Webb v Goulburn Masonic Village

APPELLANT Mr P Moorehouse of counsel Solicitor: Mr C Jowett Galland Elder Lulham LEGAL REPRESENTATIVES: RESPONDENT Mr J St. Vincent Welch Agent

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: BOLAND J STAFF J BISHOP C Friday 3 September 2004

Application by Marie Therese Webb for leave to appeal and appeal against the decision of Commissioner O'Neill given on 27 January 2004 in matter no. IRC 945 of 2003 DECISION OF THE COMMISSION [2004] NSWIRComm 258

1 The Goulburn Masonic Village ("the respondent") had employed Marie Therese Webb ("the appellant") as a cook in charge of the respondent's kitchen. Ms Webb claimed that in January 2003 she was constructively dismissed from her employment. She made application for relief under s 84 of the Industrial Relations Act 1996, seeking compensation in relation to an alleged unfair dismissal.

2 After hearing the parties, in a decision handed down on 27 January 2004, Commissioner B O'Neill dismissed Ms Webb's application for relief. Subsequently, Ms Webb applied for leave to appeal and, if leave is granted, to appeal the Commissioner's decision.

3 Ms Webb commenced her employment with the respondent on 20 September 1999. She held a number of qualifications from TAFE relevant to her employment. The appellant said in her evidence before O'Neill C that she tendered her resignation effective from 10 January 2003 but at the time of doing so she said "I felt I had no other choice as I had been forced into deciding between unbearable working conditions and leaving."

4 The "unbearable working conditions" appear to have been what the appellant regarded as unwarranted interference with her running of the kitchen by the residential care manager at the Village, Ms Jennifer Gordon, a unilateral change to her roster of working hours and a failure by the management of the Village to properly communicate with the appellant. Ms Gordon had commenced employment at the Village in August 2002. Ms Gordon was a registered nurse and possessed a bachelor's degree in Adult Education. She had been employed in health/welfare fields since 1976 including 12 years in management roles.

5 After commencing employment with the respondent Ms Gordon formed the view that there were areas of concern with the running of the kitchen and, consequently, she instituted a number of changes, including changes to the appellant's working hours, to improve the kitchen's operational efficiency. The appellant claimed, however, that changes to her role and hours of work were made without consultation and during a period when she was absent. The appellant contended that many of the changes, for example, allowing untrained staff to perform certain functions and changes to the system of ordering and invoicing, were inappropriate and inconsistent with a properly run kitchen. The appellant further contended that she attempted to have meetings with management to have them address her concerns but to no avail. Her resignation, she said, was forced upon her out of frustration and in the hope there would be some response to the problems of which she had been complaining.

6 The evidence in the proceedings at first instance consisted of various written statements of the appellant in respect of which she was subject to cross examination and three written statements by witnesses for the respondent, namely a statement by Ms Gordon, a statement by Ronald Winston Gabriel who was in charge of maintenance at the Village and a statement by Ian Adrian Hogan, who was acting as the Village's administrator in place of a Mr Keegan. Shortly after the appellant tendered her resignation to Mr Keegan he proceeded on sick leave. Mr Hogan, his replacement, gave evidence of a conversation he had with Mr Keegan in February 2003 concerning the resignation, a matter we shall refer to in more detail later. Ms Gordon and Messrs Gabriel and Hogan were required for cross-examination. There were six other witness statements prepared by other persons that, ultimately, were not tendered in the proceedings by the respondent and which did not form any part of the evidence.

7 It was the respondent's case at first instance that there had been no constructive dismissal. It was contended the appellant was unreasonably resistant to necessary changes in the kitchen, that she was abrupt and rude to other staff and that she resigned voluntarily in circumstances where at no time up to and including the date of resignation did she complain to any person in authority to which she had access, including the chief executive officer, that she had been forced to resign. That complaint only emerged after her resignation.

8 In his decision the Commissioner stated: In considering this matter I have carefully examined the evidence of all of the witnesses for the Respondent, Jan W Radford, and Peter Ashton, Ann M Howard, Emma Small, Shirley Dooley. In each case the witnesses gave substantive evidence regarding the manner and approach of the Applicant towards them. That approach was substantively abrupt and in some cases rude and possibly insulting.

