Industrial Relations Commission New South Wales Medium Neutral Citation: Croft and Roads and Maritime Services [2012] NSWIRComm 102 Hearing dates: 7 September 2012 Decision date: 07 September 2012 Jurisdiction: Industrial Relations Commission Before: Boland J President; Harrison DP; Staff J Decision: Leave to appeal is refused. Catchwords: APPEAL - application for leave to appeal and appeal - unfair dismissal - whether Commissioner erred in analysing evidence - findings as to credit - public interest test not satisfied - application to call fresh evidence refused - application dismissed - Industrial Relations Act 1996, s 188; s 191(2) Legislation Cited: Industrial Relations Act 1996 Cases Cited: Croft v RMS [2012] NSWIRComm 1004 Category: Principal judgment Parties: Wesley Shane Croft (Appellant) Roads and Maritime Services (Respondent) Representation: Mr W Croft (In Person) Mr R Meehan of counsel (Respondent) Solicitors: Minter Ellison (Respondent) File Number(s): IRC 518 of 2012 Decision under appeal Citation: Croft v Roads and Traffic Authority Division of the Government Service of NSW [2011] NSWIRComm 1046 Date of Decision: 2011-09-14 00:00:00 Before: Ritchie C File Number(s): IRC 827 of 2011 decision of the commission 1Wesley Shane Croft ("the appellant") seeks leave to appeal and to appeal from a decision of Commissioner Ritchie given on 29 March 2012 in Matter No IRC 827 of 2011 dismissing an application brought pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"): Croft v RMS [2012] NSWIRComm 1004. 2After hearing the parties on 7 September 2012 on the question of leave the Full Bench determined that leave to appeal should be refused. The Full Bench made orders to that effect. What follows are the reasons for refusing leave. 3It should be observed at the outset that a significant delay has occurred in the disposition of this appeal. This was caused by, firstly, the Commission granting an indulgence to the appellant to instruct new legal representation and, secondly, to allow the appellant to amend his notice of appeal. Background 4In or around 20 October 2007, the appellant commenced employment with the Roads and Maritime Services (then known as the Roads and Traffic Authority) ("RMS" or "the respondent"). 5The appellant was dismissed from the RMS on 5 May 2011 as a Project Engineer, South West Region, Engineer Level 2. 6By letter dated 16 March 2011 titled "Suspension from Duty with Pay - Proposed Termination of Employment", the respondent detailed various incidents that led it to consider terminating the appellant's employment. 7The matters were set out by the Commissioner at [116]: The request by Mr Mathews (sic - Matthews) to leave sealing related files on the sealing bookshelf on 15 March 2011 The refusal by the applicant to comply with a reasonable request to undertake the new duties allocated to him on 25 February 2011. The applicant's response directed to Mr Mathews (sic) on 15 March 2011 accusing him of being unfair and harassing the applicant and the applicant pointing to the door and telling him to "f...off" and telling him he would " have a fight on his hands", again telling him to " f...off " and shouting at him to " get out of your office". Your declining of requests to attend a meeting with Mr Judd on 16 March 2011. An incident between the applicant and Mr Adams that occurred on 16 February 2011 where the applicant stated in a loud voice" I work with a bunch of pricks and you're all c..nts." The meeting on 25 February 2011 discussed with the applicant his work performance, his poor relationship with his immediate supervisor and members of his team, difficulty in managing reasonable workload requirements and his unprofessional conduct towards his supervisor Mr Mathews (sic), his new work project and opportunity to improve his communication and relationship building skills. These concerns had been raised with the applicant on 26 November 2010 and documented in correspondence of the same date. Refusal to comply with completing the two week schedules. 8The Commissioner summarised the appellant's response at [117] as follows: Denied using bad language and accused Mr Judd, Mathews (sic) and Sexton of misleading events to victimise him and threatened his employment. Did not wish to meet with Mr Judd on 16 March 2011 as he wished to have feedback from HR prior to any meeting and may wish to have representation. Also in accordance with section 19 of the Professional Engineers Award his request was reasonable. Mr Mathews (sic) refused to listen to his reasonable requests that he did not wish to discuss his current position with him and that Mr Mathews (sic) was threatening his employment. Maintained that in his opinion his job is still in Sealing. Admitted that he commented on Mr Adams rude behaviour as a "rude prick. He should get a real job." The various Harassment, Bullying and Victimisation reports that he had lodged with HR. His desire to continue to work on improving current Sealing practises. The applicant proposed a number of options including: Maintaining his employment in the Sealing unit , bringing in outside referral sources to resolve problems his experienced in bullying , harassment , victimisation etc and to ensure reasonable penalties are applied to personnel for their involvement and actions. Maintain his employment in the Sealing unit and HR address his grievances etc.. with feedback from HR advising what action is to be taken to minimise the risk of reoccurrence. As above but with external resources in conjunction with HR. As above but obtain formal recognition for his positive contribution for implementing the appropriate policies. Seek formal recognition for his positive contribution implementing management systems, improving IT systems. He would also consider a permanent or secondment position with Project Services eg Project Manager (Maintenance) based in Narrandera. 9The Commissioner immediately observed at [118]: It is clear from the applicant's response that he sees Mr Judd, Mr Mathews (sic) and Mr Sexton responsible for victimising him and threatening his employment. It is also clear that at no point in his response does he admit any blame for the incidents or his work performance that occurred that led up to the date of his response. 10The reasons for the appellant's termination were set out in a letter dated 2 May 2011 at [113] as follows: Overall, I note your response to the proposed penalty indicates no acknowledgment by you as to how your actions have caused disciplinary proceedings to be commenced against you or any admissions regarding your conduct and contribution to any poor relationships or behaviour. Your proposal for an alternative outcome to your disciplinary matter, including a secondment, is in direct contradiction to your ongoing refusal to comply with Mr Mathews' (sic) and Mr Judd's request to undertake alternative duties. I am satisfied that sufficient evidence exists of your poor relationship and communication skills and disregard for management authority despite ongoing discussions with you by your supervisors about these matters. Additionally , there is sufficient evidence of you refusing to comply with Mr Mathews' (sic) direction to provide work schedules and to work on an alternative project, as well as refusing Mr Judd's direction to meet with him, and your intimidating behaviour towards Mr Mathews (sic) in the incident on 15 March 2011. Your lack of insight into your behaviour has on others given the RTA no basis on which to maintain any trust it has in your capacity to conduct yourself professionally , and in accordance with the standards expressed in the RTA's Code of Conduct and Ethics. I therefore do not believe an alternative option would address these problems. As such, following careful consideration of the evidence and documentation you have provided , I have determined that the most appropriate disciplinary action is that your services be terminated immediately upon receipt of this letter. You will receive payment of three(3) weeks pay in lieu of notice. 11The Commissioner carefully considered the evidence in respect of each of the allegations directed to the appellant's performance and conduct and made the following findings: (i)that the appellant failed to complete the two week schedule due on 4 March 2011 despite being directed to do so. The Commissioner found that this was a reasonable instruction and by not carrying it out, the appellant placed himself in a position where disciplinary action would be taken (see [119] - [120]; (ii)that on the balance of probabilities the appellant did swear at Mr Matthews on the morning of 15 March 2011. The Commissioner saw no reason why two independent witnesses, Ms Mitchell and Ms McComber, should tell lies on this issue. He accepted both these witnesses as witnesses of truth. He also accepted the evidence of Mr Matthews with respect to this issue; (iii)that the appellant, therefore, was in contravention of the respondent's Code of Conduct and Ethics (at [125] - [126]); (iv)that Mr Judd had a duty to meet and speak with the appellant concerning what had occurred between the appellant and Mr Matthews on 15 March 2011. The absence of the appellant in not meeting with Mr Judd was "ill-founded" (at [132]); (v)that on the balance of probabilities neither Mr Judd nor Mr Sexton blocked the appellant from leaving the room when they met with the appellant on 16 March 2011 to provide the appellant with a suspension letter (at [133]); (vi)that directing the appellant be moved to a position to carry work on constructions on a temporary basis, was a reasonable direction that would allow normal work to continue. A contention that such a direction was in breach of the Professional Engineers (Roads and Traffic Authority Division of the Government Service of New South Wales-Salaries) Award 2008 was rejected by the Commissioner. 12Where the evidence did not support any wrongdoing by the appellant the Commissioner properly rejected it. This included the rejection of evidence that on 16 February 2011 the appellant used particularly offensive language towards Mr Adams. 13The Commissioner's conclusions were as follows: [149]In summary it is my finding that it was the actions of the applicant that led to his dismissal. The failure of the applicant to recognise his own frailties, but in response accuse both managers and fellow staff of lying is unacceptable. In all the correspondence that he developed that became evidence in this matter, there was no recognition by the applicant that he may have been in the wrong. [150]It is therefore my finding that his termination by the respondent was neither harsh, unreasonable or unjust. [151]I therefore dismiss this application. This matter is now concluded. 14In his application for leave to appeal and appeal, the appellant contended leave should be granted because the Commissioner's decision involved a number of serious errors as follows: a.He did not swear at his manager; b.His suspension was contrary to the Respondent's policy; c.His employment was terminated without accurate investigation; d.Swearing at a manager does not automatically warrant termination; e.He should not have had to take up the temporary role; f.He was victimised, bullied and harassed; g.His reported grievances were not at all investigated and he was not advised of all outcomes. 15The appellant also made an application pursuant to s 191(2) of the Act for leave to adduce fresh evidence. 16The respondent's case was that leave to appeal would not be granted because the requirements of s 188 of the Act had not been satisfied. This section provides: 188 Appeals to Full Bench by leave only (1)An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2)The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3)The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4)This section does not apply to an appeal made by the Minister. 17In essence, the respondent submitted that the appellant was baldly (and impermissibly) seeking to re-agitate the central factual matters in the proceedings below, namely, whether the alleged serious misconduct had in fact taken place. It followed, so it was submitted, that the appeal was an attempt to undermine the clear findings of credit made by the Commissioner that the appellant's evidence, where it conflicted with the evidence given by witnesses for the respondent, should not be accepted. 