DR BILAL TRADING AS THE HORNSBY MEDICAL CENTRE v JENNI MARSHALL

LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd (2005) 146 IR 113 Box Valley Pty Ltd v Price (2000) 97 IR 484 Caltex Petroleum Pty Ltd and Ors v Harmer (1999) 92 IR 264 Clerical & Administrative employees (Classification Structure) State Award [1996] NSWIRComm 190 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 CASES CITED: Dr Bilal trading as The Hornsby Medical Centre v Jenni Marshall [2006] NSWIR Comm 143 Habib v Doctor Vijay Wadhera (Unreported 6 July 2001) Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v XcelleNet Australia Ltd and Ors (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158 Town v Australian Telecommunications Commn and Anor (1983) 3 IR 476 Yetzotis v New South Wales (Commissioner of Corrective Services) [2005] NSWIRComm 302

HEARING DATES: 08/11/2006 EXTEMPORE JUDGMENT DATE: 11/08/2006

APPELLANT Ms F Hancock of counsel SOLICITORS: LEGAL REPRESENTATIVES: Legal Services Australian Medical Association

RESPONDENT Ms J Marshall (in person)

DR BILAL TRADING AS THE HORNSBY MEDICAL CENTRE v JENNI MARSHALL

Application by Dr Bilal trading as the Hornsby Medical Centre for application to extend time to appeal and leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart on 16.11.2005 in Matter no. CIM 124385/05

JUDGMENT OF THE COURT EXTEMPORE [2006] NSWIRComm 360

1 On 23 May 2006, the appellant sought leave to appeal and appealed from a decision of the Chief Industrial Magistrate given on 16 November 2005. In a judgment given on 24 April 2006, her Honour Justice Schmidt granted an extension of time to file the application (see Dr Bilal trading as the Hornsby Medical Centre v Jenni Marshall [2006] NSWIRComm 143). While that decision was appealed, the respondent later discontinued the appeal. 2 The appellant relied upon an amended application filed on 23 May 2006. The appeal concerns the correctness of the Chief Industrial Magistrate's construction of the provisions of the Clerical and Administrative Employees (State) Award. 3 Ms Marshall had commenced proceedings in the Chief Industrial Magistrate's Court in September 2005, by the filing of an application for recovery of money in the sum of $5,000 plus interest. While the applicable award was not identified in the application, the period of the claimed underpayment was identified as 'February 1st 2004 to date' and the details of the calculation provided was: $15.39 was what I was paid for 10 ½ months work as an adult, Senior Receptionist, trained staff, working solo, Nursing experience, in charge of Reception staff etc. Grade 5.

4 His Honour concluded that Ms Marshall was a grade 3 clerk under the Award. It was the appellant's case that his Honour had exceeded his jurisdiction in the orders made and that he had erred in failing to have proper regard to the decision of her Honour Justice Glynn in making the Award in October 1996, (see Clerical & Administrative Employees (Classification Structure) State Award [1996] NSWIRComm 190) and the relevant provisions of the Award, when determining the respondent's correct grading. It was argued that leave to appeal would be granted, because the decision set a dangerous precedent for the proper interpretation of the Award, in its application to other employees. If not corrected, the result would be to encourage a proliferation of grading disputes to come before the Commission and the courts. The appellant also submitted that it had been denied natural justice, given the way in which the matter proceeded before his Honour as a small claim. 5 While the respondent, Ms Marshall, did not abide by the Court's directions for preparation of the matter for hearing, she appeared at the hearing and advanced submissions in support of the decision reached at first instance. On her approach, the appellant had every opportunity to put his case at first instance and there was no basis upon which the appeal should be upheld.