Upon a close examination of all the evidence in this case I have come to the conclusion that the Applicant acted on her own free will, and conclude that she no longer wished to work at the RFBI Masonic Village, she had in fact closed all doors on herself and so decided to leave her employment, no one forced her out.

There is therefore no case to answer and the application is dismissed.

9 Counsel for the appellant, Mr P Moorhouse submitted that the matter was of such importance that it was in the public interest for leave to appeal to be granted in order to correct significant errors of law, namely, the reliance by O'Neill C on material not in evidence and the failure of the Commissioner to give reasons for his decision. The appellant relied on Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380.

10 The appellant also submitted that the appeal raised the following issues of general importance: (a) The proper approach to the decision-making process of commissioners hearing applications under s 84 of the Act; and (b) If the appeal was allowed, the question of when it would be necessary for a Full Bench to refer a matter for rehearing.

11 It was further submitted that the issues raised on appeal were issues of significant practical application, given that applications under s 84 make up a significant portion of the Commission's workload.

12 The agent representing the respondent Mr J St. Vincent Welch initially filed and served written submissions that did not address the question of leave to appeal. Mr St. Vincent Welch was unable to attend the hearing of the matter on 23 July 2004 due to illness. In light of Mr St Vincent Welch's inability to attend on the day of the hearing we proceeded to hear the appellant's submissions on leave to appeal and the merits of the appeal and made the following directions: 1 Fourteen days from the date the respondent is sent the transcript of today's proceedings the respondent is to file and serve its written submissions on both the question of leave and on the appeal proper. 2 Upon receipt of the respondent's written submissions the appellant will have a further seven days to file and serve a reply.

13 We indicated that on receiving the parties' submissions the Full Bench would determine the question of leave and, if necessary, the appeal. In the transcript of proceedings Boland J noted that the respondent had not addressed the question of leave in its earlier outline of submissions and specifically invited it to do so in its further written submissions. The respondent either chose not to, or failed to, address the leave question.

14 We propose to grant leave to appeal. There were significant errors committed by the Commissioner and it is in the public interest that those errors are corrected.

15 Mr Moorhouse submitted that the Commissioner failed to comply with two principles of procedural fairness and, accordingly, erred at law. Further and in the alternative, he submitted, the Commissioner's decision that the appellant left the employment of her own accord and was not dismissed was unreasonable having regard to all of the evidence and amounted to an error of law.

16 The first principle of procedural fairness said to have been breached by the Commissioner was that he had regard to witness statements that were not part of the evidence in the proceedings. That is, the statements of Messrs Radford and Ashton and the statements of Ms Howard, Ms Small and Ms Dooley. It was submitted that the Commissioner was obliged to observe the rules of procedural fairness: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344. This includes, it was submitted, an obligation to make decisions by reference only to evidence properly admitted in the proceeding: Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304.

17 The second principle of procedural fairness said to have been breached was that the decision gave no indication of any fact findings by the Commissioner, or what evidence he took into account, or how he resolved the various conflicts between the evidence of Ms Webb and Ms Gordon on matters relevant to whether there was an unfair dismissal within the meaning of the Act. It was submitted that in a contested case before a tribunal required to act in accordance with procedural fairness, the arbitrator is obliged to provide the reasons that lead to a particular result: Edwards v Giudice (1999) 169 ALR 89.

18 As to the alternative proposition that, having regard to the evidence the Commissioner was wrong to determine that she acted of her own free will in leaving the employment, the appellant submitted that it was not possible to determine whether the Commissioner turned his mind to the relevant question, namely: Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? Or, alternatively, whether the resignation …may be said to be given freely and without any undue influence being brought to bear by the employer. (See Allison v Bega Valley Council (1995) 63 IR 68).

19 It was submitted that the appropriate course was for the Full Bench to direct a further hearing as the Bench did not have the benefit of any findings of fact in relation to contested evidence, nor was it in a position to resolve the factual issues itself because it has not had the advantage of seeing witnesses: Price v Box Valley Pty Ltd (1999) 90 IR 480. Further, that there was no consideration in the Commissioner's decision as to whether any dismissal was harsh, unjust or unreasonable or what remedy might be appropriate.

20 As we have already noted, the agent for the respondent was not able to appear at the hearing of the appeal because of a sudden illness.

