Macs Foods Centre Pty Ltd and Kerry Lee McLeish [1995] IRCA 331

CATCHWORDS

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) No. WIR 94/305 WESTERN AUSTRALIA DISTRICT REGISTRY ) BETWEEN : MACS FOODS CENTRE PTY LTD Applicant AND : Kerry Lee McLEISH Respondent

CORAM: Spender J PLACE: Perth DATE: 12 July 1995 MINUTES OF ORDER THE COURT ORDERS THAT: (1) Macs Food Centre Proprietary Limited pay to Kerry Lee McLeish the sum of $6950; (2) that sum be paid by 4 pm on Thursday, 13 July 1995; (3) if not so paid the matter will be listed at 2 pm on Friday, 14 July 1995. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) No. WIR 94/305 WESTERN AUSTRALIA DISTRICT REGISTRY ) BETWEEN : MACS FOODS CENTRE PTY LTD Applicant AND : Kerry Lee McLEISH Respondent CORAM: Spender J PLACE: Perth DATE: 12 July 1995 REASONS FOR JUDGMENT This is an application pursuant to s. 377 of the Industrial Relations Act 1988. Sub-section (1) of that section provides that parties to the proceedings may apply to the court to review a judicial registrar's exercise in the proceedings of a power delegated under s. 376. The application must be made within the period prescribed by the rules of court or such further period as allowed in accordance with the rules. The period prescribed by the rules of court is to be found in O 74 r 3, which provides: " For the purposes of s. 377(1) of the Act, the time prescribed in relation to an application to review the exercise of a power by a Judicial Registrar is 21 days or such further time as is allowed by the Court or a Judge for special reasons upon application at any time. " The time limit prescribed relates to the time within which an application must be made. It does not speak of service of the application for review on any party affected by the orders made by the Judicial Registrar. In this case, Judicial Registrar Tomlinson on 6 March 1995 made the following order: " that the respondent pay to the applicant the sum of $7000.00 within twenty-one days of the date of this Judgment. " In her reasons for judgment, Judicial Registrar Tomlinson found that there had been breaches of Division 3 of Part VIA. She said: " Section 170DB was breached in that the employee was not given notice. Section 170DC was breached in that the employee was not given an opportunity to respond to the allegations. Section 170DE was breached in that the termination was harsh, unjust and unreasonable. " The review of decisions of judicial registrars provided by section 377 is a re-hearing de novo by a judge of the court. This is a consequence of the judicial power of the Commonwealth and the requirement that that judicial power be exercised by a person appointed in accordance with Chapter III of the Constitution. Notwithstanding that such a review is a hearing de novo, the applicant in this case has chosen to rely on the affidavits that were before Judicial Registrar Tomlinson and on the transcript of the oral evidence before her. The review was the subject of directions made by Deputy District Registrar Richardson on 7 April 1995. She ordered that the application for review be heard as a hearing de novo, as it must be. She further ordered: " 2.The hearing is to be conducted on affidavits and the affidavits filed in relation to the hearing before the judicial registrar stand as evidence in the reviews. " Further, she ordered as follows: " 3.Any further affidavits in which the applicant for review intends to rely to be filed and served by 28 April 1995. 4.Any affidavits in reply to be filed and served by 19 May 1995. 5.The parties have leave to give notice of intention to cross-examine any deponent no later than 7 days prior to the date of hearing. 6.No later than 7 days prior to the hearing of the matter the applicant for review file and serve a document setting out his contentions of fact and law. " The parties were given liberty to apply to the court for further directions. As is apparent from those directions this review could have been the subject of further evidence in affidavit form and that each party was entitled to cross-examine any deponent, both those whose affidavits had been before the Judicial Registrar and those deponents who swore affidavits subsequent to her decision in this review, but neither party filed further affidavits and no party gave notice to the other of any intention to cross-examine. The consequence was that the review, by the way the parties chose to conduct it, has to be done on the affidavit evidence and the transcript of the oral evidence before the Judicial Registrar. The applicant adopted this course notwithstanding that there are very serious conflicts both in the affidavits and in the oral evidence. I must say at the outset that in those circumstances, unless there was no evidence to support a particular finding made by the Judicial Registrar the court on a review under s. 377 has to acknowledge the great advantage of the Judicial Registrar who saw the witnesses give their evidence and saw them cross-examined. As the cases make plain, a review on the papers so to speak, which is what I am being asked to conduct, suffers significantly where there are factual conflicts between the witnesses, as there are here. However I have to do the best I can on the material before me and I was assisted by helpful submissions by Mr Kenner in relation to the case for the applicant before me, the employer Macs Foods Centre Pty Ltd. Mr Kenner identified the five central issues on the review, namely whether on the material the court should conclude that, contrary to the conclusion by the Judicial Registrar, there was in fact no termination but in fact Ms McLeish resigned from her employment with Macs Foods. The second question, pursuant to s. 170DE(1), was whether on the material there was a valid reason for the termination if, contrary to the employer's contention, there was such a termination. The third question was whether such a termination was harsh, unjust or unreasonable pursuant to section 170DE(2). The fourth question was whether procedural fairness had been accorded to Ms McLeish. Section 170DC(a) imports that requirement. The final question is perhaps a minor one, as to what appropriate compensation ought to be ordered. The first two questions are the most important and in respect of each of them there is serious conflict in the material. Ms McLeish stoutly and repeatedly denied that she had resigned or had indicated that she "couldn't work here any more". For the