D & R Commercial Pty Ltd and Flood [2002] NSWIRComm 88

Industrial Relations Commission of New South Wales

CITATION : D & R Commercial Pty Ltd and Flood [2002] NSWIRComm 88 APPELLANT: D & R Commercial Pty Ltd PARTIES : RESPONDENT: Kathleen Margaret Flood FILE NUMBER: IRC 3169 of 2001 CORAM: Wright J President; Walton J Vice-President; Tabbaa C CATCHWORDS : Appeal - Unfair dismissal - Appeal by employer - Allegations of misconduct found to be unsubstantiated at first instance - Allegations found unsubstantiated on basis of assessment of credit of evidence of appellant's witnesses - Assessment of credit based in part on comments made during conciliation proceedings - Dismissal found to be harsh, unreasonable or unjust on both procedural and substantive grounds - Commissioner considered reinstatement impracticable and ordered payment of compensation - Appeal alleged denial of procedural fairness by Commissioner - Monetary order made without regard to terms of s 89 - Appellant alleged denial of procedural fairness based on failure to bring to parties' attention inferences drawn by Commissioner having regard to comments made in conciliation proceedings - Appeal against findings of credit made having regard to material during conciliation proceedings - Appeal against assessment of compensation - Appellant contended denied procedural fairness in not being given an opportunity to respond to respondent's contentions on amount of compensation - Whether denial of procedural fairness - Commission required to afford procedural fairness - Fairness requires that a party be given the opportunity to meet the case relied on - Fairness requires observations taken into account against a party to be brought to party's attention - Denial of procedural fairness - Extent of findings open to Commissioner on the evidence - Leave to appeal granted - Appeal upheld in part. Evidence Act 1995 s 189 LEGISLATION CITED : Industrial Relations Act 1991 s 209 s 252 Industrial Relations Act 1996 Part 6 Ch 2 s 84 s 89 s 163 s 173 s 181 s 188 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Browne v Dunn (1893) 6 R 67 (HL) Burge v BHP Steel Pty Ltd (2001) 105 IR 325 Cash Converters v Yildiz (1999) 94 IR 474 CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211 Employer's Federation of New South Wales v Greco (1993) 51 IR 451 Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Integral Energy v Allen [2001] NSWIRComm 193 Jones v National Coal Board [1957] 2 QB 55 Kassem v Crossley [2000] NSWCA 276 Kelly v Foley (1993) 51 IR 331 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 CASES CITED : Mitchforce v Starkey and Anor [2002] NSWIRComm 85 Outboard World Pty Ltd v Muir (1993) 51 IR 167 Ozwide Real Estate Pty Ltd v Department of Industrial Relations (Inspector Gibson) (2001) 103 IR 177 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Workers Union (NSW) v Gartrell White (No.2) (1990) 35 IR 60 Price v Box Valley Pty Ltd (1999) 90 IR 480 Public Service Association of New South Wales and Department of Corrective Services and Anor (unreported, Full Commission, 9 December 1994) Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Seymour Australian Broadcasting Commission (1977) 19 NSWLR 219 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sunny Queen Limited t/as Australian Quality Egg Farms v Reilly [2000] NSWIRComm 1128. Sykes v Alan East Pty Ltd (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130 Van Huisstede v Commissioner of Police (No.2) (2001) 106 IR 56 Warren v Coombes (1978) 142 CLR 531 Westfield Holdings v Adams [2001] NSWIRComm 293 Wilson v Department of Education and Training (2000) 100 IR 1 HEARING DATES: 09/06/2001; 09/24/2001 DATE OF JUDGMENT: 05/15/2002