Angelo Coco v Thuringowa Enterprise Centre Incorporated t/a the North Queensland Small Business Development Centre

[2014] FWCFB 5648

[2014] FWCFB 5648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Angelo Coco
v
Thuringowa Enterprise Centre Incorporated t/a The North Queensland Small Business Development Centre
(C2014/4747)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER BOOTH SYDNEY, 27 AUGUST 2014

Appeal against decision [2014] FWC 332 of Commissioner Spencer at Brisbane on 14 May 2014 in matter number U2012/16902.

Introduction and factual background

[1] The appellant, Mr Angelo Coco, applies for permission to appeal and appeals against a decision of Commissioner Spencer issued on 14 May 2014 (Decision). 1 In the Decision, the Commissioner dismissed an application made by Mr Coco under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy in respect of his former employment with the Thuringowa Enterprise Centre Incorporated trading as The North Queensland Small Business Development Centre (Centre).

[2] The Centre is a not-for-profit organisation which provides services to assist small businesses in North Queensland. It is administered by a Management Committee, headed by a Chairperson, which is elected by its members at Annual General Meetings. It has a full-time chief executive officer (CEO), and a small number of other employees. It was not in dispute that the Centre was a “small business employer” as that expression is defined in s.23 of the Act.

[3] Mr Coco commenced employment with the Centre on 26 October 2011 as a Business Advisor. He was employed on a casual basis pursuant to a written contract of employment. In October 2012 Mr Coco took on additional duties as a training facilitator for the respondent. His employment was part-time, and he performed these duties in addition to carrying on his own business as an accountant. Mr Coco was, as a small businessperson, also a member of the Centre and as such had the right to participate in the Centre’s Annual General Meetings.

[4] In August 2012 the existing CEO, Mr Arnold, resigned from his position. Mr Coco applied for the vacant position. His application was not successful. Ms Sharryn Brown was appointed by the Management Committee as the new CEO.

[5] Soon after her appointment, Ms Brown had a discussion with Mr Coco in which she raised some issues concerning his work performance. Mr Coco formed the view from this discussion that Ms Brown had a “deficit of knowledge” about those aspects of the Centre’s operations in which he was involved. 2

[6] The 2012 Annual General Meeting of the Centre was scheduled to be held on 21 November 2012. On 16 November 2012 (according to Mr Coco’s evidence) a member of the Centre, Ms Kirsten Gadsby, lodged a nomination to run for the positions of Chairperson, Treasurer and member of the Management Committee. The nomination needed to be endorsed by two members of the Centre in order to be accepted. Mr Coco endorsed the nomination.

[7] The same day, Mr Coco sent the following email to 12 of the approximately 100 members of the Centre with voting rights at the Annual General Meeting. The email read as follows:

“Dear Colleague,

I’m not sure if you are able to make it to this important meeting, but I do urge you to attend if at all possible.

We currently find the Centre with:

1. No Funding from the Federal Government, which was $300,000 in prior years and previously known to have had a Sunset Clause;

2. A newly appointed CEO, who has not been afforded the benefit of a proper handover from the former CEO, who appears to have left without explanation;

3. A Strategic Plan dated 2008, which has not been reviewed and mapped out for the next few years in detail;

These are all Strategic Issues, which appear to have not been properly addressed and the prime responsibility of the current Management Committee. It is crucial that the next Management Committee act urgently to address these matters to preserve the important contribution the North Queensland Small Business Development Centre makes to the Region from Tully to Home Hill and west to Charters Towers as a Business incubator, and Centre for affordable Business Advisory Services.

If you find that you are not able to make it, would you please consider providing me with your proxy, as per the attached form, as there will be a vote for all 6 available positions, including that of Chairperson.”

[8] After the email was sent, Mr Coco obtained proxy votes from at least four members. 3 The members who gave their proxy vote to Mr Coco appear to have been amongst the 12 who received his email.

[9] At the Annual General Meeting held on 21 November 2012 there was a contested ballot for the position of Chairperson, with the candidates being the existing holder of the position, Mr Harris, and Ms Gadsby. Ms Gadsby won the ballot 18 votes to 16. Mr Coco cast his own votes and those of the proxies he held in favour of Ms Gadsby, and thus provided her with the winning margin.

[10] On 26 November 2012, Ms Brown had a further discussion with Mr Coco concerning various aspects of his work performance which she considered of concern, and she required him to perform certain tasks within certain specified timeframes.