21 In its initial outline of submissions filed in accordance with directions given in the matter, the respondent opposed the application to appeal on grounds that are summarised below: 1 The application was out of time. 2 The appellant was not unfairly dismissed but rather resigned of her own volition in writing.

3 The appellant was counselled prior to submitting the written resignation about the consequences of so doing.

4 The appellant participated in an exit interview during which the appellant did not raise constructive dismissal.

5 The respondent has no reason to question the decision of O'Neill C.

6 The appellant had ample opportunity to put her case to O'Neill C.

7 Should the appellant base the appeal, or part thereof, on the mention of witness statements filed, where the witnesses were not available for cross-examination the appellant's representative had ample opportunity to object and have the statements set aside.

8 After nearly 18 months it would be impracticable to re-hire the appellant in her former role or any other role.

9 Should the appellant be reinstated or re-hired the appellant would be returning to report to the same management team who the appellant claims caused her to resign in the first place.

10 To re-hire the appellant would impose hardship on other. 11 The appellant failed to respond "quantitatively" to the question of compensation so conciliation was frustrated.

12 Given the respondent is a non-profit aged care facility to grant the appellant a re-hearing would impose a further financial burden on the respondent.

22 In its further written submissions received by the Full Bench on 23 August 2004 the respondent enlarged on the matters summarised in point form above. Additionally, other submissions made by the respondent included:

· The applicant below failed to ensure that the witness statements relied upon by O'Neill C were never admitted into evidence by not putting to the Commissioner that the statements should be struck out. Further, that the Commissioner "did not rule at the time that he would or would not disregard said statements and accordingly the respondent submits the appellant's opportunity of striking out said statements was foregone."

· The Commissioner was not bound to act in a formal manner but rather according to equity, good conscience and the substantial merits of the case: s 163 of the Industrial Relations Act. O'Neill C exercised his duty of care to inform himself on any matter in any way that the Commissioner considered to be just, and acted accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

· Commissioner O'Neill did not err either in law or procedural fairness in taking into account the written, signed statements of the five employees of Goulburn Masonic Village as his consideration of the information so gleaned was recorded in the Commissioner's decision.

· The appellant's submission that "Consideration of these 5 statements may have affected the Commissioner's decision in at least 2 ways" was merely supposition and not substantiated in the appellant's submissions.

· The appellant has not presented any evidence the appellant is in possession of evidence, that the statements, impacted firstly on the Commissioner's consideration on the circumstances of the appellant's resignation and finality thereof; and secondly attacks on the credibility and acceptance by other members of staff of the respondent, or not. The appellant has failed to put forward such evidence, if in fact it exists.

· None of the statements which remained in evidence contain any credible evidence going to the circumstances of the appellant's resignation or the finality thereof. None were party or present at the tendering of the resignation nor the exit interview; at best hearsay.

· The nature of the appellant's resignation and the circumstances associated therewith in the submission of the respondent have nothing to do with the procedural fairness extended to the appellant in the proceedings before Commissioner O'Neill.

· The credibility and acceptance of other members of staff of the appellant has nothing to do with the procedural fairness of Commissioner's O'Neill's conduct of the proceedings.

· Sufficient evidence was before Commissioner O'Neill from the respondent's witnesses, who were available for cross-examination, to indicate the conduct of the appellant was unacceptable in a normal workplace.

· With regard the appellant's contention "that the Commissioner was wrong to determine that Ms Webb acted of her own free will in leaving the employment" the respondent submits as the former employer of Ms Webb it is unable to comprehend such a contention given the cooling off period from 27 December 2002 to 10 January 2003, the existence of a grievance/dispute settlement procedure, the conduct of an exit interview and the advice available and given to the appellant prior to her departure from the Goulburn Masonic Village on 10 January 2003.

· From the evidence before Commissioner O'Neill the appellant was deficient on numerous of the above requirements some of her own admission. Accordingly, the respondent submits Commissioner O'Neill extended to all parties in the proceedings every possible opportunity for procedural fairness and as such made no errors at law.

· The Commissioner did not deny either party the opportunity of putting either case fairly. In the application before Commissioner O'Neill no meaningful submissions were made by the appellant to substantiate compensation.

· In the application before Commissioner O'Neill the evidence was not disputed. The appellant tendered a written resignation and worked out the appropriate notice. Commissioner O'Neill found the appellant acted on her own free will and concluded that she no longer wished to work at the RFBI Masonic Village, she in fact closed all doors on herself and so decided to leave her employment, no on forced her out.

23 On 27 August 2004 the appellant filed written submissions in reply. We have had regard to those submissions and we note that the appellant takes issue with the last point made above that the evidence in the proceedings before O'Neill C was not disputed. We agree with the appellant that the record of proceedings shows there were factual disputes regarding issues that were relevant to the question of whether the employer was the real initiator of the termination of the appellant's employment.

24 The reference in the respondent's initial submission to the application being out of time was a reference to the original application filed on 24 February 2003, 24 days after the expiry of the time prescribed by s 85(1) for making the application. The appellant accepted that no extension of time was expressly granted by O'Neill C but noted that at the hearing of the matter before the Commissioner on 29 August 2003 the issue of an extension of time was not raised by either party or by the Commissioner.

25 Given that we propose to remit the matter for the reasons we will shortly state, the question of the out of time application will be dealt with by the member of the Commission to whom the matter is remitted for hearing and determination. We would make the observation, however, that it is somewhat late for the respondent to be pressing an objection to the application on the grounds that it is out of time.

26 There was no basis upon which O'Neill C could have taken into account the statements of Messrs Radford and Ashton and those of Ms Howard, Ms Small and Ms Dooley. The statements were not in evidence and that was made clear to the Commissioner and to the respondent. The respondent did not dispute the appellant's request that the Commissioner disregard any statements from the witnesses who would not be attending. Yet the Commissioner plainly relied on these statements to arrive at the conclusion that the appellant was "substantively abrupt and in some cases rude and possibly insulting." This finding appears to have significantly coloured the Commissioner's view of the appellant in deciding to dismiss her application. Whilst it was the case that Mr Gabriel gave evidence regarding Ms Webb's rudeness, the Commissioner gave no indication that he had any regard to that particular evidence and if he did have regard to it he said nothing about resolving the conflict between Mr Gabriel's evidence and the evidence of Ms Webb who denied that she was rude.

27 Whether or not the appellant was rude or insulting was, of course, not the issue on which O'Neill C should have focussed. The question for determination was whether Ms Webb had been constructively dismissed as that term was explained in Allison v Bega Valley Council, that is, whether the employer was the real and effective initiator of the termination of Ms Webb's contract of employment. Apart from saying that he closely examined all of the evidence in the case (and, it is apparent, wrongfully took into account material that did not constitute evidence in the proceedings), the Commissioner gave no inkling as to how he arrived at the conclusion the appellant acted of her own free will and no longer wished to work for the respondent.

28 There was, for instance, no analysis by the Commissioner of the competing evidence of Ms Webb and Ms Gordon. Ms Webb claimed that Ms Gordon improperly interfered with the running of the Kitchen and failed to communicate and consult with her about change. Ms Gordon denied there was unwarranted interference and contended that changes that she made to the operation of the kitchen were necessary. She said that there was no failure on her part to communicate with Ms Webb and that she was always available to be consulted by Ms Webb. There was no attempt by O'Neill C to explain why he preferred the evidence of Ms Gordon to that of Ms Webb. Given the Commissioner's comments regarding Ms Webb's alleged rude and insulting behaviour, it raises the strong inference that the Commissioner was improperly influenced by witness statements adverse to Ms Webb's credit that were not part of the evidence and in respect of which the appellant could not test by cross examination.

29 There are other conflicts in the evidence that remain unresolved. Ms Gordon said that there was an exit interview with Ms Webb conducted by herself with other persons present on 9 January 2003. Ms Gordon stated that Ms Webb signed the record of interview; Ms Webb said she did not because she had some issues with it. There is no indication in the Commissioner's decision that he sought to resolve this conflict in the evidence.

30 The respondent relied on the alleged failure of Ms Webb to raise with Ms Gordon or other members of the management of the Village, the reason why she was resigning and that Mr Keegan, the Administrator of the Village, had warned Ms Webb that her resignation would be final if she proceeded with it. However, the Commissioner does not appear to have taken into account that a meeting had been arranged at the request of the appellant between Mr Keegan and herself prior to her resignation but because of Mr Keegan's hospitalisation the meeting never took place. It may well have been the case that Ms Webb would have provided Mr Keegan with her reasons for resigning if the meeting had taken place.

31 As to the core issue of whether the respondent was the real and effective initiator of the termination, no consideration appears to have been given to Ms Webb's evidence that:

· She was forced into leaving; · A new roster was imposed on her; · Her duties were unilaterally changed by the respondent including withdrawal of responsibility for the budget; · Ms Gordon's attitude was hostile towards her and this was reflected to some extent in a changed attitude of some of the kitchen staff. 32 There is an obligation upon the Commission to afford procedural fairness: CGEA Transport Ltd t/as Southtrans v Transport Workers Union of Australia (2001) 110 IR 211 at [33]. We are satisfied in this case that the appellant was not accorded procedural fairness. The Commissioner had regard to material that was not part of the evidence in the proceedings and an inference can be drawn that the material contributed towards influencing the Commissioner to adopt an adverse view of the appellant's credit.

33 As to the issue regarding the failure of the Commissioner to give adequate reasons for his decision, there are numerous cases that address the requirement on judges to give adequate reasons for their decisions: Petitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272 per Mahoney JA and at 280-281 per McHugh JA; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728. The statements regarding the requirement to give adequate reasons have been approved in a number of decisions of the Commission: Woolworths Ltd v National Union of Workers, NSW Branch (unreported, Fisher CJ, Hungerford and Peterson JJ, CT96/1060, 1065 and 1074, 12 July 1996); Lismore Challenge Ltd v Lavis (1999) 88 IR 230 at 235; WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 at 393.

34 In Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459, the Full Bench held: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning. 35 In Lorna Britton and Riverstone Public School (unreported, Matter No IRC 5504 of 1998, IRC of NSW, Schmidt J, Sams DP and McLeay C, 6 May 1999), an appeal involving an unfair dismissal from Commissioner Buckley, the Full Bench, after referring to Woolworths Ltd v National Union of Workers, NSW Branch and Soulemezis, observed that: It also follows that where reasons which are given are brief, they nevertheless must deal with the particular issues of fact and law which call for determination in the case … What is required is for reasons to be given in relation to the issues which require the Commission's determination in the particular case.

36 We also refer to Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 452, an appeal from a decision of Conciliation Commissioner McMahon and Monier PGH (Holdings) Ltd v Horsey (1998) 86 IR 63 at 72-73.

37 In Edwards v Giudice (1999) 169 ALR 89 Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission ("AIRC") to give adequate reasons for any decision. At [44] to [46] his Honour stated: 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance'' in the context of the portion of the judgment of Gibbs CJ in Osmond cited above: see Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739.

38 In Edwards v Giudice the Full Bench of the Federal Court was concerned with decisions by a member of the AIRC pursuant to s 170 CG of the Workplace Relations Act 1996 (Cth). Whilst that provision is different from the counterpart provisions in ch 2 Pt 6 of the Industrial Relations Act 1996 (for example s 170CG(3) makes it mandatory for the AIRC to have regard to certain matters whilst s 88 of the Industrial Relations Act leaves it to the discretion of the Commission to take similar matters into account, if appropriate) we, nonetheless, consider that there is an obligation upon non-judicial members of this Commission to "disclose the steps involved in the reasoning which leads to a particular result" in those cases where there is a duty to accord procedural fairness or natural justice. Such cases include applications under s 84 of the Act.

39 The extent to which reasons are required will, of course, depend on the nature of the case and it will not always be necessary to provide "a detailed and exhaustive analysis of each and every matter raised in a proceeding" (Entertainment Distributors at 452). However, in the present case, the Commissioner did not provide an adequate analysis as to what led him to dismiss the appellant's application. Coupled with the Commissioner's reliance on material that was not in evidence, his failure to provide adequate reasons amounted to a breach of procedural fairness.

40 Whilst it does not automatically follow that a breach of procedural fairness will lead to the decision being quashed or a new hearing ordered (see D & R Commercial v Flood at 358), in this case we do not consider it can be avoided. This Full Bench is not in a position to determine issues of credit, which appear to us to assume some importance in this case.

41 We find that O'Neill C erred in dismissing the appellant's application. We make the following orders: 1 Leave to appeal is granted. 2 The appeal is upheld. 3 The matter is remitted for hearing and determination by another member of the Commission to whom the application is re-allocated by the President or his delegate.

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