Industrial Relations Commission of New South Wales in Court Session CITATION : Randall v Baulkham Hills Shire Council [2004] NSWIRComm 86 APPELLANT: Graham John Randall PARTIES : RESPONDENT: Baulkham Hills Shire Council FILE NUMBER: IRC 3267 of 2003 CORAM: Wright J President; Boland J; Haylen J CATCHWORDS : Appeal - Unfair contract - Leave to appeal - Circumstances of the proceedings - Examination of circumstances and the proceedings at first instance shows appellant not treated unfairly - Leave to appeal refused - Appeal dismissed. Browne v Dunn (1894) 6 The Reports 67 D & R Commercial Pty Limited v Flood (2002) 113 IR 344 Jones v Dunkel (1956) 101 CLR 298 CASES CITED : King v the State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Marelic v Comcare (1993) 47 FCR 437 Randall v Baulkham Hills Shire Council [2003] NSWIRComm 162 Stead v State Government Insurance Commission (1986) 161 CLR 141 White v Ryde Municipal Council [1977] 2 NSWLR 909 HEARING DATES: 03/30/2004 EXTEMPORE JUDGMENT DATE : 03/30/2004 APPELLANT: Mr R Moore of council Humphreys & Feather, Solicitors (Mr Peter G Feather) LEGAL REPRESENTATIVES: RESPONDENT: Ms E S Brus of counsel Coleman & Greig, Solicitors (Mr Stephen Booth) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President BOLAND J HAYLEN J Tuesday 30 March 2004 Matter No IRC 3267 of 2003 GRAHAM JOHN RANDALL v BAULKHAM HILLS SHIRE COUNCIL Application for leave to appeal and appeal against the decision of Justice Schmidt given on 26 May 2003 in Matter No IRC 6293 of 2000 JUDGMENT OF THE COURT (Extempore) [2004] NSWIRComm 86 1 This appeal concerns a claim by a former council employee for a payment under a Council Gratuity Scheme denied to him by the respondent. At first instance Schmidt J dismissed the application after having made a series of findings, many of which were adverse to the appellant: see Randall v Baulkham Hills Shire Council [2003] NSWIRComm 162. 2 In written submissions on appeal, and in oral submissions in amplification of those submissions, the appellant has subjected her Honour's reasons to close scrutiny and has submitted that her Honour has erred in a number of respects, including the reaching of conclusions for which there was no basis in the evidence. There were allegations of a denial of procedural fairness, a breach of the rule in Jones v Dunkel (1956) 101 CLR 298 and an alleged breach of the rule in Browne v Dunn (1894) 6 The Reports 67. While there may be some arguable grounds for complaint in relation to some of the findings, the thrust of the appellant's case appears to rest upon an accumulation of alleged error. The disposition of the appeal must turn on the Full Bench being able to conclude that there was error warranting the overturning of her Honour's orders dismissing the application. That is the type of conclusion that would warrant both the grant of leave and the upholding of the appeal. Leave to appeal will not be lightly or automatically granted: see, for example, King v the State Bank of New South Wales (No 2) [2002] NSWIRComm 353. 3 An examination of the essential facts demonstrates that this is not such a case. The appellant had been employed by the Council for 23 years and, at the time of his resignation, occupied a position at managerial level. He was aware of a Council policy against using Council equipment for private purposes and he breached that policy. He took time from work, in company with another employee who was required to attend to Council duties, during normal working hours, in order to attend to a private job, apparently some concreting near his home. When discovered and confronted with these matters, the appellant indicated that he had, at the age of 63, been contemplating retirement in a few months in any event and was prepared to resign. Representatives of the respondent proposed an earlier resignation date which was accepted by the appellant. He was permitted to resign without further investigation of these incidents and, in addition, was paid untaken sick leave. 4 At issue in the proceedings and on appeal was a claim made by the appellant for a payment of a gratuity of two week's pay for each year of service or, in the alternative, one week's pay for each year of service, yielding apparently a claim of approximately 46 or alternatively 23 weeks' salary, involving amounts of approximately $39,000 and $19,500 respectively. The Council's policy regarding the payment of the gratuity did not set out in detail the way in which the discretion to make such a payment might be exercised, but it appeared there were three possibilities: an employee with an unblemished record would be paid two weeks' pay for each year of service; an employee who had come under notice but had redeemed himself might be given one week's pay for every year of service; and no payment might be made. The policy was clearly one rewarding long service and therefore did not apply to short or shorter term employees who terminated their services. 5 While pressing the full claim of 46 weeks' pay, it seems that the appellant accepted that the payment of one week for every year of service was justified and appropriate. The appellant believed that only one person had not been paid the full amount and that person had been paid one week for each year of service in circumstances which made it unfair for the appellant not to be treated in the same way. The evidence, however, demonstrated that seven employees had been denied payment of the gratuity, and that one employee had been paid one week's pay for every year of service in circumstances where that employee had come under notice. 6 In essence, the appellant's case focuses on this one example as demonstrating the unfairness of his treatment. In that case the employee had pursued a workers compensation claim on the basis of being totally and permanently incapacitated. Video evidence showed that employee performing work inconsistent with the alleged incapacity. The claim was dismissed by the Compensation Court and the employee was directed to return to work. The respondent Council was required to re-employ him but gave him clerical duties at which he worked diligently for a further five years or more as well as performing additional voluntary work. 7 This short recitation of the facts shows that there are significant differences between the two cases; they are not a true comparison of like with like. No unfairness to the appellant at the hands of the respondent Council is demonstrated by reference to this single example. 8 There are two other significant issues which are raised in support of a finding of unfairness. Firstly, the appellant submitted his claim for payment of the gratuity in writing and the terms of his application and what was put in support of it were not put before Council members when they deliberated and concluded not to pay the gratuity. Secondly, senior managers made a recommendation to Council against paying the gratuity, which sets out the appellant's employment history, the fact that he had considerable work over the last ten years outside of hours and had raised the issue of not being properly compensated for his involvement in those duties, but further stated that over the last few years there had been some concern that he was involved in some private work but that could not be substantiated. The recommendation set out briefly what occurred when the appellant telephoned the respondent claiming illness but later arranged for a small piece of plant to be delivered to a construction site on which he was working. It recorded that following an investigation into the incident, the appellant submitted his resignation. The recommendation then contained the following paragraph: This is considered to be a most unfortunate error of judgment but there is concern the evidence on this occasion may have been just the "tip of the iceberg" in misuse of his position for improper personal gain. 9 The appellant points to these two issues as working an unfairness and effectively destroying his chances of obtaining the exercise of the Council's discretion in his favour. The first thing to be said about this submission is that there is no identification of any matter contained in the appellant's written application for the payment of the gratuity which is said to be of such significance that the Council could not have properly dealt with the application without having that material before it. Secondly, the recommendation clearly accepts that the performance of outside work could not be established, but records the concerns of the senior officers that this may have been a regular pattern. It may be immediately accepted that the councillors voting on this application would be influenced by the views of the Council's senior officers as set out in the recommendation and the expression of any concern held by them. It is another matter, however, to conclude that elected representatives well versed in the administration of local affairs would not have been alive to the express terms of the concern raised by the senior officers and the fact that those concerns had not been established. 10 The appellant has alleged breaches of procedural fairness and the failure to abide by the rule in Jones v Dunkel and that in Browne v Dunn. It is well settled that every breach of procedural fairness will not automatically result in the original decision being set aside and/or a new trial ordered: see Stead v State Government Insurance Commission (1986) 161 CLR 141. Similarly in Marelic v Comcare (1993) 47 FCR 437, Beazley J observed, in relation to the rule in Browne v Dunn, that the mere fact that the rule had been violated did not mean, necessarily, there should be a new trial. Whether or not there should be a new trial depended upon the nature of the infraction of the rule. This line of cases was referred to and followed by a Full Bench of the Commission in D & R Commercial Pty Limited v Flood (2002) 113 IR 344. 11 In this case the appellant complains that his application for the payment of the gratuity did not go before the councillors who voted upon it but only the report of the senior officers. The appellant identifies no detriment or lack of information that was relevant to the consideration of the application which thereby occurred. There is also a faint suggestion that the appellant should have been given an opportunity to address the Council; however an oral hearing or legal representation is not required in all cases for the requirement of procedural fairness to be met (see, for example, White v Ryde Municipal Council [1977] 2 NSWLR 909). The recommendation is alleged not to be truthful or fair but it is not spelt out how the recommendation was untruthful - it is merely asserted that by expressing the concern of senior managers, a concern which could not be substantiated, that the recommendation became other than truthful. The failure of the respondent to call the general manager who expressed concern at the possibility of the appellant being involved in private work works no unfairness in the circumstances where, on the evidence, such a concern could never form part of the respondent's case. The failure to spell out the concern in the course of evidence in the case or to cross-examine on the concern (accepting that the appellant was not obliged to cross-examine on this issue) does not ultimately assist the appellant. The appellant is left with a recommendation which categorises the failure of the appellant arising from this incident as being an unfortunate error of judgment. That characterisation does not require the respondent to exercise its discretion to pay the gratuity in favour of the appellant. 12 Having regard to the managerial role of the appellant, his breach of the policy and the use of Council equipment, his involvement in the outside work of another employee who was obliged to perform duties on that day for the Council, it cannot be said that the appellant was dealt with unfairly by not being paid a gratuity. The whole of the circumstances have to be considered and those circumstances include the fact that he was able to avoid an undoubtedly potentially embarrassing investigation of his conduct by the respondent accepting his resignation and the payment by the respondent of his untaken sick leave. When all of the circumstances are considered the appellant was not treated unfairly. It follows that this was a case where leave to appeal should be refused. We order accordingly and dismiss the appeal. _____________________ 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.