issued by Vice President Lawler on 15 December 2006

s.170CE - Application for relief re termination of employment

Appeal - termination of employment - dismissal of application - whether error in decision under appeal - application to admit fresh evidence - Workplace Relations Act 1996 (pre-reform) ss.170CE and 170CG(3).

[1] This is an appeal by Ms Harvey (the appellant) against a decision by Vice President Lawler on 15 December 2006 dismissing her application for a remedy in relation to the termination of her employment by the Australian Injecting and Illicit Drug Users League (the respondent). [1] While the decision was made after the Workplace Relations Amendment (Work Choices) Act 2005 came into operation on 27 March 2006, by force of the relevant transitional provisions the application was dealt with under the provisions of the Workplace Relations Act 1996 as in force prior to 27 March 2006.[2] We shall refer to that Act as the unamended Act. It was common ground that, subject to leave being granted, an appeal may be brought against the decision under s.120 of the Workplace Relations Act 1996.

[2] The Vice President described the respondent and its operations as follows:

"[3] The Respondent, which used to be known as the Australian Intravenous Drug Users League, is still referred to as "AIVL". I will adopt that usage.

[4] AIVL is a small non-government organisation and is the national peak organisation representing state and territory drug user organisations. At the time of the Applicant's dismissal it employed about 8 staff members. At all material times the Chief Executive of AIVL, responsible for its day-to-day management, was Ms Annie Madden. Ultimate control of AIVL rested with its Executive and Ms Madden was subject to direction by the Executive.

[5] AIVL is almost entirely dependent upon government grants for its funding. While a small amount of funding was obtained from private charitable organisations, the overwhelming source of AIVL's funding was from government in the form of specific purpose grants."

[3] The appellant commenced full time employment with the respondent in November 2001 as an Education Project Officer. The appellant stopped attending work on 14 July 2005 and "unilaterally determined that she would work from home on the basis that work-related stress was harming her health and the health of her unborn baby." [3] On 26 July 2005 the respondent wrote to the appellant and invited her to explain why her employment should not be terminated for serious misconduct. At about that time the appellant went on maternity leave. Towards the end of 2005 and at the beginning of 2006 there was correspondence between the parties' solicitors. The respondent terminated the appellant's employment on 27�January 2006.

[4] The application was made pursuant to s.170CE and dealt with pursuant to s.170CG(3) of the unamended Act. A decision under that section is properly described as a discretionary one and an appeal lies against such a decision only in the case of error. [4] It is not enough that the appeal bench would have decided the case a different way. The appellant must show either that the decision-maker acted on a wrong principle, was influenced by irrelevant or extraneous matters, mistook the facts or failed to take a material consideration into account or that the decision was plainly unreasonable or unjust.[5]

[5] The application was dismissed on two grounds, each independent of the other. The first ground concerned evidence of conduct by the appellant which was not known to the respondent at the time of the termination but which, the Vice President found, led to the conclusion that the application should be dismissed. The second ground excluded consideration of the after-acquired knowledge and was based only on matters known to the respondent at the time of the termination of the appellant's employment and upon which the respondent actually relied in making the decision to terminate.

[6] It will be apparent that the appellant cannot succeed in this appeal unless it is demonstrated that the Vice President's decision was affected by error on both grounds. Put another way, if we find that one of the grounds for the Vice President's decision is not affected by appealable error the appeal should be dismissed. We shall deal with the second ground for the Vice President's decision first.

[7] The conduct which the respondent relied upon in terminating the appellant's employment involved allegations summarised by the Vice President as follows:

"(a) The Applicant negotiated and submitted applications for funding to Commonwealth government departments on behalf of AIVL without the knowledge and permission of AIVL and in the face of warnings that she should not do so.

(b) The Applicant represented herself as "manager" of The Connection when she was not entitled to do so and had been instructed not to do so.

(c) The Applicant executed contracts with contractors on behalf of AIVL without authority or permission.

(d) The opening and conduct of a joint bank account in relation to a small government grant to J to enable the production of a newsletter."

[8] The Vice President analysed the evidence, which was mainly oral, and concluded that the appellant had negotiated and submitted applications for funding without the respondent's permission after having been warned not to do so (paragraph (a)) and that she had represented herself to be the manager when she had been instructed not do so (paragraph (b)). His Honour concluded that the conduct in paragraph (a) alone constituted a valid reason for the termination pursuant to s.170CG(3)(a) of the unamended Act. He did not regard the allegation that the appellant had executed contracts on behalf of the respondent (paragraph (c)) as significant in the circumstances. The Vice President further found that the appellant had opened a joint bank account in relation to a small government grant (paragraph (d)) and that such conduct, while not itself constituting a valid reason for termination, was misconduct which was to be taken into account. Having considered each of the matters referred to in s.170CG(3), so far as relevant, he concluded that the termination was not harsh, unjust or unreasonable.

[9] In making the relevant findings it appears that the Vice President expressly preferred the evidence of the respondent's Director to that of the appellant. The appellant's legal representative sought to persuade us that the Vice President made errors in doing so. He pointed to what he contended was a surprising lack of documentary material supporting the allegations and submitted that the Vice President was wrong to prefer the Director's evidence. In the latter respect he referred to one inconsistency in the Director's evidence in particular. Ms Madden had alleged that the appellant had made application for grant funds without authority. In the case of one grant application on which Ms Madden relied, an application was discovered which Ms Madden herself had signed, despite the fact she had denied doing so. The Vice President took this evidence into account and found nevertheless, for reasons he gave, that Ms Madden's evidence was not inherently unreliable and that she had been "mistaken rather than untruthful." [6]

[10] It was also submitted that the fact that Ms Madden had signed the particular grant application gave weight to the appellant's oral denials that she had applied for grants without approval and undermined the Director's evidence in that regard. More generally it was submitted that even if the appellant had applied for grants without approval and represented herself to be the manager of the respondent, there was no evidence of any inherent detriment to the respondent or its operations.

[11] As a separate ground it was submitted that the Vice President failed to have sufficient regard to the fact that the respondent had not fully complied with its own consultative arrangements with respect to investigation of breaches of procedure.

[12] We have not been persuaded that the Vice President's decision is affected by error. It was open to him to find that Ms Madden's testimony, that she had not signed a grant application when clearly she had, was an error rather than a deliberate untruth. Equally the evidence that Ms Madden had signed the application in question, although supporting to some extent the appellant's statement that she had not applied for grants without approval, does not necessarily lead to the conclusion that the Vice President's findings based on credit were erroneous. Where questions of witness credibility are concerned an appeal bench will be reluctant to intervene unless it can be clearly shown that findings based on credit are wrong. [7] This might occur if a finding is inconsistent with "incontrovertible facts or uncontested testimony."[8] But that is not the case here.

[13] Nor do we think that the appellant's submission that no detriment was caused to the respondent, supposing the findings that the appellant had applied for grants and represented herself to be the manager without approval after having been warned not to do so were correct, leads to the conclusion that the Vice President made an appealable error. Clearly breaches of procedures in applications for grants are capable of affecting the efficiency and prudent management of the respondent and the Vice President was entitled to take the view that those breaches were serious.

[14] Finally, in relation to the submission that the appellant had not followed its own consultative arrangements in investigating the allegations against the appellant, the Vice President weighed the evidence in the balance but nevertheless found that the termination was not harsh, unjust or unreasonable. There is no error apparent in such reasoning.

[15] The Vice President's decision on the second ground is not affected by error in any relevant sense. In light of that conclusion it is not necessary that we deal with the appellant's submissions in relation to the first ground for the Vice President's decision.

[16] At the commencement of the appeal hearing the appellant's counsel sought to introduce some new evidence. There were three matters. The first was some oral evidence contained in a statutory declaration filed in relation to the appeal. It was said to be relevant to the first ground for the Vice President's decision - that relating to after-acquired knowledge of the appellant's conduct. The other two matters were contained in documents. The first document was a copy of a speech given by Ms Madden, the respondent's Director, in July 2002. The second document was a copy of a policy prepared by the respondent. Both documents were said to be relevant to the respondent's policy and practice in relation to the use of drugs by its employees. And all three matters may have been relevant to Ms Madden's credibility. We decided not to admit the evidence, reserving our reasons. The reasons are as follows.

[17] We are satisfied that all of the material sought to be admitted into evidence for the first time on the appeal could have been produced during the hearing at first instance. It was not denied that the oral evidence could have been adduced at the hearing. The evidence filed by the respondent and the cross-examination of the appellant both put the appellant on notice of the relevant matters. In the circumstances the appellant had a reasonable opportunity to call the evidence. In relation to the two documents, it was said that the appellant was unaware of them at the time she gave her evidence. That is not sufficient. One document was apparently on the respondent's web page. The other was a policy document in the respondent's records. The documents could have been discovered prior to or during the hearing with a reasonably diligent search.

[18] An appeal bench would not usually admit evidence which could have been called at first instance. That approach is grounded in an important policy consideration, namely, that an appeal should not be an opportunity for parties to remedy avoidable deficiencies in the evidence adduced at the trial. There is nothing in this case which would lead us to depart from the usual practice.

[19] For these reasons we have decided that we should not grant leave to appeal. The appeal is dismissed.

A Moses of counsel with M Triplett for the Australian Injecting & Illicit Drug Users' League.

[2] See generally Items 7 to 10 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005.

[4] See for example Woodman v the Hoyts Corporation Pty Ltd (2001)107 IR 172 at paras 13 to 16.

[5] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504.

[6] PR975252 at paras [44] to [50].

[7] Devries v Australian National Railways Commission (1993) 177 CLR 472.

[8] Fox v Percy [2003] HCA 22 at para 28.

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