The applicant stated that Mrs Hughes had agreed not to roll the salary increase into his base salary during his probation period in the new position. He said he had agreed with Mrs Hughes that a payment of $10,000 would be made every three months.
[2]
The appellant contended that being on probation, '[t]o state the obvious', it was a period where the respondent would be closely monitored to ensure his performance, which involved performance expectations under KPIs. It was submitted that as a senior member of the appellant's management team, who was himself responsible for reporting all KPIs every week, he was well aware of this.
There are a number of difficulties with this ground. The first is that [63] of the learned Commissioner's reasons was not a specific finding but rather, it was a description of the respondent's evidence. Furthermore, and in any event, the issue raised by the appellant in this regard, being an inference that being on probation necessarily meant that the respondent's performance would be assessed in accordance with KPIs, necessitated the establishment on the evidence, by the appellant, that it was a term of the respondent's contract of employment that the quarterly $10,000 payments were linked to his achievement of performance measures including KPIs. This was the central issue to be determined in the matter at first instance. For the reasons which we will develop further below, there was no such evidence. These grounds are not established.
[3]
As to [67] of the learned Commissioner's reasons, the appellant contended that this was evidence of bias shown throughout the proceedings. Paragraph 67 of the learned Commissioner's reasons was again a narration of the respondent's evidence and was not a finding. It was in the following terms:
[4]
The applicant stated that on 19 August 2022 his permanent residency was granted. The applicant said he sent an email to Mrs Hughes to confirm this. The applicant also said that he went on annual leave at or around this time.
[5]
It refers to the respondent's evidence that on 19 August 2022 he received permanent residency. His evidence was that he sent an email to Mrs Hughes to advise her of this and then went on annual leave at about that time. It is unclear as to how the appellant contends this demonstrates any bias. Firstly, as we have said, it is simply a narration of the respondent's evidence and was not a finding. No such finding was made in the learned Commissioner's decision.
In any event, the matter of permanent residency, and whether or not the respondent informed Mrs Hughes of this fact, was not a matter relevant to whether it was a term of the respondent's contract of employment that he receive quarterly $10,000 payments subject to meeting all KPIs. This ground is not made out.
[6]
Paragraph 68 of the learned Commissioner's reasons referred to the respondent's evidence that when he returned from annual leave on 12 September 2022, he had a telephone call with Mrs Hughes to inform her of his permanent residency. The paragraph is as follows:
[7]
The applicant stated that upon his return from annual leave on 12 September 2022, he told Mrs Hughes during a telephone call that he had been granted permanent residency. He also said that during this same phone call, Mrs Hughes said that a number his duties including his management responsibilities had been passed on to his colleague Samuel David.
[8]
In the same conversation, it was the respondent's evidence that Mrs Hughes informed him that his managerial responsibilities, and a number of other duties, had been transferred to another colleague, Mr David. The appellant asserted in relation to this ground, that it should have been clear to the respondent that a demotion occurred because he was failing to perform in the position, and another employee was required to undertake his management duties. Whilst it was not entirely clear, the inference sought to be drawn seems to be that the respondent was demoted because he was not meeting his (contractually binding, according the appellant) performance benchmarks.
However, the learned Commissioner dealt with this issue in part, at [147] - [154] of his reasons. This was in connection with the respondent's claim for a $10,000 payment for the July-September quarter 2022. The learned Commissioner concluded that the effect of the change to the respondent's position whilst he was on annual leave, in about August 2022, effected a return to his previous position as Advertising Manager. The learned Commissioner found that this occurred before the completion of the July-September quarter 2022.
On the basis of these findings, the learned Commissioner concluded that the respondent's contract of employment made no provision for partial payment in the event of employment only for an incomplete quarter. He found that for the respondent to be entitled to the $10,000 payment for the July-September quarter 2022, then the contract would have to have provided for this and it did not. It was on this basis, that the respondent's claim for the July-September quarter 2022 payment failed.
Viewed in this light, the issue raised by the appellant in relation to this ground actually worked to the advantage to the appellant, as it supported the Commission's finding that the respondent was not entitled to a further payment that he claimed. This ground is not established.
[9]
The appellant referred to [72] of the learned Commissioner's reasons when referring to the cross-examination of the respondent. This related to the 'New Job Guideline' for the promotion to the position of Director of Business Development from 1 November 2021. The paragraph is as follows:
[10]
The applicant initially denied signing the New Job Role, following which Mrs Hughes provided the applicant with a copy. The applicant then said he could not recall signing the document. He said the New Job Role contained a digital signature and that he did not usually sign official documents in this way.
