THE PRESIDENT: These are the joint reasons for decision of Halliwell SC and myself.

These are two appeals against the decision of a single Commissioner, wherein the Commissioner dismissed two applications, one by each appellant, which initially claimed remedies for unfair dismissal, including reinstatement, and, in the end, claimed compensation and contractual benefits to which the appellants allege they were entitled and were not paid. It is against that decision that the appellants now appeal.

The appeals were heard together, since the appellants, who are husband and wife, were employed by the same employer, their employment was ended on the same day, the applications were heard together at first instance, the evidence given was relevant to both applications, Mr Stankovski appeared for both himself and as agent for the other appellant, his wife, as he had at first instance, and there was no likelihood that an injustice would be occasioned to the appellants by the Full Bench taking such a course.

The grounds of appeal, as we discern them from the documents filed herein (and from the submissions put by Mr Stankovski), were as follows:-

(1) The Commission at first instance denied the appellants natural justice by failing to afford them a reasonable opportunity to be heard and thereby erred.

(2) The Commission erred by accepting evidence which the appellants claim to be untrue in preference to the evidence of the appellants, in particular Mrs Stankovska.

(3) There was an incident which occurred about 26 May 1995 which was connected to the dismissals on 30 May 1995 (the date referred to in the grounds), and the Commission should have so found.

(4) The Commission erred in failing to find that the respondent had failed to pay monies due and owing to the appellants for unpaid holidays, sick leave and unpaid wages from 17 December 1993 to 29 May 1995.

(5) The appellants were dismissed while Mrs Stankovska was ill and whilst her husband was entitled to be absent to look after her.

(6) The Commission erred in deciding that it did not have jurisdiction to make orders in respect of wages claimed without making the appellants aware of this situation at the outset of proceedings.

(7) The appellants claimed that they were owed monies for cleaning the front external area of the Bankwest Bassendean branch.

The appellants were employed as cleaners by the respondent from 1992 until the termination of their contracts on 30 May 1995. They worked together cleaning two banks in Bassendean, namely a branch of Bankwest and a branch of Westpac. They claimed that they were unfairly dismissed. However, the respondent claims that they resigned. Their contracts of employment were governed by the Contract Cleaners Award 1986, No A 6 of 1985 (hereinafter referred to as "the award"), as appears to have been common ground.

On 28 May 1995 Mrs Stankovska became sick and was taken to her doctor by Mr Stankovski. They arrived home late as a result. That evening, between 8.00 pm and 9.00 pm, the relieving contract manager employed by the respondent, Ms Anna Marjanovich, had visited the banks to locate Mr Stankovski and Mrs Stankovska with a view to asking them to clean up some dead cockroaches on the stairs of the Bankwest premises. The bank had so requested. That person did not find them there and therefore telephoned the appellants' home. She spoke by telephone to Mr Stankovski who told her that his wife was ill. Mr Stankovski advised her that he would carry out the work later.

The next day, Ms Marjanovich received telephone calls from both banks advising that the cleaning work had not been done at either premises. Ms Marjanovich then telephoned the home of the appellants and spoke to Mrs Stankovska. Ms Marjanovich's version of the conversation was that in the course of about half an hour of discussion Mrs Stankovska said that she and her husband were resigning and that she, Mrs Stankovska, was fed up. Accordingly, Ms Marjanovich came to pick up the keys to the two banks from Mrs Stankovska, which she said were given to her voluntarily and without any anger.

Mrs Stankovska denied that she and her husband resigned. What she claimed was that once the keys were taken they were unable to work. There was some evidence in which they attempted to link events involving problems with security to the termination of the contracts of employment.

Mr Stankovski said in evidence that if his wife had said that she resigned she did so under provocation, but Ms Marjanovich denied this and denied, in fact, that there was any anger in the discussion. There is no evidence that Mr Stankovski was present during any of this telephone discussion.

Both the appellants and Ms Marjanovich had known each other for 10 to 15 years. Ms Marjanovich said that this was from time to time on a social basis because they attended the same club and Mrs Stankovska had been her hairdresser. However, both Mr Stankovski and Mrs Stankovska denied that there was any social basis to their acquaintanceship with Ms Marjanovich.