employer, however, it was contended that after the incidents which are more fully described in the reasons for judgment of Judicial Registrar Tomlinson, and which I will not repeat, Ms McLeish had told Ms Brown that she could not work there any more and she asked for her pay to be made up. That version, in my view, if accepted, amounts to a resignation by the employee. However, her account, consistently given before the registrar in her affidavit and oral evidence, was that she did not resign, that in fact after she had returned from the police station she had sought to phone head office, that was denied her, and that she left the premises and went to find another phone to make that call. Before phoning, she spoke to a solicitor, Mr Prunty, who on her behalf phoned Mr McGillvray. Mr Prunty said in his evidence, although this was denied, that he was told by Mr McGillvray, "She's sacked for breaching company policy" and that that reason was communicated by him to Ms McLeish. In the light of these quite clearly conflicting accounts it is not possible for a court who has not seen the witnesses, nor seen their cross-examination, to be in a better position than a person who has. While it is quite right to say that it was open on the evidence to conclude that Ms McLeish had resigned, although she had not used those precise words, that was not the finding made by the Judicial Registrar. The contrary finding was clearly open on the evidence and in those circumstances it is simply not the case that I should reach a conclusion contrary to that reached by the Judicial Registrar. A similar conclusion flows in respect of whether there was a valid reason for the termination. According to Ms Brown, Ms Wishart and Mr McGillvray, a tape was recovered from the cash registrar used by Ms McLeish which indicated that she had, on eight separate occasions, used the "No Sale" button without prior authorisation and that any one of these instances was a breach of company policy with respect to the operation of the "No Sale" button. Ms McLeish on the other hand denied that on any occasion on that day, or any other day for that matter, she had used the "No Sale" button, contrary to company policy. There is, it seems to me, a fundamental flaw in the submissions on behalf of the employer before me. The fundamental submission on this aspect was that I should reach a finding different from the factual conclusion of the Judicial Registrar on the question of the authenticity of the tape. The Judicial Registrar, in the course of her reasons, said: " I cannot be satisfied that the cash register roll presented to the court was in fact the one which was the actual roll taken from the applicant's register. The standard of proof required to prove that fact was simply not met. " That is a finding of fact which was open to her reasonably on the evidence and which I am not able properly to disturb given the disadvantage from which I suffer. If it be the case that her employment was terminated but that she had not been in breach of company policy in respect of the no sale button then it is clear that she must succeed on her application - her dismissal, wrongly based, would be harsh, unjust and unreasonable. But, even if there had been by Ms McLeish a breach of the company policy in relation to the "no sale" button, then a dismissal in those circumstances would still, absent any other reason, have been harsh, unjust or unreasonable. It is clear on the evidence that there was no reasonable opportunity given to Ms McLeish to be heard in respect of the basis for her termination. The only evidence to which Mr Kenner could point on that aspect of the matter is to be found at page 141 of the transcript during the evidence of Ms Brown: " Now, prior to Kerry McLeish departing the workplace with the policemen, did you have the opportunity to discuss with her the reasons why you were investigating? " To which Ms Brown said: " Yes. We asked her why the cigarettes weren't - " and she was interrupted. " When you say 'we asked her', who asked her? " And she said: " Shirley and I were in there and I asked her why the cigarettes weren't rang up and she said that she forgot. Forgot what?‑‑‑To ring the cigarettes up. Did she explain any - did she have any other explanation as to her conduct?‑‑‑Not that I can recall, just that, 'I forgot to ring them up. There were customers there and I just forgot, I was busy. " Nowhere else is there any evidence to suggest that the question of her failure to comply with company policy in relation to the operation of the "no sale" button was ever put to her. The passage of evidence to which I have referred is directed at why a sale was not recorded on the cash register and it is a different matter from the operation of a no sale button to permit access to the cash drawer. On the whole of the material before me I see no reason at all to reach a conclusion contrary to that of Judicial Registrar Tomlinson. Moreover, there was a want of procedural fairness accorded to Ms McLeish. The final matter relates to the quantum of the order of the Judicial Registrar. The matter is not particularly satisfactory but it seems to have been agreed between the representatives for the parties before the Judicial Registrar that the gross annual salary was $13,900. It was submitted by the legal representative for Ms McLeish that the maximum that she would be entitled to receive would be half that amount, namely $6950. The basis for the award of $7000 does not appear clearly from the reasons of the Judicial Registrar. Subject to varying the order of Judicial Registrar Tomlinson, made on 6 March 1995 by substituting $6950 for the sum of $7000, I would not interfere with the orders that she made. Since, however, this is a true re‑hearing the orders of the court are as follows: (1) Macs Food Centre Proprietary Limited pay to Kerry Lee McLeish the sum of $6950; (2) that sum be paid by 4 pm on Thursday, 13 July 1995; (3) if not so paid the matter will be listed before me at 2.00pm on Friday, 14 July 1995. This is one case which highlights the real difficulties that flow from the absence of the power to make any costs order, either in proceedings before the Judicial Registrar or before me on a review except in circumstances which do not have a present application. I regret that that is the position. The orders that I make are as I have indicated. I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender. Associate Date: 12 July 1995