The proceedings before the Chief Industrial Magistrate

6 While s 379 of the Industrial Relations Act permits an application for the recovery of money brought under s 369 to be dealt with as a small claim, no such election was in fact made by the respondent in the application form. Subsection 379(4) provides that if such an election is made by an applicant and accepted by the court, the court is not bound by the rules of evidence in the proceedings. 7 When the matter came before the Chief Industrial Magistrate on 16 November 2005, it seems as if it was dealt with as a small claim, given the procedure adopted. The question was not, however, apparently addressed. The matter was simply dealt with as if it were a small claim. 8 On commencement, Ms Marshall advised that she had left her calculations at home and his Honour stood the matter down, so that the parties could discuss the claim. On resumption it was reported by Ms Marshall, who represented herself at the hearing, that no agreement had been reached and some handwritten documents were handed up. They were not identified in the record, however they appear in the supplementary appeal book. 9 In answer to his Honour's question, Ms Marshall confirmed that the claim related to ordinary hours of work and overtime and that the parties had agreed that the applicable award was the Clerical and Administrative Employees (State) Award. Ms Marshall explained that her claim was that her proper grading under the Award was 'grade 4 or 5' and that her claim dated to the time of her dismissal on 12 January 2005. 10 The proceedings continued with his Honour questioning Ms Marshall as to who was employed at her workplace; what shifts she had worked and how they were altered over time; what duties were performed when she was at work, including nursing work; whether she had been designated to be in charge of other employees; whether her duties had been reduced to writing; and, what insurance considerations had arisen. 11 At one point, Ms Patton, appearing for the appellant, interrupted his Honour's questioning of Ms Marshall, to raise her understanding of the employment history. His Honour responded by advising that:

Yes well obviously that's one of the matters I need to unravel here, yes. Now you wanted to add something Miss Marshall I think. 12 Ms Marshall explained that she disagreed with part of what Ms Patton had said, which led his Honour to observe: The way you describe it, it sounds as if your role was partly clerical, but partly you were sort of a triage nurse there to determine the condition of the people coming in the door? 13 Ms Marshall indicated her agreement and Ms Patton, the appellant's disagreement. His Honour noted the contention and then turned to an extract of the Award which had apparently been handed up, containing a definition of the grade 4 and 5 Award positions. His Honour asked Ms Patton what grade the appellant contended was the appropriate one. Ms Patton advised that Ms Marshall had been employed as a casual receptionist, classified under the Award as a grade one clerk. 14 Further Award extracts were handed up, again not identified in the record and his Honour then commenced questioning Ms Patton as to the respondent's case. Ms Marshall interrupted this questioning, by referring to 'evidence from staff members', which were said to be 'annexure A' to her submissions. From the appeal book, it appears that both parties handed up written submissions and other documents. None of them were marked in the proceedings. 15 His Honour indicated that he proposed to read the material and Ms Patton then proceeded to refer to submissions which the appellant wished to press. 16 His Honour asked the parties if they had seen the material that the other side wished to rely on. Ms Patton indicated 'today' and his Honour adjourned to read that material, advising that if there was further material which the parties wished him to look at, the parties should advise him. 17 On resumption his Honour invited further submissions. Ms Marshall responded by making a series of further statements about the nature of her work and described a grade one 'as an insult'. The overtime calculations relied on by Ms Marshall were then explained by Ms Patton as relating to information the appellant had earlier provided to Ms Marshall, based on time and wages records which the appellant maintained. An underpayment in relation to an Award increase on 2 July 2004, was acknowledged and an offer of settlement made by the appellant, as to that underpayment. Ms Patton explained that there had been no opportunity to review the other calculations provided by Ms Marshall, but they were understood to be based on the grade 4 rate. The calculations had only been provided by Ms Marshall at the hearing. 18 Ms Patton made submissions and then also sought the opportunity to address claims which had arisen for the first time at the hearing, such as the claim that nursing work had been performed, as well as work undertaken in connection with staff training. Ms Patton explained that she had no instructions as to those new claims. 19 Ms Marshall had also commenced unfair dismissal proceedings before the Industrial Relations Commission and then sought to advance submissions relating to that claim, which his Honour described as not relevant and of no assistance. Having declined to hear submissions of that kind, his Honour then immediately proceeded to deliver a short decision, in which he rejected the contentions of both parties and instead, concluded that Ms Marshall should have been graded as a grade 3 clerk. 20 Despite his invitation before the adjournment to advise him if there was further material the parties wished him to consider, his Honour did not return to deal with Ms Patton's application to be given an opportunity to respond to the new material which had come through his questioning of Ms Marshall.