We summarise the findings and conclusions of the Commission at first instance hereunder:-

(1) That the Commission preferred the recollection of Ms Marjanovich of the telephone conversation between Mrs Stankovska and Ms Marjanovich on 30 May 1995.

(2) That both the appellants resigned from their positions as cleaners with the respondent on 30 May 1995.

(3) That there was no dismissal of them effected by the company and therefore no ability in the Commission to hear and determine the claim under s.29(1)(b)(i) of the Industrial Relations Act 1979 (hereinafter referred to as "the Act").

(4) There was no ability on the part of the appellants to proceed with these claims under s.29(1)(b)(ii) of the Act, since they dealt with matters which arose from the provisions of the award under which they were employed, namely the Contract Cleaners Award 1986, No A 6 of 1985, and the Act excludes jurisdiction in those matters.

Because of the nature of the submissions on behalf of the appellants, it is necessary to briefly summarise the evidence. There was evidence from four witnesses in these applications at first instance. They were the appellants themselves, Mr Tomislav Stankovski and Mrs Sevda Stankovska, who were the only witnesses for the appellants, and Ms Anna Marjanovich and Ms Dianne Rowe, who were the only witnesses for the respondent.

Mr Stankovski gave evidence that he and his wife had not been paid for cleaning the verandah at one bank. His evidence did not reveal how this came about or what amount was claimed. He gave evidence that he was dismissed and that he did not go to work on 28 May 1995 because his wife was sick. He said that his wife was given two weeks off work by her doctor. That was on 28 May 1995. On 29 May 1995, Mr Stankovski said they were unable to go to work because Ms Marjanovich had taken their keys. He said that they were unable to telephone her to tell her that they could not work on the night of 28 May 1995 because he did not have her telephone number. He also added that the portable telephone was to expensive to telephone on. The night before, 28 May 1995, he did not tell Ms Marjanovich when he spoke to her on the telephone that his wife was ill. This was because he thought that she was going to settle down. Further, he said that he was going to do the cleaning later on. He did not however go and clean the banks because of his wife's illness. Because he did not have the keys to enter the banks he felt that he was dismissed, that is subsequently after Ms Marjanovich had collected the keys. He used the word "key". He did not contact Ms Marjanovich about this because he believed that she was not their boss. He did not ring the mobile telephone because this costs money. Mr Stankovski telephoned Ms Dianne Rowe, another employee and supervising employee, a week after. He did not have time to ring her before that, he said, because of his full-time job. Ms Rowe, according to Mr Stankovski, told him that she did not know anything and she did not offer to follow the matter up. He said that he knew Ms Marjanovich for 10 to 15 years, but not on a social basis. He also said in evidence that Anna ((ie) Ms Marjanovich) had told him, through his wife, that he was dismissed. He said that if his wife had said that they did not want to work in the banks any more that that could have been said in some sort of anger because she was provoked at the time (see pages 26-27 of the transcript at first instance). He denied in evidence that he and his wife had said that they did not want to do the job any more. He said that the "sacking" was for some other reason. It was claimed by Mr Stankovski from the bar table that they had received some cheques after the termination of employment, but he did not understand what these represented.

Mrs Sevda Stankovska gave evidence. She said that Ms Rowe had rung her to say that she was coming in tonight about 4.00 o'clock to take the keys because security was very upset. She did not say when this was. She said the client rang back about 2.00 pm to say that she wanted the keys. She said that "she" did not explain why she (Mrs Stankovska) and her husband were to finish, but indicated there was a meeting the next day with the bosses saying "I think finish tomorrow because you make wrong with security". They discussed pay, but were not paid. Mrs Stankovska gave evidence that she did not speak to Ms Marjanovich on 28 May 1995 because she was ill. She said that she did not know that Ms Marjanovich was her boss and her manager. The next day, (that is 29 May 1995), Mrs Stankovska said that Ms Marjanovich rang and ordered the keys. Mrs Stankovska felt bad about it, but did not contact anyone. Mrs Stankovska said that Ms Marjanovich said that she came and collected the keys because of security. No complaint was made about the cleaning. However, Mrs Stankovska's evidence was that Ms Marjanovich was coming to collect both keys for the banks. She said that she had known Ms Marjanovich for 10 to 15 years, but not socially. When Ms Marjanovich came to collect the keys she said "The boss is very upset. I have to collect the key". Mrs Stankovska did not ring the office about this, but her husband did, she said. She received no termination pay from the company. No-one asked for that and she has received none to this day.