[11] On approximately 28 November 2012, Ms Gadsby attended Ms Brown’s office without an appointment. Ms Brown described Ms Gadsby as “engaging in a coaching session with me and giving me instructions on how I needed to conduct myself, and what her expectations were of me in my role”. 4

[12] On 30 November 2012, Ms Brown telephoned Mr Coco at approximately 1.45 pm. At the time she called, Mr Coco was working in his private practice. Ms Brown requested that Mr Coco attend the Centre’s premises for a meeting with her at 3.30 pm that afternoon, and further requested that he bring in certain electronic and physical files which he had in his possession. Because of the short notice and his other commitments, Mr Coco replied that he would not attend a meeting at that time, but offered to meet with Ms Brown at a later time that evening. Shortly after this telephone conversation ended, Ms Brown telephoned Mr Coco again and informed him that his employment was terminated effective immediately.

[13] Ms Brown had completed and signed the Small Business Fair Dismissal Code Checklist on 30 November 2012 prior to dismissing Mr Coco. In that document, Ms Brown described the reason for the dismissal as follows:

“Generating emails to our Members containing confidential information - some false and misleading - for the purpose of damaging the reputation and goodwill of the Centre and its Directors (Management Committee). In anticipation of recruiting Proxy Votes to attempt to manipulate the outcome of our election at out AGM.”

[14] Ms Brown went on in the document to identify provisions of Mr Coco’s contract of employment which were said to have been breached by him.

[15] On 11 December 2012 the Centre sent a lengthy letter to Mr Coco’s lawyers setting out the reasons for his termination. That part of the letter identifying the reasons read as follows:

“Your client engaged in acts of wilful and deliberate behaviour to the detriment of our client’s business, in a manner inconsistent with the continuation of your clients employment in terms of the Agreement.

Your client, without authorisation or consent first being obtained from our client, disclosed Confidential Information (as that term is defined in clause 1 of the Agreement) to our clients customers, members and to the professional partners of our clients business).

Our client also instructs us that in addition to disclosing Confidential Information, your client also engaged in acts that may be considered as gross misconduct, by providing our clients members and professional partners with false and misleading information in [an] attempt to repudiate the goodwill and viability of our clients business.

This includes, but without limitation, your client forwarding a letter to key business members and professional partners of our client business attempting to solicit proxies for a forthcoming AGM and containing misleading comments relating to the current management committee of our client.

Your client also engaged in similar conduct relating to students enrolled in a Certificate IV in Small Business Solutions through the Metropolitan South Institute of TAFE (“TAFE Course”) (see below for further particulars on this matter).

Further, your client insisted on wearing his personal accountancy business uniform whilst employed by our client to train the students enrolled in the TAFE Course. Your client would also hand students his personal business card in [an] attempt to solicit clients for your clients personal accountancy business.

At various times, in meetings and discussions with other corporate partners and clients, your client would often reference his own business to promote his services in an in appropriate manner. Your client’s business is in direct competition with our clients business and such actions constitute a breach of Clause 3 of the Agreement.

In addition, your client also failed to provide essential information and complete fundamental documents pertaining to the students enrolled in the TAFE Course (detailed below).

Our client considers that, without limitation, your client has breached the terms of clause 11 of the Agreement and engaged in acts of Misconduct (as that term is defined in clause 1 of the Agreement).”

The Decision

[16] The Decision was a lengthy and detailed one in which the Commissioner set out the background to Mr Coco’s application and its procedural history, dealt with the relevant jurisdictional issues, recited the evidence and submissions of the parties, and made findings about the each of the matters required to be taken into account under s.387 of the Act. We will only refer to those aspects of the Decision which are salient to the determination of Mr Coco’s appeal.

[17] The Commissioner’s recitation of the procedural history reveals that there was a very considerable delay in the hearing of the matter. Relevantly, Mr Coco’s application was filed on 14 December 2012. After a number of conciliation conferences, the last of which occurred on 23 April 2013, were unsuccessful in resolving the matter, the Centre requested that the matter proceed to final arbitration. A notice of listing for “Conference/Mention” was issued on 17 July 2013 (presumably for the purpose of issuing directions and setting a hearing date), but that had to be vacated due to advice from Mr Coco that he was unable to proceed because of illness. His health had improved by the end of August 2013 such that directions for the filing of evidence and submissions were able to be issued on 11 September 2013. Mr Coco was required to file his material by 2 October 2013, which was subsequently extended on application to 4 October 2013. The Centre was required to file its material on 23 October 2013, which was also extended on application to 28 October 2013. Mr Coco was granted two extensions to file his material in reply, so that he was ultimately required to file on 12 November 2013. The parties filed their material in accordance with the extended timetable.

[18] The matter was then listed for mention on 11 November 2013, and was set down for hearing on 18 and 19 March 2014 (although a single day proved sufficient to complete the hearing). On 11 March 2014, Mr Coco applied to the Commission for “a further indulgence” to file two additional witness statements. After having been directed by the Commissioner to file submissions in support of this application, Mr Coco filed a submission on 12 March 2014 in which he contended this “was ‘new’ evidence that it had only just ‘occurred’ to the Applicant to call and, in part, that he was not previously aware of its existence” 5. The Centre objected to the new material and any consequential abandonment of the current listing. On the afternoon of 12 March 2014, the Commissioner communicated to the parties her ruling on Mr Coco’s application:

“The Commissioner has considered the responses below.

Given the previous directions in this matter, requiring that parties file all material on which they rely, and the limited time for the Respondent, or the Commission, to consider any additional material filed in this matter so close to trial, and the length of time with which this matter has been on foot, the Commission does not grant leave to the Applicant to file further evidence at this time.

The Commission notes that the Applicant is able to make submissions as to the Respondent’s evidentiary case, and the weight that the Commission should place on such evidence, at the listed Hearing in this matter.” 6

[19] Notwithstanding this ruling, Mr Coco then proceeded to file one of the foreshadowed witness statements, which was made by Ms Gadsby. The Commissioner characterised this as being inappropriate, and communicated to Mr Coco that the contents of the statement would not be considered. When the hearing of the matter commenced on 18 March 2014, a fresh application was made for the admission of the new evidence. This application was refused by the Commissioner, who (as the Decision recorded) 7 made the following ruling on transcript:

“On your own submissions, it's not as though this person was not within the domain of knowledge of the applicant. On your own submissions, she's a witness in separate proceedings and I consider that it would provide significant prejudice to the respondent. I would have to stand the matter down, allow them to take instructions. It might arise that they need to bring further witnesses in this matter and it's significantly late in relation to the directions that have been put for many months.

...

I don't intend to admit the affidavit. I intend to proceed today. You have, as I understand, instructions in relation to those matters that the applicant considers are relevant to the cross-examination of Ms Brown and we'll proceed on that basis, Mr Ascione. I do not intend to admit the matter. It's very late in the proceedings. I, at least, intend to move forward with the evidence that has been filed in relation to this particular matter.”

[20] The Commissioner found that Mr Coco had satisfied the statutory requirements to be a person protected from unfair dismissal, including that, as a casual employee, he had been engaged on a regular and systematic basis with an ongoing expectation of ongoing work and thus had served the minimum employment period required by s.383(b) of the Act. The Commissioner also determined that the Small Business Fair Dismissal Code had not been complied with for procedural reasons. In the course of considering the question of compliance with the procedural requirement of the Small Business Fair Dismissal Code, the Commissioner made a reference to Ms Brown, at the time the dismissal was effected, being “concerned about the impending committee meeting...”. 8

[21] The Commissioner then turned to the s.387 matters. In respect of s.387(a), the Commissioner found that there was a valid reason for Mr Coco’s dismissal based upon his conduct. The main finding was as follows:

“[121] ... taken as a whole I find that the Applicant’s conduct, in relation to his email to members and other business associates of the Respondent’s organisation, did found a valid reason for dismissal.”

[22] The above finding was supported by the following conclusion concerning the appropriate characterisation of Mr Coco’s email of 16 November 2012:

“[155] ... It is clear that the Applicant was aiming to do more than simply raise the agenda of the next committee meeting. It is evident that in referring to the prior CEO’s resignation and the nature of the current management, he was being critical of the current stewardship of the organisation. This management information was derived from his internal dealings as an employee.”

[23] The Commissioner went on to consider the procedural aspects of the dismissal, as required by paragraphs (b)-(g) of s.387. It is sufficient for present purposes to say that the Commissioner found that Mr Coco was denied procedural fairness. With respect to other relevant matters required to be considered under s.387(h), the Commissioner made the following findings:

“[176] It is recognised that this matter deals with an Applicant who was an employee while concurrently operating a business that held membership of the Respondent’s organisation and held both of these positions prior to Ms Brown commencing in her position. This was a position that the Applicant had sought. The Applicant’s email clearly constitutes an attempt to cause the membership to question Ms Brown’s stewardship of the organisation. While members are at liberty to do this, the fact that the email was written in a manner providing an insight into the operation of the organisation connotes a level of insubordination by the Applicant to Ms Brown.”

[24] The Commissioner then stated her overall conclusions as to the application. The most significant of those conclusions were as follows:

“[177] The procedural deficiencies in effecting the dismissal are noted in the context of the devolving employment relationship. Clearly the conduct of the Applicant was designed to cause a spill of the management positions to organise a motion of no confidence in Ms Brown. The Applicant’s conduct highlighted a conflict between his duty to the Respondent as an employee and his rights as a member of the organisation. This emerged after Ms Brown was appointed to the role of CEO.

[178] I find that the procedural deficiencies do not outweigh the Applicant’s behaviours and attitude demonstrated by the email. The Applicant’s conduct in sending the email, and its contents, were inconsistent with his ongoing employment relationship with the Respondent, and more specifically, with Ms Brown. The Applicant deliberately characterised a number of organisational matters in an email that was aimed to cause concern about the ongoing management of the organisation.

...

[179] ... The Applicant was endeavouring to undermine the current management of the organisation, with a view to gaining proxy votes to influence the voting at the committee meeting.

...

[182] I have taken into account the procedural deficiencies (regarding the timing of the final meeting and the lack of an opportunity to have a support person present or an opportunity for the Applicant to respond), but also recognise that the dismissal was effected by a small business in emergent circumstances, particularly where one of its contracts were at risk due to the Applicant’s behaviour and that the Applicant was actively destabilising the organisation. Accordingly, on balance and for the aforementioned reasons, I do not find that the dismissal was harsh, unjust or unreasonable.”

[25] On the basis of the above conclusions, the Commissioner dismissed Mr Coco’s application.

Submissions

[26] Mr Coco submitted that the Decision was attended by appellable error, and should be quashed, for two reasons: firstly, it was vitiated by significant errors of fact, and secondly, Mr Coco was denied procedural fairness at the hearing before the Commissioner.

[27] The errors of facts identified by Mr Coco were as follows:

(1) The finding at paragraph [149] of the Decision that Ms Brown was “concerned about the impending committee meeting” when she dismissed Mr Coco was incorrect; there was no impending committee meeting at that time.

(2) The characterisation of Mr Coco’s 16 November 2012 email at paragraphs [176], [178] and [179] of the Decision as bringing into question Ms Brown’s stewardship of the organisation, aiming at causing concern about the ongoing management of the Centre, and undermining the current management was not, on a fair reading of the email, reasonably available.

(3) The finding in paragraph [177] that Mr Coco’s conduct was “designed to cause a spill of the management positions to organise a motion of no confidence in Ms Brown” was not supported by any evidence.

(4) The finding at paragraph [182] that the dismissal was effected in circumstances where one of the Centre’s contracts was at risk due to Mr Coco’s behaviour was incorrect; the evidence did not disclose that any contract was at risk at that time.

(5) The associated finding in paragraph [182] of the Decision that, at the time the dismissal was effected, Mr Coco was “actively destabilising the organisation” was also incorrect, in that the dismissal took place two weeks after the 16 November 2012 email, and the evidence did not disclose that at the time of the dismissal Mr Coco was doing anything to destabilise the organisation, however one characterised the email.

[28] The denial of procedural fairness was said to have occurred when the Commissioner refused to admit the witness statement of Ms Gadsby. Mr Coco submitted that the Commissioner erred by not assessing the relevance or potential impact of the evidence before deciding to refuse to admit it. Ms Gadby’s evidence, it was submitted, was “capable of giving a totally different complexion on what occurred” 9 because it demonstrated that in a conversation with Ms Gadsby prior to the Annual General Meeting, Mr Coco had said to her that he believed that should she be elected as Chairperson, she would be of assistance to Ms Brown. This submission was based on the following passage from the Full Bench decision in Abigroup Contractors Pty Ltd v Crema and Others10, in which it was determined that a first instance decision to decline to admit further evidence in the course of a hearing was in error:

“[30] When the application to lead the evidence was made it was incumbent on the Commissioner to ascertain whether the evidence was capable of being relevant to the determination of the matter, whether there was a sufficient reason for not giving notice of the evidence earlier and whether any consequent unfairness could have been avoided.”

[29] Mr Coco submitted that the errors identified caused the exercise of the discretion to miscarry, and therefore that the grant of permission to appeal in the public interest was justified. He sought that the Decision be quashed and his application re-heard.

