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[1995] WAIRComm 34
appellant. Appeal upheld; decision of Commission at first instance quashed
1 cited instrument linked from this judgment.
The Western Australian Industrial Relations Commission Full Bench overturned a decision to discontinue an unfair dismissal case. The original Commissioner had stopped the case based on a report from a Deputy Registrar, without telling the parties about the report or giving them a chance to respond. The Full Bench ruled this was unfair and against the rules of natural justice. The majority held that the Commission cannot rely on secret information or make decisions without giving parties a proper hearing. One Commissioner disagreed, thinking the case could be stopped because the worker had indicated he wanted to take the case to a different court instead.
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The applicant had made application pursuant to Section 29 of the Act alleging unfair dismissal and claiming an amount of $1024.35 being the balance of wages owing for notice and a share of a referral fee.
At the meeting before Deputy Registrar Pope on 3rd November, 1994, the respondent offered the amount of $1024.35 in full and final settlement of the matters before the Commission together with withdrawal of Local Court and Equal Opportunities Commission actions. Counsel for the applicant conveyed this offer to the applicant by telephone and later advised the meeting that the applicant would consider the offer over the next week. I point out here that the monetary offer was in full and final settlement of all claims including of course the claim for reinstatement, then before the Commission.
In the result on 22nd November, 1994, counsel for the applicant advised Deputy Registrar Pope that "They (the applicant) are to apply to have the matter viz the claim for reinstatement and $1024.35" transferred to the Federal Industrial Relations Court.
I have thoroughly examined the relevant provisions of the Federal IR Act and the IR Act (WA) and there is no provision in either Act which provides for "an application to transfer". Had these words be used by an applicant appearing in person or a lay advocate then, before acting on such advice, extreme caution on the part of the Commission at first instance would have been required. However, the words were used by counsel for the applicant and in my respectful opinion it follows that it was entirely reasonable for the advice to be accepted and acted upon by the Commission at first instance.
Again, in my respectful opinion there is only one sensible and reasonable understanding of that advice open and that is that counsel for the applicant had been instructed by the applicant to commence proceedings in relation to "the matter" the matter being the claim of unfair dismissal and the claim for the monetary amount of $1024.35 in the Federal Industrial Relations Court.
There was therefore simply no matter/s remaining for the Commission at first instance to hear and determine. Thus, the Commission had no reason and indeed did not purport pursuant to Section 27(1)(a)
(ii) that further proceedings were not necessary or desirable in the public interest;
(iii) that the person who referred the matter ....... does not have a sufficient interest;
but did conclude from the advice received from counsel:
(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued as the case may be;
(a) An application was made to the Commission pursuant to Section 29 of the Act for relief as described within it.
(b) Pursuant to Section 93(8), Deputy Registrar Pope was directed by the Commission at first instance, to whom the matter had been allocated pursuant to Section 6 of the Act, to investigate and report.
(c) Deputy Registrar Pope did investigate and on 7th November, 1994 reported in writing to the Commission at first instance (supra).
(d) On 22nd November, 1994, Deputy Registrar Pope further reported to the Commission at first instance (supra).
In the final analysis there remained no matter to be heard or for that matter determined as "the matter" was to be the subject of proceedings in the Federal Industrial Relations Court. No "matter" therefore remained pursuant to Section 26 of the Act for the Commission to "... exercise its jurisdiction under this Act ..." in relation to and accordingly the Commission exercised the powers under Section 27 as detailed above.
In all these circumstances there could be and was no violation of rules of natural justice as the applicant plainly advised that it did not desire to have the matter heard by this Commission.
For the above reasons the grounds of appeal are not made out and I would dismiss the appeal.
COMMISSIONER SCOTT: I have had the advantage of reading in draft form the reasons for decision of His Honour the President and I agree with his findings. I would uphold the appeal and quash the decision of the Commission at first instance.
THE PRESIDENT: For those reasons the appeal is upheld and the decision of the Commission at first instance is quashed.
Appearances: Ms M C Davis (of Counsel) on behalf of the appellant.
Stanley Chee Keong Pek
Lomba Pty Ltd t/a Ian George and Co [1995] WAIRComm 34
The rules of natural justice apply to this Commission (see RRIA v AMWSU and Others 66 WAIG 1553 (IAC) and RRIA v AMWSU and Others 73 WAIG 1993 (IAC)). Natural justice required that the parties be given a reasonable opportunity to be heard and to put their cases. No such opportunity was given before the Commission made its decision, and no hearing took place. There was, accordingly, no opportunity to make submissions and no opportunity to be heard, as well as no opportunity to adduce evidence if evidence were to be adduced. There was plainly a denial of natural justice. There was also a failure to disclose the existence or contents of the Deputy Registrar's report to the parties, their solicitors or agents, and that was, in fact, evidence relied upon by the Commission in deciding as it did. The failure to so disclose was a denial of natural justice (see Kanda v Government of Malaysia [1962] UKPC 2; [1962] AC 322 at 337 per Lord Denning, Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41, Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34, as well as R v Deputy Industrial Injuries Commissioner; ex parte Jones [1962] 2 QB 677 and Fairmont Investments Pty Ltd v Secretary of State for the Environment [1976] 1 WLR 1255).
It was the appellant's case, as I understand the submission, that the appellant was deprived of its opportunity of obtaining a successful outcome in relation to this matter by the denial of natural justice. That is that there would not have been a decision under s.27 of the Act to "discontinue" the application were the appellant given reasonable opportunity to be heard. There is no suggestion quite rightly that a properly conducted hearing on this point could not possibly have produced a different result in terms of the principle in Stead v SGIC [1986] HCA 54; [1986] 161 CLR 141.
(1982) 43 ALR 41
(1981) 55 FLR 34
Appeal upheld; decision of Commission at first instance quashed