[11]
The issue raised was whether the respondent had signed the document. The learned Commissioner referred to the respondent's evidence where he initially denied signing the Guideline document. When presented with a copy of it in cross-examination, the respondent could not recall signing it and, as it contained a digital signature, his evidence was that he would not usually sign documents in this manner.
Whilst it was not entirely clear how, the appellant contended that reference to this evidence demonstrated further bias by the Commission. As we understood the argument, it was submitted that the effect of the respondent's evidence in this respect, was an allegation by the respondent that the appellant had fraudulently produced a document with the respondent's signature on it. The appellant said that the learned Commissioner should have addressed this matter, although it is unclear as to how this could have occurred. There are also difficulties with this contention. Firstly, the paragraph referred to at [72], is a narration of the respondent's evidence when being cross-examined by Mrs Hughes. It was not a specific finding.
However, later in his reasons, the learned Commissioner under the heading 'Observations about the evidence' made comments as to his view of both the respondent's and Mrs Hughes' evidence. The learned Commissioner stated as follows at [105]-[107]:
[12]
[105] On some matters, I opted to prefer the evidence Mrs Hughes gave instead of the applicant's because it was more plausible and because the applicant had no recollection of the matter that was being asserted. An example of this was in the applicant's acceptance of the New Job Role which I will deal with the findings below. I also accepted the applicant held concerns about his immigration status which affected the way in which the parties agreed to vary the applicant's contract of employment. (Our emphasis)
[13]
[106] There were instances where I opted to prefer the applicant's testimony ahead of the respondent's evidence, particularly where the applicant's evidence was supported by documentary evidence. From my assessment of the witnesses and the evidence they gave, this case was very much a matter where it was reasonable to conclude the truth of what the witnesses said fell somewhere in the middle.
[14]
[107] It is worth noting the respondent was given ample opportunity to provide evidence in support of its case, including by way of documents that established the payment of the quarterly amounts in issue, were either subject to or conditional upon, the applicant meeting particular KPIs. Despite the programming directions that I referred to earlier, the respondent did not discover any documents of this type. Such material could have also been included as attachments to Mrs Hughes' witness statement but were not.
[15]
Further, the learned Commissioner specifically dealt with the issue of the respondent's change in job role and title. At [124]-[125], he referred to this change and that it was a variation to the second contract between the parties, which second contract had been made in April 2021. Specifically in relation to the issue the appellant now complains about, the learned Commissioner said at [125]:
[16]
I accept the applicant agreed to the change in duties and position even though in cross-examination he said he could not recall signing the New Job Role with an electronic signature or being a party to the email exchange with Mrs Hughes that I have referred to at paragraph [73] as exhibit R2.
[17]
Therefore, contrary to the assertion of the appellant in this ground, the learned Commissioner found in the appellant's favour, that the respondent had signed the New Job Role document with an electronic signature or by way of email exchange with Mrs Hughes, referred to in exhibit R2 and dealt with at [73] of the learned Commissioner's reasons. This ground is not made out.
[18]
In relation to this matter, the appellant referred to [99] of the learned Commissioner's reasons, which referred to the respondent's cross-examination of Mrs Hughes. It is as follows:
[19]
The applicant cross-examined Mrs Hughes. He asked Mrs Hughes about KPIs and whether there was a document that outlined the quarterly targets that he was required to meet to receive a quarterly payment. Mrs Hughes said there was a document that contained this information.
[20]
Questions were asked of Mrs Hughes in relation to KPIs and the existence of any documents referring to the respondent's quarterly targets that he was required to achieve, so as to receive his $10,000 quarterly payment. In response, Mrs Hughes said there was such a document (see AB291). The appellant submitted that this matter was ignored. That is incorrect. The learned Commissioner did not ignore the issue. He considered the issue of whether the respondent's quarterly payment claims were subject to KPIs in some detail in his reasons at [137]-[146]. In particular, when dealing with the evidence of both the respondent and Mrs Hughes, the learned Commissioner made the following findings at [137]-[143]:
[21]
[137] The first of these consequences was in relation to whether the payment of the quarterly amounts was subject to the applicant meeting particular KPIs. This consequence was borne by the respondent.
[22]
[138] As indicated, it is reasonable to find the change in remuneration the applicant agreed to with Mrs Hughes was as simple as an agreement the applicant would, in exchange for a payment of $10,000 per quarter, take on the New Job Role.
