Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited

APPELLANT: Mr S Peters The OI Group, Industrial Advocates

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Salmon Fisher Cartwright Berriman

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice President HARRISON DP O'NEILL C 29 JULY 2003

MATTER NO IRC 5447 OF 2002 JOY MAREE HUMPHRIES & COOTAMUNDRA EX-SERVICES AND CITIZENS MEMORIAL CLUB LIMITED Application by Joy Maree Humphries for leave to appeal and appeal against a decision of Deputy President Sams given on 6 September 2002 in Matter No IRC00/1852 JUDGMENT [2003] NSWIRComm 211 1 This matter is an application for leave to appeal and, if successful, appeal against a decision of Sams DP in Matter No IRC00/1852 delivered on 6 September 2002, Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225.

2 In the proceedings before the Deputy President, the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the union') appeared on behalf of the then applicant, Ms Joy Humphries, ("the appellant"). The respondent, Cootamundra Ex-Services and Citizens Memorial Club Limited ("the Club") was represented by Mr Schmitke of Clubs New South Wales.

3 In these proceedings the appellant was represented by Mr Peters of The OI Group, Industrial Advocates. Mr Salmon, solicitor of Fisher Cartwright Berriman, appeared for the respondent.

4 The central argument advanced by Mr Peters on behalf of the appellant was that the Deputy President was led into errors of fact, gave inappropriate weight to issues of credibility and did not take into account relevant matters. The appellant sought that the Full Bench, after the grant of leave, uphold the appeal, overturn the decision under appeal and reach its own determination as to the disposition of her application under s84 of the Industrial Relations Act (1996) ('the Act').

5 The background issues are succinctly set out by the Deputy President in the following terms (at [3] to [7]): Joy Maree Humphries ("the applicant") was dismissed on 8 April 2000 from her position as a bar attendant employed by the Cootamundra Ex-Services and Citizens Memorial Club Ltd ("the respondent").

The applicant commenced employment on 29 September 1997 as a part time employee engaged on various duties including bar steward, Keno operator and poker machine attendant. The applicant worked at the Club on a voluntary basis for six months before commencing paid employment under the terms of the Club Employees (State) Award (319 IG 589). There was no evidence of any complaint about her work performance, behaviour or attitude.

In early 2000, the respondent discovered that over many months there were unusual refund transactions involving packaged beer. The police were informed and an investigation commenced.

On 15 March 2000, the applicant was interviewed by the police. She was later charged with seventy counts of obtaining money by deception between 1 October 1999 and 8 January 2000. The specific allegations were that the applicant falsely refunded multiple items of packaged beer on numerous occasions over a number of months and stole the money. The loss to the respondent was said to be between $8,000 and $9,000.

After the police interview on 15 March the applicant attended for work. She was met in the Club's car park by Mr Kent, the Secretary/Manager and Mr Loiterton, a Bar Supervisor. Mr Kent asked if she had been interviewed by the police. She replied that she had and that she denied any involvement in the unusual transactions. Mr Kent informed the applicant she was to be stood down without pay until further notice.

6 The Deputy President also described the essence of the contest at first instance as follows (at [151]-[153]): The Commission has very much agonised over this question. For over two years, the applicant has consistently and strenuously denied the allegations against her and offered explanations for the cash discrepancies.

The applicant has had seventy charges of obtaining money by deception dismissed in the Local Court. She seeks complete exoneration from the allegations of theft and full reinstatement to her employment.

There is little doubt that the effect on her reputation and livelihood have been seriously and adversely compromised by the events of the past two years. The impact must surely be, a fortiori , in a small country town like Cootamundra. The Challenged Decision

7 The particular findings of the Deputy President to which the appeal relates are found at [167]-[179] of the decision in the following terms: 167 In answering these questions I have attempted to balance the arguments in support of the parties' respective positions.

168 Mr Acev 's case rested primarily on the following:

i) the applicant had been vindicated by the dismissal of the criminal charges against her;

ii) the evidence of all the employees called by both parties was that no person saw the applicant use the refund button or remove any money from the till in a suspicious manner;

iii) the applicant had not used and didn't know how to use the refund button;

iv) the employees' rosters and entries in the time book were not accurate and could therefore not reliably prove that the applicant was on duty when the unusual transactions occurred;

v) the till takings for various sections of the Club were balanced against the total day's takings. It was impossible therefore, where "unders and overs" occurred, to identify which till had been used - let alone which employee was responsible;

vi) the applicant gave evidence that the till takings were consistently over some hundreds of dollars. This money was given to supervisors. The applicant said these monies were never accounted for. She presumed the supervisors simply kept the money.

169 On the other hand, the arguments put by Mr Schmitke include:

i) the evidence is that the applicant was the only employee who was at all times on duty on each, and every occasion, of unusual and multiple refunds of packaged beer;

ii) there was no evidence of packaged beer refunds at times when the applicant was not working, such as when she was on annual leave;

iii) the refund function, as demonstrated on an inspection of the Club, was not complicated. It was able to be accessed without too much knowledge or difficulty;

iv) the magistrate expressed his suspicions as to the applicant's involvement, but could not make a finding based on "beyond reasonable doubt".

170 In balancing these considerations, one question has loomed large in my thinking and was decisive to my ultimate conclusion of the matter. Were there any unusual transactions conducted when the applicant was not on duty? If there was, it would point to another person or persons acting, either independently or in concert with the applicant, to defraud the respondent. It seems to me the evidence is palpably clear. There were no unusual transactions when the applicant was not on duty.

171 Mr Acev turned my question around and argued that there were occasions when the applicant was on duty, when no unusual transactions occurred. Unfortunately for Mr Acev , this observation proves nothing. However, the answer to my question most certainly does.

172 Mr Acev drew an analogy with the circumstances in this case to those identified by Harrison DP in Australian Liquor, Hospitality and Miscellaneous Workers Union v Westport Bowling Club. In Westport, his Honour noted that the evidence disclosed that 45 per cent of the cash handling discrepancies could not be linked to the dismissed employee and that some other person/s were involved. His Honour could not find the allegations against the employee proven and reinstated her.

173 In my opinion, Mr Acev's case is not assisted by reliance on Westport. The state of the evidence here is entirely distinguishable from that discussed in Westport. Here the applicant was the only common denominator in all the unusual transactions. No similar transactions occurred when she was not on duty which might point to the involvement of some other person/s.

174 I have also had regard for the applicant's overall credibility. Her credibility must surely be questioned when one considers the ridiculous and implausible allegations made by her against other employees, including supervisors and work colleagues.

175 One allegation was that other staff and supervisors were drinking and gambling on duty. This allegation is immediately suspect when it is considered in light of the applicant's own evidence. It was her evidence that she only raised the issue after learning that other employees would not support her claim of the daily cash overs being handed direct to the supervisors. In other words, it was nothing more than an unsubstantiated "payback".

176 The applicant claimed that the supervisors were responsible for the missing money. The bistro staff may have been involved. Witnesses had lied to the police.

177 This allegation is bizarre. Logically, it must mean that a number of supervisors, many still employed by the Club, had acted in concert to defraud the Club. They all survived unscathed, both a criminal investigation and a criminal trial in which they gave evidence.

178 I would apply the principle reductio ad absurdum to demonstrate the falsity of the applicant's premise by the absurdity of its conclusion.

179 What I find even more extraordinary is that the applicant said she would have no trouble working with these employees who she has accused of being thieves and liars. (Emphasis added) 8 Further, the Deputy President discussed the basis upon which he concluded that the applicant must have engaged in the "unusual transactions" (at [183]-[188]): 183 I readily acknowledge that Mr Acev successfully established that the employee time records and rosters (Ex"B") were not accurate. I accept the evidence that the rosters were a guide and that the time records were filled in by the employees (sometimes long after) and not verified by management. However, the extent of the inaccuracies did not amount to incorrect shifts, but rather small variations in the times taken for breaks. Mr Miller's evidence was that the variations related to how busy the bar was at the time. He said the variations did not relate to start and finish times. I accept his evidence.

184 It is a wide leap of logic to assume, as Mr Acev put, that the records prove the applicant was not on duty at the time. Indeed, there was no evidence that the applicant was somewhere, other than in the Club when the unusual transactions were conducted.