There was evidence for the respondent from Ms Anna Marjanovich and Ms Dianne Rowe.

At the material time, Ms Anna Marjanovich was a relieving contract manager employed by the respondent. She was relieving for Ms Dianne Long, the contract manager, who was on leave. She said that before Ms Long went on leave she introduced Ms Marjanovich to all of the cleaners and told them that Ms Marjanovich would be in charge while Ms Long was away. This included Mr Stankovski and Mrs Stankovska. Ms Marjanovich said she had known Mr Stankovski and Mrs Stankovska for 15 years and that this included a social acquaintanceship. They visited the same club and Mrs Stankovska had been her hairdresser at one time. Mr Stankovski and Mrs Stankovska denied in evidence that they knew her socially. Ms Marjanovich said in evidence that, on 28 May 1995, Bankwest in Bassendean telephoned her about some dead cockroaches on the stairways and in the kitchen at the branch. She went to the bank at the usual cleaning time and neither Mr or Mrs Stankovski were there. She telephoned them and spoke to Mr Stankovski and he told her that Mrs Stankovska was sick. He told her that he had to bring Mrs Stankovska home. He also told Ms Marjanovich that he would do the cleaning himself. The next day there was the usual operations meeting held on each Thursday at 10.00 am. When Ms Marjanovich came out about 12.00 noon there was a message from the Westpac branch in Bassendean that the bank had not been cleaned the previous night. She then rang the Stankovski's home and spoke to Mrs Stankovska and asked her why the banks had not been cleaned the previous evening. It was then, she said in evidence, that Mrs Stankovska said that she was sick. Ms Marjanovich said that she had told Mrs Stankovska that she was aware of that. Ms Marjanovich said that the previous evening when she spoke to Mr Stankovski he had assured her that he was going to clean the banks. Ms Marjanovich's evidence was then that Mrs Stankovska replied to her as follows:-

"Well, we are fed up with all of this. We are really fed up with everything. If you don't like it, you come and get the keys."

They talked for about half an hour and Mrs Stankovska, amongst other things, complained about Ms Long. Ms Marjanovich confirmed in evidence that what she believed as a result of the conversation was that Mr Stankovski and Mrs Stankovska were fed up and that they did not wish to continue cleaning the banks any more. Further, Ms Marjanovich said that she understood that they did not wish to continue to work for the respondent any more. Ms Marjanovich concluded that she had no choice but to go and get the keys and start another cleaner on the work. Late that afternoon she went around and got the keys from Mrs Stankovska at her front door and started another cleaner the same night. Mrs Stankovska was not reluctant to hand over the keys, on the evidence of Ms Marjanovich. Mrs Stankovska did not say anything which indicated that she may have changed her mind. Neither Mr or Mrs Stankovski contacted her after that day. She was shocked when she found out that Mr Stankovski and Mrs Stankovska were alleging that they were unfairly dismissed. She discovered this, it would seem, only after the applications in this matter were made to the Commission. An amount of monies was paid to them (see exhibit R1). Ms Marjanovich said that Mr Stankovski and Mrs Stankovska were not dismissed but had dismissed themselves. She remained firm in her evidence that Mrs Stankovska said that they were fed up and did not want to do the work any more, when she was questioned by the Commission. The statement was not made in any sort of heated way, she said. She also said that, when she was assistant to Ms Long, she had had contact with Mr Stankovski and Mrs Stankovska. In cross-examination she said that she did not enter the house and did not force Mrs Stankovska to hand over the keys which Mrs Stankovska handed to her at the front door. She denied sacking or dismissing the appellants and repeated that they had dismissed themselves. She placed the incident relating to security four or five weeks before the termination of the contract. This incident she described as happening when Mr Stankovski and Mrs Stankovska turned the key at the bank too far and it set the alarm off. Security called Mr Stankovski into the bank and asked him to turn the key back because it had been turned too far. Ms Marjanovich then gave hearsay evidence that the security persons had said that Mr Stankovski was abusive and would not tell him that he was a cleaner. They then sent a policeman around and it was alleged that he would not tell the policeman who he was and the security company called the bank's manager in Sydney who then contacted the respondent's office. Ms Marjanovich reiterated that this was five weeks before the termination of their employment. Indeed, Ms Marjanovich said in evidence that the appellants were not bad cleaners and that they were in fact "top cleaners". She denied that Mrs Stankovska sought to keep one key for one bank, and repeated that Mrs Stankovska handed over both keys, one for each bank. She said that the whole matter had nothing to do with security. Indeed, she said in evidence that she would have preferred that the appellants to continue in the work.

Ms Dianne Rowe, a member of the respondent's managerial staff, gave evidence that she was telephoned by Mr Stankovski a few days before she was served with the appellants' applications. She said that he was unhappy with Ms Marjanovich and asked Ms Rowe to investigate. She told him that he could come and see her. However, Mr Stankovski told her very clearly and bluntly that he did not wish to do so. He also told her that what he wanted was payment of monies to him. Ms Rowe went to Mr Tony Petric, the respondent's manager in payroll, and asked him if he was aware of any monies outstanding to Mr Stankovski. She asked him to expedite the payment of any "termination pay". She recalled Mr Stankovski as having been aggressive in this conversation.

The appellants claimed at first instance that they were unfairly dismissed, and that they should be paid some contractual benefits.

The ultimate decisions which were required to be made were discretionary decisions as these are defined in Norbis v Norbis [1986] HCA 17; 65 ALR 12 (HC). Accordingly, whether the Commission at first instance erred and whether the Full Bench should substitute its decision for that of the Commission at first instance were matters to be decided in accordance with the principles laid down in House v The King [1936] HCA 40; [1936] 55 CLR 499 at 505 (HC) (see, too, Gromark Packaging v FMWU 73 WAIG 220 (IAC)). The Full Bench cannot substitute its decision for that of the Commission at first instance unless the appellants establish that the exercise of that discretion miscarried and that the Commission at first instance therefore erred as House v The King (op cit) (HC) prescribes.

There was, however, a matter raised on appeal which it is necessary to decide, which is not a matter of the exercise of discretion. That is the complaint that the appellants were denied natural justice in that they were not given a fair and sufficient opportunity to present their cases.

There was also a complaint in relation to the Commission's decision that there was no jurisdiction to order payment of certain contractual benefits claimed because these were payable under the award, and that this should have been raised by the Commission earlier than at the conclusion of proceedings.

WAS THERE A DISMISSAL OR DID THE APPELLANTS RESIGN?

The crucial question to be decided by the Commission in this case was whether the appellants were dismissed or whether they themselves had terminated their contracts of employment or purported to do so. If they were not dismissed then there was no jurisdiction in the Commission to make any orders for compensation or any order which required as a condition precedent that a finding of unfair dismissal be made.

There was a conflict of evidence between Mrs Stankovska and Ms Marjanovich at the heart of the matter. For that matter there was some conflict of evidence between Mr Stankovski and Ms Marjanovich, too.

Mrs Stankovska said that on 29 May 1995 (as we understand her evidence) Ms Marjanovich, the acting contract supervisor, came and took the keys and that they were therefore unable to work any more. What this, of course, indicated was that the contracts of the appellants had been terminated by the act of the respondent. Both denied that they had resigned, their evidence being that they could not work once they were deprived of the keys which enabled them to enter the banks to clean them.

Ms Marjanovich, however, in evidence, was certain that Mrs Stankovska had said that she was fed up and that she had not been dismissed but had "dismissed" herself. The same observations applied to Mr Stankovski. Ms Marjanovich's clear evidence, too, was that Mrs Stankovska had quite voluntarily handed over the keys to her.