[23]
[139] Proof of this variation to the applicant's contract of employment was in part established with the May 2022 letter. It is reasonable to conclude the May 2022 letter is post contractual conduct of a type that established the applicant's contract of employment was varied. However, the extent to which this letter may be relied upon is limited because it was drafted after the applicant had agreed to take on the New Job Role and would have been influenced by the subjective views that Mr and Mrs Hughes held on what they thought they had agreed to.
[24]
[140] While I accept the May 2022 letter may have been prepared for auditing purposes, a reasonable person would expect that an explanation for expenditure a CEO provides to an auditor, will be good for all purposes, meaning that any payments to the applicant would have to be justified by reference to agreed contractual terms. The evidence is that Mr Gundry prepared the May 2022 letter on the information and instructions Mrs Hughes gave him. She also signed the letter.
[25]
[141] There was no evidence before the Commission, whether documentary or otherwise that supported the respondent's claim the payment of the quarterly amounts would be conditional upon the applicant meeting KPIs or other performance targets.
[26]
[142] Although the May 2022 letter is badly worded and it incorrectly describes the applicant's job title (which was changed when the applicant accepted the New Job Role) the May 2022 letter does state the applicant is entitled to a $10,000 payment, every three months served, as discussed with Mai and Bryan Hughes.
[27]
[143] It is reasonable to conclude that what was intended by the words 'as discussed with Mai and Bryan Hughes' is what Mr Gundry had confirmed with Mr and Mrs Hughes; the applicant would be paid $10,000 every three months served. If the respondent had intended the quarterly amounts would be conditional upon the applicant meeting KPIs, Mrs Hughes would have told Mr Gundry to include this information in the May 2023[sic] letter which she signed.
[28]
The learned Commissioner further found at [145], that Mrs Hughes' evidence about discussions with Mr Hughes, and whether the respondent was entitled to receive the first quarterly payment for January-March 2022, as not being relevant. This was on the basis that it was the subjective views of the appellant as to the meaning of the contract and secondly, in any event, it was evidence as to conduct that post-dated the variation of the respondent's contract of employment and on legal principle, it could not be taken into account.
In particular, the learned Commissioner did not accept Mrs Hughes' evidence that the payment of the $10,000 per quarter incorporated a contractual obligation on the respondent to meet any KPI performance indicators, in the absence of any reference to it in the 22 May 2022 letter, which we have set out at [3] above.
The learned Commissioner dealt with this issue based upon the evidence that was before him. As noted above, he concluded at [141] of his reasons that there 'was no evidence before the Commission, whether documentary or otherwise that supported the respondent's claim the payment of the quarterly amounts would be conditional upon the applicant meeting KPIs or other performance targets'.
Given that on the evidence, the May 2022 letter was prepared by a senior employee of the appellant on the instructions of Mr and Mrs Hughes, and that it was signed by Mrs Hughes, the letter was the ideal opportunity to confirm that the respondent's increase in remuneration by way of the $10,000 quarterly payments, was subject to him achieving performance targets, including KPIs. It did not.
It was clearly open therefore, in the context of the evidence as a whole, for the learned Commissioner to conclude that the respondent's contract of employment did not provide for the respondent to personally meet KPIs, to be entitled to receive the $10,000 quarterly payments.
It is important to observe that proceedings before the Commission are adversarial in nature. That is, it is not for the Commission to conduct a wide ranging investigation of claims and to follow up and require parties to produce documents to prove or to disprove, as the case may be, a particular contention of a party. It is for the parties to make out their particular cases, whether advancing or defending a claim, and the Commission can only proceed on the evidence and subject to limited exceptions, matters raised before it in the proceedings.
This ground is not made out.
[29]
The appellant referred to [100] of the learned Commissioner's reasons where he comments on the cross-examination of Mrs Hughes. Paragraph [100] is as follows:
[30]
The applicant then asked Mrs Hughes whether the document had been provided to the Commission, to which Mrs Hughes responded that it had not been provided because the applicant had not requested the document.
[31]
In this particular paragraph he referred to the respondent asking Mrs Hughes whether a document confirming that his quarterly payments were linked to the achievement of quarterly targets, had been provided to the Commission. The learned Commissioner records that Mrs Hughes replied that it had not, because the respondent had not requested it.
The appellant contended that this reference to Mrs Hughes' evidence was not complete and that Mrs Hughes also said that the Commission informed her that that evidence would not be able to be provided. The appellant submitted that this was a reference to the learned Commissioner earlier indicating that it was not open to the parties to 'ambush' each other with material provided at the last minute.