21 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 22 It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 [4].) 23 For reasons which we will explain, we are satisfied that leave to appeal must be granted in this case and the appeal upheld. 24 A number of procedural steps appear to have been taken for granted in these proceedings. The first, the question of whether or not the proceedings were to be dealt with as a small claim in accordance with s 379. The second, the requirements of s 371 of the Act. Section 371 of the Act provides that: 371 Conciliation to be attempted before order made

(1) The industrial court is not to make an order under this Part until it has brought, or has used its best endeavours to bring, the parties to the application for the order to a settlement acceptable to those parties.

(2) If such a settlement is made, the industrial court is required to make an order that, to the extent authorised by this Act, gives effect to the terms of the settlement. 25 In Part 1 of Chapter 7, Enforcement of the Act, 'industrial court' is defined to include the Industrial Commission in Court Session and the Local Court constituted by an Industrial Magistrate (s 356). References to the Industrial Commission in Court Session in the Act are now to be read as references to the Industrial Court (see s 151A). 26 In Yetzotis v New South Wales (Commissioner of Corrective Services) [2005] NSWIRComm 302, the appeal was upheld on the basis of a failure to observe the mandatory requirement imposed by s 371. It was observed:

23 We are satisfied that the language of the section is both clear and unambiguous. It requires that the statutory duty imposed be met, before an order is made by the "industrial court". That duty is in positive terms, requiring the industrial court to bring, or use its best endeavours to bring the parties to a settlement acceptable to them. It was common ground between the parties that there were no steps taken by the court, either before or at the hearing, to ensure that the duty was satisfied.

24 How the court's obligation to use 'its best endeavours' to bring the parties to a settlement may be satisfied in a particular case need not here be determined. It is sufficient to dispose of this appeal, to observe that a failure to take any steps to bring about a settlement between the parties cannot result in the statutory obligation being met. 27 It is difficult to see how an instruction that the parties discuss the settlement of the matter themselves, unassisted in any way by the court, can be a sufficient means of satisfying this statutory obligation. Apart from that opportunity being given to the parties, it appears that nothing was done to assist them to arrive at an agreed settlement in this case. Like in Yetzotis, that alone would be sufficient to dispose of this appeal. 28 A similar conclusion may also flow from an approach which involves treating an application brought under s 369 of the Act, as if an applicant had made a request under s 379 to have the matter dealt with as a small claim, when no such request has been made. Section 379 provides: 379 Small claims procedure (1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section. (2) An application that the industrial court decides to deal with under this section is called a small claims application. (3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is: (a) except as provided by paragraph (b) - $10,000, or (b) if some other amount is prescribed by the regulations for the purposes of this section - that other amount. (4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit. (5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is a practising legal practitioner unless the industrial court so approves. That approval is not to be given unless: (a) all parties to the proceedings agree, and (b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged. (6) The approval of the industrial court to be represented by a practising legal practitioner is not required if the practitioner: (a) represents a corporation and is an officer of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) represents an owners corporation constituted under the Strata Schemes Management Act 1996 and is one of the proprietors or lessees constituting the owners corporation, or (c) represents a member of an industrial organisation and is an officer or employee of the organisation, or (d) represents a member of a State peak council and is an officer or employee of that council. (7) The approval of the industrial court to be represented by a practising legal practitioner may be given subject to such conditions as the court considers reasonable to ensure that any other party to the proceedings is not disadvantaged by the practitioner appearing in the proceedings. (8) A contravention of subsections (5) - (7) does not invalidate the proceedings or any order made in those proceedings. 29 This statutory scheme envisages that an applicant may request to have a matter dealt with as a small claim and that an industrial court may accept that request. In our view, a court, or its registry staff, is not entitled to proceed on a basis where it is assumed that an applicant wishes to make such a request. This is what may have occurred in this case, given the nature of the advice given to the parties, that the matter, described as a "small claim dispute", had been listed for hearing on 16 November 2005. It follows that even if it appears to the court that the matter is an appropriate one to be dealt with as a small claim, some formal steps were necessary to be taken to address that issue, before the matter could be dealt with by the court, as a small claim. On one view, the appellant was also entitled to be heard on the question, although it is not necessary to decide that issue. 30 Under this statutory scheme, real consequences flow for the proceedings from such a decision, which it appears were overlooked. One of them was that the matter had to be heard on the basis that the rules of evidence applied, if it was not available to be dealt with as a small claim. (See s383 of the Act and clause 43 of the Industrial Relations (General) Regulations 1996). That appears to have been overlooked. 31 Even assuming that the matter was properly dealt with as a small claim, it appears to have miscarried. In this respect we observe that the notice of hearing apparently given by the Chief Industrial Magistrate's Court of the hearing of a small claim, carries with it potential difficulties. For example, while it requires witness statements to be filed, there is no requirement that they be served on the other parties. The Court's procedures should plainly be reviewed, having in mind the requirements of the rules of natural justice. 32 The proceedings were concerned with the respondent's proper classification under the Clerical and Administrative Employees (State) Award. It does not appear that the respondent gave any sworn evidence in the proceedings. Nor does it appear that she provided an affidavit, or even a sworn statement. Rather, her version of events emerged from what was contained in her application; documents handed up, but not exhibited in the proceedings; and, from answers provided to questions asked of her by the Chief Industrial Magistrate at the hearing. Despite this approach, there was no opportunity given to the appellant to ask the respondent any questions about her 'evidence' and the appellant was not even given an opportunity to deal with new material which arose. 33 Nor does it appear that the relevant Award was put into evidence. While some extracts were handed up and were referred to in the parties' written submissions, precisely what was before the Chief Industrial Magistrate and what his Honour had regard to, in coming to his decision about the respondent's correct award classification, is not possible to establish with any certainty. What is clear is that the definition of a grade 3 clerk, the classification which his Honour concluded was Ms Marshall's proper classification, was not put before his Honour by either party.