Mr Stankovski said that if his wife had said that she was fed up and had resigned then she did so under provocation. Ms Marjanovich said that Mrs Stankovska was not angry. Mrs Stankovska did not say that she was provoked in evidence. Ms Marjanovich, in any event, gave evidence that the appellants were top cleaners and that she had not wished them to leave.

There was evidence on the part of both of the appellants that they had not followed the matter up with Ms Marjanovich's superiors, except when Mr Stankovski rang Ms Rowe shortly before the applications herein were served. This service occurred on 13 June 1995, less than two weeks approximately after the dismissals alleged in the application to have occurred on 30 May 1995.

There was also evidence by Ms Marjanovich in cross-examination that the problem with security, which arose concerning the appellants, arose four or five weeks before these events and had nothing to do with the cessation of employment of the appellants.

The Commission at first instance found that Mr Stankovski's failure to carry out the cleaning duties which he undertook to do on the evening of 29 May 1995 was not an issue that influenced the company ((ie) the respondent) in the way in which it dealt with this matter.

In the end, the Commission weighed the only evidence as to whether the appellants, through the agency of Mrs Stankovska, had resigned on 30 May 1995 (the date referred to by the Commission) or had been dismissed. The Commission weighed the evidence of Ms Marjanovich against that of Mrs Stankovska. The Commission found that the recollection of Ms Marjanovich was clear and when asked to repeat her recollection it was stated with clarity and precision. The Commission, however, found that the evidence of Mrs Stankovska in relation to the conversation came across as incomplete and appeared to confuse matters such as the security matter which was not relevant.

The Commission also found, as was the case, that there was no evidence of Mrs Stankovska having had second thoughts at the time the keys were handed over. To that matter, of course, there was no evidence that Mr Stankovski had any second thoughts.

This is a matter where the Commission, having observed the witnesses in the witness box, and having considered their evidence, preferred that of Ms Marjanovich to that of Mrs Stankovska. The Full Bench on appeal may not interfere with findings based upon that preference unless such findings result from a misconception of what the evidence was, or the Commission at first instance has misused the advantage it enjoyed as a result of seeing and hearing the witnesses give evidence (see Gromark Packaging v FMWU (op cit) (IAC) and the cases cited therein and also Jones v Hyde [1989] HCA 20; 85 ALR 23 (HC) and the cases cited therein).

We have perused the transcript carefully. The reasons of the Commission at first instance as to why it preferred the evidence of Ms Marjanovich are borne out by the evidence, as we have outlined it above. There was significant evidence such as the failure of the appellants to follow up the termination of the contract, (an event about which they now say they were aggrieved), or to adequately explain why they did not follow it up. There was no discernible misuse of the Commission's advantage in seeing the witnesses.

Our summary of the evidence above shows why it can be found that the Commission's advantage was not misused. It was open to the Commission to accept the evidence of Ms Marjanovich in preference to that of Mrs Stankovska. Once the Commission had not accepted the evidence of Mrs Stankovska, and, further, once it had accepted the evidence of Ms Marjanovich, it was entirely open to the Commission to find that Mrs Stankovska, and, indeed, Mr Stankovski through her, had resigned their positions as cleaners employed by the respondent on 30 May 1995. That was because the Commission then accepted that Mrs Stankovska had said on behalf of her husband and herself that they were fed up and wished to work no more for the respondents. In addition, she willingly handed over the keys to the respondent employer's contract manager. The contract was terminated by the action of the appellants, accepted by the respondent. That notice of resignation was not withdrawn or sought to be withdrawn. The Commission was then entitled to find that there was no dismissal and that therefore there was no ability for the applicants to proceed under s.29(1)(b)(i) of the Act. It follows that the Commission was entitled to find that the "security matter" which had occurred five weeks before was irrelevant, and that the failure to carry out cleaning duties on 29 May 1995 was not a matter of consequence in the events which occurred. It follows, too, that the complaint that Mrs Stankovska was dismissed whilst on sick leave is not and cannot be relevant because of the Commission's finding, properly made, that Mrs Stankovska and Mr Stankovski were not dismissed but had resigned. Further, there was no evidence of any attempt, even if such resignations were given in heat, of their withdrawal, even were evidence of anger and provocation accepted, which it was not.

