FEDERAL COURT OF AUSTRALIA

Wang v Australian Industrial Relations Commission [2006] FCAFC 31

Workplace Relations Act 1996 (Cth)

NAN WANG and QIAN XIAO v FULL BENCH (ACTON SDP, LLOYD SDP AND GRAINGER C) OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, LEWIN C OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and DEMOS PROPERTY SERVICES (AUSTRALIA) PTY LTD

VID 1278 of 2005

NORTH, MADGWICK and SIOPIS JJ

20 MARCH 2006

MELBOURNE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed.

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     This application was remitted from the High Court of Australia by an order of Hayne J made on 22 September 2005 pursuant to s 415(1)(a) of the Workplace Relations Act 1996 (Cth) (‘the Act’). The nature of the application is discussed below.

2                     The applicants are Mr Wang and Ms Xiao, husband and wife (‘the applicants’), who appear in person. The applicants were employed by the third respondent, Demos Property Services (Australia) Pty Ltd (‘Demos’) on a permanent basis as office cleaners. They performed their work in the central business district of Melbourne at several particular buildings for which Demos held cleaning contracts. The applicants commenced employment with Demos in May 2001, but Demos terminated their employment in December 2003. The applicants then sought relief in the Australian Industrial Relations Commission (‘AIRC’) under s 170CE(1) of the Act on the grounds that the termination was harsh, unjust or unreasonable, and/or that Demos had failed to give the statutory period of notice required by s 170CM. The applicants sought reinstatement and an amount in respect of the remuneration lost by them because of the termination.

3                     Before the AIRC Demos claimed that Mr Wang’s employment had been terminated against a background of unsatisfactory performance, on the basis of Mr Wang’s repudiation of the contract of employment through failure to respond to supervisor’s requests, and the exhibition of abusive and threatening behaviour towards his supervisor and manager, including ‘threatening to kill supervisors’. In relation to Ms Xiao, Demos stated that her employment had been terminated on the basis that she had abandoned her employment subsequent to the termination of her husband’s employment.

4                     The matters were originally dealt with in the AIRC by way of conciliation conferences, which were ultimately unsuccessful. The applicants then elected to proceed to arbitration by the AIRC.

The decisions at first instance

5                     The applicants contended that their employment was terminated by a series of telephone conversations held on 2 December 2003, however Commissioner Lewin (‘the Commissioner’) found that the applicants’ employment had been terminated by letter dated 5 December 2003. The Commissioner held that the applicants’ employment had been terminated in a manner which was harsh, unjust and unreasonable. As a result, he awarded Mr Wang $6048, which was equal to 10 weeks’ pay, in lieu of reinstatement. The Commissioner also ordered Demos to pay Ms Xiao the same sum, also being 10 weeks’ pay, and to reinstate her to her former position. Orders were also made deeming Ms Xiao’s employment to be continuous from the date of termination to the date of reinstatement.

The appeal to the Full Bench of the AIRC

6                     Despite this success, each applicant appealed to the Full Bench of the AIRC essentially on five grounds:

1. misconduct by Australian Industrial Registry (‘AIR’) and AIRC officers prior to the arbitration hearings in August 2004;

2. misconduct on the part of the Commissioner during the arbitration hearings;

3. that the Commissioner erred in his approach to the evidence;

4. that the Commissioner made factual errors in his decision; and

5. that the Commissioner failed to take into account the fact that the termination of their employment was unlawful.

7                     In both appeals, the Full Bench (Senior Deputy President Acton, Senior Deputy President Lloyd and Commissioner Grainger) accepted that the Commissioner had made three errors. First, the Commissioner had mistaken the applicants’ length of service, having concluded that it was 19 months, when in fact it was 30 months. Second, the Commissioner failed to deal adequately with the issue of mitigation. Specifically, in relation to Mr Wang’s appeal, it was held that the Commissioner failed to consider Mr Wang’s mitigation efforts in relation to s 170CH(2), and therefore, and the question of appropriate remedy. In relation to Ms Xiao’s appeal, the Full Bench held that the Commissioner’s finding that Ms Xiao’s efforts at mitigation were very limited was not open to him. Third, the Full Bench found that in determining the appropriate remedy, the Commissioner failed to take into account the applicants’ English language difficulties and the problems that those language difficulties would present for their future employment prospects. The Commissioner’s orders in relation to remedy were quashed, and the matters were referred back to the Commissioner to be actioned in accordance with the Full Bench decisions.

The second set of decisions of the Commissioner (on referral from the Full Bench)

8                     In relation to Mr Wang, the Commissioner found that the conclusions he had previously reached regarding the inappropriateness of reinstatement remained valid. Demos was again ordered to pay Mr Wang an amount equal to 10 weeks’ pay. In relation to Ms Xiao, it appeared that she had declined to accept reinstatement. The Commissioner therefore regarded an earlier finding that Ms Xiao would have been prepared to work for Demos regardless of whether her husband also worked there as mistaken. As a result, he no longer considered reinstatement to be an appropriate remedy. After a reconsideration of the matter, he again ordered Demos to pay her an amount equal to 10 weeks’ pay.

The current proceedings

9                     The applicants each then filed papers in the High Court. These papers were:

(a)               An application headed ‘Form 12 Application for an order to show cause (Rule 25.01)’ dated 22 July 2005. The High Court Rules contemplate that such a document is appropriate for use when an applicant seeks the issue of a constitutional writ. However, the relief the applicants claimed by this application was:

‘1.Sixteen weeks wages of the two plaintiffs, or $9,676.80 per person

2. Legal costs of the two plaintiffs, approximately $5,000 per plaintiff’.

The grounds included:

·                    some alleged jurisdictional errors made by the Commissioner;

·                    failure by the Commissioner and the Full Bench ‘to pursue the perjury acts committed by three of the Respondent’s management officials, who were the key witnesses …’;

·                    a complaint that the Full Bench and the Commission ‘misled’ the applicants and resulted in their ‘losing valuable evidence from third parties’;

·                    the appellant was ‘never granted leave to summon [that] evidence’;

·                    ‘the Full Bench failed to take into account the misconduct of AIR and AIRC personnel’;

·                    the Full Bench failed ‘to take into account the losing of [specified] valuable transcript tapes of proceedings’ before the Commissioner; and

·                    the Commissioner had not accorded the applicants a ‘fair trial’ – the Commissioner unfairly interrupted and affected the applicants’ questioning of witnesses.

(b)               Short affidavits swearing that the assertions in the documents ‘are made based on fact as we recall, and with evidence in support’.

(c)               Summonses addressed to the respondent indicating that the applicants were making an application ‘for writs of certiorari and mandamus’.

(d)               Lengthy submissions (59 pages) containing, among other things, detailed factual allegations. In the submissions, the applicants made the following complaints which might conceivably bear on any relief the Court could give:

·                    the Commissioner did not make a finding as to whether the employer would have dismissed the applicant on notice if it had realised that its attempt to dismiss the applicant summarily would have failed;

·                    the Commissioner failed to consider the total amount of remuneration lost by the applicant (as allegedly required by s 170CH(2)(c));

·                    the Commissioner and the Full Bench failed to deal with alleged acts of perjury committed by three Demos employees;

·                    the Commissioner and the Full Bench misled the applicants, which resulted in the applicants losing valuable evidence from third parties. This issue stemmed from the failure of the Commissioner and the Full Bench to grant ‘leave to summon the evidence’;

·                    the Full Bench ought to have considered the misconduct of AIR and AIRC staff;

·                    the Full Bench ought to have considered the loss of certain transcript tapes; and

·                    the applicants were denied fair trials because the Commissioner unfairly interrupted the applicants’ questioning of witnesses.

10                  In this Court, Mr Wang (foreshadowing the applicants’ wish that he conduct his wife’s proceedings also) filed an affidavit. In this affidavit, it is asserted that:

·                    an AIR officer organized a second conciliation conference, after the failure of the first one, without the applicants’ consent;

·                    an AIRC officer advised them to seek directions instead of asking for the issue of a Summons to Witness. However, it is said that the Summons was later issued;

·                    the AIRC failed to recognize and act on alterations of an Employment Separation Certificate produced by Demos;

·                    the Commissioner interrupted Mr Wang’s cross-examination of witnesses;

·                    the Commissioner refused to issue a summons to the Manager of one of the buildings where the applicants worked to produce certain video footage;

·                    the Commissioner and Demos’ counsel misconducted themselves by keeping from the applicants an alleged discrepancy in the Employment Separation Certificate;

·                    the Commissioner and the Full Bench ‘failed to pursue perjury acts committed’ by three witnesses for Demos;

·                    the Full Bench failed to take into account the misconduct of AIR and AIRC personnel;

·                    the Full Bench failed to take into account the loss of transcript tapes;

·                    the Full Bench failed to take steps to require the summons to the building manager to be issued;

·                    the Full Bench and the Commissioner failed to consider whether the terminations of employment were illegal because of ss 170CM, 170CK(2)(a) and 170CE. (Section 170CM requires specified periods of notice of termination to be given or pay in lieu to be made. Section 170CK(2)(a) prohibits termination for temporary absence from work because of illness or injury. Section 170CE deals with applications to the Commission for relief where termination of employment is said to be harsh, unjust or unreasonable (s 170CE(1)(a)) or (relevantly) in contravention of ss 170CK or 170CM.); and

·                    Demos’ solicitors misconducted themselves in various ways.

11                  The affidavit also indicated that:

·                    ‘we wish that the Full Court would completely investigate the failures … and issue an order to end the AIRC’s jurisdiction in this matter, or to make a final judgment in this matter.’

·                    ‘the [applicants] would like to claim for the damages caused mentally and financially during this prolonged legal proceedings’;

·                    ‘we would like to claim the following:

-                     Lost wages in excess of $140,000; and

-                     interest in our home loan in excess of $20,000; and

-                     compensation for mental damage $350,000 (first plaintiff); and

-                     costs associated with our legal proceeding $30,000; and

-                     Sixteen weeks wages of the two plaintiffs, at $9676.80 per person.’

12                  All respondents entered submitting appearances.

13                  At the hearing, the applicants appeared without legal representation. Ms Xiao asked that her husband represent her but actively assisted him in that task. The applicants stressed their genuine belief that they had not had a ‘fair go’ from the AIRC despite the express requirement of s 170CA that they should have done so. Mr Wang rehearsed various aspects of the applicants’ complaints including:

·                    alleged misconduct by support officers so that they had become ‘an obstacle between [us] and the Commission’;

·                    an assertion, for the first time, that a record of part of the hearing for which the tapes have been lost was not included in the available transcripts;

·                    the AIRC’s failure to accept that Mr Demos’ conduct in relation to the two Employment Separation Certificates had destroyed Mr Wang’s credit; and

·                    the applicants’ suffering on account of Mr Demos’ having, allegedly without warrant, accused them of very grave misconduct in the version of the Employment Separation Certificate that found its way to Centrelink.

The applicants’ misapprehension of the Court’s powers, and the legal framework generally, was exemplified by their asking the Court to issue orders to ‘end the AIRC’s jurisdiction’ over their case.

Consideration

14                  Despite the lack of expressed opposition of any respondent to the various claims for relief, we need to be satisfied that the relief sought is appropriate. We are not so satisfied.

15                  It is clear that the applicants, despite Mr Wang’s great efforts, have misconceived the law, the nature of the available remedies, and the procedure.

16                  Insofar as the proceedings assert jurisdictional error on the part of the AIRC, whether constituted by the Full Bench or the Commissioner, such error is not made out. There is no basis shown for us to award money or otherwise grant any remedial action.

Procedural fairness

17                  It is not shown that the Commissioner failed to accord the applicants a fair hearing, whether by failure to approve the issue of the summons to the building manager, or by inappropriate interference in Mr Wang’s conduct of the applicants’ case, or otherwise.

(i) Interruptions by the Commissioner

18                  The Full Bench held that the ‘Commissioner’s interruption of Ms Xiao’s representative during cross-examination was … unexceptionable and did not demonstrate appealable error’. Sections of transcript included in the submissions do not appear to demonstrate problematic intervention. It is clear that the Commissioner intervened only to assist Mr Wang to keep his attention on relevant matters. Nor did he do so in any inappropriate way.

(ii) Non-issue of summons for witness

19                  This matter, on its face, appeared to give rise to concern.

20                  In rejecting the applicants’ request that summonses be issued, the Commissioner said:

‘I note that you seek that the Commission take whatever steps necessary, including the issuance of summonses to obtain the following:

“1. The video surveillance camera’s footage of the inspection carried out on Level 13, 452 Flinders St Melbourne on 2 December 2003 as described by Mr. Alan Pace, or

The surveillance camera footage of 452 Flinders St Melbourne between 830am and 10:30am on 2 December 2001

2. The video surveillance camera’s footage of the incident featured in Ms Desanka Karevska’s witness statement from building security at Level 13, 452 Flinders St and a witness statement from the security ‘Robert’ and telephone record from the Building Security to Mr. Pace’s mobile – 0412 491017 on September 2003 to support the evidences given”

I am not inclined to grant this application. As I pointed out to you on 2 September 2004 the proceedings in these matters must at some stage come to an end. The application has been on foot for some time now and a number of modifications to the Commission’s usual procedure have been made in order to ensure that both the applicants and the respondent in this matter are provided a fair go by the Commission in determining the matter.

As you may, or may not, appreciate a fair go does not entail the Commission granting each and every application by a party to the proceedings. In order to provide a fair go the interests of both parties must also be balanced. I consider that a reasonable opportunity was provided by the Commission in the preparation for and the conduct of, the arbitration to both parties to present their cases at the hearing.

Moreover, against the opposition of the respondent I have afforded both applicants in these matters further opportunities to seek and obtain evidence to support their case. I did so for reasons which will be more fully explained in due course when the decision in these matter is issued.

The respondent’s statements of evidence in this matter were filed on 29 July 2004 and this matter was heard on 4, 5, 6 and 24 August. In my view there was clear notice of the nature of the evidentiary case which would be brought by the respondent. The purpose of the hearing was to enable the parties to address the materials which had been filed in preparation for the arbitration. In my view, the opportunity was fair and reasonable for both parties and has only been made more conducive to the prosecution of the applicants case by the decision of the Commission taken since the adjournment of the hearing.’ (Original emphasis.)

21                  In his reasons for decision in Mr Wang’s case, the Commissioner said:

‘The applicant has made vigorous submissions that Ms Karevska, Mr Pace and Mr Demos have perjured themselves in these proceedings. It is no doubt clear that I have substantially accepted their evidence. I see no basis upon which to refer the transcript of evidence and the other material in this matter to the authorities on the basis that any of those witnesses have perjured themselves.

The applicant has also sought that the Commission undertake a search of the video archives of the security system at 452 Flinders Street in relation to one aspect of the interaction between himself and Ms Karevska. I have declined to do so despite the persistent efforts of the applicant to have me do so. In my judgement, taken at its highest, the probative value of the potential evidence was extremely limited or potentially nil.

My understanding of the basis for this application was that if a particular event had happened it would have appeared on the video. Thus it followed in the applicant’s submission that if the event was not on the video it never took place. Alternately, if something was recorded it would have been recorded so as to allow a different understanding of the evidence of Ms Karevska and would confirm the evidence of the applicant that the event did not occur as described. In my view, the concept that because something might not have been recorded on video tape meant that it did not happen was attended by some difficulty. Moreover, had the event been captured, the video tape would have been secondary to the evidence of the applicant and Ms Karevska and most likely would have required considerable interpretation.

There was also the consideration of the time and resources required to establish whether such evidence was available to view and to inevitably, I think, reopen the evidentiary cases of the parties in order to make sense of it. I viewed this application as inappropriately burdensome on the proceedings in light of the limited probative contribution such material could make to the just hearing and determination of the matter. In light of the circumstances under which the applicant’s request was made and for the reasons set out above that request was rejected.

The particular object of the request for the video footage related to one particular aspect of Ms Karevska’s evidence which is set out below:

“Finally one evening in September 2003, Peter claimed his vacuum cleaner was not working and stated he had been trying to contact me. When I finally went up to see what he needed, Peter started abusing me, using offensive language, to the point where Building Security intervened and called my Manager to report the incident on my behalf.” …

In light of the applicant’s virulent denial of the fact of intervention of the security officer and his insistence that the proof of his account could potentially be established by a search of the video footage, despite the uncertainty of when the event occurred and if a record exists, and notwithstanding my earlier comments concerning conflict in the evidence, I have reached my conclusions in this matter without reliance on Ms Karevska’s evidence in this specific regard as emphasised above.’ (Original emphasis.)

22                  We have traced the question of the intended summons through the evidence and discussions in the hearings. Upon such close examination, even without the benefit that the Commissioner had of seeing and hearing those witnesses whose English was less than perfect and whose manner of speaking was informal, it is clear that the Commissioner’s decision not to issue the relevant summons was not outside the scope of a legally permissible exercise of his discretion.

23                  Ultimately, the applicants’ point was that the sought evidence, to the alleged effect that there was no security video footage of a crucial discussion between Mr Wang and Ms Karevska, might objectively have contradicted an alleged assertion by Ms Karevska that such a video record had existed. However, an examination of the transcript indicates that Ms Karevska did not assert that of her own knowledge the video footage existed, but only that a security guard had told her that it did. She said that she did not know whether the incident had been recorded by a camera. The alleged fact that there was no such camera at the relevant place would not necessarily discredit her at all: the security guard may have misstated the position or there may have been some misunderstanding.

24                  The complaint about the non-issue of the summons does not adequately recognize that such power as the Commissioner has to issue summonses is discretionary. A range of discretionary considerations, including the desirability of the Commissioner resolving disputes speedily and economically, as well as the apparent degree of importance of the evidence sought to be obtained, may be taken into account. The remedies for harsh, unjust or unreasonable termination of the applicants’ employment were, relevantly, reinstatement or limited monetary compensation. The Commissioner in his first decision gave Ms Xiao every available remedy. He declined to reinstate Mr Wang principally because ‘it would be impossible … to re-establish an employment relationship based on mutuality of trust and confidence’. The latter consideration would not depend only on Ms Karevska’s account being believed. The Commissioner nevertheless considered that Mr Wang had made out the statutory precondition for some form of remedy by way of arbitration and that some compensation was appropriate. The sought evidence could not have improved the outcome for either applicant.

(iii) Loss of transcript

25                  The applicants expressed concern at the loss of certain Auscript transcript tapes on the basis that the transcript produced from the proceedings in question was ‘extremely unreliable’. The Full Bench dismissed this concern on the basis that ‘Ms Xiao … had no criticism of the written transcript of the proceedings’. The applicants submit that the Full Bench should have made a finding as to whether the Auscript tapes had been tampered with (presumably by Demos). The loss of some of the tapes of the hearing is unfortunate but, on the evidence, leads nowhere. There was not, until the hearing before us, any positive assertion that the written transcript contained any significant error. It was then said that the transcripts did not record all that had transpired. It was not adequately explained, however, which aspects of the hearing were not recorded and how this might have affected the Full Bench’s hearing of the matter.

Sections 170CM and 170CK

26                  The Commission had no jurisdiction to arbitrate, as distinct from conciliate, claims that these provisions had been contravened. Such cases are for the courts: s 170CP. In any case, there should not be double-counting if the s 170CM payment-in-lieu provisions have not been observed: cf s 170CH(5).

Failure of Commissioner to investigate and/or discipline AIR and AIRC officers

27                  The Commission is not a police officer. Nor is any role it may have in relation to the discipline of its own staff justiciable here at the insistence of the applicants.

28                  The applicants raise a number of concerns. Some are mentioned above. There were also allegations that:

‘Mr Donnellan, Mr Bolt and Senior Deputy President Williams [AIR and AIRC personnel] acted together and deceived both Applicants, changing the Plaintiffs’ request for third-party evidence to the point where both Applicants felt they had been discriminated against. These actions are organised and planned, breaching the AIRC Rules to an extreme extent, trying to pressure The Plaintiffs to “settle” with the Defendant and accept unfair terms; trying to delay the progress of this Application; and trying to prevent The Plaintiffs from reaching the evidence from Building Security at 452 Flinders Street Melbourne.’

All of these claims were brought to the attention of the Full Bench, which dismissed them on the basis of lack of evidence. The Commission was not required to rule whether it would make the investigations sought or seek to have others do it. There is no indication that the Commissioner otherwise failed to exercise any powers it may have.

Alleged perjury

29                  The alleged perjury seems to stem primarily from evidence given by Demos’ witnesses that contradicted the evidence given by the applicants, inconsistency within the evidence given by witnesses for Demos, and the alleged tampering with documents tendered in evidence. A claim of perjury is a matter which may (or may not, we express no view) merit consideration by the Australian Federal Police of whether to investigate alleged crimes. Such investigation is not the Commission’s, nor this Court’s, role.

Preference of Demos’ witnesses on some issues and other complaints about factual findings by the Full Bench and the Commissioner

30                  The applicants also take issue with several factual findings made in the various AIRC decisions. Specifically, they submit that:

·                    the Commissioner and the Full Bench erroneously accepted evidence from a Demos witness that contradicted the version of events given by the applicants;

·                    the conclusion made by the Commissioner that Ms Xiao abandoned her employment as a result of her husband’s dismissal was incorrect;

·                    they were unaware of having breached or repudiated their employment contracts;

·                    their employment was not terminated on 5 December 2003, and insist that it occurred on 2 December 2003;

·                    they worked an average of 7.25 and 7.75 hours per day respectively, rather than the amount of 7 hours submitted by Demos. This difference apparently caused loss of and delay in receiving some social security payments; and

·                    the Commissioner was wrong to prefer Mr Demos’ evidence over that of Mr Wang.

31                  No general right of appeal exists to the High Court or this Court against decisions of the Commission. It follows that unless jurisdictional error is shown, our view of factual matters is not pertinent. No jurisdictional error has been shown.

Other

32                  To the extent that these reasons do not deal, in terms, with all of the other claims of the applicants, we have nevertheless considered them and find that there is no basis in them for us to intercede.

Conclusion

33                  The application is dismissed. We make no order as to costs.

Addendum

34                  It is a matter of concern that the applicants assert that they have had much difficulty, because of an apparently florid account by Mr Demos of Mr Wang’s behaviour (at a time when he was an employee distressed at being reprimanded), in obtaining governmental help otherwise available to them in consequence of their unemployment. If it is of any value to any public authority, our impression of the applicants is that, despite their understandable lack of skill with Australian administrative law, both of them are intelligent, earnest and,
judging by the way they have mounted their cases, diligent. They were a model of courtesy before us, although clearly their feelings about the factual background to this case run high.

Associate:

Dated: 20 March 2006