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:

It may well be that there are no grade one positions in medical centres and if there are, they would be very much back office type functions, perhaps dealing with processing of invoices, dealing with payment, basic paper work, filing and so on.

44 The proper Award classification of persons employed in medical centres was not a matter which his Honour was called upon to decide in these proceedings. Nor was evidence led about such matters. His Honour then went on to discuss the work of a 'receptionist in a busy medical centre', in general terms, without reference to the competing evidence before him. Indeed, no reference at all was made to the appellant's evidence in his Honour's decision. His Honour concluded:

This is not a basic clerical function, but one requiring in my view a degree of skill in dealing with the public and a degree of communication skill, such as might be described in the definition of a grade three position under the award, where under the heading, "communication" it says that a grade three person must have the skill to handle sensitive inquiries with tact and discretion.

It appears to me that a person dealing with patients in a medical centre would require that level of communication skill, whereas a grade one or grade two person under this award requires a far more basic skill level in the area of communication.

For that reason it is my view that the applicant in this case, and possibly many other employees in medical centres should be graded at a grade three level.

45 Despite this conclusion, no reference was made to the Award definition of a grade 3 clerk and indeed, it does not appear that the definition was put in evidence in the proceedings, understandably perhaps, given that neither party argued for or relied on, that grading. Nor did his Honour refer to the provisions made in clause 5(ii) of the Award, which was relied on by the appellant at the hearing and which provided:

An employee shall be graded in the grade where the principal function of his/her employment, as determined by the employer, is of a clerical nature and is described in subclauses (iii) to (vii) of this clause. 46 His Honour did not identify the respondent's 'principal function' in the context of any of the relevant Award definitions which arose for consideration on the case advanced by the parties, or even on the basis on which his Honour decided the case. That was plainly a necessary step, given the nature of the award in question and the requirements of clause 5 of the Award. 47 Having not given the appellant the opportunity to respond to the answers given by the respondent in relation to his Honour's questioning about her training and nursing work, or indeed to his Honour's idea that the respondent's proper grading might in fact be as a grade 3, his Honour went on to deal with all of these matters in his decision. 48 His Honour rejected the respondent's claim that the type of training about which she had answered his questions, amounted to level 4 or 5 work. As to nursing work, his Honour concluded:

In relation to the nursing or quasi nursing work that Miss Marshall performed, it may be that there was work that she was required to do which she should not have been required to do. I don't make any determinative finding in relation to that, because I don't have the relevant materials before me. But it is clear that if a person is going to perform the work of a nurse they need to have current registration, and there are other formalities that would need to be complied with, to make sure that that work was being done according to law, and in an appropriate fashion.