We would add that there was some evidence that the resignation occurred on 29 May 1995 not 30 May 1995, but, in the end, since the day on which this occurred and the day on which the keys were handed over was clearly identified, that evidence does not affect the correctness of the finding and the order made.

It was part of the appellants' case that they had been denied natural justice, in that they had not been given a reasonable opportunity to present their cases. It is the duty of the Commission to afford parties and persons enabled to participate in proceedings in the Commission natural justice (see Dianella Hotel and Others v FCU 69 WAIG 2303 (FB), RRIA v AMWSU and Others 66 WAIG 1553 at 1559 (IAC) and RRIA v AMWSU and Others 73 WAIG 1993 (IAC)).

Upon a reading of the transcript, it is quite clear that the appellants (and the respondent) were given more than a reasonable opportunity to present their cases, given that natural justice (or procedural fairness) does not impose on the Commission the duty to ensure that the parties take advantage of that opportunity (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; 119 ALR 206 (HC) and Sullivan v Department of Transport 20 ALR 323 at 343 (FC FC) per Deane J). In this case, the Commission gave all of the parties, including the appellants, substantial and certainly reasonable opportunity to present their cases. This was achieved by the parties having the opportunity to make and making opening statements, by their being able to call evidence on oath and by calling witnesses to give evidence on oath, by affording the opportunity to cross-examine and by cross-examination in fact occurring, by affording the opportunity to make submissions during the proceedings and to make closing addresses, and even by the Commission permitting some degree of interruption.

We are satisfied that, even having particular regard to the fact that the appellants were before the Commission at first instance in person, and having regard to their lack of fluency in the English language, the transcript reveals that every reasonable opportunity was afforded them to present their cases. We are therefore not satisfied that there was any denial of natural justice. We hold that there was no such denial.

CONTRACTUAL BENEFITS AND S.29(1)(B)(II) OF THE ACT

S.29(1)(b)(ii) of the Act enables an employee to make a claim that "he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of service".

The Commission found correctly that the monetary amounts claimed, which were not by way of compensation, were benefits payable under the award. It was not in dispute, as we understood both the proceedings at first instance and the submissions made to the Full Bench upon appeal, that this was the case. Accordingly, the Commission rightly found that it could make no orders for the payments of amounts for leave, etc. The complaint, as we understood it, however, was that this matter should have been canvassed or decided earlier than the conclusion of proceedings. In our opinion, it could not have been properly canvassed earlier or decided. The proceedings revealed that these benefits were made due and payable under an award, if they were due and payable at all. They could not be claimed therefore in s.29 proceedings. The Commission waited until the end of the proceedings to determine the matter. Even if there was a denial of natural justice, which there was not, then within Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 (HC) there was no possibility of a successful outcome to the appellants in relation to this part of the matter. If the appellants maintain that there were amounts due and payable under the award, then they may take proceedings in the Industrial Magistrate's Court.

In any event, there was something of a paucity of evidence as to what the amounts claimed were, in fact, and what they represented.

As to that portion of the grounds of appeal which refers to a Ms Martina Martin instructing the appellants to clean the front of the Bankwest Bassendean branch, there was no sufficient evidence at first instance upon which a finding could be made that this had occurred and that the amount payable had not been paid or what the amount was.

We have considered the whole of the evidence, all of the submissions and all of the material before the Full Bench.

For those reasons, we find that no ground of appeal has been made out. We would dismiss the appeals, the exercise of discretion not having miscarried (see House v The King (op cit) (HC)), and no other error of law or fact having been made out which would warrant the appeals being upheld.

GEORGE C: I have had the opportunity of reading the reasons for decision of His Honour the President in draft form. I agree with his findings and conclusion that the appeals should be dismissed and have nothing to add.

THE PRESIDENT: For those reasons, the appeals are dismissed.

Appearances: Mr T Stankovski on his own behalf, as appellant, and as agent for Mrs S Stankovska, as appellant.