These submissions were repeated on this application.
17 James J observed that if there was no evidence to support a finding of fact by a tribunal and the finding could truly be described as speculative, the tribunal will have committed an error of law. However, his Honour was of the opinion that there was at least some evidence before the Tribunal which supported the finding that the Tribunal made that, if the claimant's employment had been terminated discriminatorily on the ground of race her employment would have been terminated in any event, a notice of termination being given at about the same time as she was summarily dismissed, so that, after allowing for a proper period of notice, her employment would have been terminated by about June 1993. His Honour referred to some parts of this evidence.
18 Before coming to deal with this evidence and the claimant's submissions, I shall quote further from the decision of the Tribunal of 30 March 1998 from which the appeal was brought. The Tribunal said at 4-6:
"It is important to recall that in her evidence before this Tribunal at p73 on 1 April Ms Wilson said regarding the action that she took in the Australian Industrial Relations Commission immediately after her dismissal:
'That court hearing was about my dismissal, a request for reinstatement, and if I couldn't get reinstatement to have the three months in lieu of notice to which I was entitled under an award.
It did not deal with the issues of the non-payment of wages which I am still owed and did not deal with the matter of racial discrimination, it dealt with my sacking and possibility of reinstatement and the non-payment of termination pay of which I was entitled.'
We would comment in that regard that it was this Tribunal's role to deal with 'the matter of racial discrimination', to quote Ms Wilson. It was not this Tribunal's role to deal with the issue of non-payment of wages, that is past wages, and it was not suggested in the case before this Tribunal that that had anything to do with the discriminatory conduct found by the Tribunal.
The same passage emphasises that from Ms Wilson's point of view the appropriate or reasonable period for notice of termination was three months. In his submissions Mr Friend [who appeared for Budsoar] acknowledged that three months was a reasonable period in relation to the giving of notice to Ms Wilson in the circumstances of this case.
Bearing in mind that it is necessary for us to consider the position in which Ms Wilson might have been expected to be if the discriminatory conduct had not occurred, in our view that position would have been that she would have received proper notice of termination and been dealt with in a non-discriminatory manner in relation to her dismissal and that it was likely that that would have occurred in February or, at the latest, March 1993. In these circumstances Ms Wilson was entitled to wages up until the middle of May and, at the latest, the middle of June 1993. Mr Friend submitted that the relevant date for the determination of the wage entitlement consequential upon the discriminatory conduct in this regard was either 12 May or 21 June 1993 and, at the outside, December 1993. Ms Winters of course submitted that it was an ongoing loss and that it should be assessed as at today's date.
Making an allowance for the possibility that having received proper advice as to the manner in which it was appropriate to terminate the employment relationship and to review again the position of Ms Wilson and also to give three months notice, we think that the probable position, bearing in mind the evidence in this case, is that no later than 21 June 1993, the second of the dates put by Mr Friend and the date of Mr Merriman's decision in the Australian Industrial Relations Commission, the employment would have been properly brought to an end. That is, that had Ms Wilson been treated in a non-discriminatory way her position on the evidence is that by the end of June 1993 the employment relationship with the respondent would have been brought to an end in a lawful manner.
Bearing those considerations in mind the entitlement of Ms Wilson in those circumstances has been helpfully calculated by counsel. It is common ground that the amount awarded by Commissioner Merriman and the sum of $4,271 earned by way of mitigation in fact with the Northern Star Limited between February and June 1993 should be deducted from the claim for economic loss calculated for that period. That of course does not assist Ms Wilson in her claim for economic loss for the figure is negative. Accordingly the amount to which Ms Wilson is entitled under this head of damage is nil.
It is important in coming to this conclusion to observe that the Tribunal has focused its attention on the consequential losses from an economic standpoint to Ms Wilson flowing from the actual discriminatory conduct found. It is noteworthy that Simpson J in her Honour's judgment at p6 said that upon undertaking the correct analysis, that is in accordance with the manner set out in her Honour's judgment, it may be that the same result that the Tribunal reached in its decision of 27 June 1996 will emerge. That is her Honour recognised that upon proper analysis the result for Ms Wilson under this head of damage may not be any different.
That, as it has turned out, is in fact the position. Accordingly for the reasons stated the Tribunal makes no order in relation to the claim for economic loss pursuant to the Anti-Discrimination Act 1977 s113 subs 1 (b) (i). That is the decision of the Tribunal."
19 Turning to parts of the evidence before the Tribunal which supported its finding James J said at 17-20:
"In her evidence before the Tribunal in 1996 Ms Wilson trenchantly criticised the general manager, Mr Toohey, who like Ms Wilson, was a white person. She described Mr Toohey as 'despicable', 'devious' and 'abusive'. She said that she had been subjected to 'a victimisation and harassment campaign' by Mr Toohey. She said that the previous general manager, Mr Martin, who was an aboriginal, had given an ultimatum to the Board of Directors 'that they had to get rid of me or he would go' and the Board had, on that occasion, chosen to accept Mr Martin's resignation.
In his report to the Board of 12 February 1993 Mr Toohey strongly criticised Ms Wilson. He said inter alia:
'I believe that the editor has used 'standover tactics' to achieve her own ends and has reported to certain directors misguiding information regarding the true staff position.
I feel it is time that the Directors took the bull by the horns and asked the other staff members their views of what has happened over a period of many many months.
Most of the staff of the Koori Mail are very dedicated to the survival of the paper; it disappoints me that one person can have such a disruptive effect on the other staff.
We now have a situation where a once happy staff are now all looking for alternative employment unless the present situation can be resolved.
I believe that it would only take the resignation of one or two people to ensure the demise of the Koori Mail and a takeover by the Northern Star.'
Mr Cameron, the Chairman of the Board of Directors, gave evidence before Commissioner Merriman and a transcript of his evidence was part of the evidence before the Tribunal. In part of his evidence Mr Cameron said:
'Gary (Martin) and Janine had a problem; that's right. We - we thought that Gary and Janine just had a problem; it was them two. But when you get two general managers and just one editor - the same editor fighting with two of them.'
Mr Cameron gave further evidence:
'I spoke to them both (Ms Wilson and Mr Toohey) about, you know, the continual fighting, carrying on but it has - did not - did not stop; they were still at each others throats.'
In December 1992 both Ms Wilson and Mr Toohey had been offered written contracts. Mr Toohey accepted the contract offered to him but, as stated earlier, Ms Wilson did not accept the contract offered to her. Mr Craig, the Union official, sent a communication to the Board on 12 January 1993, which included the following:
'Of more concern to me is the reported sentiment that the Board feels that the editor's failure to sign the proposed contract has somehow ruined the relationship between the Board and the editor and that they may not be able to continue working together.'
Mr Snell gave evidence before Commissioner Merriman and a transcript of his evidence was before the Tribunal. In his evidence Mr Snell said inter alia:
'I thought one of the easiest ways to sort of get and find out about the publication was to sit down and talk one on one with every one of the staff members. And that is exactly what I did. And it became apparent that all of them, the whole lot, could not get on with Janine.'
When asked what Ms Wilson's reaction was, Mr Snell said:
'That everybody was against her. I couldn't get any sensible reasoning from Janine because she was so wound up that the whole world was against her.'
Later in his evidence Mr Snell said:
'If you're got a small staff and one staff member won't work with the other staff, or all of the other staff, it's not going to work, therefore something has - you either change all the other staff or you've got to change one.'
There was accordingly evidence on which the Tribunal could find that by February 1992 the relationship between Ms Wilson and the general manager, a white person, had broken down, that the relationship between Ms Wilson and all the other staff had broken down, that the relationship between Ms Wilson and her employer had become unworkable and that as the relationship between Ms Wilson and two successive general managers, one black and one white, had broken down, this time her employment, rather than the employment of the current general manager, should be terminated and that, if Ms Wilson's employment had not been terminated discriminatorily, it would have very shortly afterwards been terminated in any event."
20 James J said that there being evidence to support the finding made by the Tribunal any illogicality or perversity in the reasoning process by which the Tribunal arrived at the finding would, in accordance with Azzopardi, not amount to an error of law.
21 In detailed written submissions Ms Winters, counsel for the claimant, submitted that in finding that there was at least some evidence before the Tribunal which supported a finding that the claimant's employment would have been lawfully terminated by about June 1993, his Honour erred in misconstruing the evidence before the Tribunal and the findings made by the Tribunal and by making findings of fact which would not have been made by the Tribunal. In examining these submissions it is important to emphasise that the central finding was that, at the relevant time when the dismissal occurred, as the relationship between the claimant and senior management of Budsoar had become unworkable her employment would have been terminated. It is also important to emphasise that James J was directing himself to whether or not there was evidence before the Tribunal to support this finding. His Honour was not making findings of fact but referring to the evidence that was before the Tribunal.
22 Reading the written submissions and listening carefully to the submissions that were advanced orally by Ms Winters, I observed that they strayed from this central issue to questions about whether the Tribunal should have accepted or received particular evidence or whether James J should have taken it into account. Thus, it is submitted, that evidence that the claimant did not hold the general manager of the first opponent in high regard was not supportive of a conclusion that the claimant would have been dismissed. However, it does support, as does Mr Toohey's criticism of the claimant, the Tribunal's conclusion that the relationship between her and the senior management had become unworkable. The claimant placed considerable reliance upon what the Tribunal had to say in its earlier decision of 27 June 1996 about the failure of Mr Snell and Mr Toohey to give evidence and the lack of explanation for their absence.
23 In his judgment James J said at 20-21:
"There are in any event replies to the criticisms made of the Tribunal's reasoning, which deprive these criticisms of much of their apparent force. When the Tribunal in its first judgment said that it found the observations of Commissioner Merriman (and perhaps the evidence before him) 'of no assistance in determining the issues critical to the matters to be decided by us', I consider that the Tribunal had in mind the issues critical to whether Ms Wilson had been unlawfully discriminated against under the Anti- Discrimination Act . I do not consider that the relevance, to the proceedings in the Tribunal, of the finding by Commissioner Merriman that the relationship between Ms Wilson, the general manager and the Board of Directors was bordering on unworkable, was affected by the circumstance that Commissioner Merriman made that finding in a different statutory context. As regards Jones v Dunkell , Mr Cameron gave evidence both in the Industrial Relations Commission and before the Tribunal. It was not in dispute in the proceedings in the Tribunal that the relationship between Ms Wilson and both of the general managers had been very bad. At its highest, Jones v Dunkell merely enables inferences to be drawn by a tribunal of fact; it does not compel the drawing of inferences. There may be some inconsistencies between what the Tribunal had said in its first judgment, for example in par 8, and what it said in its second judgment (although I am not persuaded of this) but I do not consider that any such inconsistencies would amount to an error of law."
24 The same attack is made in relation to the evidence of Mr Cameron who was the chairman of Budsoar's board of directors. This evidence concerned the working relationship between the claimant and Mr Toohey. This was a critical issue as the Tribunal found it. Complaint was made that the Tribunal did not refer to particular evidence, although it was in evidence, and to alleged discrepancies in its findings. Reliance was placed upon the proffer of a written contract of employment to the claimant in December 1992 and the reasons for the claimant's not signing it, notably because that course had been recommended to her by a Union official on the ground that the contract was unfair.
25 Again the challenges to his Honour's reference to the Union official's communication to the board on 12 January 1993 and to what Mr Snell said, with all respect, simply does not deal with his Honour's conclusion that this evidence was, as it clearly was, evidence which supported the Tribunal's finding about the relationship between the claimant and senior management and its consequences. His Honour enlarged that finding in the paragraph which I have set out, but what his Honour did was no more than to summarise the evidence which led to the conclusion that there was evidence to support the Tribunal's finding and accordingly, for the reasons his Honour gave, no error of law.
26 With all respect, it does not matter, if it be the fact, which I am not satisfied it is, that there were inconsistencies. There was evidence to support what undoubtedly was the finding made on 30 March 1998 that the relationship had become unworkable. That was the foundation for the conclusion that the claimant would have been dismissed.
27 The claimant also challenged the Tribunal's adoption of June 1993 as the probable date on which the claimant's employment would have been terminated. This submission does not accurately state the Tribunal's conclusion, which was that the dismissal would have occurred at the latest in March 1993 and that the claimant was entitled to wages until, at the latest, the middle of June 1993. It is not clear to me that this point was argued before James J, but in any event the material before the Tribunal justified its conclusion.
28 In my opinion, the proposed appeal by the claimant would not succeed and accordingly, leave to appeal should not be granted. The summons for leave to appeal was filed out of time. The delay is explained in the affidavit of Paul Andrew Denmeade of 19 January 1999. In the circumstances I think the following orders should be made:
1. The time for filing the summons for leave to appeal is extended up to and including the day upon which the summons was filed;
2. The application for leave to appeal is dismissed with costs.
29 COLE AJA: I agree with Sheller JA.
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