DECISION NO: 100/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of JUDICIAL REGISTRAR - approach on review regarding issues of witness credibility Industrial Relations Act 1988 ss 170DB, 170DE, 170EA, 170EE Mac Foods Centre Pty Ltd v Kerry Lee McLeish, Industrial Relations Court of Australia, WIR 94/305, 12 July 1995, as yet unreported, at 7, Spender J Mario Bartucciotto v Euro Printing Co Pty Ltd, Industrial Relations Court of Australia, WI 95/1177, 21 February 1996, as yet unreported, at 18, von Doussa J Reader v Wyndham Lodge Nursing Home Inc, Industrial Relations Court of Australia, VI 94/0837R, 8 September 1995, as yet unreported, Marshall J Michael Slifka v J W Sanders Pty Limited, Industrial Relations Court of Australia, VI 94/2741R, 19 December 1995, as yet unreported, North J No. VI 2152R of 1995 AARON PAUL JOHNSON v QUEENS PARADE HARDWARE PTY LTD (trading as CLIFTON HILL MITRE 10) JUDGE: Marshall J PLACE: Melbourne DATE: 18 March 1996 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 2152R of 1995 BETWEEN: AARON PAUL JOHNSON Applicant AND: QUEENS PARADE HARDWARE PTY LTD (trading as CLIFTON HILL MITRE 10) Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 March 1996 ORDER THE COURT ORDERS THAT: 1. It is declared that the termination of the employment of the applicant by the respondent contravened ss 170DE and 170DB of the Industrial Relations Act 1988 ("the Act"). 2. Pursuant to s170EE(3) of the Act the respondent shall pay to the applicant compensation in the sum of $13,698.70. 3. Pursuant to s170EE(5) of the Act the respondent shall pay to the applicant damages in the sum of $1,120.00. 4. Pursuant to the rules of Court the total sum payable shall be increased by interest at the rate of 12% thereon from 24 October 1995. 5. The total sum payable shall be paid to the applicant by the respondent on or before 4.00 pm on Monday, 25 March 1996. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 2152R of 1995 BETWEEN: AARON PAUL JOHNSON Applicant AND: QUEENS PARADE HARDWARE PTY LTD (trading as CLIFTON HILL MITRE 10) Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 March 1996 EX-TEMPORE REASONS FOR JUDGMENT BACKGROUND On 22 March 1995 the applicant filed an application pursuant to s170EA Industrial Relations Act 1988 ("the Act") in the Victoria District Registry of the Court. The applicant sought remedies including reinstatement and compensation. On 14 June 1995, Commissioner Tolley of the Australian Industrial Relations Commission ("the Commission") certified that the Commission had been unable to settle the matter by conciliation. The application was heard by Judicial Registrar Fleming on various days in August and September 1995. On 3 October 1995, the Judicial Registrar published her reasons for decision and the Court's orders in the application. The Judicial Registrar accepted the submissions of the applicant that the termination of his employment was at the initiative of the respondent rather than as a result of a voluntary resignation by the applicant. It had been conceded by the respondent that should the Court find that the applicant's employment had been terminated at the initiative of the respondent, the respondent would not have terminated such employment for a valid reason. The Judicial Registrar was faced with conflicting evidence concerning the events of 20 March 1995. On that day the relevant manager of the respondent, Mr Culph, interviewed the applicant. The result of the interview was a signed resignation by the applicant. The applicant alleged the resignation was involuntary. The respondent alleged that it was voluntarily given by the applicant. The Judicial Registrar accepted the applicant's evidence concerning the events of that day. She found Mr Culph not to be a credible witness. She was influenced in coming to her views about the competing credibility of the applicant and Mr Culph by evidence given by Mr Forbes, a witness called by the respondent. Mr Forbes gave evidence that he had had conversation with the applicant shortly before the applicant left the work site on 20 March 1995. The gist of the evidence of that conversation was as follows:- FORBES: Are you going? JOHNSON: Yes, I was sacked. FORBES: I thought you resigned. JOHNSON: No I was forced to resign. THE REVIEW On 24 October 1995, the respondent sought a review of the decision of Judicial Registrar Fleming. The review was listed for a directions hearing on 13 November 1995. On that day, Mr G Katz (solicitor) appeared for the respondent. There was no appearance for the applicant. Mr Katz sought an order from the Court that the review be conducted on the transcript of the evidence before the Judicial Registrar. The Court acceded to his request. Directions were made to enable the parties to supplement the evidence, if they wished to do so, by the filing of any affidavit constituting the evidence in chief of any additional witness. The review was heard today. Once again, Mr Katz appeared for the respondent. Mr G Herbert, of counsel, appeared for the applicant. Mr Katz submitted that the Court, on the review, should form a different view than that taken by Judicial Registrar Fleming on the credibility of Mr Culph and the applicant. Mr Katz referred to a range of matters contained in the transcript which did not bear directly on whether or not there was a termination of the employment of the applicant at the respondent's initiative on 20 March 1995. Nonetheless, Mr Katz submitted that those other factual matters revealed that the applicant was not a credible witness and therefore should be disbelieved regarding the events of 20 March 1995. Mr Katz conceded that it was open to the Judicial Registrar to have regard to the evidence of Mr Forbes and to adjudge it favourably to the applicant's case. However, he submitted that the Judicial Registrar gave too much weight to the applicant's self-serving statement that his resignation was a forced one. APPROACH ON REVIEW REGARDING CREDIBILITY ISSUES Except in cases where the Court forms the view that the account of an event accepted by the Judicial Registrar was unsatisfactory or inherently improbable, it will be exceedingly difficult for the Court on review to come to a different conclusion about the credibility of witnesses than that accepted by the Judicial Registrar. This is especially so when the evidence on the review is exactly the same evidence as that which was before the Judicial Registrar. In Reader v Wyndham Lodge Nursing Home Inc, Industrial Relations Court of Australia, VI 94/0837R, 8 September 1995, as yet unreported, Marshall J, the Court was of the view that the account given by two alleged witnesses to an alleged assault was unsatisfactory and too inherently improbable to accept. This was so, notwithstanding that the evidence was the same evidence that was before the Judicial Registrar. That decision is subject to appeal and no doubt Full Court guidance on the approach to such issues will be forthcoming. It will be a rare case where the Court on the review will be able to confidently assert that on the face of the transcript before the Judicial Registrar, a different view to that reached by the Judicial Registrar should be reached on the issue of credibility of witnesses. I believed Reader was such a case. Ordinarily, great weight must be given to the findings of the Judicial Registrar on questions of credibility if the evidence remains the same on the review. In fact, in Michael Slifka v J W Sanders Pty Limited, Industrial Relations Court of Australia, VI 94/2741R, 19 December 1995, as yet unreported, North J held that where there is directly conflicting evidence and the demeanour of each of the central witnesses is very important, mere reliance on the transcript before the Judicial Registrar is inappropriate. As von Doussa J recently said in Mario Bartucciotto v Euro Printing Co Pty Ltd, Industrial Relations Court of Australia, WI 95/1177, 21 February 1996, as yet unreported, at 18:- "... This Court is asked to decide the matter according to the transcript and the evidence below. On an issue such as this weight must be given to the assessment of the witnesses by the judicial registrar: see Cox v South Australian Meat Corporation (1995) 60 IR 293 at 294." See also Mac Foods Centre Pty Ltd v Kerry Lee McLeish, Industrial Relations Court of Australia, WIR 94/305, 12 July 1995, as yet unreported, Spender J, at 7. In this matter, even applying the test in Reader, I do not believe that the evidence of the applicant's account of what happened at the critical meeting of 20 March 1995 was unsatisfactory or inherently improbable on the evidence before the Judicial Registrar. On the contrary, it is my view that the Judicial Registrar was entitled to have regard to the evidence of Mr Forbes which contradicts the respondent's version of events. I do not believe, as Mr Katz contends, that the applicant quickly thought of the legal consequences of what had just occurred and made a self-serving statement to Mr Forbes. Notwithstanding some inconsistencies on the face of the transcript in the evidence of the applicant regarding ancillary matters, I do not believe that they are of sufficient importance to warrant a finding that the Judicial Registrar's preference for the evidence of the applicant rather than that of Mr Culph concerning the events of 20 March 1995 is one that should be disturbed on review. I find, therefore, that in terminating the employment of the applicant the respondent breached s170DE of the Act. Given that no payment in lieu of notice was given to the applicant at the time of the termination of his employment, I also find that the respondent beached s170DB of the Act. REMEDY The applicant did not seek reinstatement. Mr Katz submitted that the Court should consider exercising its discretion not to order any compensation. Upon the assumption that such a discretion exists, I see no basis for its exercise in this matter. The quantum of compensation ordered by the Judicial Registrar and the amounts deducted from such quantum can only be interpreted as the Judicial Registrar having formed a view that the employment of the applicant would have only lasted another six months but for termination of his employment. Mr Herbert, for the applicant, did not contend that any greater quantum of compensation should be paid to the applicant than that ordered by the Judicial Registrar. Mr Katz contended that the applicant's employment may have lasted less than a further six months but conceded that he had no conclusive evidence to support that submission. I see no basis to depart from the orders of the Judicial Registrar as to compensation. No basis for departing from her order as to damages for breach of s170DB of the Act was advanced by either party. THE COURT ORDERS THAT: 1. It is declared that the termination of the employment of the applicant by the respondent contravened ss 170DE and 170DB of the Industrial Relations Act 1988 ("the Act"). 2. Pursuant to s170EE(3) of the Act the respondent shall pay to the applicant compensation in the sum of $13,698.70. 3. Pursuant to s170EE(5) of the Act the respondent shall pay to the applicant damages in the sum of $1,120.00. 4. Pursuant to the rules of Court the total sum payable shall be increased by interest at the rate of 12% thereon from 24 October 1995. 5. The total sum payable shall be paid to the applicant by the respondent on or before 4.00 pm on Monday, 25 March 1996. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 18 March 1996 Counsel for the Applicant: G. Herbert Solicitor for the Applicant: M K Steele & Giammario Counsel for the Respondent: G. Katz Solicitor for the Respondent: G. Katz and Associates Date of hearing: 18 March 1996 Date of judgment: 18 March 1996