The exchange between the respondent when cross-examining Mrs Hughes appears at AB291 as follows:
[32]
TRABELSI, MR: Yeah. My point is that there is no document.
[33]
KUCERA C: I see. All right. So are you going to put that to the witness?
[34]
KUCERA C: Yes. Are you going to put that as a question to the witness?
[35]
KUCERA C: So put it so that it's on the transcript clearly.
[36]
TRABELSI, MR: Is there a document that outline the alleged quarterly targets that I was under in order to receive my quarterly payment?---Yes, there is.
[37]
TRABELSI, MR: Has this document been provided to the Commission?---No. Because it hasn't been requested by the applicant.
[38]
KUCERA C: Yes. But - so her answer is it hasn't been requested. Where do you want to go, now that - - -
[39]
TRABELSI, MR: - - - comment. But I did - I don't have to request document. If she wants to clarify something or make a point or provide evidence - - -
[40]
However, earlier at AB290, when questioned by the respondent whether a document existed that outlined KPI's to be met for the quarterly payments to be made, the following exchange took place between the respondent and Mrs Hughes:
[41]
- - - sorry, in a situation of on-target earnings, an employee would have their targets changing every single week?---No. Again, the two KPIs that you're referring to are different. So you've got KPIs that you had to meet that was going to be based on a quarterly basis, and there was a KPI for the team to meet, which was also discussed on a weekly basis.
[42]
I think we can agree on that. Is there a document that would outline the KPIs they would need to meet on a quarterly basis in order to allegedly receive my quarterly payment?---Yes. Um, but the Commissioner mentioned that I was not able to provide that evidence anymore.
[43]
The summary of Mrs Hughes' evidence recorded by the learned Commissioner at [100] was correct. It referred to the exchange above at [70]. It did not include the further evidence of Mrs Hughes immediately above at [71]. But the central issue was whether such a document was in evidence before the Commission, and it was not. Furthermore, and in any event, simply because a document was not requested by the respondent, did not mean that if such a document existed, the appellant could not have tendered it in evidence itself, including by annexing any relevant documents to the witness statement of Mrs Hughes.
In relation to the 'ambush', this arose during the earlier cross-examination of the respondent by Mrs Hughes. At AB278-279, Mrs Hughes was asking the respondent questions about a 'KPI Dashboard' that was used at the business as a part of monitoring the overall performance of the business. These matters were discussed at a weekly senior management meeting. The respondent was asked about this and said he did not previously deny there were KPIs for the business, but staff did not have individual targets. The respondent said that he was responsible for 'filling' the KPI Dashboard.
However, when Mrs Hughes requested to tender a copy of the 'KPI Dashboard', the learned Commissioner refused the request because it had not been previously disclosed, despite the earlier programming directions, and he considered it was too late to raise this as a new issue in the course of the hearing. Given the sequence of the evidence referred to above, it is very likely that the document referred to by Mrs Hughes at [71] above, that she said she was not able to provide, was the same 'KPI Dashboard' material.
It is clear on the evidence however, that this 'KPI Dashboard' document, was not a document that evidenced that the respondent's entitlement to a $10,000 quarterly payment, was conditional upon him achieving individual performance targets, as a term of his contract of employment. This was a document that was used by the business as a whole, to assess the overall business performance. The learned Commissioner rightly noted that the material had not been disclosed and provided as an annexure to filed witness statements, in accordance with the earlier programming directions. The learned Commissioner was correct to conclude that to this extent, it would involve a degree of 'ambush' of the witness.
In any event however, the appellant's complaint as to this issue underscores the central difficulty that the appellant had in the proceedings at first instance. The continual reference to these sorts of documents, which refer to the appellant's overall business performance measures and progress, are not the same thing by any means, as evidence of the appellant and respondent agreeing to a term in the respondent's contract of employment, that any additional payments he would receive, were contingent upon the respondent achieving specified targets as a term of his contract. The appellant has conflated the issue of overall business performance with individual KPI and performance targets, as a term of the respondent's contract of employment. There was simply no evidence of the latter before the Commission, to support the appellant's contention that the respondent failed to achieve what was required of him, to deny him the contractual entitlement of the quarterly payment.
This ground is not established.
[44]
This ground advanced by the appellant was a general assertion that when reviewing the transcript, the learned Commissioner provided coaching and assistance to the respondent in a manner which was 'extraordinary and not balanced', compared to any assistance provided to the appellant. We have already indicated above, the information and assistance provided to the parties by the learned Commissioner. Whilst the ground does not contain any particularity, dealing with it requires a review of the transcript of the proceedings, in terms of interactions between the Commission and the parties.