18It was also submitted that the appellant sought to advance scandalous and offensive contentions that should not be entertained by the Commission. By way of example, the appellant seeks to rely upon representations he made to the Hon Duncan Gay MLC, Minister for Roads and Ports, to the effect that the respondent has engaged in thuggery, deceit, misconduct, alleged corrupt conduct, incompetence and collaboration; and includes a suggestion of improper influence on the Commissioner's decision. 19The respondent further submitted that there was no question of legal principle, or public importance that arose from the appeal and that the appeal "does not have wider implications for the jurisprudence of the Commission". It was also submitted that the appeal seeks to raise numerous matters that were not advanced in the proceedings below. By way of example, the appellant advanced the following: a.The respondent's witnesses had improper motives; b.The respondent's (alleged) procedural failings were deliberate and motivated to avoid redressing grievances raised by Mr Croft; c.Mr Judd was "in contempt of the Commission for deliberately misleading the Commission"; d.Mr Judd was motivated by reprisal for Mr Croft raising safety concerns; e.The Respondent's witnesses collaborated evidence; f.Mr Boggon, Ms Dametto and Ms Cvetkovic were "all in breach of the respondent's Disciplinary Policy and Disciplinary Guideline and acted incompetently, which in itself is considered serious misconduct"; g.Mr Boggon and Mr Judd did not have delegation to commence disciplinary proceedings or to terminate the appellant. Consideration 20It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error (see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison [2000] NSWIRComm 91; (2000) 97 IR 478; Fox v Percy [2003] HCA 22; (2003) 214 CLR 188 at [32]; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm 163; (2000) 100 IR 420 and Strathfield Group Ltd v Hall [2002] NSWIRComm 373; (2002) 121 IR 158 at [45]). 21It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave (see Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 at [4]). 22After a full and complete hearing on the merits it was clearly open to the Commissioner to reach the conclusion that he did. An appeal court will not lightly interfere with findings in respect of credit: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; Fox v Percy [at [30], [31] and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306. 23Consideration of the credibility and reliability of a witness is a key determination for a tribunal to make during the hearing. Such assessment only becomes procedurally unfair if by reason of some default on the part of the tribunal there is a real and substantial risk that the tribunal's capacity to make such an assessment was impaired: see observations of Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367; (2005) 223 ALR 171. The same principle must apply a fortiori in an adversarial process where credit is clearly raised by the parties and was the subject of extensive cross-examination, as was the case here. 24It is not open to the appellant to raise matters for the first time on appeal where, had the issues been raised in the proceedings below, evidence could have been given and answered by the respondent: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; University of Wollongong v Metwally [No. 2] [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481. 25In Metwally the High Court of Australia stated at [7]: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 26We note that at first instance, counsel represented the appellant. 27The principles to be applied in determining whether special grounds exist to allow the appellant to call fresh evidence were set out in Akins v National Australia Bank (1994) 34 NSWLR 155 by Clarke JA (with whom Sheller JA agreed) where his Honour stated at [160]: The following three conditions must be satisfied before the Court admits further evidence, that is, additional evidence that is not evidence of matters occurring after the date of the hearing: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 28These principles were adopted by the Full Bench in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404; (2003) 130 IR 284 at [87]. 29Upon examination, it appears that most of the documentary material that the appellant wished to advance as fresh evidence was in existence at the time of the first instance proceedings. It may, therefore, be inferred that the appellant had the material in his possession at all times. The respondent has identified and indexed that material in an attachment to its outline of submissions. As to other material the appellant was seeking to tender for the first time on appeal, there were no special grounds for receiving that material. 30In our view, in the absence any special grounds for receiving fresh evidence and the prejudice that would arise for the respondent to receive evidence that may have been dealt with at first instance, it is appropriate to refuse the application to grant leave to receive further evidence. 31In respect of the complaints made in relation to the conclusions that the Commissioner reached on the evidence, nothing to which the appellant pointed could properly be considered to raise public interest considerations. The Commissioner concluded that the respondent's evidence had to be preferred over that of the appellant and that the termination was not harsh, unreasonable or unjust. Having regard to all of the evidence, it has not been demonstrated that such conclusions were not open on the evidence. 32It follows that leave to appeal may not be granted in this case given the requirement of s 188 of the Act. Orders 33For the reasons given, the Full Bench confirms the order made on 7 September 2012 that leave to appeal is refused. ********** 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. Decision last updated: 11 September 2012