185 I refer to one final matter on the state of the evidence which was somewhat unusual. Mr Kent gave no evidence in the proceedings. He is no longer employed by the respondent. He could not be contacted and apparently was not able to be located.

186 It may be understood from Mr Vesperman's evidence that Mr Kent left the Club's employ on less than amicable terms. This may well explain the failure for him to be found.

187 There may have been some contested issues as to what was said by Mr Kent at particular meetings with the applicant. However, there were more than two people involved. What is plainly evident from the comprehensive documentation produced by Mr Schmitke is that the respondent's decision to dismiss the applicant was based primarily on the documentary evidence it had available to it.

188 It seems to me to be an inescapable conclusion, on the balance of probabilities, that the allegations against the applicant are proven. It follows that the conduct of the applicant was demonstrably inconsistent with an employee's obligations to the employment relationship. Her actions amounted to a fundamental breach of her obligations to act with good faith and fidelity. See Day v Lumley Life , 90 IR 70; North v Television Corporation Ltd (1976) 11 ALR 599; Blyth Chemicals Ltd v Bushnell , 49 CLR 66, and my comments in Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46. [Emphasis added]. 9 In rejecting an argument that the appellant had been denied procedural fairness, the Deputy President held (at [197] and [198]) that:

197 I have no doubt, with the benefit of hindsight, that the dismissal of the applicant here might well have been better handled by the respondent. However, the faults in the process need to be balanced against the gravity of the allegations in the event they are proven.

198 On this point, I refer to my comments in Foster and Woolworths Limited [2000] NSWIRComm 208: ... it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.

Submissions Submissions for the Appellant General 10 Mr Peters submitted that leave should be granted pursuant to s188 of the Act as the issues were of sufficient importance to the public interest that leave be granted. He submitted that the appeal proper should be determined upon the principles enunciated in House v The King (1936) 55 CLR 499.

11 The appellant's challenge to the decision at first instance was essentially twofold: 1. The finding of fact made by the Deputy President that the appellant was the only employee present at the time of the "unusual transactions" was erroneous. This error was demonstrated by the Club records tendered by it at first instance. As the erroneous finding was fundamental to the Deputy President's findings of credit, and ultimately, of misconduct, the error must result in appellate intervention and a reversal of the decision at first instance. 2. The appellant was denied "natural justice" in the proceedings. Whilst the submission initially appeared to be a reference to the proceedings before the Deputy President, it became apparent that the true complaint concerned a denial of procedural fairness by the Club in terminating the appellant. The appellant contended that she and her representatives were denied reasonable access to the documentation at the time of the investigation conducted by the Club's officers and before the hearing at first instance. In the result, it was submitted the appellant was never given a proper opportunity to answer the charge levelled against her and the Commission was deprived of full assistance as to the analysis of the Club's records in the proceedings at first instance.

12 Mr Peters submitted that the withholding of the documents identified as exhibits B (weekly time worked record extracted from the ZION weekly time and wages records kept by the Club), C, D, E, G, H and I (refund details)("the Club records") by the Club, until shortly before the commencement of the proceedings before the Deputy President, denied the Deputy President the opportunity to proceed with appropriate "methodical exactitude". Mr Peters submitted that this resulted in error in the conclusions reached by his Honour.

13 Mr Peters supported this submission with the propositions that "in the carriage of natural justice the Bench will find in favour of the appellant and that had his Honour Deputy President Sams been informed of the facts in full he would similarly find in favour of the appellant."

14 Mr Peters reinforced this submission by reference to his Honour's decision (at [185]-[187]), which emphasised reliance upon the Club records and the failure of Mr Kent to assist the Commission in assessment thereof. 15 It was submitted that the evidence of Mr Vesperman, the President of the respondent, illustrated that the termination of the appellant was based on a superficial examination of the critical documents by the respondent, and hence that there had been a lack of procedural fairness. That evidence was as follows: Q. Point 14 of your affidavit indicates you commenced the meeting on 7 April at 10am. Did Mr Kent chair the meeting on behalf of the Club? A. I chaired it. I was the President.

Q. I am asking did Mr Kent predominantly speak on behalf of the Club? A. Oh yes, certainly, as secretary/manager.

Q. During that meeting did Mr Kent physically provide copies of any documentation to Ms Humphries or Mr Ticehurst? A. I don't know that he provided copies but he certainly referred to certain documents and papers he had in front of him.

Q. So Mr Kent put information to Ms Humphries for a response? A. Yes.

Q. In what detail do you recall Mr Kent put those proposals? A. He generally enquired - I can only generalise - he asked about refunds being made during the period of time she was on duty.

Q. Is it not true Ms Humphries denied making those 5 refunds? A. Yes she did. She said, "I might have pressed a key wrong," or something like that but she denied making any refunds. She had not heard of them before .

16 However it was conceded by Mr Peters that, upon introduction of exhibits B, C, D and E in the first instance proceedings, no application was made for adjournment to allow further time to examine the documents.

17 Mr Peters produced a spreadsheet analysis of the Club records which correlated the attendance of all staff working at the time that refunds of packaged beer occurred. The spreadsheet formed part of the appellant's submission and as such was introduced without objection by Mr Salmon.

18 It was submitted that the evidence disclosed that the bar area of the Club was equipped with three separate tills numbered consecutively, 1, 2 and 3; and that staff on duty, the Secretary Manager, Mr Kent, and any duty directors had access to and operated all tills as trade required. Mr Peters noted that only Mr Kent was provided with a personal identification number ("PIN") to access the tills and accordingly there was no system in place to record which member of staff used which till at any particular time. Mr Peters contended, and Mr Salmon conceded, that this was an unusually casual approach to trading in a Club, which had since been rectified.

19 Mr Peters commenced his submissions as to the spreadsheet analysis of the Club records by reference to what he submitted was the most striking example of the errors of fact at first instance. The spreadsheet revealed that on 23 March 2000 a refund transaction occurred at 12:35 from till 3 involving one carton of beer at $26.80. That transaction (which was of the same type as the "unusual transactions") occurred subsequent to 15 March 2000, by which time the appellant had been suspended from service and denied entry to the Club. This lead to the inescapable conclusion that the appellant could not have been involved in that transaction and that the fundamental premise of the Deputy President was wrong.

20 He then proceeded to utilise the spreadsheet analysis to demonstrate occasions where it was improbable or unlikely the appellant had been involved in the making of "unusual transactions". There were five categories of such transactions.

21 Firstly, Mr Peters identified seven other occasions involving the refund of a total of 87 cartons of beer, where the appellant was rostered to work, but working at such times that it was most unlikely the appellant could have undertaken the transactions. The seven occasions are identified in the spreadsheet (by the spreadsheet column and the date of the transaction) as follows: Row Date 6 1 October 1999 27 22 October 1999 34 29 October 1999 42 6 November 1999 43 7 November 1999 50 14 November 1999

22 Mr Peters referred to the unusual refund transaction occurring on Friday, 1 October 1999 at 13:23 and 13:28, a total of 14 cartons of beer at $25.75 each on till number 3. Time and wages records showed that the appellant worked for four and a half hours, from 10:00 that day. It is uncertain from exhibit B whether the appellant worked 10 am to 2:30 pm or 10 pm to 2:30 am. The Club traded from 10 am to 2.30 am that day.

23 The uncertainty as to the appellant's work time on 1 October 2003 was exacerbated by the record of the previous day which showed her working until 12.30 am, giving rise to a question as to whether she returned at 10.00 am the same day, a break of nine and a half hours; or whether she worked from 10.00 pm.

24 Mr Peters submitted that, in either case, it was improbable that the appellant was the perpetrator of the unusual transaction.

25 In the event that she worked from 10.00 am to 2.30 pm she would have had to take $360.50 from till number 3 between 1:28 pm and 2:30 pm. It was contended that, given there was no evidence of any observation of the appellant taking cash from the till, it was highly improbable that she was able to do so in such precise amounts, given evidence that the change float for each till was $200.00.

26 It was also contended the evidence demonstrated that it was improbable that $360 in concealable denominations would have been in till number 3 by 2:30 p.m. on the day in question, given that the Club was not large and had not been trading for a very long time on that day.

27 Mr Peters submitted that this gave rise to a valid consideration that another person or persons took the money later in the evening after the appellant had finished employment, when sufficient funds had accumulated in the till and the opportunity to take the cash unobserved was more readily available.

28 In the event that the appellant worked from 10.00 pm to 2.30 am she simply was not on duty at the time of the transaction.

29 Mr Peters offered another consideration that, having regard to the procedure of balancing bar tills and poker machine takings, no cash was taken from the bar tills, but from poker machine cash drawers.

30 As to 22 October 1999, Mr. Peters submitted that refunds occurred at 14:45, 16:14 and 17:21. These transactions involved 15 cartons of beer at $26.80 each and were carried out on tills number 1 and 3. The appellant worked until 17:30 that day and the Club ceased trading at 24:30. It was submitted that it was implausible that the appellant would take the precise amount of $402.00 from the tills between 14:45 and 17:30, without observation, in the midst of busy Friday afternoon trading.

31 Mr Peters then went to row 34 of exhibit 2, Friday, 28 October 1999. On this occasion refunds took place at 12:06 and 13:10 from tills 1 and 3 involving a total of six cartons of beer at $26.80. It was submitted that the Club records did not reveal whether the appellant ceased work at 2.00 pm or 2.00 am, giving rise to similar submissions with respect to those made for entries on 1 October and 22 October 1999.

32 The appellant contended that similar considerations arose with respect to Saturday, 6 November 1999, where refund transactions took place at 13:43, 12:50, 14:53 and 17:20 involving a total of 12 cartons of beer at $26.80 each from tills 1 and 3. On that occasion, it was submitted, the appellant finished work at 17:30, only 10 minutes after the final transaction.

33 In dealing with the record for Sunday, 7 November 1999, Mr Peters noted that a refund transaction of three cartons at $26.80 each, an amount of $80.40, took place at 13:18. An examination of the work records of the Club suggest the appellant worked from 13:00 to 16:00 on that day. Mr Peters submitted that, on a proper analysis, it was improbable that the appellant was involved in this transaction.

34 As to Sunday, 14 November 1999, Mr Peters submitted that refunds occurred at 13:17, 13:54, 14:07, 14:33 and 14:42 involving a total of 23 cartons of beer at $26.80 each, an amount of $616.40. The appellant ceased work at 16:00 that day. Mr Peters reiterated his argument concerning the likelihood of the appellant taking over $600 prior to 4.00 pm. It was put that Sunday was a relatively quiet trading day. It was submitted that Mr Loiterton and Mr Kent were the only other staff members rostered to work on this day, suggesting that trading was not brisk.

35 Secondly, it was submitted that the Club records revealed a total of 9 days which involved refunds of 107 cartons of beer on occasions that the appellant was on a work break. These entries were:

Row Date 19 14 October 1999 29 24 October 1999 33 28 October 1999 35 30 October 1999 45 9 November 1999 48 12 November 1999 56 20 November 1999 87 21 December 1999 88 22 December 1999

36 Thirdly, it was submitted that on a proper examination of exhibit B, the Club's time and wages records, it was apparent that not all entries of times worked, and breaks taken, by the appellant, were made by the appellant. Mr Peters put that writing in a hand other than that of the appellant appeared on the appellant's time sheets, in the result exhibit B was not an exact record of the appellant's work.

37 To illustrate this feature of the Club's wages records, Mr Peters directed the Commission's attention to the record of the appellant's work for Thursday, 23 September 1999 (which was not detailed in the spreadsheet as there was no refund transaction on this day). The appellant was recorded as working 6 pm to 9 pm and 9.30pm to 12 pm, the entries '6' and '9' appear in one hand, 9.30 in a different hand (that most commonly found) whilst the 12 pm entry appears different again.

38 Mr Peters further directed the Commission to the Club record of work for Friday, 24 September 1999. This records the appellant as working 6.30 to 9 and 9.30 to 2 am. It is plain from the briefest observation, it was submitted, that the entries '6.30', '9', and '9.30' are in one hand whilst the 2 in the 2am entry is different, and from the '2' in the 12 pm entry the previous day.

39 However, it was conceded that there was no evidence in the proceedings at first instance to suggest that the appellant was not working on a day when an entry appears, or that a work break was not taken at the time recorded.

40 Fourthly, Mr Peters further submitted that there were three occasions involving refund transactions, totalling 21 cartons, on which wages records were unclear and uncertain as to whether the appellant was in fact at work at the time. These were: Row Date 2 27 September 1999 6 1 October 1999 34 29 October 1999 (The appellant advanced additional submissions as to rows 6 and 34 in this context).

41 Mr Peters went particularly to the record of 27 September 1999. He noted that an unusual transaction occurred at 13:25 that day. The appellant was recorded as working three hours from 11:00. There is no indication whether this was 11:00 am or 11:00 pm, although it was conceded that, being a Monday, it was unlikely to be 11:00 pm. Mr Peters submitted it was known that the Club closes at 24:00 and it is not known that the appellant actually worked 3 hours as the finishing time is not given. We note that neither party dealt with the prospect that the appellant was called in at 11:00 pm for close and paid a three hour minimum payment.

42 Mr Peters submitted that, having regard to the uncertainty of the appellant's working time on 27 September 1999, three conclusions were available. The first was that the appellant undertook the transaction at 13:25, taking the exact amount of $25.75 and concealing it on her person until 2.00 pm. This was improbable, it was submitted, because there was no evidence that anyone observed her take money out of a till. The second conclusion was that the refund transaction was undertaken at 13:25 and the appellant returned to balance the tills at the end of the shift, at that time removing the money. This, Mr Peters submitted, could not occur. The third conclusion was that the appellant worked from 11:00pm and simply was not at the Club at 13:25, the time of the refund transaction. This was the only sustainable analysis.

43 Fifthly, Mr Peters directed attention to row 102 of exhibit 2, Wednesday, 5 January 2000, on which occasion refund transactions are recorded at 20:55 and 22:03 from till "1602" which involved 12 cartons of beer at $26.80 each, an amount of $312.60. It was submitted that the appellant worked to close of the Club at 23:45 and another four employees were rostered to work on that occasion. Of greater significance, it was submitted, till 1602 was not reference to a particular till but to the personal identification number (PIN) assigned to Mr John Kent, the Secretary Manager.

44 Mr Peters also submitted that it was significant that no refund transactions occurred:

· between 16 October and 20 October 1999, during which period the appellant was on duty; · in the period 21 November to 9 December 1999, a period of 19 days of which the appellant was rostered to work 13 days; · from 15 December to 20 December 1999, during which the appellant worked five out of the six days; · between 24 December and 28 December 1999, during which the appellant worked three of those days; and

45 It was also significant from 9 January 2000 through to the suspension of the appellant, on 15 March 2000, refunds occurred on only two occasions, being 3 March 2000 involving four cartons of beer at $26.80 each from till number 1 at 21:44 and 8 March 2000 involving four cartons of beer from till number 1 at 20:56. On both occasions the appellant worked to close of business, some three hours after each transaction.

46 Mr Salmon opposed the grant of leave to appeal. He relied upon the judgment of a Full Bench of the Commission in Box Valley Pty Ltd v Price (2000) 97 IR 484 wherein the Full Bench stated:

It is necessary for an appellant to establish a proper basis for appellate review. This will rarely be obtained by reference to the particular language used in the concluding remarks of the decision maker, absent from the reasoning process itself. In other words, a decision needs to be considered as a whole and not subject to unwarranted selected reference in order to establish error.

In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.

47 Mr Salmon submitted that the decision of the Deputy President must be considered as a whole, and not subject to selective reference in order to establish error. He acknowledged that the spreadsheet did disclose a refund of one carton of beer when the applicant was not at work, in contradiction of the findings of the Deputy President that the appellant was the only common denominator in all of the unusual transactions. However, he submitted that this transaction was for a single carton and that the "unusual transactions" upon which the Deputy President's findings were based were transactions involving refund of multiple cartons, not single cartons of beer.

48 It was submitted that a conclusion that Mr Kent executed the transaction of Wednesday, 5 January 2000 was not open. Mr Salmon contended that when a till was opened for a day's trading it was assigned the PIN of the staff member opening the till. All that can be deduced was that Mr Kent opened the till on this day. The evidence at first instance was that only Mr Kent had a PIN. For his number to appear only once suggests that he rarely opened a till for trading, although the entry confirms his access and use thereof.

49 Mr Salmon submitted that, notwithstanding that the appellant did not receive copies of incriminating documentation, she knew the nature of the allegations at the 7 April 2000 meeting with her employer. Mr Salmon further submitted that the union was provided with the relevant documentation four weeks prior to the proceedings before the Deputy President. Mr Salmon was unable to provide any evidence of this.

50 An examination of the proceedings at first instance reveals that the union issued a summons for production of records on the Club on 23 April 2001, returnable on 30 April 2001. Some documents were produced to the Commission on 19 June 2001. These documents were not made available to the union at this time. His Honour issued directions on 4 March 2002 to bring the matter to hearing from 4 June 2002, a time frame sought principally by the union to allow adequate preparation. These directions required the union to file and serve by 1 April 2002; the respondent to file and serve by 29 April 2002; and the union to file and serve material in reply by 13 May 2002.

51 We note that the record at first instance revealed that the Club records were not made available to the applicant's representative until 29 May 2002 (or thereafter), a matter of days, not weeks, prior to commencement of hearing in Cootamundra on 4 June 2002.

52 Citing as authority Big W Discount Stores v Donato (1994) 58 IR 239, Mr Salmon submitted that, on appeal, the Commission was confined to correcting either errors of law or fact arising from omission or error from the primary tribunal.

53 It was submitted that Sams DP exercised the discretion available to him in finding that the termination of the appellant's employment was substantially and procedurally fair, and accordingly not harsh, unreasonable or unjust. It was contended that the conclusions reached by the Commission at first instance were reasonably made, and being free from error of law or fact, should not be disturbed.

54 Mr Salmon submitted that any assertion that the decision reached by the Deputy President was in error on the grounds that it was made on the basis of a misrepresentation by the respondent, was invalid. It was submitted that the Deputy President was made fully aware that there were occasions when the appellant was not on duty where a transaction involving a refund of one carton of beer occurred.

55 In dealing further with the allegation of procedural unfairness, the respondent contended that the Deputy President had regard to and took into proper account the relevant issues, putting that the finding that the respondent had conducted its own investigation, interviewed the appellant in the presence of her union representative, and provided her with an opportunity of defending herself, was open and should not be disturbed. Mr Salmon put the same submission in respect to the contention that the appellant was denied documents which would have assisted her in defending herself against the allegations.

56 Mr Salmon noted that Sams DP was aware of some deficiencies in exhibit B. However, he did not find that the discrepancies were material to the findings of fact made by him.

57 By leave of the Full Bench, the respondent filed supplementary written submissions on 17 March 2003 going to the investigation undertaken by the respondent giving rise to the allegations against the appellant. In putting these submissions, Mr Salmon relied upon the transcript of proceedings before the Deputy President and the record of proceedings in the Local Court concerning charges brought against the appellant before his Worship, Magistrate P Moon (exhibit 14).

58 The respondent submitted that the evidence was that Mr Vesperman, then Club President, became aware of a discrepancy in bar takings in late 1999 and that the issue of refunds was brought to his attention in early 2000. The evidence of Mr Kent before the Local Court proceedings against the appellant was that he commenced investigations concerning profitability and margins in January 2000. The evidence of Mr Lovell, stocktaker for the Club, before the Local Court was that he conducted stock audits of the respondent between September 1999 and January 2000, reporting his findings to Mr Kent in the form of advice of "serious and obvious deficiencies". The evidence is that Mr Kent then commenced an investigation into the matter which involved himself comparing refunds of packaged beer for a period of time against employee rosters and subsequently informing Police of his conclusions.

59 Mr Salmon submitted that the date upon which the Police were first informed is not clear. However, the Police were informed prior to Mr Kent informing Mr Vesperman in early 2000. 60 Mr Salmon sets out in his supplementary written submissions the sequence of interviews and discussions with the appellant and her representatives, none of which was substantially contested.

61 Mr Salmon submitted that the evidence discloses that so soon as the respondent became aware of discrepancies in relation to its stock and supply, Mr Kent undertook an investigation and notified Police. Mr Salmon put that the evidence further disclosed that the respondent did not interview all employees regarding the matter, submitting that it was inhibited from doing so on the advice of the Police who were conducting their own investigation at the time.

62 Mr Salmon reiterated his submission that the Deputy President made no error of fact or law, correctly applying the principles of Byrne v Australian Airlines Ltd (1995) 185 CLR 410 and Wang & Ors v Crestell Industries Pty Ltd & Anor (1996) 73 IR 454.

63 Mr Salmon sought liberty to make further submissions in relation to costs in the event that the appeal was dismissed.

64 The appellant was afforded opportunity to put written submission in reply which were filed on 24 March 2003. In doing so, Mr Peters also relied upon the evidence before the Deputy President, which included the transcript and findings of his Worship, Magistrate Moon in the Police prosecution against the appellant.

65 We interpose to set out the relevant findings of his Worship in determination of the matter. In dealing with the evidence of the Investigating Officer, Detective Senior Constable Burdett and that of Mr Kent, Magistrate Moon stated: Mr Sainty of counsel, representing the defendant, cross examined Detective Burdett thoroughly. During that cross examination Detective Burdett conceded that the defendant had no prior convictions. He agreed during the cross examination that no witnesses had seen the defendant take money from the tills.

Prosecution called John Kent who told the Court that he was previously the secretary/manager of the Cootamundra Ex-Servicemens Club for a period of 13 years before retiring in April last year. He said that the Club had a central computer system, being an IBM Infogenesis(?) which was installed in the Club in either late 1998 or early 1999. He described to the Court the layout of the bar and the situation of the three cash registers in the bar. He gave evidence that each of the tills was linked to the computer system and told the Court that all transactions were recorded back to the central computer.

He explained the refund transaction system when someone purchased alcohol and returned unused portions of that purchase. He admitted that he had not seen any return of bulk purchased alcohol or any refunds. He was shown documents relating to the refund transactions and these documents were tendered and marked exhibit 2. He produced the day books showing the employees, details which were marked exhibit 3 and he produced the seller records of the Club showing details of alcohol returned to the seller from the bar area, which was marked MFI B.

He explained the procedure at the end of the day where the takings of the day were balanced with the float. He said that the float would be handed in at the end of the night with the takings for each till and a night ending report would be completed after the balance. He told the Court that any consistent excesses in the till would be notified to him but that nothing had been reported to him over the period relating to these charges. He told the Court what he thought was a reasonable tolerance in respect of the nightly balances and he told the Court that there was no staff identification numbers and no restrictions on who would use which till in the bars. He said that separate balances were provided for the poker machines and Keno balances. He told the Court that no swaps were made between these tills and that all variations were to be recorded.

He was cross-examined thoroughly by Mr Sainty and during that cross-examination he said that he was concerned about the profitability and margins of the Club and commenced investigations in January 2000. He did say that he had concerns that dated back to October 1999. He told the Court that over a day's trading at least four different people would be in the bar and he said that the till tapes discrepancies were considered each night and tolerances were allowed.

He said that he discouraged and questioned the habit of making up till shortages from excesses from other tills and he said that the supervisors employed by the Club were diligent with any large discrepancies. 66 Magistrate Moon had the benefit of evidence from employees of the Club Lorraine McDonald, bar attendant; Lynn Cudmore, bar supervisor, employed by the Club for some 20 years; and Lee Armstrong, a clerk employed by the Club for some 16 years. In dealing with the evidence of these witnesses, the Magistrate found (at pages 4 and 5 of his determination):

Each of those witnesses gave evidence of their experiences relating to the variations, which were described as "unders and overs", and the amount of those variations in their experience. Each of those witnesses was asked if they had knowledge of the Infogenesis system and their knowledge of the refunds associated with the return of packaged beer. Many of those witnesses told of mixing monies from the bar of the Keno and the poker machine tills to balance the tills at the end of the day.

Each of these witnesses told the Court of working with the defendant during the period between October 1999 and January 2000 . Each of them gave evidence of not keeping an eye on her at all times and said that it was impossible to keep an eye on her throughout the evening when they were busy. None of those witnesses had seen the defendant take any money from the tills other than during normal operations of selling drinks and giving change.

Each of the witnesses were thoroughly cross-examined by Mr Sainty and each of the witnesses apparently knew nothing about the refund button on the tills. They said that they had not been trained to use the refund buttons and none of the employees had seen the defendant put money into her pocket and none had seen the defendant operate the refund buttons. Each of the witnesses told the Court of their usual habits during meal breaks. … …

The defendant also called Janice McTavish who had known the defendant and her family for some period over 13 years as an Avon representative and also on a social basis. She gave evidence relating to the defendant's character and she said that the defendant was a kind, caring and trustworthy person. She said that she was very honest, that knowing the charges and the character of the defendant she was surprised that the defendant was involved in the charges. She said her opinion of the defendant was that she would not have jeopardised the job she had at the Club.

She was also cross-examined by Sergeant Magee. She admitted in that cross-examination that she was a friend of the defendant. The defendant elected not to give evidence, as is her right, and there was no evidence given in reply. Both counsel addressed the Court in relation to the evidence. 67 The Magistrate's concluding remarks and determination were in the following terms: Of course these are serious criminal allegations and the prosecution bears the heavy onus throughout the case to prove each and every element of each offence beyond a reasonable doubt. There is no onus on the defendant to prove anything. She has pleaded not guilty to each of the offences. She made no admissions to the police relating to the charges.

Of course the prosecution case in this matter is a circumstantial one. They rely on the defendant being present at the Club on the days of deficiencies that have been recorded. The prosecution case is that the defendant was the common factor in all the matters. The prosecution rely on her presence at the Club at the time of each deficiency being recorded. The Crown case is that she was the only person present on each occasion that the transactions were recorded and that there was no return of alcohol as recorded on the till.

Of course the prosecution must prove beyond a reasonable doubt that she and only she was responsible for the deficiencies. Evidence given to the Court clearly shows a system existing at the Cootamundra Ex-Servicemens Club which was fraught with dangers. The system of balancing the tills, the mixing of funds and the accountability of the till operators certainly left the Club vulnerable to losses. Many, including the defendant, would have had access to the tills and the Club's monies to incur the losses that have been complained of.

The system in place at the time of these alleged offences makes it impossible to find with any certainty who caused the deficiencies. Any one of a number of persons, including the defendant, had the opportunity to commit the offences but I have to be satisfied beyond a reasonable doubt that this defendant committed the offences as charged.

I certainly have some doubts as to what the defendant's role was and some suspicion but, as has been stated, suspicion is not sufficient to satisfy the Court beyond a reasonable doubt that the defendant committed each or any of the offences as charged and EACH OF THE INFORMATIONS WILL BE DISMISSED [Emphasis added] .

68 Mr Peters noted that Mr Kent commenced his investigations in January 2000 based on concerns dating from October 1999; and that a period of some nine months expired between the time Mr Kent became aware of discrepancies and the time Police were involved.

69 Mr Peters relied upon the findings of Magistrate Moon to support this contention. These findings are that a bar supervisor of some 20 years had been aware of refunds being made through the tills from October 1999, that the Club bookkeeper of some 16 years was aware that the system for recording refund transactions "purged" itself after 90 days; and that the extent of the bookkeeper's knowledge of refund transactions between October 1999 and January 2000 was of some ten refund transactions with a maximum discrepancy of around $100.00.

70 Mr Peters also referred to the evidence of Mr Vesperman of 5 June 2002. He was intent on dismissing Mr Kent as a result of his role in the events. Mr Kent was, it was contended, inexplicably unavailable to give evidence in the proceedings before the Deputy President.

71 In dealing with the issues of the Club's investigation and interview of the appellant by the respondent, Mr Peters submitted that the evidence before the Deputy President revealed that the documentation relied upon by the Club to 'incriminate' the appellant was withheld from her and her representatives, Ms McGrath and Mr Ticehurst (officials of the union), by Mr Kent, despite Mr Vesperman conceding that it should be provided and instructing Mr Kent accordingly. The evidence of Mr Ticehurst was, it was submitted, that at one point Mr Kent held the documents behind his back to prevent access by the appellant's representatives.

72 We note that the relevant evidence of Mr Ticehurst is found at page 4 of transcript of 4 June 2002 before the Deputy President. Mr Ticehurst deposed that during the meeting of 7 April 2000 he made a request to personally examine the documents to "see if I could work it out" as he had some experience in the investigation of till shortages. Mr Ticehurst specifically requested the till rolls, computer printouts and any other relevant documents. Mr Ticehurst made a further request for this information on 8 April 2000 on which occasion Mr Vesperman directed Mr Kent to provide the documents. Mr Ticehurst was never provided the documents for examination.

73 Mr Peters submitted that support for lack of proper investigation and consequential denial of procedural fairness was demonstrated by the fact that Mr Kent's employment was terminated due to his failure to adequately investigate and report on the stock and cash discrepancies. Mr Peters submitted that the respondent conceded that a limited investigation had occurred, (with the respondent asserting constraint by Police). Mr Peters submitted that this should not be used to "convict" the appellant.

Leave to appeal 74 It is now well recognised that the relevant principles governing leave to appeal are to be found in Knowles v The Anglican Church Property Trust Diocese of Bathurst (1999) 89 IR 47. Leave will not lightly or automatically be granted. In considering the grant of leave, it is relevant whether a new, or substantially different, case has been brought on appeal from the case at first instance and also whether the appeal raises "substantial and important considerations." 75 We have some reservations about granting leave to appeal in this case, because the relatively sophisticated arguments (and supporting aides) put to the Full Bench analysing the Club records (which lay at the centre of the factual controversy at first instance and on appeal) were not made available to Deputy President Sams in the proceedings below.

76 On balance, we consider leave to appeal should be granted, however, for four reasons. Firstly, all of the evidence to which we have been referred was before Deputy President Sams and, although the submissions, as we have noted, were significantly enhanced, the fundamental contentions of the appellant remained unaltered on appeal.

77 Secondly, the central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326:

The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. 78 Thirdly, we also agree with the Commission's affirmation in that case of the "general industrial principle" as stated by Dey J in Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 at 1049, that "the interests of employees are an important aspect of public interest". We note too the Full Bench's agreement in Burge v NSW BHP Steel with Hungerford J's view expressed in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 84, that where a very serious allegation against an employee was found to have no substance, that such a finding should be clearly made and published. Whilst in the Pastrycooks Case this led his Honour to conclude that this represented "a very compelling consideration for restoring the employment relationship otherwise unlawfully severed", in circumstances where we have found not only that there were serious issues to be tested on appeal, but also that there was in fact a substantial error in the findings of fact in this case, we conclude that considerations of this kind support the application for leave to appeal in this case.

79 Fourthly, there are issues of general importance in this matter going to the question of the determination of s84 applications where the approach by an employer prior to termination was procedurally unfair. Those issues arise in this matter as a consequence of the investigations undertaken by the respondent and its officers into the allegations made against Ms Humphries. It is notable that, whilst the appellant was called upon to answer allegations, and invited to explain anomalies allegedly resulting from her conduct, she was not given access to the documents around which the inquiry centred (despite strenuous efforts by her representatives to obtain those records). This placed her in an untenable and unfair position. If the documents had been provided to the appellant in the course of the original investigation, she may well have avoided the further resulting unfairness of having to account for her behaviour on a purely speculative basis, which subsequently took on greater significance, since Deputy President Sams considered these explanations to discredit the appellant's evidence generally (although none of them went directly to the issue of the significance of the Club records and what they disclosed as to her conduct).

80 It has also not escaped our attention that had the records been earlier provided, in accordance with the instructions of the Club's President to its manager, Mr Kent, the appellant would have had the opportunity to air the concerns put to us, and this may have resulted in the Club taking steps to consider fully informed explanations much in advance of litigation.

The Appeal 81 As was stated in King v The State Bank (unreported, Wright J, President, Walton J, Vice-President, & Kavanagh J, 23 December 2002 at 65): The nature of an appeal is to be determined as a matter of construction having regard to the provisions of the relevant statute providing for the appeal and the nature of the decision the subject of appeal.

82 It should be noted at the outset that the decision of Deputy President Sams to which this appeal relates was not one of a discretionary nature of the kind considered in House v The King. The question which his Honour determined was whether the dismissal was harsh, unreasonable or unjust in the circumstances. The determination of that question involved mixed issues of fact and law, rather than the exercise of discretion per se (see Burge v NSW BHP Steel at 4, citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59). As such, the appeal is an appeal in stricto sensu (see King v State Bank at [65]). As cited in King v State Bank at [70], the relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors State Award (1997) 72 IR 225 (citing Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149):

It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker ((1993) 48 IR 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence.

83 The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]): The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). [Emphasis added].

84 These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]): The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154).

85 The proof of the conduct of the appellant in this matter was dependant on circumstantial evidence. In this respect, the reasoning of the Full Bench in Burge v NSW BHP Steel (at [6]) is also applicable: We have to say the Commissioner's process in reasoning the available facts, many of which were based on circumstantial evidence, was inconsistent with the evidence so as to lead to an unreasonable explanation for what occurred. As was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375: If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference.

In the result, as will later emerge from these reasons, Redman C, in our opinion, fell into error both of fact and law requiring appellate intervention.

86 The Club contended at first instance and in this appeal that the Commission should find that the dismissal of the appellant was not harsh, unjust or unreasonable as the appellant had engaged in the unusual transactions and that such conduct warranted summary dismissal. We note, in this respect, as did the Deputy President, that where an allegation of misconduct is raised as a defence or as a justification for a particular course of action, the legal burden shifts to the respondent employer (although the onus to be discharged in unfair dismissal proceedings is to establish to the satisfaction of the Commission according to the civil standard of proof, that the dismissal was harsh, unreasonable or unjust): Pastrycooks Case at [83] - [84]) and Price v Box Valley Pty Ltd (1999) 90 IR 480 at 483.

87 It was fundamental to the Deputy President's conclusion (that the dismissal was not harsh, unjust or unreasonable) that Ms Humphries was, indeed, guilty of misconduct. His Honour reached this conclusion on the basis that the appellant was the only person capable of being involved in all of the dubious refund transactions. We consider that this finding of fact by his Honour was erroneous for the following reasons.

88 The evidence showed that on at least one occasion where a dubious refund transaction was performed, the appellant was not at work and, in fact, was suspended and removed from the Club's premises. This consideration was not the subject of any discussion or consideration by his Honour.

89 There is no tenable basis, in our view, upon which it could be said that this transaction was either attributable to the appellant or, as suggested by the respondent, a replica of the other 'unusual transactions' but without any insidious aspects. This consideration was never satisfactorily explained by the Club on appeal having regard to the evidence at first instance.

90 There are, as we discuss shortly, many other aspects of the Club's records which suggest the innocence of the appellant. However, this single transaction (which appears in the Clubs records) strikes at the foundation of the Deputy President's findings referred to in paragraph [85] above.

91 As to the remainder of the Club's records, the Deputy President recognised that there were deficiencies in the record keeping at the Club which raised questions about their accuracy. For example, he found: [183] I readily acknowledge that Mr Acev successfully established that the employee time records and rosters (Ex"B") were not accurate. I accept the evidence that the rosters were a guide and that the time records were filled in by the employees (sometimes long after) and not verified by management. However, the extent of the inaccuracies did not amount to incorrect shifts, but rather small variations in the times taken for breaks. Mr Miller's evidence was that the variations related to how busy the bar was at the time. He said the variations did not relate to start and finish times. I accept his evidence.

[184] It is a wide leap of logic to assume, as Mr Acev put, that the records prove the applicant was not on duty at the time. Indeed, there was no evidence that the applicant was somewhere, other than in the Club when the unusual transactions were conducted. Despite Mr Acev 's valiant efforts to shift the focus of the case to the respondent's deficiencies as proving the applicant could not be responsible, this is really not the issue. Whether a number of employees shared or inherited the till takings or whether the rosters were not completely accurate, does not address the more fundamental issue of when the refunds of packaged beer occurred…

92 However, Sams DP did not find that those records raised doubts about the guilt of the appellant. Putting aside the single transaction earlier referred to by us, we consider (consistently with the findings of Magistrate Moon) that the deficiencies in the Club record system made it highly improbable that, even on a civil standard of proof, the appellant could have been found to be the perpetrator of the unusual transactions. We consider that Sams DP gave insufficient weight to this factor.

93 We also have in mind, in this respect, the findings of Magistrate Moon (at [6]) that the system existing at the Club was "fraught with danger", (although reference might also be made to the explication of the problems by the Deputy President at [159] - [163] of his decision). This included the risk posed by the 'balancing' of tills by supervisors (appropriately described by one of the witnesses to the criminal prosecution as "robbing Peter to pay Paul") and the mixing of funds (between different staff, since there were no individual tills or floats or signifiers for individual transactions, and between service areas, as monies from the bar area routinely intermingled with the monies from the poker machines and Club Keno). The Magistrate further noted that many people had access to the tills and to the monies. In consequence, it could not be deciphered exactly how the fraud had been perpetrated, nor who was responsible for it. All of the above practices combined to remove accountability and to frustrate attempts to trace culprits. Magistrate Moon stated: "The system in place at the time of [the] alleged offences makes it impossible to find with any certainty who caused the deficiencies." We agree. Even taking into account the lower standard of proof applicable in civil proceedings, the extent of the deficiencies in the employer's management systems makes it near impossible to prove on the balance of probabilities who caused the deficiencies, and makes it highly unlikely that the appellant could have been found to be the perpetrator of the unusual transactions.

94 In any event, a close examination of the balance of the Club records (as demonstrated by the spreadsheet analysis) not only casts further real doubt upon the appellant's involvement in the unusual transactions, but gives rise to a strong inference that the appellant was not involved in such conduct. We accept Mr Peters' submission that the Club records demonstrated that the appellant may not have been at work at the time of some of the transactions and that the records were not only inaccurate but were unreliable insofar as they were recorded in many different 'hands' and were recorded well after the completion of shifts. Further there was the fact that Mr Kent's 'PIN' had been used to login to, and access, the till on at least one of the days on which suspect transactions occurred and the fact that, notwithstanding how difficult it must have been to perpetrate a fraud of such a scope as was alleged, no-one ever saw the appellant taking money from or, otherwise acting inappropriately in relation to, the tills. These submissions gave rise to a strong inference that the appellant was not, in fact, involved.

95 Thus, from our own close examination of the Club records and the evidence relating to them, we do not consider that the records demonstrate that the appellant was, as found by the Deputy President, the only person who may have committed the unusual transactions. Indeed, we would add that the Club records do not demonstrate that the appellant was engaged in such conduct.

96 We are mindful in reaching this conclusion that the Deputy President made substantial adverse credit findings against the appellant and that the respondent relied upon these findings as a significant factor which should sustain the decision at first instance.

97 We refer to the decision at first instance where his Honour stated in this respect (at [173]-[178]): …Here the applicant was the only common denominator in all the unusual transactions. No similar transactions occurred when she was not on duty which might point to the involvement of some other person/s.

[174] I have also had regard for the applicant's overall credibility. Her credibility must surely be questioned when one considers the ridiculous and implausible allegations made by her against other employees, including supervisors and work colleagues.

]175] One allegation was that other staff and supervisors were drinking and gambling on duty. This allegation is immediately suspect when it is considered in light of the applicant's own evidence. It was her evidence that she only raised the issue after learning that other employees would not support her claim of the daily cash overs being handed direct to the supervisors. In other words, it was nothing more than an unsubstantiated "payback".

[176] The applicant claimed that the supervisors were responsible for the missing money. The bistro staff may have been involved. Witnesses had lied to the police.

[177] This allegation is bizarre. Logically, it must mean that a number of supervisors, many still employed by the Club, had acted in concert to defraud the Club. They all survived unscathed, both a criminal investigation and a criminal trial in which they gave evidence.

[178] I would apply the principle reductio ad absurdum to demonstrate the falsity of the applicant's premise by the absurdity of its conclusion…

98 However, as the relevant authorities demonstrate, credit findings are not immune from appellate review. It is timely to restate what may be regarded as the settled approach regarding appellate review of findings of fact and credit. In the joint decision in Abboud v NSW Department of Education (1999) 92 IR 32, Wright J and Walton J stated (at 43): In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley, Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1999) 160 ALR 588] all show that courts such as this Court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. This has been the position generally adopted by this Court and its predecessors: see Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406 and Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154. … Some additional considerations may arise where the findings of fact are based upon perceptions formed by a trial judge as to the credibility of a particular witness or witnesses. It has frequently been observed that a trial judge possesses a considerable advantage over an appeal court by virtue of having seen and heard the witness give evidence and it would be wrong to overlook "the subtle influence of demeanour" upon the resolution of conflicts between evidence: see, for example, Jones v Hyde (1989) 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In Devries , it was held (at 479) "that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact": see also Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 179; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154.

99 In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) 160 ALR 588, Gaudron, Gummow and Hayne JJ stated (at [63]): [63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page. 100 In relation to the "real advantages" enjoyed by the trial judge with regard to witness credibility, Kirby J stated (at [89]-[90] and [93]) in the same judgment:

[89] None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.

[90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. … His Honour then analysed the circumstances under which credit findings may not be conclusive on appellate review as follows:

[93] Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal. Take the following instances which are by no means exhaustive: …

2. It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed or implied assumptions about the evidence (eg that witnesses are in conflict) which careful analysis of the record demonstrates to be incorrect. …

6. Conversely, in a particular case, a trial judge may make it plain that the conclusion reached does not depend upon credibility considerations or impressions about the demeanour of a witness but upon the judge's assessment of objective facts or inferences to be drawn from the facts as found. Ordinarily, the appellate court will then be in as good a position as the trial judge to make the assessment and draw the inferences. Care must be taken not to exaggerate the significance of such expressed conclusions. A failure specifically to mention a witness's appearance or demeanour does not necessarily exclude that consideration if it is deemed inherent in the conclusion which was reached. Similarly, the fact that a judge may not feel justified in condemning a witness as untruthful is not necessarily equivalent to an affirmative opinion by the judge that the witness has endeavoured to give truthful testimony.

7. There is also the case, as was accepted in the early Privy Council decisions, where, although a credibility finding has been made which represents an apparent obstacle to appellate review, it is so contrary to the "extreme and overwhelming pressure" resulting from the rest of the evidence, or is so "glaringly improbable" or "contrary to the compelling inferences of the case", that it justifies and authorises appellate interference in the conclusion reached by the trial judge. In this, as in other areas, the law recognises imperfection of its processes and the need to avoid absolute and inflexible rules. It affords to the appellate court the power to intervene so as to prevent the risk of a serious injustice where this is clearly demonstrated. Such jurisdiction, held in reserve, is exercised with a full appreciation of the elusiveness of certainty in any trial process; the value accorded to the interest of finality in litigation; and a realisation of the costs and other disadvantages inherent in appeal and retrial. Full reasons must be given by the appellate court to demonstrate that, notwithstanding the credibility finding, the result of the trial is "palpably", "glaringly" or "compellingly" erroneous when viewed in the light of all of the evidence. If this Court considers that the circumstances are insufficiently exceptional, the reasons unpersuasive and the interference unwarranted, it may say so. It will then restore the trial judge's findings as, from time to time, it has done.

101 We have also had regard to the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 197 ALR 201 (at [25]-[29]). We note, in particular, their Honours' observations (at [28]) that: [T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43]. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" [45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. 102 However, the additional bases for the adverse credibility findings of the Deputy President in this case went to the plausibility of the appellant's denials and counter-allegations, and not more directly to the finding of misconduct.

103 In identifying the apparent misconduct, the Deputy President reached a central and determinative finding (that the appellant was the only 'common denominator') on the basis of objective facts, taken from documentary evidence. This was a finding which we have found to be erroneous and one in relation to which we experience no comparative disadvantage in our appellate capacity. We note, in this respect, that the Deputy President also made adverse findings as to the appellant's denials and counter-allegations but we consider that these findings were substantially influenced by the primary findings made by his Honour as to the appellant's involvement in the unusual transaction (which in turn, was based upon his Honour's analysis of the Club records). Nor do those findings overcome the conclusions derived from the Club records, which negate findings as to the guilt of the appellant. Thus, the credit findings do not sustain the finding of misconduct because they do not directly establish the facts necessary for that finding and do not diminish the significance of the objective facts (that is, the Club records) which directly bear on that question. In that way, the Club records and, in particular, the single transaction after the appellant's termination represent an incontrovertible fact of the kind discussed in Fox v Percy.

104 We consider then that the findings of fact made by the Deputy President as to the appellant's involvement in the unusual transaction were erroneous. Given that those findings underpinned the conclusion reached by his Honour, that the appellant had been guilty of misconduct and hence that the dismissal was not harsh, unjust or unreasonable, we consider that those conclusions were also erroneous.

105 For these reasons, we consider that the appeal against the decision of Sams DP should be upheld and the decision quashed.

106 This raises the question as to the order which should be made in final resolution of the s84 application. Consistently with the decision in Price v Box Valley Pty Ltd at 485 we consider that it would be inappropriate to remit this matter for rehearing. This approach is particularly appropriate in this matter as many of the issues in the proceedings may be resolved by reference to documentary evidence. Further, much of the oral testimony goes to the question of various procedural issues which do not raise credit issues. And, as we have noted, the credit findings of the Deputy President related substantially to explanations given by the appellant as to her non-involvement in the unusual transactions, which denials have in any event been supported by the documentary evidence.

107 In that regard, we consider that the dismissal of the appellant by the respondent was, in all the circumstances, harsh, unjust and unreasonable. The reasons for that decision are threefold.

108 Firstly, we have had regard to the decision of the Magistrate in the original proceedings. We agree with Sams DP (at [143]) that the appellant's acquittal from the criminal charges does not automatically result in an order for reinstatement. He cited the following passage from the judgment of Watson J in Australian Workers Union, NSW Branch v Colgate-Palmolive Pty Ltd (1988) 27 IR 420 (at 427) (with which we agree): It is not unusual for events which lead to the dismissal of an employee to involve criminal proceedings. It has been held that an acquittal does not necessarily result in an order for reinstatement. The conclusion of the commissioner could in no way be relevant in deciding the police charge. Similarly the conclusion of the magistrate does not determine the event in this appeal. ( BHP v Plumbers' Union; Re Nemecek 143 IG 252; (1961) OILR 271). That is correct even though, as in this case, the primary basis for dismissal was the same circumstance and was for all practical purposes the very charge dismissed by the magistrate. Notwithstanding that and that it is a proceeding with a different onus of proof involved, it is clear that if the decision of the magistrate in this case is soundly based, it is a factor which would throw considerable doubt on the decision under appeal.

109 We would also refer, however, to Watson J's explication of the correct approach to be taken to an acquittal in such circumstances (further, at 427): Although this is an appeal from the commissioner and not an appeal from the magistrate, it is accordingly obvious that both decisions must be examined critically, in particular, with reference to the methods used by or available to both tribunals to resolve the conflict of evidence concerning certain material facts.

110 The appellant in this case was acquitted at first instance before Magistrate Moon. Sams DP correctly asserted that a different standard of proof applied in the proceedings before him. In addition to his lengthy examination of the case law exploring the relationship between criminal and civil proceedings, however, Sams DP made only the following statements regarding the dismissal of criminal charges against the appellant (at [159]): Before turning to the allegations against the applicant, it is necessary, I think, to make some critical comments on the cash handling procedures of the respondent at the relevant time. These deficiencies were adversely referred to by his Worship Magistrate Moon in February 2001. I note that corrective measures have since been taken and new procedures introduced.

111 He recited (at [123]) the appellant's submission that the Magistrate's decision was soundly based and that it cast doubt on whether the dismissal was unlawful and the respondent's submission (at [169]) that "the magistrate expressed his suspicions as to the applicant's involvement, but could not make a finding "beyond reasonable doubt".

112 We consider that the fact of, and reasons for the appellant's acquittal by the magistrate constitute a relevant consideration for the purposes of determining the s84 application in favour of the appellant. Whilst Magistrate Moon expressed "some doubts as to what [Ms Humphries'] role was and some suspicion", this comment was made in the context of a series of findings going to the Club's systems, including, as earlier mentioned, that they were "fraught with dangers". It was not at all clear what was to be construed from the Magistrate's reference to "suspicion". His Worship's other comments did not refer specifically to the appellant. On the contrary, the Magistrate said: "The system in place at the time of the alleged offences makes it impossible to find with any certainty who caused the deficiencies". We also note that in consequence of the nature of the proceedings before him, it would appear that his Worship, like the Deputy President, was not privy to the same analysis that we have been taken to in the proceedings before us. Further, we again note that many of the Magistrate's findings strike at the heart of any finding of misconduct here - because the system in place at the Club at the relevant time was not capable of demonstrating the guilt of any person or persons whether on the criminal or civil standard of proof (although aspects of that record affirmed the appellant's contentions).

113 Secondly, we consider that, as earlier discussed, it has not been demonstrated to the requisite standard that the appellant was engaged in the "unusual transactions" and thereby that she was guilty of misconduct warranting dismissal. The appellant has steadfastly maintained her innocence, has successfully defended criminal proceedings brought against her and presented a cogent case before this Commission as to the absence of misconduct by her (that is, that she was not engaged in the unusual transactions). Further, there is nothing to suggest that there were any other adverse features of the appellant's employment, apart from the allegations as to the unusual transaction being made against her. 114 Thirdly, the dismissal was harsh, unreasonable and unjust due to the procedures adopted by the Club in terminating the appellant. Notwithstanding that at all relevant times the appellant knew the general nature of the allegations against her, there was, in reality, a deprivation of any proper 'opportunity' (to use the language of s88 (b) of the Act) to make out a defence in relation to the allegations made against her, or to give an explanation of the conduct which was said to warrant dismissal. Whilst the respondent appropriately interviewed the appellant and invited her to provide an explanation, she was deprived of the actual records to which the allegations related. This failure so fundamentally affected the appellant's opportunity to give an explanation or provide a defence as to effectively, if not formally, deny that right absolutely.

115 This denial of access to the Club records amounted to a substantive failure to provide such an opportunity and thereby was a substantially unfair procedure. To the extent that illustration of this is necessary, this was demonstrated by the fact that, in a sense, the whole process in this case miscarried in consequence of it - leading not only to the appellant's summary dismissal, but also to the lack of assistance afforded to the Deputy President in hearing the matter, in that his Honour received only limited submissions or analysis because of the lateness of the receipt of the records in question.

116 By virtue of the respondent's unfair investigation procedure, from the outset the appellant was placed in a false position in relation to the allegations. She was, in effect, invited to incriminate herself by providing information to explain conduct which purported to have been her own, but in circumstances in which it was not effectively possible for her to confirm that the anomalies for which she was deemed responsible were even within her command.

117 It was the respondent's submission that the appellant was generally aware of the nature of the allegations against her, being that it was alleged that she had stolen from the Club's till. However, it would appear that at least initially (when she was first interviewed by the Police), the appellant was unaware that she was being accused of being responsible for the suspicious transactions. In was in that context that she suggested it was possible she may have mis-keyed the electronic till. She was shocked when her employment was suspended by the respondent.

118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 119 We have already expressed concern with regard to the circuitous and apparently self-fulfilling process that seems to have led Ms Humphries to making statements, which were subsequently adversely interpreted by the Deputy President. As was stated in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 (at [319]), however, procedural defects will generally be more serious in circumstances in which the unfairness derives also from a breach of a legal obligation. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, (at 4, 5 and 8) the Full Bench of the Commission stated that: [W]here procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 120 We are also mindful of the comments of a Full Bench of this Commission in Rich River Golf Club Ltd v Power [1995] NSWIRComm 75 that: This denial of procedural fairness may not have been sufficient for us to support the finding by the Commissioner that Ms Power should be re-instated except that the provision was an actual award provision binding the parties in its terms.

121 In upholding the first instance decision in that case (requiring strict adherence to the relevant provisions), the Full Bench gave an indication of the significance that must attach to the terms of an instrument such as an award.

122 Although submissions were not received in relation to the question in this case, given the terms of the relevant industry Award, we note its potential relevance in the circumstances of this case. The Club Employees (State) Award (2 July 1999) 319 IG 589 provides in Clause 30 'Settlement of Disputes' of the award inter alia that: 30.1.9 In the case of dismissal the employer shall , without prejudice to his final rights, ensure than an employee is subject to the accepted counselling procedure, has an opportunity to answer any allegations put to him and has the opportunity of being represented by a Union official in accordance with this procedure prior to dismissing the employee. The employer shall comply with this requirement by advising the employee that dismissal is being considered, that the employee has the right to be represented by a Union official and allowing sufficient time for a Union official to attend; provided that, where a Union official does not attend within 3 days from the advice of the employer to the employee, the employer may deal with the dismissal without a Union official being present. 30.1.10 Where an employer is considering dismissal he may suspend an employee from attendance at the workplace for the purpose of observing this procedure, in which case the employee shall receive the total wages that would have been payable according to the employee's roster had the employee not been suspended. [Emphasis added]

123 We consider that the obligation reposing in the employer by this sub-clause, to ensure that an employee has an opportunity to answer any allegations put to the employee, by implication requires the employer to furnish the employee with such information as would reasonably enable the employee to understand and respond to the allegations made against her or him. We consider that the Club failed in that obligation. 124 In these circumstances we consider that the dismissal of the appellant was harsh, unjust and unreasonable. We turn then to the question of whether the appellant should be granted the relief sought by her.

125 The appellant sought reinstatement to her former position. Applying the approach identified in Burge (at [35]), we consider that reinstatement in the matter is not impracticable and is the appropriate order to make in all the circumstances. Whilst the appellant did make various accusations against some of the Club's officers in the course of the various proceedings, this must be understood in context; that is, in light of the circumstances facing the employee during the investigation process. We do not consider that they represent an insurmountable impediment to reinstatement now. Indeed, on the contrary, we consider that where the employee has been essentially vindicated, as in this case, that result is just. Nor do we consider that the evidence of some Club officers (and one casual employee) that there may be a lack of trust in the appellant and some reluctance to work alongside her (in relation to the operation of tills) to be a convincing basis for the refusal of the grant of reinstatement (being the primary remedy available where a dismissal is found to be harsh, unreasonable or unjust), because those sentiments were based upon a false premise as to the appellant having been found guilty of such conduct.

126 The appellant has sought restitution of remuneration lost as a result of her dismissal. An order may be made pursuant to s89(3) where, as in this matter, reinstatement will be ordered, provided that the amount of remuneration ordered does not exceed the remuneration the appellant would, but for being dismissed, have received before being reinstated in accordance with an order made by the Commission. In considering whether an order for the payment of monies should be made under that sub-section [or under s89(8)], it will be necessary to have regard to the circumstances giving rise to the determination of the s84 application (see Burge at [36]) and it may be appropriate to have regard to the conduct of the parties to the proceedings. Both such considerations are applicable to the determination of this matter.

127 The findings we have made in favour of the appellant, and the conduct of the respondent giving rise to the 'procedural fairness questions' in this matter, would typically result in an order for full restitution of wages lost in favour of the appellant, subject to an allowance being made for monies earned since the dismissal of the applicant. (We note, in this respect, that Sams DP found that the appellant had unsuccessfully searched for employment since her dismissal and that such searches had been adversely affected by the accusations which had been made against her).

128 However, we consider that that result should not follow in this matter for two reasons: 1. Whilst we understand the dilemma in which the appellant was placed in dealing with the accusations made against her in the absence of the Club records, the accusations and claims made by her no doubt had the effect of exacerbating those factors which resulted in the proceedings at first instance being complex and unduly delayed. 2. The inappropriate approach adopted by representatives of the appellant in making a s173 application during an earlier stage of the proceedings below, no doubt, significantly prolonged the ultimate disposition of the proceedings at first instance (see, in this respect, Humphries and Cootamundra Ex-Services and Citizens Memorial Club Ltd (unreported, Walton J, Vice-President, Sams DP and Tabbaa C, 18 December 2001, Matter No. IRC1852 of 2000)).

129 In these circumstances, we do not consider that full restitution of remuneration lost should be given. We have decided instead to order that the respondent pay to the appellant an amount equal to 50 per cent of the wages the applicant would, but for being dismissed, have received before being reinstated, less any monies earned by the appellant from employment since her dismissal. Orders

1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Sams DP of 6 September 2002 is quashed. 4. The respondent shall reinstate the appellant in her former position without loss of continuity on 30 July 2003. 5. The respondent shall pay the appellant an amount equal to 50 per cent of the wages the appellant would, but for being dismissed, have received before being reinstated in accordance with Order 4, less any monies earned by the appellant from employment during that period. 6. The appellant shall file and serve draft orders within 7 days of this decision reflecting this decision. The respondent shall advise the appellant's representative if it disputes those orders within a further 3 days and, if the order is so disputed, file and serve a document to that effect incorporating its view as to the appropriate form of the orders reflecting this decision within 14 days of this decision. If any dispute exists as to the proposed orders they shall be settled by Harrison DP on delegation from the Full Bench. Otherwise orders shall be made in Chambers.

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