The following references to the appeal book are to the transcript at first instance. At AB264 the learned Commissioner explained the respondent's claim to both parties. At AB265 he explained the use of witness statements for both parties and the need for the presence of witnesses for cross-examination, failing which, the witness statements could be tendered by consent. We have already commented on these observations set out above, and the earlier correspondence between the appellant and the Associate.
Further, also at AB265, the learned Commissioner made a separate conference room available to accommodate the appellant's infant children and informed them they could request a break at any time in the proceedings. At AB266, the Commission outlined the procedure to be followed during the course of the hearing. A little further on at AB269, the learned Commissioner offered the appellant some additional time for preparation for cross-examination of the respondent. At AB271, the Commission ensured that the respondent had a copy of Mrs Hughes' witness statement, in order that he was able to respond to questions. At AB274-275, the learned Commissioner requested Mrs Hughes to put questions rather than statements to the respondent. This is a common request of unrepresented parties.
Further, at AB278, the Commission made a ruling on the 'KPI Dashboard' that we have referred to above, consistent with the programming directions earlier made. There is nothing at all unusual about this. A little later at AB280-281, the learned Commissioner provided Mrs Hughes with assistance in framing her questions, again a matter not unusual with unrepresented parties. At AB282, at the conclusion of the respondent's cross-examination, the learned Commissioner invited the respondent to say anything further arising from the questions that he was asked by Mrs Hughes. Again, with unrepresented parties, as there is no re-examination by the parties' representatives which would normally follow cross-examination, in which a witness can clarify or expand upon matters raised in cross-examination, the Commission's invitation to the respondent was entirely conventional.
A little later in the evidence, at AB284, the appellant was granted a request for an early lunch break. At AB285, on resumption after the luncheon adjournment, the learned Commissioner asked Mrs Hughes whether she needed any more time before recommencing. She remained seated at the bar table for the presentation of the appellant's case and the giving of her evidence. At AB289-290, and also later in the cross-examination, the learned Commissioner had to request Mr Hughes to stop speaking to Mrs Hughes while she was giving her evidence, as in effect, he was attempting to coach the witness.
At AB293, the respondent was prevented, as was the appellant, from producing documents and seeking to tender them, that had not been previously disclosed. In doing so, the learned Commissioner observed that 'the rules in relation to both parties regarding documents that were not put on pursuant to the directions apply equally'. At AB296-297, the respondent, when cross-examining Mrs Hughes, confused her. The learned Commissioner assisted by asking the respondent to put the question a different way, which he did. Furthermore, at AB299 in the respondent's cross-examination of Mrs Hughes, the learned Commissioner prevented the respondent from making submissions rather than asking questions. At AB303, the respondent was prevented from asking questions because they were not relevant.
Before making final submissions, the learned Commissioner asked Mrs Hughes whether she wished to have a break before doing so and asked her how much time she needed. She requested and was granted a 30 minute break and was invited to direct any request for further time to the Associate (see AB304). Ultimately, it was Mr Hughes who asked and was permitted to close the appellant's case (see AB305).
Nothing in the above exchanges between the learned Commissioner and the parties reveals in any way an unbalanced or inappropriate level of assistance to the respondent. On the contrary, the appellant's requests for time and assistance were granted on every occasion a request was made. There is nothing revealed in the transcript that shows the proceedings took place in other than an orderly and balanced way. In particular, given unrepresented parties were appearing before the Commission, the nature of the interactions between the Commission and the parties was entirely unexceptional.
The appellant's contention that the 'level of coaching and assistance the Commissioner provided the applicant is extraordinary and not balanced by a similar level of assistance to the respondent', as set out in this ground, is without foundation.
[45]
This ground relates to the observations by the learned Commissioner at [107] to the effect that the appellant was given ample opportunity to provide evidence in support of its case including documents, to establish its assertion that the respondent's payments were conditional upon meeting performance targets. The appellant complained that these observations were inaccurate and also complained about a lack of guidance. In our view, for all of the foregoing reasons, there is no substance to this ground of appeal.
[46]
This ground was a general comment by way of a statement that the respondent had a key performance indicator in relation to 'Active Subscribers' amongst others. It was submitted these are standard in the appellant's industry sector and that the respondent was responsible for monitoring those on behalf of the company. No specific error is identified. We do not repeat what we have said above about the appellant's conflation of the overall performance of the business, and performance measures relevant to that, and the terms of the respondent's contract of employment. This applies with equal force to the matter raised in this ground which is not made out.
[47]
Whilst in similar terms to ground 19 above, the appellant complained of the loss of an opportunity to adduce critical evidence in the case. It was asserted that this was due to flawed findings and inappropriate guidance during the proceedings. In our view, as with the above grounds, there was no lack of opportunity given to the appellant to advance its case. Furthermore, regarding the asserted lack of opportunity to tender material in relation to KPIs and performance measurement, documents of the kind referred to by the appellant, such as the 'KPI Dashboard' used as a measure of overall business performance, and other similar material contained in the appeal book (see AB319-376), would not have assisted the appellant at first instance. It was not evidence supporting the existence of a specific term in the respondent's contract of employment, to the effect that his quarterly payments were linked to individual performance criteria being satisfied.
This ground is not made out.
[48]
We have already noted above, a fundamental difficulty with the appellant's case at first instance was the absence of any evidence before the Commission, which established that it was a term of the respondent's contract of employment that the additional $10,000 quarterly payments reflected in exhibit A1, the May 2022 letter, were conditional upon the respondent achieving performance targets set out in KPIs for him personally. During the course of argument on the appeal, to his credit, Mr Hughes, when members of the Full Bench raised this with him, conceded that there was no document in existence that established this (see transcript of appeal at pp 30-41). In particular, in response to questions about these matters, the following exchange took place at pp40-41 of the appeal transcript:
[49]
KENNER CC: But is there anything in either Ms Hughes' witness statement or the oral evidence given before Commissioner Kucera directly about Ms Hughes' discussion with the respondent, Mr Trabelsi, and what was discussed and what she says was agreed? That's the critical thing.
[50]
HUGHES, MR: Well, I think that, yes, I accept that, sir. The respondent is saying that this letter reflects that discussion. We're saying - well, you're saying it just reflects this discussion in that it's an amendment to his contract, as agreed at that time, increasing his salary. We're saying that this letter was never for that purpose, should not be taken in the context of that, and should - no weight should have been put on this letter at all. It was just incorrect from the beginning. So - - -
[51]
EMMANUEL C: But the Chief Commissioner's question is a bit different. He's putting to you, or asking you, where's the evidence you point to about the discussion between Ms Hughes and the then-applicant in relation to that 31 October discussion? So there's a line in there, in the paragraph you pointed to. Those discussions were all about this being performance-based. But what is the other evidence that My Foodie Box put on about that 31 October discussion between Ms Hughes?
[52]
HUGHES, MR: Fair enough. Exactly, and I think we sort of alluded to that. It's all inferred and circumstantial evidence surrounding the overall performance of the position, what the position was for, the general commercial nature of that, and how this is ordinarily structured in these ways for such positions, that you don't, you know, you - to be probationary and to be provided with a quarterly payment, there had to be some catalyst for why that was like that. And all of that is inferred from the thing. But is there any other direct evidence? No, I can't think we can point to anything that's been put forward.
[53]
There was nothing specific in Mrs Hughes' witness statement to this effect, other than a general comment in response to the respondent's witness statement, about 'discussions' between Mr and Mrs Hughes and the respondent and those discussions being 'performance based' (see AB72). However, as was noted by the learned Commissioner at [144] of his reasons, the evidence was Mr Hughes did not take part in the October 2021 meeting with the respondent regarding his appointment to the Director of Business Development position (see AB277). Accordingly, the reference in the letter of May 2022, confirming the quarterly payment (albeit that the letter was written well after the event), to these 'discussions' between the three of them, did not support the appellant's contentions.
This is also despite the letter of May 2022 being the ideal opportunity to document the alleged link between the respondent's quarterly payments and the need for him to achieve specific targets, as a condition to be met in order to receive any payments. The absence of any reference to such a link in the letter, weighs heavily against the appellant's contentions in this regard. The reference in the letter, to the additional payments, as the learned Commission found at [89] of his reasons, was entirely consistent with additional remuneration being payable to the respondent for the increased responsibility and scope of the new position he was appointed to from 1 November 2021.
Additionally, there was no oral evidence from Mrs Hughes referring specifically to an agreement that the respondent's quarterly payments were conditional on him meeting individual and specified KPI or other performance measures. Generalised statements by the appellant that the respondent's new job was 'performance based', were insufficient to establish the appellant's contentions at first instance. They blurred the important distinction between an employee's job responsibilities being for an aspect of a business' overall performance, on the one hand, and an employee being entitled under their contract of employment, to receive part of their remuneration, only conditional on the achievement of particular performance measures of the business, on the other. In the absence of any oral or documentary evidence of this kind, the learned Commissioner's conclusions at [141] of his reasons, set out above, were entirely open to him and indeed, were the only conclusions that the Commission could have reached on the evidence.
[54]
For the foregoing reasons, the appeal should be dismissed.
Legislation Cited (1)
Relations Act 1979
Cases Cited (32)
My Foodie Box Limited -v- Alain Trabelsi [2025] WAIRC 172; (18 March 2025)
[36] A party to proceedings before the Commission is entitled to procedural fairness in the conduct of their case. This requires a party being given a reasonable opportunity to present their respective cases and to respond to issues that may be adverse to them. As Le Miere J observed in BHP Billiton Iron Ore v CFMEU[2006] WASCA 49; (2006) 151 IR 362 at [33]- [34]:
[73] In considering the nature of proceedings in the Commission and the rules under which the Commission is required to act, it is important that the nature of the jurisdiction and the powers of the Commission to enquire into and deal with any industrial matter under s 23 by an application brought under s 29(1)(b) of the Act are such that the dispute ought to be arbitrated with reasonable expedition: MRTA of WA Inc v Tsakisiris[2007] WAIRC 01121; (2007) 87 WAIG 2795. The Commission is not a court of pleadings. It is required by s 26 of the Act to act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal form. However, the nature of an enquiry under s 23(1) of the Act is not inquisitorial in the sense that the Commission can undertake an enquiry outside the bounds of particulars. Particulars of a claim and corresponding particulars of defence to a claim are necessary to avoid a trial by ambush. Such particulars need not be drafted with any finesse or to the same extent as required in a court of pleadings but must leave the opposing party in no doubt as to what is alleged so as to enable the opposing party to know what case he or she is required to meet. Proceedings brought by an employee under s 29(1)(b) of the Act are adversial in nature and as such, once particulars are given each party is entitled to run their case on the basis that the particulars set the boundaries of relevant issues in dispute. Unless an application to amend particulars is granted, a party should be bound by the particulars they have provided.
[120] The obligation on a member of the Commission when hearing a matter is to observe procedural fairness. This obligation includes the duty to hear and decide matters without bias or the appearance of bias. Bias means some preponderating disposition or tendency, a propensity, predisposition towards, predilection, prejudice. It may be occasioned by interest in the outcome, by affection, enmity or prejudgment: Minister for Immigration v Jia[2001] HCA 17; (2001) 205 CLR 507, 563 (Hayne J).
[122] Actual bias is rarely raised as a ground to impugn a decision, as it is ordinarily sufficient to establish apprehended bias of a decision maker. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Johnson v Johnson[2000] HCA 48; (2000) 201 CLR 488 (492); R v Lusink; Ex parte Shaw(1980) 32 ALR 47; (1980) 55 ALJR 12; Livesey v NSW Bar Association[1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly[1989] HCA 44; (1989) 167 CLR 568; and Webb v The Queen[1994] HCA 30; (1994) 181 CLR 41. The test is objective.
[124] The appellant also raises an issue in grounds 1 and 10 that the hearing was not fairly conducted. This raises the issue whether the appellant has had a proper opportunity to advance his defence to the applicant's claims. In Michael v The State of Western Australia[2007] WASCA 100 Steytler P with whom McLure JA and Miller AJA observed [63]:
When the contention is one of an unfair trial, the test to be applied, according to Kirby A-CJ and Meagher JA (who agreed with Kirby A-CJ), is whether the impugned behaviour has "created a real danger that the trial was unfair": Galea at 281. If so, the judgment must be set aside: Galea at 281; E H Cochrane Ltd v Ministry of Transport[1987] 1 NZLR 146. In R v Mawson[1967] VicRp 23; [1967] VR 205, in which there had been excessive involvement or interference by the trial judge in the conduct of the case, the Court (Winneke CJ, Adam and Barber JJ) regarded the test as being whether there had been "such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice".
Next, a judge is entitled to ask questions of a witness, not only for the purpose of clarifying evidence, but also to test that evidence (R v Gardiner [1981] Qd R 394 at 406, 415; R v Senior[2001] QCA 346 at [36] per McMurdo P, Davies and Thomas JJA), although he or she should do no more than is absolutely necessary in that respect and should be careful not to take on the role of counsel.
As Bell J in Tomasevic v Travaglini[2007] VSC 337 recently observed, it is the function of a judicial decision-maker to find facts on the basis of the evidence and in doing so is to ensure trial fairness and to elicit relevant evidence [127]-[128]. At [139]-[141] he explained:
[45] The aforementioned principles in Rajski were considered by E M Heenan J (Murray J and Le Miere J agreeing) in Tobin v Dodd[2004] WASCA 288 [14]. E M Heenan J considered the observations of the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission[1999] FCA 85; (1999) 166 ALR 129. In Minogue, the Full Court had regard to the general principles in Rajski and also relevantly observed [27].
We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; 37 ALR 81; D A Ipp, 'Judicial Intervention in the Trial Process' (1995) 69 ALG 365, at 369-70.
[46] It is elementary that a court (and a tribunal) ought to ensure that a self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of these rights. Notwithstanding this, the court (and a tribunal) should refrain from advising a litigant as to how or when he or she should exercise these rights: Trkulja v Markovic[2015] VSCA 298 [39]; Loftus v Australia and New Zealand Banking Group Ltd(No 2)[2016] VSCA 308 [27]-[28].
We will deal with these grounds together as they raise broadly similar issues. They were dealt with by the learned Commissioner under the heading 'Compliance with the Programming Order'. He observed at [25] that there were issues with both parties' compliance with the directions made in the matter, and 'the respondent's non-compliance was more pronounced'. On 8 September 2023, the Commission issued directions in relation to the conduct of the matter: [2023] WAIRC 000739. Those directions were as follows:
THAT the parties are to provide informal discovery by 22 September 2023;
THAT the evidence in chief in this matter is to be adduced by way of signed witness statements which will stand as the evidence in chief of their maker. Evidence in chief other than that contained in the witness statements may only be adduced by leave of the Commission;
THAT the applicant file his evidence in chief in the form of witness statements in the manner required by practice note 9 of 2021 together with any documents upon which he intends to rely by 13 October 2023;
THAT the respondent file its evidence in chief in the form of witness statements in the manner required by practice note 9 of 2021, together with any documents upon which it intends to rely on by 3 November 2023;
THAT the matter be listed for a further conciliation conference not before 3 November 2023;
THAT there be liberty to apply on short notice.
As to the request for production of documents, the appellant contended that the respondent did not request documents of the appellant until 7.08 pm on 21 September 2023. It was submitted that the request was for a voluminous amount of material to be produced. In relation to this material, the appellant contended that the learned Commissioner's observations at [27] of his reasons that the appellant did not disclose documents relating to KPIs was incorrect. It was submitted that some 25 documents relating to KPIs were provided to the respondent.
A bundle of materials commencing at AB315-376, was described in the appeal book as 'informal discovery documents'. Whilst a body of this material referred to performance data for the business as a whole, and various documents referred to 'KPIs', none of the material referred to specific performance obligations imposed on the respondent as a term of his contract of employment. It is not entirely clear what the learned Commissioner was referring to at [27] of his reasons. However, given the conclusions that he reached in relation to the respondent's claim at first instance, the most likely was the absence of material referring specifically to the respondent's contract of employment containing any reference to the achievement of performance objectives or KPIs as a precondition for the $10,000 quarterly payments under his contract of employment.
(2006) 151 IR 362
(1989) 21 FCR 472
(2001) 205 CLR 507
(2000) 201 CLR 488
(1980) 32 ALR 47
(1980) 55 ALJR 12
(1983) 151 CLR 288
(1989) 167 CLR 568
(1994) 181 CLR 41
(1997) 81 FCR 71
(1999) 166 ALR 129
(1981) 147 CLR 512
It should also be observed that when the nature of this material was raised with Mr Hughes in the course of argument in the appeal, especially the 'KPI Dashboard' document, the appellant conceded that none of this material contained any documents that directly linked the respondent's quarterly payments to the achievement of individual performance targets by the respondent (see appeal transcript p 14).
As to [30] of the learned Commissioner's reasons, reference is made to contact between the Associate and Mr Hughes on 19 October 2023, to the effect that given the delay in the respondent filing his witness statements, that a similar period of additional time could be afforded to the appellant to file their witness statements.
By way of background to this request, in accordance with the programming directions, the appellant's witness statements were due to be filed on 3 November 2023. Given the pregnancy of Mrs Hughes, and what Mr Hughes contended were medical issues in relation to the birth of twins on 6 November 2023, the appellant made a request on 6 November 2023, after the time the witness statements were due, to extend the time for filing by a further three weeks (see AB62).
On the same day the Associate, on the learned Commissioner's direction, informed the parties that in light of: