Greg Anderson and Karen Lansdell [2008] NSWIRComm 179 (29 September 2008)

Last Updated: 24 October 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Greg Anderson and Karen Lansdell [2008] NSWIRComm 179



FILE NUMBER(S):
IRC 1080

HEARING DATE(S):
29 September 2008


EX TEMPORE DATE:
29 September 2008

PARTIES:
APPELLANT
Greg Anderson

RESPONDENT
Karen Lansdell


CORAM:
Walton J Vice-President Sams DP Stanton C


CATCHWORDS: Appeal - Unfair dismissal - Principles re leave to appeal - Challenge to factual findings - Offer of re-employment - Assessment of compensation - Meaning of 'alternative employment' in s 89(6) - Matter not raised first instance - Leave refused

LEGAL REPRESENTATIVES
APPLICANT
Mr J Pearce of counsel
Mr D Phair
Proctor Phair Lawyers
RESPONDENT
Mr J Darams of counsel
Ms P McDonough
Inner City Legal Centre

CASES CITED:
Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263

LEGISLATION CITED:
Industrial Relations Act 1996 s 84, s 89


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, Vice-President

SAMS DP

STANTON C

Monday 29 September 2008

Matter No IRC 1080 of 2008

GREG ANDERSON AND KAREN LANSDELL

Application by Greg Anderson for leave to appeal and appeal against a decision of Commissioner McLeay given on 19.6.2008 in Matter No IRC 124 of 2008

DECISION OF THE COMMISSION

EX TEMPORE

[2008] NSWIRComm 179

1 This is an application for leave to appeal and, if leave be granted, appeal from a decision of Commissioner McLeay given on 19 June 2008, in which the Commissioner found Ms Karen Lansdell's dismissal was harsh and unjust and ordered Mr Greg Anderson to pay Ms Lansdell an amount of $4,500 compensation.

2 In finding the respondent's dismissal was harsh and unjust, the Commissioner concluded that she was dismissed during the course of a telephone conversation with the appellant on 25 January 2008. The Commissioner accepted the reason for dismissal advanced by the respondent during proceedings, that she was dismissed for submitting a tender bid to operate the Cabramatta Public School canteen in opposition to the appellant. At the time of submitting her bid, the respondent was unaware that the appellant was also interested in securing that canteen contract.

3 Section 188(1) of the Industrial Relations Act 1996 provides that an appeal from a member of the Commission may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.

4 The principles relevant to the grant of leave were recently summarised by the Full Bench in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5] where the Full Bench stated:

5 The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52]- [55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].

5 Applying the principles concerning leave to appeal set out in that decision to the appeal before us, and having considered all the material raised in these proceedings, we have determined leave to appeal should be refused. We shall briefly state our reasons for that conclusion.

6 As the appeal was developed before us by Mr J Pearce of counsel for the appellant, it was apparent that the appeal essentially revolved around two issues.

7 The first issue concerned the Commissioner's finding as to which version of a conversation of 25 January 2008 should be accepted. Both Mr Pearce and Mr J Darams of counsel, who appeared for the respondent, conceded that the determination of this issue would resolve all issues on the appeal, save for one issue connected with an offer of re-employment made by the appellant to the respondent in a written settlement proposal (which was admitted into evidence at first instance for reasons not fully explained on appeal). It was also conceded that the resolution of this issue went directly to the question of leave to appeal.

8 We consider that those concessions were properly made in the circumstances of this matter. It is plain that, if the respondent's version of the conversation was to be accepted, then she had been dismissed from her employment upon the basis of reasons which were profoundly unjust, unreasonable and harsh (even though the Commissioner only relied on two of those descriptors in reaching her conclusion under s 84(1) of the Act). In short, the respondent would have been dismissed upon grounds that were wholly unjustified and unreasonable.

9 We consider that it was open for the Commissioner to prefer the respondent's version of the subject conversation. In reaching that conclusion, we note that the Commissioner had, in some respects, eschewed the making of any credit findings. We have formed our opinion upon all of the evidence bearing on the question, but particularly evidence as to the objective circumstances impinging upon and surrounding the conversation in question. For example, we had regard to the respondent's work history (including her willingness to accept engagements at various canteens) and the appellant's prior knowledge of the respondent's bid.

10 We also note that this aspect of the appeal essentially concerned a challenge to findings of fact which, as we have noted, were reasonably open. This consideration warrants the refusal of leave: Hosemans at [20].

11 The second challenge to the decision at first instance was based upon a contention that the Commissioner had failed to take into account the offer of re-employment (which we have earlier referred to) in awarding compensation to the respondent.

12 Whilst that second issue appears to have been developed by the appellant on a broader basis in one respect (going to the nature of the remedy), the contention was ultimately advanced upon the ground that the Commissioner had failed to properly exercise her discretion in the assessment of the quantum of compensation.

13 We consider that leave should be refused in this respect as:

1. The issue was not squarely developed at first instance;

2. We do not accept the appellant's contention that the offer of re-employment (made, as it was, as an offer of settlement after proceedings were commenced) was relevant to the assessment of compensation under the requirements of s 89(6) of the Act. That offer did not concern the question of "alternative employment" under that sub-section;

3. Whilst the Commissioner was uncommonly economical in her reasons in this respect, it is clear that she did take into account factors which were relevant to the matters the Commission was required to consider under s 89(6). Further, the award of compensation in this case falls well within the range of compensation that may have been properly awarded at first instance upon the findings made under s 84(1), even if the offer of re-employment was relevant to be considered in that respect.

14 We order that leave to appeal is refused. The stay of the orders at first instance is dissolved.

_____________________

LAST UPDATED:
1 October 2008