In Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 the Full Bench of the Commission said at par [6]:
6 It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing.
30 That being said, the applicant's presentation of his case was, unfortunately less than satisfactory. I have already referred to one matter involving the cross-examination of Ms Chatfield. The respondent had little understanding of how to cross-examine a witness; choosing instead to make statements and answer questions he put to Ms Chatfield himself. The respondent provided no evidence on his own behalf. He made wild and unsubstantiated statements from the bar table and found implausible excuses for clear documentary evidence which was against his interests. Two examples serve to demonstrate this point.
31 Firstly, when it was obvious that the advertisement calling for nominations for the Trust Board indicated the position was voluntary, he claimed he had never seen the advertisement. When he had answered "yes" to the question on his application: Was he prepared to perform voluntary work outside of business hours?, he said that he understood that this meant attending meetings, not other work associated with his duties for which he should have been paid. When the Trust Handbook was produced, which plainly disclosed that Board members were not paid, he claimed he had never seen it.
32 Secondly, when questioned by the Commission as to why, in six months, he hadn't sought payment for his work, he said that he had expected to have a meeting with the Minister after about 12 months in order to negotiate appropriate compensation. He claimed he had put "non-paying position" in his application for relief for unfair dismissal because, at that time, it was truly unpaid, as he hadn't yet had the meeting with the Minister.
33 In my view, the best the respondent got to anything like a hint of being employed in some position was the Minister's use of the word "rewarding" in his letter congratulating the respondent on his appointment to the Trust Board. However, I do not accept that the use of the word "rewarding" was intended to mean, either explicitly or implicitly, that he was to be paid. Rather, I think, the Minister was intending to convey a courtesy congratulations in that he hoped the respondent would find his duties personally rewarding. In any event, any letter of appointment of this type, would have expressly stated what payment or fee was to be paid, if that was the true intention. No such inference can be drawn from anything contained in the letter.
34 In my judgement, the respondent is a person with considerable ability and intelligence. However, during these proceedings, he had a quick and unlikely explanation for evidence which was obviously against his interests. Usually there was not much sense to his explanations. Often they were so manifestly far fetched and utterly unbelievable that I have little doubt that he simply made them up along the way. For example, does he seriously believe the Minister would personally sit down with every member of every Trust Board and negotiate compensation for the duties they performed? This was patent nonsense. I have no doubt that the respondent knew perfectly well that he was offering himself for voluntary work and expected to perform voluntary work. He did so without complaint until his removal from the Board. His utterances to the contrary are a recent invention in order to gain access to this Commission to air his grievances concerning his removal from the Board.
35 On one view, the role of a Trust Board and that of the Board members is more akin to that of an employer, than of an employee. For example, the Trust may collect and set fees, hire persons to perform work for it and enter into contracts for the performance of work or the provision of services. Seen in this way, it is difficult to imagine how a Board member could in the fulfilment of his/her statutory functions be considered to be an employee and an employer at the same time. In addition, the emphasis on statutory duties is an important and relevant distinction to be made in this case.
36 Another significant indicator against a finding in the respondent's favour is to be found in the express provisions of Pt 6 Ch 2 of the Act. Let me explain. Jurisdiction of the Commission in unfair dismissal matters is predicated on a number of factors, one of which is an employee's annual remuneration (s 83(1)). Known as the salary cap, it is presently $101,300 per year. An employee above the salary cap is not entitled to bring a claim of unfair dismissal. Obviously, in circumstances where no wage or salary is paid, it is not possible for the Commission to be satisfied that the necessary jurisdictional grounding has been established.
37 Secondly, s 89(5) of the Act permits a remedy for unfair dismissal of an amount of compensation not exceeding the amount of remuneration earned by the applicant during the period of six months immediately before being dismissed. Section 89(3) also provides for an order for lost remuneration. Assuming the respondent is able to overcome the jurisdictional hurdles, and that his dismissal is found to be unfair, and reinstatement or re-employment was found to be impractical, what compensation would be available? On a proper reading of the provisions, the answer would be nil. This would seem to be a bizarre consequence of a finding of unfair dismissal. Further, how would the Commission be able to assess lost remuneration as is available under s 89(3) of the Act? It seems an inescapable conclusion that these provisions would be unworkable if they were required to be exercised in favour of a dismissed employee who received no remuneration. In other words, the very essence of the relief available to an unfairly dismissed employee requires some amount of remuneration to have been paid prior to dismissal. It is difficult to see how remedial legislation such as this could operate to give any effective relief (or any at all) to an applicant who received no remuneration.
38 A further difficulty in the respondent's case arises from the relief he seeks from these proceedings. In his unfair dismissal application at question 28, the respondent claims $50,000 for loss of income, humiliation and embarrassment. There is no explanation or justification given for the basis of the claim sought or what income he is alleged to have lost. It is not, and cannot be said to be based on anything relevant to work alleged to have been performed or any actual or implied contract of employment. I am left to ponder whether the figure of $50,000 was simply "plucked out of thin air".
39 Notwithstanding these observations, the fact that the respondent was not paid is not the only basis for refusing his claim of being entitled to bring this application against the applicant.
40 In further consideration of this matter, the Commission would make the following findings: