Industrial Relations Commission of New South Wales CITATION: Parkinson v Mayne Group Limited t/as Mayne Nickless Limited [2005] NSWIRComm 333 APPELLANT Raymond Clarence Parkinson PARTIES: RESPONDENT Mayne Group Limited t/as Mayne Nickless Limited FILE NUMBER(S): IRC7448 of 2004 CORAM: Walton J Vice-President; Marks J; Ritchie C CATCHWORDS: Appeal from unfair dismissal application - appellant dismissed following incident which resulted in injury to a fellow employee - appellant's version inconsistent with witnesses' - allegations of procedural unfairness of conspiracy - allegations re improper acceptance and non-acceptance of evidence by Commissioner - Findings reasonably open to Commissioner - Procedural issues not warrant appellant intervention - No procedural unfairness - Leave to appeal refused - Appeal dismissed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 09/09/2005 DATE OF JUDGMENT: 10/20/2005 APPELLANT (in person) Raymond Clarence Parkinson LEGAL REPRESENTATIVES: RESPONDENT Mr A Moses of counsel Solicitor: Mr M Byrnes Clayton Utz Laywers JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice-President Marks J Ritchie C Thursday 20 October 2005 Matter No IRC 7448 of 2004 RAYMOND CLARENCE PARKINSON v MAYNE GROUP LIMITED t/as MAYNE NICKLESS LIMITED Application by Raymond Clarence Parkinson for leave to appeal and appeal against a decision of Commissioner O'Neill given on 10.12.2004 in matter no. IRC 7196 of 2001 DECISION OF THE FULL BENCH [2005] NSWIRComm 333 1 The appellant, Raymond Clarence Parkinson, seeks leave to appeal and to appeal from the decision of Commissioner O'Neill delivered in connection with proceedings for unfair dismissal, instituted by the appellant against the respondent, Mayne Nickless Express, under s 84 of the Industrial Relations Act 1996 ("the Act"). 2 The decision which is the subject of these appellate proceedings was delivered by Commissioner O'Neill on 3 December 2004. The respondent had dismissed the appellant from employment based upon incidents which occurred on 11 October 2001, when a forklift which the appellant was driving struck a fellow employee, Benny Gimbert. The appellant, who was also a delegate for the Transport Workers' Union of New South Wales ("TWU"), was summarily dismissed from employment on 22 October 2001 after the respondent had arranged for an investigation to be conducted into the incident. 3 The decision of the Commissioner sets out details of statements given to a person carrying out the investigation on behalf of the respondent by the appellant and by a number of witnesses. The appellant gave a version of the incident which suggested that the injury sustained by the employee was caused ultimately by the manner in which the employee had taken hold of a pallet jack handle, forcing it into himself and pinning him against another piece of equipment. This version of the incident was inconsistent with versions given by a number of witnesses. 4 In his decision, the Commissioner referred to the circumstances in which an investigation had been carried out on behalf of the respondent company, and as to the involvement in that investigation of officials of the TWU. 5 The appellant, in the course of the hearing, alleged that the circumstances of the incident did not warrant dismissal, that the investigation process conducted by the respondent company was flawed, and that there was a conspiracy between officers of the Transport Workers' Union of New South Wales and the respondent company to have him removed from his employment. 6 A complicating factor was that the employee who had sustained the injury, although having given a statement to the person responsible for the investigation by the company, did not give evidence in the proceedings before Commissioner O'Neill. The statements that he had given shortly after the incident and in connection with the investigation were, however, received by the Commissioner for the purpose of the unfair dismissal hearing. The appellant submitted that Commissioner O'Neill was in error in so accepting the statement, and that that error sufficiently tainted the decision so as to justify intervention by the Full Bench. However, it is clear, as was submitted by counsel for the respondent, that in accepting the statement, Commissioner O'Neill considered it in the context of other evidence which was clearly admissible in the proceedings, and that the Commissioner was entitled to rely upon it in the manner in which he did because of the consistency of its contents with the other evidence. In any event, the Commissioner was not bound by the rules of evidence. Whilst the evidence may have nonetheless been excluded upon the grounds of prejudice to the appellant, it was within the Commissioner's discretion to admit the statement and to give it reduced weight (which we consider he did) in the light of the evidence not having been tested. 7 The application for leave to appeal and to appeal filed by the appellant traversed a large number of grounds. They included a failure to afford procedural fairness, the improper admission of evidence, the failure to admit appropriate evidence, the failure to acknowledge that the appellant had been harassed and victimised, the acceptance of unsigned statements by the injured employee, a failure to acknowledge and investigate "management threats to get rid of those who assisted Ms Tracy Anderson, a sexual assault victim", a failure to allow extensive cross-examination of an officer of the TWU and allegations of ambush in the tendering of evidence. 8 The difficulty faced by the appellant was that, in essence, the Commission found that his employment had been terminated by the respondent because of his conduct on 11 October 2001; that conduct had in fact occurred; that the appellant had been accorded procedural fairness; and that the respondent, having followed an appropriate and fair procedure, was thereby justified in terminating the appellant's employment because of the nature of this misconduct. There is nothing to suggest that the evidence relied upon by the Commission was, when taken as a whole, unsound. In this context, it is difficult to see how questions as to whether or not there was some other motive on the part of the respondent (whether actuated by complaints of sexual harassment of an employee or by some form of conspiracy between the respondent and the TWU to have the appellant removed from employment) could affect the outcome of the proceedings, namely that the Commissioner did not find the dismissal harsh, unjust or unreasonable. Those matters may have had a significant impact (giving rise to appellate scrutiny) if the alleged arrangements between those agents either resulted in concocted evidence or in some way tainted the evidence being led by the respondent so as to make it unreliable. However, neither of these conclusions appears available on the evidence at first instance which rather disclosed the misconduct complained of by the respondent. Even if we admitted the fresh evidence sought to be relied upon by the appellant on appeal (which we do not propose to do), and took it at its highest, we do not consider that there would be a sufficient basis for such conclusions. We should further note we would have approached the issue of alleged conspiracy differently if the conclusions reached by the Commissioner were not reasonably open to him. However, it was in our view reasonably open to the Commissioner to conclude that there was a proper basis for the respondent to determine that the appellant had engaged in the misconduct alleged against him. 9 Accordingly, complaints made by the appellant as to the exclusion of certain evidence and as to the inability to cross-examine certain witnesses in a particular way (such as the refusal by the Commissioner to allow the cross-examination of Mr Johnson in certain respects) do not justify the intervention by the Commission on appeal. These included matters such as the prohibition of cross-examination of a person who investigated the incident on the part of the respondent as to his antecedents within a State Police Force. In the same vein, the appellant in the course of oral submissions complained that Commissioner O'Neill had only given him one week in which to prepare submissions which he required to be in written form. However, the transcript of the proceedings before Commissioner O'Neill shows that the appellant acquiesced in a suggestion that he prepare written submissions within one week of the completion of the evidence without any complaint. 10 Having perused the extensive written submissions filed by the appellant and perused a substantial number of documents to which the appellant sought to refer the Commission on appeal, we are unable to discern that there is any matter within the decision of the Commissioner which would call for the intervention of the Commission on appeal or which would warrant, in the public interest, the grant of leave. 11 By s 163 of the Act, the Commission is not bound to act in a formal manner, is not bound by the rules of evidence, is entitled to inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case. In our opinion, the decision of Commissioner O'Neill demonstrates that he carefully considered those matters which were appropriate and relevant to the proceedings, and that he was entitled to accept such evidence as was considered by him to be appropriate to enable him to determine the matter, having accorded it appropriate weight. There is no basis to the claim that the appellant was denied procedural fairness in the manner in which the proceedings were conducted. The decision of the Commissioner was quite properly open to him, given his findings concerning the gravity of the incident which gave rise to the appellant's dismissal from employment. 12 For these reasons leave to appeal is refused and the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.