after the employment is terminated. The provision limits the amount of money that may be ordered to a maximum sum calculated by reference to the payment "not exceeding the [respondent's] remuneration during the period of 6 months immediately before being dismissed".
67 We consider that in view of the unchallenged findings referred to, particularly those in relation to the likely longevity of the respondent's employment with the appellant and the respondent's continuing loss of earnings, the amount of $9,000 should be substituted for that awarded by Cambridge C.
68 The Full Bench makes the following orders: