s.45 appeal against decision Print S0279

issued by Senior Deputy President Watson on 21 October 1999

s.170CE application for relief re termination of employment

[1] This decision is about an appeal by Mr King (the appellant) against a decision of Senior Deputy President Watson on 21 October 1999 [Print S0279] in which his Honour dismissed the appellant's application for relief in respect of the termination of his employment by the respondent, Freshmore (Vic) Pty Ltd (Freshmore).

[2] Mr King was employed as a labourer by Freshmore in November 1995. Freshmore makes prefabricated concrete panels which are used in the construction of buildings. Mr King initially did carpentry work associated with making the frames into which concrete was poured to produce a prefabricated panel. After November 1996 he worked in the concreting part of Freshmore's operation. In November 1997 Mr King injured his back at work and submitted a WorkCover claim in respect of his absence from work. The claim was subsequently approved. As a result of his injury Mr King was placed on light duties. In June 1998 the appellant received a written warning for not complying with the light duties restrictions imposed as part of his "Return to Work Plan".[1]

[3] On 6 August 1998 Mr King received a written warning which was said to be directed to "the reckless way in which you were driving the forklift, namely reversing at excessively high speed and not looking behind you to ensure nothing was in your way, and endangering your fellow workmates by your actions."[2] Mr King was informed that he was no longer to drive the forklift as part of his duties.

[4] Mr King received a further written warning on 17 November 1998 in relation to, among other things, his failure to carry out his duties in accordance with the return to work plan.[3] We note here that Mr King contests a number of the allegations made in the written warnings he has received.

[5] In early December 1998 the applicant was taken off "kibble crane" duties for "safety reasons", without explanation. This change in duties related to two alleged incidents involving Mr King's operation of the crane on 25 and 27 November 1998.[4]

[6] On 18 December 1998 an incident took place in the respondent's smoko room. The two participants were Mr King and a Mr Guthrie. At the time the incident took place Mr Guthrie was employed by Freshmore as a supervisor. Mr King and Mr Guthrie differ in their recollection of the incident, there were no other witnesses.

[7] Mr Guthrie's recollection of what occurred is set out at paragraph 2 of his witness statement, in the following terms:

"At 10.15 a.m. on 18 December 1998, it was my duty, after smoko, to collect the milk and place it in the fridge in the smoko room. The fridge is near the entrance to the smoko room. I walked in, put the crate down on the ground and commenced to fill the fridge with milk. When I entered the smoko room Michael was at the table he used, close to the windows about 4 metres away. As I was loading the fridge, I heard him ask where his coffee cup was. I turned in his direction and replied that I did not know where it was. As I was replying he was approaching me and he came very close to me. That is, his body was 4-6 inches away chest to chest and he then projected his face and nose to the point where his nose was about 3 inches from the bottom of my face. He then called me a liar and a thief. He spoke in a raised voice. I replied that `it was a pity he wasn't so brave outside the factory'. I did this in a speaking tone. He then said `anytime I was ready' and then said `it was good that I was living up in the bush because it should be a good fire season this year'. He then left."[5]

[8] Mr Guthrie was cross-examined on this part of his evidence, but did not depart from his previous statement.[6] Mr Guthrie said that he interpreted Mr Kings comment that "it was good that I was living up in the bush because it should be a good fire season this year" as a threat to burn his house down.[7]

[9] Mr King's recollection is somewhat different. At paragraph 39 of his witness statement he says:

"On or about 18 December 1998 at morning smoko time, I noticed my coffee cup was missing again. Darren Guthrie was in the smoko room and I asked him if he knew where it was. He said sarcastically `look in the hand cleaner'. I responded angrily verbally, but I did not physically assault or threaten him."[8]

[10] The reference to the "hand cleaner" is a reference to a previous incident in which Mr King found that his coffee cup had been filled with hand cleaner.[9]

[11] The smoko room incident was reported to Mr Gilson, the managing director of Freshmore. Mr Gilson interviewed Messrs Guthrie and King. Mr King admitted that he had called Mr Guthrie a liar and a thief but denied making any threat to burn his house down.[10] At that point Mr Gilson formed the view that as it was one person's word against another the incident did not justify the termination of Mr King's employment. Mr Gilson informed Mr Guthrie of his decision whereupon Mr Guthrie tendered his resignation on the basis that "no job was worth putting his wife and family at risk"[11].

[12] At Mr Gilson's request Mr Guthrie subsequently put his resignation in writing. Mr Guthrie also told Mr Gilson that he would withdraw his resignation if Mr King's employment was terminated.

[13] The fact that Mr Guthrie had tendered his resignation persuaded Mr Gilson to accept Mr Guthrie's version of the smoko room incident and to conclude that Mr King had, despite his denial, threatened Mr Guthrie and his family.[12] Mr Gilson then conferred with Mr Berryman, the factory manager, and Mr Reefman, the shop steward, before calling Mr King to his office. Mr Gilson's evidence was that his main emphasis during the subsequent meeting with Mr King was on "the fact that I believed the allegations to be true, and on that basis, when people's lives are put at risk I felt I had no choice but to terminate his services."[13] Mr Gilson then proceeded to terminate Mr King's employment.

[14] On 22 December 1998 Mr King received a letter from Mr Gilson confirming the termination of his employment and enclosing a separation certificate and final pay entitlements.[14] The termination letter states:

As you are aware, there have been numerous attempts by our Company to accommodate your return to work following your report of back injury.

Workcover, our Company and yourself, have entered into two Return to Work Plans, the most recent one being executed by you on 10 November 1998. I am informed by your Supervisors that you have failed and continue to fail to carry out those duties in accordance with the Return to Work Plans. You are aware that we received a letter

from your Solicitors, Ryan Carlisle Thomas, wherein they advised that they were instructed that whilst on the latest Return to Work Plan you aggravated your back condition. You were counselled in relation to this and your request not to `sweep the floors' was granted. You were otherwise happy to continue with the remaining duties in the Return to Work Plan. This Company's decision to terminate your services has nothing whatsoever to do with your Workcover claims (as you are well aware) but, rather, is due to failure to comply with lawful directions and industrial safety.

On Wednesday 25 November 1998 you were observed whilst operating the kibble that you carelessly directed it in the direction of our factory manager, Mr. Paul Berryman, and without warning stopped the kibble suddenly causing it to sway and exposing Paul to danger.

Again on Friday 27 November 1998, our Company's leading hands Jason Corbett and Jim Albon were standing near table 12 whilst you were operating the kibble. On this occasion you were moving the crane in a northerly direction initially well clear of Jason and Jim. However, when the kibble was nearly level with them you operated the crane in a reckless and dangerous fashion by moving the crane unnecessarily eastward towards where they were standing. No warning siren was sounded and, indeed, had not Jason ducked his head, he would have been hit. This incident occurred notwithstanding your many years of experience in operating the crane and the Company's direct instructions and safety instructions in this regard.

Your later explanation that you say that you sounded the horn and that you `operate the crane well and can't help if people ignore warnings - that's their problem' was totally unsatisfactory and echoes our concerns about your continuing disregard for observing industrial safety standards. As a consequence, it would have been reckless for our company to continue to allow you to operate the crane and, in the interests of safety, the operation of this crane was removed from your list of duties. Hank Reefman, the Union Shop Steward, saw this incident and he reports that no warning siren was given. As a consequence, this serious incident was reported to management.

Following your removal from operating the crane (which, as you are aware, was part of the duties contained in the Return to Work Plan), you then continued to disregard the instructions from your supervisors in that you were observed walking away from your work station (without seeking prior permission) at various intervals during the day despite repeated requests to desist and continue working. You have been repeatedly told that such conduct is disruptive to your fellow employees and the efficient operation of the factory.

Last Friday 18 December 1998 you again left your work station without permission, notwithstanding previous directions to the contrary. At `smoko' you accused Darren Guthrie of stealing your coffee cup and became very aggressive towards him standing toe to toe in a manner that may have caused a physical confrontation.

We received an immediate report from Mr. Guthrie who alleged that you had called him a `liar and a thief' (which you have subsequently admitted in your meeting with me and Mr. Reefman) and, further, during the escalation of this incident, Mr. Guthrie interpreted your remarks that his family home in Cockatoo was at risk from actions that you may take. Arguments over a coffee cup escalating to such a serious confrontation

are simply unacceptable. This occurred in circumstances where you had no evidence or knowledge as to who may have removed your coffee cup. After considering all the facts, it is the Company's view that you were the instigator of the incident.

I also draw to your attention that you have received four (4) official warnings on previous occasions in relation to your failure to carry out your duties. This latest incident of threatening physical violence in the factory has concluded our attitude towards your continuing employment.

Management's investigations of these matters took some considerable time on Friday. Consequently, ten minutes prior to your scheduled knock-off time on Friday, your services were terminated. Indeed, you told me and Hank, in response to my question as to how the problems should be solved, that `perhaps you should sack me!'

Please find enclosed your separation certificate together with your final pay entitlements.

A copy of this letter is being forwarded to your Solicitors, Messrs. Ryan Carlisle Thomas, the Building Union Division of the CFMEU and QBE, our Company's Workcare insurer."[15]

[15] On 8 January 1999 Mr King lodged an application for relief in respect of the termination of his employment under s.170CE of the Workplace Relations Act 1996 (Cth) (the Act). The matter was not settled by conciliation and proceeded to arbitration before Senior Deputy President Watson. On 21 October 1999 the Senior Deputy President gave his decision in the matter and concluded in the following terms:

"I am not satisfied that the termination of the applicant was harsh, unjust and unreasonable. The application for relief in relation to the termination of employment is dismissed."[16]

[16] The matter before us is an appeal by Mr King against his Honour's decision.

The appellant challenged the decision subject to appeal on eight broad grounds:

* No valid reason - the Senior Deputy President had erred in concluding that there was a valid reason for Mr King's termination.

* No procedural fairness - the Senior Deputy President had erred in concluding that the smoko room incident had been reasonably investigated and that Mr King had been afforded procedural fairness in the investigation of the issue.

* Exclusion of relevant evidence - the Senior Deputy President had erred in discounting the relevance of Mr King's WorkCover claim and the warning issued to Mr King on 2 June 1998, and in excluding the following matters from examination:

- evidence surrounding Mr McDonald's examination regarding the events of June 1998 [p 29] and the notice of "Problem workers" [pp 60-61] when they constituted events proximate to the termination of the applicant's employment.

- the statement in paragraph 2 of Gilson's witness statement [pp 35-36].

- evidence surrounding the relevance of a happy working environment to the termination [p 37].

- issues arising from the witness statements of the applicant [p 29 and 51].

- Mr Bell's evidence regarding the relationship between Mr Berryman and the applicant [pp 134-136].

- Mr Gilson's evidence on cross-examination regarding allegations against an employee [pp 182-183 and again at p 206].

- Mr Berryman's evidence relating to the violence in the workplace which has relevance to the termination of the applicant's employment [pp 266-268 and 307].

- the evidence [pp 33-35, 41] of the personality conflict and the working situation between the applicant and Mr Berryman.[17]

* Inclusion of evidence which was either inadmissible and/or so prejudicial that it ought to have been excluded - two particular decisions were challenged in this regard.

- the first went to the Senior Deputy President's decision to admit evidence given by Mr Gilson which was not in his witness statement and which was prejudicial to the applicant.

- second, the Senior Deputy President admitted similar fact evidence concerning an alleged threat made by Mr King to Mr Gilson outside the hearing room on 5 October 1999. It was said that this evidence was so prejudicial that it should have been excluded.

* Bias - the Senior Deputy President erred in failing to disqualify himself on the grounds of perceived or actual bias.

* Jones and Dunkel point - the Senior Deputy President failed to draw an inference in respect of the failure of the respondent to call evidence from Ms Cheryl Hudson and Mr Jim Albon.

* Conclusion contrary to findings - the Senior Deputy President erred in failing to make a finding in favour of the applicant despite the findings of fact contained in the decision.

* Failure to provide a remedy - the Senior Deputy President erred in failing to find that the applicant was entitled to compensation and/or reinstatement on the grounds of fairness and equity, especially in relation to the treatment by the respondent of its workforce.

[17] Before turning to the particular arguments put by the appellant we wish to briefly state our view about the role of the Commission in determining s.170CE applications for relief.

"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee--whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant."[18]

[19] It is clear from both the language and structure of s.170CG(3), and the statutory context in which it appears, that the section requires the Commission to consider each of the matters referred to in paragraphs (a) to (e), though the matter referred to in paragraph (d) does not arise in all circumstances.[19] Not only must the matters be considered but the words "have regard to" signify that each must be treated as a matter of significance in the decision making process. The meaning to be attributed to these words was considered by the High Court in Re Hunt; Ex parte Sean investments Pty Ltd.[20] In that case Mason J, with whom Gibbs J agreed, said (of a section of an Act which said that the Permanent Head shall have regard to certain costs) that when the section "directs the permanent Head to `have regard to' the costs, it directs him to take those costs into account and to give weight to them as a fundamental element in making his determination."[21]

[20] Each of the paragraphs (a) to (d) of s.170CG(3) requires the Commission to have regard to "whether" a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether

the termination was harsh, unjust or unreasonable. A consequence of this construction of s.170CG(3) is that the Commission is obliged to make a finding in respect of each of the circumstances specified in ss.170CG(3)(a) to (d) in so far as each of these paragraphs is relevant to the factual circumstances of a particular case. In Chubb Security Australia Pty Ltd v John Thomas a Full Bench of the Commission expressed this obligation in the following way:

" . . . subject to the qualifications we express in the next paragraph, the Commission, in our view, is not able to have regard to the circumstances specified in ss.170CG(3)(a) to (d) without making a finding with respect to each of them.

We qualify what we have said in the previous paragraph in two respects:

(1) The circumstance in s.170CG(3)(a) contains three considerations:

* the operational requirements of the employer's undertaking, establishment or service.

The need to make a finding under s.170CG(3)(a) will only be in respect of such of these three considerations as is relevant. (In the present case, for instance, the relevant consideration is whether there was a valid reason for the termination of Mr Thomas related to his conduct.)

(2) The circumstance in s.170CG(3)(d) is only relevant `if the termination related to unsatisfactory performance of the employee' (opening words of s.170CG(3)(d)).

Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to `that reason'; that is `a valid reason', being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c)."[22]

[21] In circumstances where the termination related to the conduct of the employee - as is the case in relation to Mr King - the Commission must make findings in respect of the following matters:

* whether there was a valid reason for the termination (s.170CG(3)(a));

* whether the employee was notified of that reason (s.170CG(3)(b)); and

* whether the employee was given an opportunity to respond to that reason (s.170CG(3)(c)).

[22] Paragraph 170CG(3)(a) relevantly speaks of "whether there was a valid reason . . . related to the . . . conduct of the employee." In Edwards v Giudice, Moore J made the following observations about the Commission's obligations under this paragraph:

"The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason."[23]

[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[24]

[25] We now turn to deal with each of the particular points advanced by the appellant.

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

[27] In the decision subject to appeal his Honour dealt with these issues in the following terms:

"I accept the submissions of Mr McDonald that the kibble incidents were not adequately investigated by Gilson and that the applicant was not given adequate opportunity to respond to the allegations made to him in relation to these incidents. I find that the respondent would not have been entitled to rely on those incidents to take the serious step of terminating the applicant's employment.

I do, however, find that Gilson was reasonably entitled to reach conclusions he did as to the 18 December threat by the applicant to Guthrie. That matter was reasonably investigated. The allegations against the applicant were clearly put to him. He was afforded the opportunity to be represented by a shop steward during the course of the relevant meetings. In the circumstances of an encounter between two persons, unwitnessed by others, Gilson was entitled to have regard to the offer of resignation by Guthrie in assessing the conflicting accounts of the incident. He was reasonably entitled to reach conclusion he did - that is, that the applicant had made the threat to Guthrie as alleged. Gilson was reasonably entitled to terminate the employment of the applicant on the basis of this threat. Whilst Mr McDonald sought to characterise threat as a `smart alec comment', such a threat has no place in the workplace. In my view Gilson was reasonably entitled to terminate the employment of the applicant having been reasonably satisfied that such a threat was made by him. I find that there was a valid reason for the termination and the applicant was afforded procedural fairness in the investigation of the issue which constitutes that reason."[25]

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred.[26] The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.

[30] We note here that the respondent conceded, properly in our view, that the Senior Deputy President had erred in failing to make a finding on the evidence before him as to what occurred between Messrs Guthrie and King on 18 December 1998. The respondent submitted that in all the circumstances it was appropriate to remit the matter back to his Honour for the purpose of making the necessary finding.

[31] The appellant submitted that his Honour erred in the decision subject to appeal in concluding that Freshmore had reasonably investigated the smoko room incident and that Mr King had been "afforded procedural fairness in the investigation of the issue"[27].

[32] Two meetings between Mr King and Mr Gilson took place on 18 December 1998. At the first Mr Gilson questioned Mr King as to his version of the incident with Mr Guthrie which took place in the smoko room earlier that day. Mr Gilson put Mr Guthrie's version of events to Mr King and asked him to respond.

[33] During the course of the second meeting Mr Gilson terminated Mr King's employment. On 22 December Mr King received a letter from Mr Gilson confirming the termination of his employment. The terms of this letter are set out at paragraph 13 of this decision.

[34] Contrary to the appellant's submission we are satisfied that the evidence supports findings that:

* Mr King was notified of the reason for his termination; and

* Mr King was given an opportunity to respond to that reason.

[35] During the course of the proceedings below the Senior Deputy President excluded certain evidence on the basis that it was not relevant to the issues requiring determination. His Honour's decisions in this regard no doubt reflected a practical desire to contain the proceedings within manageable limits and to avoid the trial of collateral issues, that is issues which are not facts in issue or relevant to facts in issue. The "facts in issue" are generally regarded as those facts which the applicant must prove in order to succeed, together with any further facts the respondent must prove in order to establish a defense.

[36] Assessing relevance involves an examination of the logical relationship between the evidence in question and the fact to be proved. Stephen's Digest of the Law of Evidence says that the word relevant means:

"Any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other."[28]

[37] A discretion has been recognised in civil cases to exclude evidence which, though relevant, is only remotely relevant or has small probative value compared to the additional issues which it would raise and the additional time required for their investigation or might tend to confuse the jury as to the real issues.[29] In Palmer v R, McHugh J expressed this approach in the following terms:

"In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of the relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof." [30]

[38] The appellant submitted that the Senior Deputy President erred in excluding or discounting the relevance of certain evidence. The evidence in question is set out at pp5-6 of this decision. We do not agree with the appellant's submissions on this point. In our view it was reasonably open to his Honour to adopt the approach he did to the evidence in question.

[39] The evidence which was excluded or discounted fell into four broad categories relating to:

* the nature of the relationship between Messrs King and Berryman;

* a notice which was placed in Mr King's locker on 16 November 1998. The notice featured a picture of a man's head with horns and the words "Problem worker - uncooperative, resentful, lack initiative etc".[31]

[40] Before considering each of these areas it is important to bear in mind that the incident which led to the termination of Mr King's employment was a threat which he is said to have made to a supervisor, Mr Guthrie, on 18 December 1998.[32] In the course of the proceedings below his Honour acknowledged that the applicant was entitled to suggest that the reasons given for the termination of his employment were not the real reasons[33]. His Honour also accepted that the attitude taken by management to similar situations in the past was a relevant consideration[34]. We agree with his Honour's observations in this regard.

[41] In relation to the WorkCover matter counsel for the applicant in the proceedings below conceded that he was not setting out to prove that the applicant had been dismissed because he had a back injury[35]. His Honour allowed counsel to deal briefly with the background to Mr King's WorkCover claim and to adduce evidence relating to warnings given to the applicant which alleged that he had not complied with his return to work plan. Other evidence relating to Mr King's injury was not admitted.[36]

[42] The second area deals with the nature of the relationship between Mr King and the factory manager Mr Berryman. The nature of the relationship between Messrs King and Berryman was relevant because Mr Gilson consulted Mr Berryman prior to terminating Mr King's employment.[37] Counsel for the applicant contended that to the extent that Mr Berryman was consulted and that was a relevant matter in the decision to terminate Mr King, his opinion was given in the context of an adverse personal relationship between Messrs King and Berryman.[38] The Senior Deputy President admitted evidence about the nature of the relationship between the two persons concerned but precluded a detailed examination of the relationship[39]. In this context it is important to note that in the proceedings below the respondent conceded that there was a difficult relationship between the two men and that the relationship was "a very bad one".[40]

[43] In these circumstances his Honour concluded that there was no need to go further. Mr Gilson was not cross examined by counsel for the applicant as to the impact Mr Berryman's opinion had on his decision to terminate Mr King's employment. He was asked a series of questions by his Honour on this issue. Mr Gilson's evidence was to the effect that he consulted Mr Berryman as a courtesy only and he had already made up his mind to terminate Mr King's employment.[41]

[44] In relation to Mr Berryman, counsel for the applicant sought to adduce evidence suggesting that Mr Berryman was some sort of "standover man"[42]. His Honour excluded this line of questioning on the basis that it was irrelevant. We note that Mr Gilson's evidence was that Mr Berryman had little to do with Mr King in the few months proceeding his termination.[43] Further, in the course of his evidence Mr Guthrie denied that he had heard Mr Berryman or anyone else make a threat of a similar type as that said to have been made by Mr King.[44]

[45] The last matter relates to the difficult worker notice. His Honour held that evidence relating to this notice was irrelevant. In this regard we note that this was not a case of "constructive dismissal" where the applicant was alleging that he had been forced to resign because of a pattern of workplace harassment.[45] The respondent conceded that the termination was at the initiative of the employer. Further, Mr Gilson's evidence was that he had not been aware of the notice until it was drawn to his attention during the course of the proceedings and he had not given anyone authority to distribute the notice.[46]

[46] In relation to each of the areas identified by the appellant we are satisfied that the course taken by his Honour in the proceedings below was reasonably open to him.

Inclusion of Evidence Which Was Either Inadmissible and/or so Prejudicial That it Ought to Have Been Excluded

[47] The appellant challenged two decisions to admit certain evidence during the course of the proceedings below. The first challenge relates to evidence given by Mr Gilson during the course of his examination in chief which was not in his witness statement and which the appellant submits was never put to the applicant. The relevant extract from Mr Gilson's evidence appears in a passage in which the witness is recounting his recollection of a conversation which he said he had with Mr King on 1 July 1998:

"He did mention that he felt he had the eyes of the factory manager on him for most of the time and that concerned him, and that he, you know, felt that he didn't need to be told what his job was, that he knew what to do, so therefore he didn't need instruction. That was the reason why he, you know, usurped authority_, he felt that it wasn't necessary; I know my job, I know what to do. And I said, well, what are the things that I can do to try and appease the situation and get you back where you used to be? And he said, well, maybe have a talk to Paul and tell him to get off my back, maybe you could, you know, tell the others that I don't need to be told what to do."_[47] [emphasis added]

[48] Mr McDonald objected to the evidence given in the following terms:

"I object at this stage. I didn't want to interrupt the witness unnecessarily. But what he has given is a large slab of additional evidence, most of which we don't have a problem with - but that's not the issue - which is not in his witness statement and which has never been put to my client in cross-examination. For example, why he had - words attributed to my client are, that's why he usurped authority. Clauses like usurping authority are most destructive, and those are words contributed to my client. It was never put to my client in the witness box that he had used those words. They're now attributed to him - - -"[48]

" There has been no evidence from Mr King as to much of what was put by this witness now about, for example, an admission by King attributed to, that he usurped authority. Workers are not entitled to usurp authority, it's a serious matter. It's not an accident that this witness uses that terminology. We can't assume that he comes to the Commission and accidentally says things. He's well rehearsed, he knows what he is going to say. It's not put in the witness statement, it's not cross-examined upon. It ought not to be admitted into evidence. . . ."[49]

[49] Mr Martin replied to this objection and submitted that the evidence complained of simply went to the historical narrative, it was not directly related to a fact in issue in the proceedings and the respondent did not rely on those matters in terminating Mr King's employment. It was also said that the evidence arose from Mr King's denial, during the course of his earlier evidence, that Mr Gilson had taken an interest in him. On that basis it was argued that there could be no suggestion of prejudice to the applicant.

" Yes. We didn't mention the word prejudice, we mentioned that the matters should have been put in the witness statement. They were not. And my friend says, well, now, of course, they're only part of the historical narrative. The historical narrative is contained in the witness statement and does not need to be expanded upon, and furthermore, they're not part of the historical narrative to make an allegation against my client, among other things, that he usurped authority. That was the key words that I focussed upon. There were others, but they were the ones that drew my alarm. . . ."[50]

[51] The Senior Deputy President decided to admit the evidence and said:

"I am satisfied that the question does arise out of the evidence of Mr King, and specifically the denial of evidence from the witness statement of Mr Gilson, to the extent that matters, specific evidence is given which involved Mr King which was not put to Mr King, then the risk lies with the respondent in terms of the principles within Brown and Dunne_."_[51]

[52] We have concluded that there is no substance to the appellant's complaint in respect of the first matter. In reaching this conclusion we have had regard to the following matters:

* the evidence in question arose out of earlier evidence given by Mr King;

* the substance of the applicant's objection was that the material complained of had not been incorporated into Mr Gilson's witness statement, yet the directions issued by the Commission for the filing of witness statements did not stipulate that such statements would constitute the evidence in chief of the witness. Indeed this point was advanced by Mr McDonald in the context of Mr Bell's statement[52];

* the evidence subject to the complaint was part of a historical narrative and did not go directly to any of the facts in issue in the proceedings;

* in ruling on the admissibility of the evidence his Honour noted that the respondent would bear the risk arising from the failure to put the evidence to Mr King, in terms of the rule in Brown v Dunne; and

* there is no suggestion in the decision subject to appeal that the evidence complained of had any bearing on the outcome.

[53] The second challenge concerns evidence relating to an incident between Mr Gilson and Mr King which took place during the course of an adjournment in the hearing of the matter below. Mr Gilson's version of the incident was as follows:

". . . Michael turned to me and he said you're a marked man and I'm going to get you and then he pointed his finger at me and went p'choo."[53]

[54] Mr King was recalled to provide his version of the incident:

"Mr McDonald: Mr King, if I can take you to what Mr Gilson said earlier. It was relatively short, that you were leaving the court room at a break earlier this afternoon, when you made certain remarks to him and he stated what those remarks were to the Court. Do you recall that?

Mr McDonald: Did you make any remarks as he has indicated or similar remarks to him?

Mr King: I told him maybe God would be punishing his sister through him.

Mr McDonald: And did you point your finger at him in a gun fashion, as he pointed to the Commission?

[55] In the proceedings below Mr McDonald objected to Mr Gilson being recalled to give the evidence set out above on the basis that the evidence should be set out in a written statement first. Mr McDonald said:

". . . the more important point is that I would say that if Mr Gilson wants to give any evidence, he should make a short statement about what that evidence is. We will know then whether - I will get instructions on that and if we intend to object to it, we will indicate to your Honour. If it is something that happened at the start of the last break, then my friend has had plenty of time to get it on to a witness statement in that time, a handwritten statement, and give it to me."[55]

[56] The Senior Deputy President overruled Mr McDonald's objection and Mr Gilson was recalled to give further oral evidence. At the conclusion of Mr Gilson's examination in chief, Mr McDonald was granted a short adjournment for the purpose of obtaining instructions before commencing cross-examination. Mr Gilson then was cross-examined and Mr King was later recalled to give his version of the incident. It is important to note that in the extract set out above Mr McDonald said that once Mr Gilson's evidence was known he would get instructions and advise the Commission if he intended to object to the evidence. No such objection was ever made.

[57] The Senior Deputy President dealt with the above evidence in the course of his decision, in the following terms:

"There is no basis to find that Guthrie fabricated the threat to him and his family by the applicant. Such a threat is consistent with the threat to Gilson made by the applicant outside of the Court on the last day of the hearing. In this respect, the applicant conceded that he had made a comment to Gilson. I prefer Gilson's evidence as to the content of those comments."[56]

[58] On appeal the appellant submitted that the evidence regarding the incident between Messrs Gilson and King on 5 October 1999 should have been excluded. The appellant's written submission deals with this issue in the following terms:

"The reference at paragraph 26 of the decision to the `threat to Gilson made by the applicant outside of the Court on the last day of the hearing' was so prejudicial and should have been excluded as evidence. It is submitted that the learned Senior Deputy President incorrectly drew conclusions from the demeanor of the witness on the day of the hearing outside the court room rather than from his words and actions during the events leading up to the termination of his employment." [their emphasis][57]

[59] The point taken on appeal was not put in the proceedings below. In the normal course this would be sufficient to dispose of the point. It is not the function of the appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in the manner in which their case was run in the proceedings at first instance.[58] But having regard to the fact that we intend to remit this matter back to the Senior Deputy President it is appropriate that we deal with the matter now.

[60] We note at the outset that the Commission is not bound by the rules of evidence. In this regard s.110 of the Act relevantly provides:

"(1) Where the Commission is dealing with an industrial dispute, it shall, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.

(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:

(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion of the Commission;

(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and

(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. . . ."

[61] But s.110(2)(a) does not mean that the rules of evidence are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then WA Act:

_"However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (_R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] HCA 30; [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence."[59]

[62] A similar observation was made by the Industrial Commission of New South Wales in PDS Rural Products Ltd v Corthorn:

"First, it is correct to say, as the commissioner did, that he was not bound to observe the rules of law governing the admissibility of evidence (s 83). It should be borne in mind that those rules are founded in experience, logic, and above all, common sense. Not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained. What s 83 does do in appropriate cases is to relieve the Commission of the need to observe the technicalities of the law of evidence. Common sense, as well as the rules of evidence, dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and defined. This did not happen in this case."[60]

[64] So what do the rules of evidence say about the admissibility of the evidence which is challenged by the appellant? The evidence in question is similar fact evidence. Where this kind of issue arises in criminal trials the courts have long been concerned to protect accused persons from the dangerous unfairness of juries convicting on the basis of propensity.[61] The relevant exclusionary rule is commonly, but inaccurately,[62] known as the similar fact rule. In practice the rule is not just directed to similar fact evidence but to propensity evidence generally.[63]

[65] In the context of criminal trials the rule provides that evidence that an accused person has a propensity to commit crimes of the sort charged, or is the sort of person who is likely to commit such crimes, which would ordinarily be treated as relevant is generally excluded because it is likely to operate unfairly to the accused.[64]

[66] In civil cases there is some conflict of authority as to whether the approach should be the same. The question was extensively discussed at first instance and on appeal in Sheldon v Sun Alliance Limited,[65] a case concerning an arson defence to a claim on a fire policy. The disputed evidence was of earlier fires, followed by insurance claims, in various premises owned and/or occupied by the plaintiff's husband and family. The trial judge, von Doussa J, concluded that he should only receive the evidence in question where it "passes the test of admissibility which applies in criminal proceedings".[66] On appeal Bollen J, with whom Prior J agreed on this point, took a different view. His Honour made the following observation about evidence of this kind:

"It is circumstantial evidence. It should be admitted where it is logically probative of a fact in issue. The safeguards required in criminal proceedings are not required in civil proceedings."[67]

[67] There are also a number of cases where applicants complaining of misrepresentations in contravention of Part V of the Trade Practices Act 1974 (Cth) have sought to lead evidence of similar statements made by or on behalf of the respondent to other persons and such evidence has been admitted.[68] The sole justification for the admission of this evidence is that it bears upon the probability or increased probability judged rationally on common experience that the fact in issue existed.[69]

[68] Cross on Evidence makes the following observation about the application of the rule in civil cases:

"The main trends in the modern cases support the view that the criminal tests do not apply; that the essential criterion for admissibility is relevance; that there is no discretion to exclude the evidence on the ground that its prejudicial effect exceeds its probative value; but that there is a discretion to exclude evidence which is only remotely relevant or has small probative value compared to the additional issues which it would raise and the additional time required for their investigation, or which might tend to confuse the jury as to the real issues."[70]

[69] The application of the similar fact rule in an unfair dismissal case was considered by the Industrial Commission of New South Wales in Court Session in Amalgamated Metal Workers Union v Electricity Commission (NSW). In that case the Commission said:

"The primary question which arises in relation to the admissibility of any evidence concerns its relevance to the issues in the proceedings. All relevant evidence, that is, evidence probative of a fact or matter in issue, is prima facie admissible. The converse, that irrelevant evidence is not admissible, is also true.

It is, and has been for some time, a matter of some debate as to whether or not the similar fact rule is nothing more than an expression of the primary rule that evidence is admissible only if it is relevant. There is much to be said for the view that the question of whether evidence of `similar facts' is admissible in any case ultimately boils down to the question (by no means simple of answer in many cases) of whether or not the particular evidence is relevant to the issues in that case."[71]

[70] We respectfully adopt the above observations. Propensity evidence may be admissible if sufficiently relevant to the issues which arise for determination in the case. Contrary to the appellant's submission in these proceedings the question of prejudice is not a matter to be taken into account. But even if prejudice was relevant we are satisfied that it was open to his Honour to conclude that the evidence in question was relevant and that its probative value outweighed any potential prejudice.

[71] The relevant test in respect of bias has been prescribed by the High Court in a number of cases and is expressed in Livesey v New South Wales Bar Association[72] in these terms:

"(The) principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. . . . Although statements of the principle commonly speak of `suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning."

[72] It was submitted that the actions of the Senior Deputy President in the proceedings below either demonstrated actual bias or were such as to lead a reasonable person to apprehend that his Honour would not bring an impartial and unprejudiced mind to the matter before him. Three particular matters were relied on in support of this proposition:

* his Honour's decision to admit evidence regarding an alleged threat made by Mr King to Mr Gilson during the course of the hearing (the similar fact point);

* his Honour drew a conclusion, adverse to the applicant, in his observations about the content of Mr Bell's witness statement; and

* a number of rulings made in respect of the relevance of certain evidence which counsel for the applicant sought to adduce.

[73] The similar fact point and the evidentiary rulings made by his Honour are dealt with elsewhere in this decision. It is only necessary to record here that in our view they do not provide any support for the proposition advanced by the appellant.

[74] We now turn to the observation his Honour made about the content of a witness statement of a Mr Bell. Mr Bell was a former employee of Freshmore and took part in the proceedings as a witness for the applicant. Mr Bell's unsworn witness statement consisted of a statement in the following terms:

"I have worked at Advanced Precast for 6 years. I've been employed as Leading Hand concreter, Leading Hand lifting crew and also have responsibility for O.H.S. and C.F.M.E.U. (Union).

Michael worked under me as a concreter and did perform the work required with no problem whatsoever.

I got involved with the Union because I felt the shop steward wasn't dealing with the complaints that were raised by the members.

I believe that Dick was treated unfairly because of his back condition by the management that was looking after the workers in the factory at the time of his dismissal."[73]

[75] In the proceedings below Mr Martin, counsel for Freshmore, challenged the above statement on the ground of relevance. In dealing with this challenge his Honour remarked that the statement did not "enlighten a great deal". This comment led to an application by Mr McDonald, counsel for the applicant, that his Honour cease dealing with the matter because his comment gave rise to a reasonable apprehension of bias. For completeness we set out the relevant extract from the transcript of the proceedings below:

"Mr Martin: Before that's done, your Honour. My instructors were served with a short handwritten statement of Stuart Bell. I trust that it has reached the Court.

Mr Martin: Two pages, yes. It appears from the time they were faxed that they may or may not be together. But in any event it's my submission that the issues that are raised in them are principally irrelevant to the matters at issue in this case.

His Honour: Yes. They certainly don't enlighten a great deal.

Mr Martin: In those circumstances, and bearing in mind that I don't know if it's said that he is going to be called to give any other evidence. There's the issue of what the evidence now is. But nothing else has been supplied.

Mr McDonald: Could I just have a moment to consider what your Honour has just said?

Mr McDonald: Did I perceive your Honour to say that they didn't enlighten you much?

His Honour: Well, Mr Bell's certainly doesn't. It indicates that he worked in certain positions, held certain responsibilities. Mr King worked under him as a concreter, performed his work without any problem. Some information about Mr Bell's involvement with the union, and a view of Mr Bell that Mr King was treated unfairly.

Mr McDonald: And does your Honour feel that does not enlighten you very much?

His Honour: Well, it doesn't enlighten me a great deal beyond what I've stated.

Mr McDonald: Well, I would like to seek take some matter before your Honour in relation to that. Your Honour, I would, with great reluctance, make this application now. That your Honour has, by what you have said, indicated that you have drawn a conclusion adverse to the applicant, and that in the circumstances I would respectfully request your Honour not to deal further with this matter.

His Honour: Are you making an application in relation to bias, Mr McDonald?

Mr McDonald: Yes, your Honour. As unpalatable as it is for me to have to make that application, I must do so now and not sit quiet, as it were, and wait until some later stage to make that application. But in view of what your Honour has indicated - and I have sought to clarify that - I would ask that your Honour no longer deal with this matter.

His Honour: In what way do you say my observations about what is contained in Mr Bell's statement that suggests bias?

Mr McDonald: Your Honour has referred to the four paragraphs of the handwritten statement, which we contend are very pertinent to the issues, critically important to the issues, indeed, that Michael, how he was employed, that Michael performed his work as required with not a problem, that this person was called in as a shop steward because the other person wasn't dealing with the complaint, and we now know that's an issue, and he believed that he was treated unfairly because of his back condition and the management of that.

And this person was in a position where he could make those observations. And we would say that that is important corroborative evidence which we intended to elaborate on when the witness was called.

His Honour: Well, why would you expect to elaborate upon it? You were required to file witness statements, and I've indicated you already have, that it doesn't enlighten me a great deal, and I've indicated what it does tell me, which is what is written on the face of it.

Mr McDonald: Yes. But, your Honour, there is no direction at any stage that this witness statement not be accepted. We tried to deal with that matter yesterday morning, when we received notice from the other side that they were going to do all sorts of things if we tried to rely upon them, they pressed the matter on. Your Honour allowed the matter to continue, and in doing so allowed those witness statements, so that they're accepted insofar as that point only.

It then becomes necessary to call evidence which not only elaborates on those witness statements briefly, but allows the person that's calling the evidence to give evidence about contrary evidence that has been given. And that is precisely what the applicant did when he was called, and it's no doubt what I expect other witnesses will do when they're called. So it's not as if we had to - - -

His Honour: I don't understand where you're coming from, Mr McDonald.

Mr McDonald: Well, your Honour, we're entitled to call Stuart Bell. We are not confined to what is in that witness statement as the only thing that he can say. He does not walk to the witness box, depose to the statement and then sit down. That's not his evidence-in-chief as such, it is a witness statement.

His Honour: Well, how does this relate to the point of bias, Mr McDonald?

Mr McDonald: Well, your Honour, the statement is there. Your Honour has said to me that, well, it doesn't tell me anything new. Well, it's only part of what the witness would tell you.

His Honour: No. I said it doesn't enlighten me a great deal, and I indicated what it does tell me, which is what is written on its face.

Mr McDonald: Yes. But that, with the greatest respect suggests that it doesn't enlighten you, it doesn't, in other words, advance the case for the applicant. And your Honour hasn't heard from the witness or seen the witness to know whether it does, whether the witness can enlighten you. The statement is only part of the evidence.

His Honour: Well, I was only referring to the statement, Mr McDonald.

Mr McDonald: Well, your Honour, I might also say, as the second leg of my objection, that - - -

His Honour: It's not an objection, it's an application, isn't it?

Mr McDonald: Well, it's an objection to your further hearing of the matter on the grounds of bias.

His Honour: Well, it's an application that I disqualify myself on the grounds of bias.

Mr McDonald: Yes. And I also, your Honour, say that not only what you said in relation to that matter, but also the fact that your Honour has already sat on a Full Court appeal, as I recall it, in relation to another matter involving this company, Freshmore Pty Limited, which is before another Court at the moment - - -

Mr McDonald: - - - together supports the application. I would not for a moment suggest that the second part would justify the application in any way. And I did not make it yesterday because your Honour is entitled to sit with a free and open mind on matters involving the company on any one occasion, and I accept that. But taken with what your Honour has said in - - -

His Honour: Well, how does that fit with the relevant authorities which suggests the determination of similar matters does not provide any basis for a ground of bias?

Mr McDonald: Yes, I agree with you, your Honour, it doesn't sit with those authorities on its own. But combined with what your Honour has now said, and combined with the rulings which I say that your Honour made yesterday about Mr Berryman in relation to his questions, which might be simply put as being a standover man, which are directly referred to in the witness statement by Mr King in some detail, and which are not denied by Mr Berryman, and which are closely associated with written warnings that are given, then one, putting those three matters together, an applicant, not his counsel, but an applicant might have a reasonable perception that your Honour is biased. It's not the view of the counsel that matters one bit, it's the view of the client that is, of course, the only way that the application is made.

Mr McDonald: Well, it's the perception in the view, it's the perception. I am not personally saying that it is my view, your Honour, and I want to make that clear.

His Honour: Well, where do authorities relate to the applicant's perception?

Mr McDonald: I was somewhat taken by surprise by your Honour's statement. I would be most grateful for an opportunity to refer to those authorities, they shouldn't take me very long. I would imagine 20 minutes would be more than sufficient time to refer to the authorities, although they're not regularly familiar to me.

His Honour: Well, I am still puzzled as to how my observations about Mr Bell's evidence reflect any reasonable perception of bias.

Mr McDonald: Well, I simply put it this way, your Honour. That you have expressed conclusions about that statement before you have heard the evidence, and those expressions have been adverse to the applicant.

Mr McDonald: Well, you have said that they don't enlighten me. I've looked at them, I've considered them, and they don't enlighten me. Now, at the end of the day they may not, but prematurely.

His Honour: I said they don't enlighten me a great deal, and then I indicated what they do tell me, and that's what's written on the face of it.

Mr McDonald: But your Honour did not express, but I accept that the statement is said to be correct. And you couldn't have said that either because, with the greatest respect, your Honour, and you didn't say that. All you indicated was, they didn't enlighten you greatly, I think is your words. If that is the case, then you have made a decision adverse to the applicant's case about a witness statement before you've even heard the witness, when the witness statement is not meant to be a statement of evidence-in-chief, and it's premature for your Honour to have made that statement in these circumstances.

His Honour: Yes. I don't need to hear from you, Mr Martin. There's no substance in my mind as to the application that I disqualify myself on the grounds of bias, and I decline to do so. My observations about the statement of Mr Bell simply reflect a fact that statement does not enlighten me a great deal, all it does tell me is what is recorded in it, which is not a great deal. And in relation to the other matters raised, I see no basis in them or in the three matters now raised by Mr McDonald collectively which would substantiate a basis for disqualification on the grounds of bias."[74]

[76] In our view his Honour's remarks about Mr Bell's witness statement do not give rise to a conclusion that the parties or the public might entertain a reasonable apprehension that his Honour might not bring an impartial and unprejudiced mind to the resolution of the matter before him.

[77] Contrary to the submission of counsel below his Honour did not suggest that Mr Bell's evidence would not enlighten him. This was not a case involving the expression by a Commission member of a preconceived view about the reliability of a particular witness.[75] Rather, his Honour's remarks were directed to the witness statement before him. He said that the statement did not "enlighten a great deal". We agree with his Honour's observation. Mr Bell's statement says nothing about the alleged misconduct which led to the termination of Mr King's employment. The contents of the statement are either imprecise or inadmissible.

[78] The second sentence of the statement says "Michael worked under me as a concreter and did perform the work required with no problem whatsoever". This sentence lacks particularity. No information is provided as to the relevant time period. We do not know how long Mr King worked under Mr Bell, it may have been for a week or for more than a year. The statement does not tell us. Nor does the statement tell us about the manner in which Mr King operated the kibble lift. Such evidence would have been relevant given that Mr King was taken off these duties for "safety reasons".

[79] The third sentence in the statement sets out the reason why Mr Bell decided to get "involved with the Union", namely that he "felt the shop steward wasn't dealing with the complaints that were raised by the members". The shop steward concerned is not referred to by name but we surmise that Mr Bell is referring to Mr Reefman. The statement simply sets out why Mr Bell decided to get involved with the Union. He perceived that Mr Reefman was not doing his job. Of itself this is not evidence of a failure by Mr Reefman to perform his responsibilities. The statement gives no examples of instances where Mr Reefman failed to deal with particular complaints.

[80] The last sentence sets out Mr Bell's opinion about Mr King's termination. Mr Bell thought that Mr King had been treated unfairly. This amounts to opinion evidence by a non expert about the ultimate issue to be determined by the Commission, namely whether the termination of Mr King's employment was "harsh, unjust and unreasonable". Mr Bell is entitled to his opinion but it has no probative value. The facts which led Mr Bell to form his opinion may well be relevant, but they are not set out in the statement.

[81] In addition to his Honour's comment about Mr Bell's statement and a number of rulings made in respect of the relevance of certain evidence, counsel for the applicant in the matter below also relied on his Honour's involvement in earlier proceedings concerning Freshmore. We note that this point was not taken on appeal and properly so because it has no substance. Senior Deputy President Watson was a member of the Full Bench which heard an appeal from a decision of Commissioner Simmonds in Pawel v Freshmore Pty Ltd.[76] At first instance the Commissioner found that the applicant's employment had not been terminated at the initiative of the employer and consequently the application was dismissed. The appeal bench concluded that the Commissioner had not made an error of a character which justified leave to appeal.[77]

[82] In our view his Honour's involvement in the earlier proceedings referred to did not give rise to a reasonable apprehension of bias in respect of the matter before him. In this context it is important to bear in mind the caution expressed by Mason J in Re J.R.L; Ex parte C.J.L[78]:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."

[83] A submission that a member of the Commission should not continue to hear a matter because of a reasonable apprehension of bias is a serious step. In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd, their Honours Dixon CJ, Williams, Webb and Fullager JJ made the following observation:

". . . when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be `real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that `preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J., Reg. v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at p 639."[79]

[84] In an appropriate case a party is clearly entitled to submit that a member cease hearing a matter due to bias. But such a submission must be reasonably founded, it should not be frivolous. Bias must be "real". In our view the bias point taken in these proceedings is devoid of substance. We take this opportunity to put the relevant parties on notice that advancing clearly untenable submissions which reflect on the propriety or integrity of a member of the Commission may constitute an abuse of process such as to warrant a complaint of professional misconduct.

[85] The appellant submitted that the Senior Deputy President erred in that he did not draw a Jones v Dunkel inference from the failure of Freshmore to adduce evidence from Ms Cheryl Hudson and Mr Jim Albon. It was argued that Ms Hudson was "the crucial witness in the case" and should have been called "given that she was present at the meetings and could have corroborated events where she was a key witness and where the credibility of other witnesses is argued to be lacking".[80]

[86] During the course of oral argument, counsel for the appellant was unable to identify the evidentiary conflict which it is said that Ms Hudson's evidence could have illuminated. It was not suggested that Ms Hudson witnessed either the smoko room incident or the earlier kibble lift incidents, but it was submitted that Ms Hudson would be able to give evidence in relation to the "background leading up to what happened".[81]

[87] We propose to set out the relevant legal principles and then apply them to the matter before us.

[88] In Jones v Dunkel,[82] Menzies J made the following observations in relation to inferences which may be drawn in the event that a party fails to call certain evidence:

"(i) that the absence of . . . a witness cannot be used to make up any deficiency of evidence;

(ii) that evidence which might have been contradicted by [the witness] can be accepted the more readily if [the witness] fails to give evidence;

(iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the [party] disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."

[89] Some of the principles in relation to what is commonly termed "the rule in Jones v Dunkel" are as follows:

1. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case.

The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability. [83]

The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely involved in the circumstances in question and present during the hearing of the case.[84]

The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn.[85]

2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference.[86]

3. The rule only applies where a party is "required to explain or contradict" something and this depends on the issues thrown up by the evidence in a particular case: Jones v Dunkel, op. cit.

4. The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v Parker, "the missing witness would be expected to be called by one party rather than another". His Honour said that this condition:

". . . is also described as existing where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman; his safety officer; his accountant; his treating doctor."[87]

A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee's knowledge is available to his or her employer rather than any other party[88].

5. The evidence of the missing witness must be such as would have elucidated the matter. In Payne v Parker Glass JA said:

"According to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary; would have a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him."[89]

[90] We now turn to apply the above propositions to the matter before us. In the proceedings below counsel for the applicant submitted that the Senior Deputy President should draw a Jones v Dunkel inference from the respondent's failure to call Ms Hudson.[90] No such submission was made in respect of Mr Albon. It follows that there is no substance in the appeal point in respect of Mr Albon. The Senior Deputy President can hardly be said to have fallen into error in rejecting a proposition that was never put to him. Nor did the appellant demonstrate why any inference should be drawn from the failure to call Mr Albon.

[91] In relation to Ms Hudson the evidence suggests that she attended the second meeting involving Messrs Gilson and King on 18 December 1998 but not the first meeting.[91] The question of whether the uncalled evidence leads to a Jones v Dunkel inference is a matter of discretion. An inference may arise from the failure to call relevant evidence but it is not the case that such an inference must be inferred.[92]

[92] The appellant failed to particularise the evidentiary conflict which it is said that the uncalled evidence could have illuminated. If an inference was drawn it would have entitled the Commission to more readily draw an inference fairly drawn from the other evidence. But the rule cannot convert conjecture and suspicion into inference and that appears to be the purpose for which the appellant seeks to rely on inferences from the failure to call Ms Hudson. In these circumstances we are satisfied that it was reasonably open to his Honour to decide not to draw an inference in respect of the uncalled evidence.

[93] It is unnecessary for us to consider the other two points advanced by the appellant given the view we have expressed in relation to the valid reason appeal point.

[94] The appellate jurisdiction conferred on us by s.45, in relation to an appeal concerning an order arising from arbitration of an application under s.170CE, is conditioned by s.170JF(1) which limits the grounds of an appeal. The only ground is that the member of the Commission who conducted the arbitration was in error in deciding to make an order. That can be an error of fact or an error of law.[93]

[95] When the reason for a termination of employment is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination was harsh, unjust or unreasonable. The error in question is a reviewable error in the context of s.170JF.

[96] We grant leave to appeal, uphold the appeal and set aside the decision subject to appeal. We have decided to remit the matter to Senior Deputy President Watson pursuant to s.45(7)(c). We direct his Honour to make the necessary finding and to determine the application on the basis of the material before him.

R Hamilton of Counsel and A McDonald for the appellant.

DP Martin of Counsel for Freshmore (Vic) Pty Ltd.

Termination of employment - unfair dismissal - appeal - full bench - requirement in s170CG(3) to 'have regard to' certain factors signifies that each must be treated as matter of significance in decision making process - Commission obliged to make a finding in respect of each circumstance specified in ss170CG(3)(a) to (d) - valid reason - question of whether alleged misconduct took place is not answered by determining whether reasonably open to employer to conclude employee was guilty - Commission's obligation is to determine, for itself and on basis of evidence in proceedings, whether alleged misconduct took place - failure to determine at first instance whether valid reason - exclusion of relevant evidence - outline of test of relevance - inclusion of inadmissible/prejudicial evidence - a point cannot be taken on appeal which was not put in proceedings below - not the function of appeal process to provide avenue for unsuccessful parties to seek to redress deficiencies in manner in which case was run at first instance - rules of evidence - although not binding on Commission, also not irrelevant - common law requirement not to deny natural justice in reception of evidence acts as powerful control over tribunal not bound by rules of evidence - acceptance of evidence not unrestrained - Commission simply relieved of need to observe technicalities of law of evidence - only evidence relevant to issue which requires determination should be received - similar fact evidence - in criminal proceedings, rule provides that evidence an accused has a propensity to commit crimes of the sort charged (which would ordinarily be treated as relevant) is generally excluded because likely to operate unfairly to the accused - conflict of authority regarding whether similar approach applies in civil matters - concluded that propensity evidence may be admissible if sufficiently relevant to issues which arise for determination - question of prejudice not a matter to be taken into account - bias - relevant test set out in Livesey v New South Wales Bar Association (1983) 152 CLR 288 at 293 - whether parties or public entertain a reasonable apprehension that decision maker might not bring an impartial and unprejudiced mind - bias argument devoid of substance - professional misconduct - parties put on notice that advancing untenable submissions which reflect on the propriety or integrity of a member of the Commission may constitute abuse of process such as to warrant a complaint of professional misconduct - Jones v Dunkel - whether inference should be drawn from failure to call certain evidence - principles in relation to the rule set out (refer to [1959] HCA 8; (1959) 101 CLR 298 at 312) - appellant failed to particularise evidentiary conflict which it is said uncalled evidence could have illuminated - rule cannot convert conjecture and suspicion into inference - reasonably open at first instance not to draw inference - leave to appeal granted, appeal upheld and decision at first instance set aside - Commission's failure at first instance to determine for itself whether valid reason for dismissal constitutes error of law reviewable in context of s170JF - matter remitted to Watson SDP pursuant to s45(7)(c).

s45 appeal against decision of Watson SDP of 21 October 1999 [Print S0279]

Printed by authority of the Commonwealth Government Printer

[1] See Attachment MK1 to Exhibit 1 (King's witness statement).

[4] See transcript, 6 September 1999, p.64 at lines 15-23 and p.169.

[5] See Exhibit 4 (Guthrie's witness statement).

[6] See transcript, 5 October 1999, p.251 at lines 15-31 and p.252 at lines 1-29.

[7] Transcript, 5 October 1999, p.252 at lines 18-25.

[9] Transcript, 6 September 1999, p.59 at lines 5-9.

[10] Transcript, 6 September 1999, p.50 at lines 10-25; 7 September 1999, p.53 at lines 1-9 and p.189.

[12] Transcript, 5 October 1999, p.233 at lines 8-12.

[13] Transcript, 7 September 1999, p.207 at lines 20-22.

[17] All page references above refer to transcript of the proceedings below.

[19] Edwards v Giudice [1999] FCA 1836; (1999) 169 ALR 89 at 92 per Moore J.

[20] [1979] HCA 32; (1979) 53 ALJR 552.

[21] [1979] HCA 32; (1979) 53 ALJR 552 at 554. Also see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136; Friends of Hinchinbrook Society Inc v Minister for Environment (No.3) (1997) 77 FCR 153 and Australian Competition and Consumer Commission v Leelee Pty Ltd (1999) FCA 1121.

[22] Print S2679, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.

[23] [1999] FCA 1836; (1999) 169 ALR 89 at 92 per Moore J.

[24] See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

[25] Print S0279 at paragraphs 24 and 25.

[26] Edwards v Giudice [1999] FCA 1836; (1999) 169 ALR 89 at 92 per Moore J.

[28] Digest of the Law of Evidence 12th ed, Part 1, Stephen's definition was adopted by McHugh J in Palmer v R [1998] HCA 2; (1998) 193 CLR 1 at 24.

[29] DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; (1991) 28 FCR 597 at 604 607; [1991] FCA 74; 100 ALR 468 at 475 478 per Gummow J, citing in particular Kitto v Gilbert [1926] NSWStRp 49; (1926) 26 SR (NSW) 441 at 447 per Street CJ and R v Westfield Freezing Co Ltd [1951] NZLR 456 at 466 per Fair J. See also The Duke Group (in liq) v Pilmer (1994) 63 SASR 364.

[30] [1998] HCA 2; (1998) 193 CLR 1 at 24; also see R v Wilson [1991] 2 NZLR 707 at 711.

[32] See transcript, 7 September 1999 at p.207.

[33] Transcript, 6 September 1999, p.17 at lines 26-27.

[34] Transcript, 7 September 1999, p.154 at lines 1-3 and p.159 at lines 25-29.

[35] Transcript, 6 September 1999, p.24 at lines 30-33.

[36] Transcript, 6 September 1999, p.26 at lines 22-33 and pp.27-29.

[37] See Exhibit 3 (Gilson's witness statement).

[38] Transcript, 6 September 1999 at p.31.

[39] Transcript, 6 September 1999 at p.38.

[41] See transcript, 5 October 1999 at pp.233-234.

[42] Transcript, 6 September 1999, p.32 at lines 21-24.

[43] Transcript, 7 September 1999 at p.184.

[44] Transcript, 5 October 1999 at pp.251-252

[45] See transcript, 6 September 1999, p.40 at lines 15-17.

[46] See transcript, 7 September 1999 at p. 212.

[47] Transcript, 7 September 1999 at p. 142.

[48] Transcript, 7 September 1999 at p. 143.

[49] Transcript, 7 September 1999 at p.143-144.

[50] Transcript, 7 September 1999 at p.145.

[51] Transcript, 7 September 1999 at p.145.

[53] Transcript, 5 October 1999, p.305 at lines 28-30.

[54] Transcript, 5 October 1999, p.311 at lines 16-25.

[55] Transcript, 5 October 1999, p.304 at lines 12-18.

[58] K.A. Murphy v S.F. Finance Pty Ltd, Print P1395, 29 May 1997; Austal Ships Pty Ltd v D. Schreier, Print P3975, 13 August 1997.

[59] WA Meat Commission v Australasian Meat Industry Employees Union, Industrial Union of Workers WA Branch Matter No. 890 of 1993, 5 August 1993 WAIRC per Sharkey P, Coleman C and Gregor C at p.7 per Sharkey P.

[60] (1987) 19 IR 153 at 155. Also see Giles J, `Dispensing with the Rules of Evidence' in 7 Australian Bar Review 233

[61] See Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 294 per Mason CJ, Wilson and Gaudron JJ.

[62] Harriman v R [1989] HCA 50; (1989) 167 CLR 590.

[63] Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 464.

[64] Perry v R [1982] HCA 75; (1982) 150 CLR 580 at 585; Thompson v R [1989] HCA 30; (1989) 169 CLR 1.

[65] [1989] SASC 1571; (1988) 50 SASR 236; (1989) 53 SASR 97.

[66] (1988) 50 SASR 236 at 247.

[67] [1989] SASC 1571; (1989) 53 SASR 97 at 145; see Prior J at 155.

[68] Mister Figgins v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23 at 30-31; Gates v City Mutual Life Assurance Society Ltd (1982) 43 ALR 313 at 327. See too Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 Ch 119; 1 All ER 763 (CA); Turner v Jenolan Investments Pty Ltd (1985) ATPR 40-571 (Fed C of A); Peet & Co Ltd v Rocci [1985] WAR 164; Aroustidis v Illawara Nominees Pty Ltd (1990) 21 FCR 500. Cf HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) 48 ALR 667; Boyce v Cafred Pty Ltd [1984] FCA 318; (1984) 4 FCR 367. For a full analysis of the principles and the authorities in this area, see DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; (1991) 28 FCR 597 at 603-7; 100 ALR 464 at 42-8 per Gummow J.

[69] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375. This paragraph was quoted with approval in Grivas v Brooks (1997) 69 SASR 532 at 547 (FC).

[70] Cross on Evidence Australian Edition, Butterworth at para 21285.

[71] (1989) 28 IR 155 at 159-160. Also see Sherman v Peabody Coal Ltd (No. 2) (1998) 88 IR 427, in which Moore J considered that the issue to be considered when deciding whether to admit propensity evidence in the context of an unfair dismissal case was whether it would have "significant probative value".

[72] [1983] HCA 17; (1983) 151 CLR 288 at pp 293-294.

[74] Transcript, 7 September 1999 at pp.119-124.

[75] See further Vakauta v Kelly (1989) 167 CLR568.

[76] Print Q1099, 21 May 1998 per Simmonds C.

[77] Print Q5689, 4 September 1998 per Polites SDP, Watson SDP and Gay C. Note: subsequently quashed by the Federal Court, [1999] FCA 1660.

[78] [1986] HCA 39; (1986) 161 CLR 342, at p 352

[79] [1953] HCA 22; (1953) 88 CLR 100, cited with approval in Re Polites and another; Ex parte The Hoyts Corporation Pty Limited and others [1991] HCA 25; (1991) 173 CLR 78 at 85-86.

[81] See transcript, 21 February 2000, p.14 at lines 29-35 and p.15 at lines 1-22.

[82] [1959] HCA 8; (1959) 101 CLR 298 at 312.

[83] Payne v Parker (1976) 1 NSWLR 191 at 202 per Glass JA.

[84] Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582.

[85] Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287.

[86] Jones v Dunkel, op. cit., at 308, WN (Pt 1) (NSW) 557 at 582; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 at 690 per Dawson J.

[87] (1976) 1 NSWLR 191 at 201-202.

[88] Earle v Castlemaine District Community Hospital [1974] VicRp 86; (1974) VR 722 at 728 and 734

[89] (1976) 1 NSWLR 191 at 202.

[90] See transcript, 7 September 1999 at p.185 and pp.204-205.

[91] Transcript, 7 September 1999 at pp. 185 and 204.

[92] Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287.

[93] Edwards v Giudice [1999] FCA 1836 per Moore J.