34 The approach adopted at the hearing resulted in an application by Ms Patton, who was appearing for the appellant, that she be given an opportunity to seek instructions on new assertions that the respondent had made at the hearing, as to the nature of the duties which she performed, partly in answer to questions asked by his Honour and partly in 'submissions' advanced. That was an application not dealt with at all by the Chief Industrial Magistrate. It appears that the application was overlooked, when his Honour proceeded to give his decision. That this involved a denial of natural justice, given the basis upon which his Honour's decision turned, must be accepted.
35 On appeal, the appellant complains that the effect of the approach which was adopted was that the Chief Industrial Magistrate preferred unsworn statements made by the respondent from the bar table, of which the appellant had been given no notice, over sworn affidavits relied upon by the respondent, which were not referred to in his Honour's decision. The effect of the approach adopted, it was claimed, was that despite having the onus to make out the claim pressed, the case was decided in favour of the respondent, on a basis not claimed, not put to the appellant before the hearing, without the respondent having given any evidence at all in the proceedings and without the appellant being given an opportunity to respond.
36 The procedure adopted at the hearing, it must be observed, appears to have involved a significant departure from what s 379 of the Act envisages.
37 While the small claims process is plainly designed to achieve a degree of informality, it is not one which permits an industrial court to act on a basis other than a judicial one. Subsection 379(4) is in similar terms to s 163(1)(c) of the Act and its operation must be approached in a similar way. The fundamental aim of the provision is to ensure that justice is done.
38 While informal, the proceedings remain adversarial, with the onus falling on the applicant to make out the claim advanced in the ordinary way. The section does not do away with the necessity of an industrial court ensuring that the rules of natural justice are observed in the proceedings. The court must be satisfied that it has a cogent basis for whatever decision is reached in the proceedings. That includes the court ensuring that it has before it a proper basis for resolving contested issues of fact and that the parties are heard in relation to the material on which a decision is based. While s 379 permits the court to 'inform itself of any matter in such manner as the court thinks fit', that does not mean that the court may have regard to material on which the parties themselves do not rely and about which they have not been heard.
39 The importance of this requirement should not be overlooked. The Act gives the parties the right to appeal from decisions made in proceedings such as this, even if dealt with as a small claim. Not only are the parties entitled to a decision which provides reasons for the conclusions reached, but they are also entitled to be heard on the basis upon which the court has moved. That is a matter about which an appeal bench must also be able to be certain. The court record ought to identify, with precision, the material received in evidence and considered by the court in reaching a conclusion. Ordinarily, one would expect that if evidence is not given orally in such proceedings, but in affidavit or statement form, the documents would be exhibited, along with other relevant material received.
40 While the process may no doubt properly involve the exchange of witness statements prior to a hearing and questioning of the parties by the Bench, without witnesses being called to give evidence, there may be cases where justice requires a departure from that approach. A particular case may, for example, involve a situation which can only be decided on the basis of the credit of those giving evidence in the proceedings, which the court has to resolve. Or, the case may involve new material emerging at the hearing, with the result that an application for an adjournment is made. Once made, such an application must be considered and dealt with, if justice is to be done. While there may well be a proper basis for refusing such an application, it cannot be simply overlooked.
41 In this case, the respondent's claim was that her proper classification under the Award was as a grade 4 or grade 5 clerk. The appellant's case was that Ms Marshall had been employed as a grade 1 clerk; that while it was arguable that some of her duties were those of a grade 2 clerk under the Award, that she had not performed the work of a grade 4 or 5 clerk. In advancing that argument, the appellant relied on the decision of former Chief Industrial Magistrate Miller, in Habib v Doctor Vijay Wadhera (unreported, 6 July 2001). There his Honour referred both to the affidavit evidence given by the applicant and to the classification structure and definitions of the Award here in question, in concluding that the applicant's work fell within the grade two definition. No reference was made to this case, in his Honour's decision.
42 In this case, in his decision his Honour canvassed what the respondent had said about the nature of her duties. He noted that the Award was a general one applying throughout industry. Having found that 'the fundamental role of the applicant with the respondent, was as a clerical employee, performing receptionist duties', his Honour noted that the parties' competing contentions were from the respondent, that she was a grade 4 or 5 clerk and from the appellant, that she was a grade 1 clerk. His Honour noted that the respondent's claim rested on two matters; her training responsibilities and her non-clerical work, as a quasi-nurse. His Honour took the view that neither view could be accepted.
43 Without referring to the Award definition of a grade one clerk, the matter not being concerned with anything other than the respondent's claim, his Honour nevertheless expressed the view that: