Industrial Relations Commission of New South Wales CITATION: Shannongrove Pty Ltd and William Allan Cousins [2005] NSWIRComm 150 Appellant: Shannongrove Pty Ltd PARTIES: Respondent: William Allan Cousins FILE NUMBER(S): IRC 5044 of 2004 CORAM: Walton J Vice-President; Kavanagh J; Ritchie C CATCHWORDS: Leave to appeal and appeal - unfair dismissal - whether reasons or adequate reasons given - as to finding of termination - as to allegation of sexual misconduct - as to compensation amount ordered - sufficient reasons given and grounds for appeal not established save as to compensation - assessment of compensation - no basis overturn order at first instance - leave refused. LEGISLATION CITED: Industrial Relations Act 1996 D & R Commercial Pty Ltd v Flood 113 IR 344 IGA Distribution Pty Limited v Moses [No 2] (2002) 114 IR 307 CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 HEARING DATES: 05/06/2005 EXTEMPORE JUDGMENT DATE: 05/25/2005 Appellant: Ms J L Clegg of counsel Solicitors: Bamford Associates LEGAL REPRESENTATIVES: Respondent: Ms J Webster of counsel Solicitors: John Law & Associates JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, ACTING PRESIDENT KAVANAGH J RITCHIE C Wednesday 25 May 2005 Matter No IRC 5044 of 2004 SHANNONGROVE PTY LTD AND WILLIAM ALLAN COUSINS Application by Shannongrove Pty Ltd to appeal against a decision of Commissioner O'Neill given on 2 July 2004 in Matter No. IRC6394 of 2003 DECISION OF THE COMMISSION [2005] NSWIRComm 150 1 An amended application by Shannongrove Pty Ltd ("the appellant") was filed pursuant to s188 of the Industrial Relations Act 1996 for leave to appeal and if granted, appeal against a decision and orders of Commissioner O'Neill on 2 July 2004 in Matter No. IRC6394 of 2003. 2 In the decision, the Commissioner found the termination of Mr William Allan Cousins ("the respondent") a tractor driver for the liquid waste recycling business of Shannongrove was harsh, unjust and unreasonable. The Commissioner ordered the sum of $18,000 as compensation to Mr Cousins. 3 Leave was granted for the extension of time to appeal on 1 October 2004 by Staff J in Shannongrove Pty Ltd and William Allan Cousins [2004] NSWIRComm 295. 4 Ms L A Clegg, of counsel, appeared for the appellant and Ms J Webster, of counsel, appeared for the respondent. 5 The first issue identified in the primary hearing before O'Neill C was whether, as a matter of fact, there was a resignation by the employee, Mr Cousins or whether the employment had been terminated by the employer. 6 Further, the appellant raised against the employee an allegation of sexual harassment at the worksite which allegation was never raised during the seven year employment. 7 The appellant cited 14 Grounds of Appeal, each of which were developed and argued in the written submissions. Ms Clegg, in oral submissions, helpfully refined the grounds of appeal by focusing attention as follows: the learned Commissioner failed to provide reasons or adequate reasons for his findings as to: (a) the termination; (b) the post termination allegation of misconduct through sexual harassment; and (c) the compensation awarded. 8 As to the allegation the learned Commissioner failed to give reasons or adequate reasons for his finding there was a termination, the appellant asserted the learned Commissioner failed to make a determination, given there was a conflict between two witnesses, as to conversations which led to the employee leaving the employment. Further, the appellant contended the learned Commissioner made no finding there was a "termination". We reject these submissions. We find the decision of the Commissioner leaves no doubt that the learned Commissioner made a finding that there was a "termination" of the employment by the employer. He stated: I find that the applicant...was terminated by his employers...This was either a contrived termination or a direct termination. In either case the termination was effected by the employer and it was indicated clearly to the employee that he was no longer required to work at the workplace. 9 The decision also reveals the Commissioner gave consideration to the evidence of each witness. The Commissioner stated he found the behaviour of the respondent "unreasonable". We consider on balance that the Commissioner's decision sufficiently made clear that he did not accept the evidence of the appellant and therefore accepted the evidence of the respondent. He also made sufficiently clear why he reached that conclusion. He accepted that evidence after considering "the context" in which the termination took place. This included the Commissioner also having regard to a variety of factual issues which bore upon the question of which version of events he believed and whether a termination had occurred. While the Commissioner did not determine the nature of the termination, he categorically found severance of the employment contract was by way of a termination by the employer because it was of the employer's initiative. 10 The Commissioner's reasons may have been more fully expressed but, having regard to the authorities referred to by Ms Clegg, were sufficient to meet the requirements for reasons reposing in a Commissioner deciding a matter of this kind. In this respect we apply the decision in Webb v Goulburn Masonic Village (2004) 136 IR 309 and Entertainment Distributors Company Pty Ltd and Anor v Burnard and Ors (1993) 49 IR 446. 11 Further, even though the argument advanced by Ms Clegg concerned only the issue of an absence of reasons for decision, we apprehend that the written submissions of the appellant attacked the actual finding of the Commissioner as to the termination of the respondent. This is a challenge to the Commissioner's findings of fact. The concession was properly made by Ms Clegg that, if the challenge based on the absence of reasons failed, it would be difficult for the appellant to succeed in the appeal on any such alternative basis (if pressed). Whilst this issue has not featured prominently (or perhaps at all) in the appeal, we would observe that we do not consider it would be appropriate to grant leave to appeal on this basis. We do not consider the factual issues which the appellant has sought to raise in this respect should, either as to their nature or context, attract the grant of leave. 12 As to the Commissioner's determination of the allegation of sexual harassment, we are satisfied the Commissioner made a finding, on the evidence before him, there was "no substance" to the charge. The Commissioner, in his reasoning, commented there should have been an appropriate investigation (and implicitly that the absence of it reflected the weakness of this part of the appellant's case). Such comment, on the state of the evidence placed before him, does no more than support the finding he made. We are further persuaded as to this view given Ms Webster's submission as to the timing in which the allegation was raised in the litigation and the absence of corroborating evidence. In the circumstances, we find the Commissioner's determination sound. 13 One ground of appeal we find has some merit. The learned Commissioner did not refer to any earnings of the respondent post-employment or, for that matter, his considerations under s89(6) of the Act. It was common ground the respondent had earnings post-termination and those earnings should have been taken into account in mitigation. Such is a mandatory consideration under s89(6) of the Act. While the Commissioner should have referred to the earnings, the fact there were such earnings would not necessarily reflect in a reduction of the Award (D & R Commercial Pty Ltd v Flood 113 IR 344). The appellant's contention as to an absence of reasons in this respect is therefore sustainable. However, both parties accepted that if we reached such a conclusion, we should consider the appropriate outcome of the application in the appeal rather than remit the matter. The Commissioner noted the long and meritorious service the employee provided to the company and was critical of the way in which the employment relationship was managed. The evidence was, over the six months after termination, the respondent earned approximately $10,000. Before termination he was earning over $40,000 per year. The respondent had suffered a considerable loss of income upon the unfair termination of his employment. We consider that some modest offset should have been allowed in the circumstances (and may have been taken into account by the Commissioner) but we see no proper basis in the circumstance of this dismissal to warrant any different outcome as to the amount ultimately awarded by the Commission. On this basis we do not consider that the orders at first instance should be disturbed. There is no utility in further considering the appeal in this aspect, and therefore we also refuse to grant leave to appeal. 14 In the circumstances, and after careful consideration of the submissions and material before us, we are satisfied the appellant has not satisfied the onus which falls upon him to make out an application for the grant of leave to appeal. Leave to appeal is never granted lightly or automatically. We also refer to the public interest test imposed by s188 of the Industrial Relations Act 1996 ('the Act') as discussed in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. For the reasons we have discussed above, and having regard to the way the appeal was advanced by the appellant, we consider the grounds of appeal relied upon by the appellant are insufficient to warrant the grant of leave. Further, we do not consider that the subject matter of the appeal proper raised any of the factors identified in Knowles which may attract the grant of leave. ORDERS 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay granted on 1 October 2004 is lifted. 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.