It may be that the respondent needs to look carefully at whether it is appropriate to ask someone who is employed as a clerical employee to conduct nursing or quasi nursing functions, but that it is not a matter that is squarely before me today. There is no industrial instrument that I am aware of, or which has been shown to me, which would indicate that there is a mixed function provision whereby an appropriate industrial tribunal has set a minimum legal rate for a person engaged in a mixed function role which is partly clerical and partly nursing. If there were such an industrial instrument, I would be able to factor in some appropriate rate of pay to deal with that type of work.

Instead, I find that in the circumstances of this case, the role that the applicant was given in relation to the appropriate care of patients went even further than might normally be regarded as appropriate for a person who is essentially engaged as a clerical employee and receptionist.

It is not difficult to understand that an employer finding that they have an employee with other skills will seek to utilise them in a productive way. However, that does not mean that the applicant was employed as a nurse, rather I am satisfied that she was employed as a clerical officer.

It is clear that she was not on the premises at all times, and when she was not there, presumably there where no clerical staff available to happen to have nursing background. To me this all points to the respondent simply taking advantage of the fact that Ms Marshall had some nursing background, notwithstanding the fact that her role, her function, and the task she was being paid to perform was that of a clerical officer.

Consequently I find that the applicant should have been classified as a grade three clerical officer under the relevant award and this means that the calculations relied upon by the both applicant and the respondent are inappropriate and I assume that know one has prepared in advance any calculation that would be appropriate for a grade three classification.

49 His Honour did not refer to Ms Marshall's own statement that doctors and a registered nurse were employed in Dr Bilal's practice, or to the matters dealt with in the affidavits on which the appellant relied. In any event, how these observations related to the questions which his Honour was called upon to decide in the proceedings is not apparent, given the claim which the respondent had made. No question of the fairness of the party's contractual arrangements, or the adequacy of the Award classification structure, arose in these proceedings. Nor was evidence led as to the making of the Award. The appellant complains that this aspect of his Honours decision evidenced that his Honour had taken an adverse view of Dr Bilal, on the basis of untested assertions made by Ms Marshall. His Honour concluded that Dr Bilal had taken advantage of Ms Marshall. The result was a punitive decision, the appellant argued, to classify Ms Marshall as a grade 3 clerk.

50 The proceedings adjourned with the parties being directed to confer on the proper calculation of the amount outstanding, at a grade 3 classification. We are well satisfied that it follows that the appellant's complaint that the Chief Industrial Magistrate had no evidentiary basis upon which to conclude that the respondent should have been classified as a grade 3 clerk under the Award must be upheld, as must the complaint that Dr Bilal was denied natural justice, in the approach adopted. 51 The Award was not in evidence. The relevant Award definition of a grade 3 clerk was also not before his Honour. Given that such a claim was never advanced by the respondent, there is an obvious question as to whether it was one which his Honour was entitled to entertain in the proceedings. If it was, plainly both the appellant and the respondent were entitled to be heard on the question, before his Honour came to any conclusions. This they were both denied. Ms Marshall does not complain about his Honour's conclusion. Despite this, given the approach adopted, it is clear that justice requires that the appeal must also be upheld on this basis as well. The adverse findings which were reached by his Honour were not available as a matter of justice, given the matter before his Honour, and the way in which the hearing was conducted. 52 We finally observe that there was a question of whether his Honour had made an order, from which an appeal under s 197 of the Act lies. We are satisfied, on the approach of the Full Federal Court in Town v Austral Telecommunications and Anor (1983) 3 IR 476 at 483-4, that in reaching the conclusion that Ms Marshall was properly classified as a grade 3 clerk under the Award and directing the parties to calculate the amount of the money order necessary to be made to reflect that conclusion, his Honour made an order for the payment of money, albeit not a final order. Justice requires that the appellant be permitted to appeal that order, without incurring the unnecessary additional expense of having a final order made. 53 The appellant sought that orders be made which included the quashing of the decision at first instance, apart from in relation to moneys already paid to the respondent, as a result of the proceedings. Given what has transpired in this case, we are entirely satisfied that it is appropriate for such an order to be made. Orders

54 For the reasons given, leave to appeal is granted, the appeal upheld, the Chief Industrial Magistrate's decision quashed, except to the extent of the moneys already paid to the respondent, and the order set aside.

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