[30] The Centre submitted that the Decision was not attended by any significant error of fact, and that Mr Coco had not been denied procedural fairness. The Centre conceded that two of Mr Coco’s contentions of factual error - those numbered (1) and (4) in paragraph [27] above - were correct. However, the Centre submitted that the factual findings that were in error were only relevant to the issue of whether it had denied Mr Coco procedural fairness. The Commissioner had found that there was a denial of procedural fairness, and the Centre accepted that finding in the appeal, but that did not prevent the Commissioner from concluding on balance that the dismissal was not unfair. For that reason, it was submitted, the errors were not significant in the Commissioner’s decision-making process. The Centre rejected Mr Coco’s other contentions of error, on the basis that the Commissioner’s characterisation of the email and its purpose were correct and supported her conclusion that there was a valid reason for Mr Coco’s dismissal.

[31] The Centre also submitted that there had not been any denial of procedural fairness. The Commissioner had given Mr Coco a proper opportunity to make submissions as to why the witness statement of Ms Gadsby should be admitted, but despite this Mr Coco never gave any adequate explanation as to why the statement could not have been filed and served at an earlier time. The part of the statement which Mr Coco contended would have changed the complexion of the matter, the Centre submitted, only repeated something which Mr Coco had given evidence about in any event, and would not therefore have changed the outcome of the application. The Centre submitted that permission to appeal should be refused.

Consideration

Errors of fact

[32] We are persuaded by the thorough submissions of counsel for Mr Coco that the Decision contained a number of erroneous findings of fact. As the solicitor for the Centre properly conceded, there was no “impending committee meeting” about which Ms Brown could have been concerned, nor were any of the Centre’s contracts at risk due to any behaviour on the part of Mr Coco at the time of his dismissal. The Commissioner’s findings in that connection in paragraphs [149] and [182] of the Decision respectively were incorrect. Further, although this was not conceded by the Centre, we do not consider that there was a proper evidentiary foundation for the finding that Mr Coco’s conduct in sending the email of 16 November 2012 was intended ultimately to achieve “a motion of no confidence in Ms Brown”. No witness gave evidence to that effect, no such proposition was put to Mr Coco when he gave evidence, and we cannot detect in the transcript of the proceedings that the Centre ever asked the Commissioner to draw an inference to that effect. Accordingly the Commissioner’s finding to that effect in paragraph [177] was also incorrect.

[33] However we are not persuaded that these errors of fact were of significance to the Commissioner’s determination of the matter. The Commissioner made the first two of these erroneous findings, as the Centre submitted, to contextualise the Centre’s failure to provide procedural fairness to Mr Coco. Notwithstanding those findings, the Commissioner reached a clear conclusion that the manner of Mr Coco’s dismissal over the telephone on 30 November 2012, in circumstances where he had a reasonable justification for being able to attend a meeting that afternoon, involved a denial of procedural fairness. There was no challenge by the Centre to that conclusion in the appeal. The Commissioner took that denial of procedural fairness into account in her consideration as to whether the dismissal was unfair.

[34] The third erroneous finding concerned the purpose for which Mr Coco sent the email of 16 November 2012. Although it was not open on the evidence for the Commissioner to conclude that the email was intended to achieve specifically a “motion of no confidence in Ms Brown”, we consider that the other findings made about Mr Coco’s conduct in sending the email which were challenged by Mr Coco - namely that it brought into question Ms Brown’s stewardship of the organisation, it was aimed at causing concern about the ongoing management of the Centre, and it sought to undermine the current management - were reasonably available on the evidence. The factual matters which we have summarised in paragraphs [4]-[11] above, which we do not understand to have been in contest in the appeal, reasonably gave rise to the inference that Mr Coco was aggrieved at his failure to be appointed CEO and the issues raised about his performance by Ms Brown, and sought to pursue those grievances by having Ms Gadsby elected as the new Chairperson of the Management Committee. The email itself could fairly be read as challenging the competence of the management of the Centre by (at least) implying that the loss of Federal Government funding was the fault of the management, that Ms Brown lacked the requisite knowledge as CEO because of the lack of a proper handover, and that there had been a failure to prepare an up-to-date Strategic Plan.

[35] Mr Coco’s challenge to the Commissioner’s finding in paragraph [182] of the Decision that at the time of the dismissal he was “actively destabilising the organisation” involved more semantics than substance. While it is literally correct to say that Mr Coco was not at the very time of his dismissal engaging in destabilising activity, the evidence demonstrated that two weeks earlier (on 16 November 2012) he had sent the email calling into question the management of the Centre, that on 21 November 2012 he had used proxy votes obtained as a result of the email to achieve the election of a new Chairperson, and that on 28 November 2012 that new Chairperson had attempted to give Ms Brown instructions as to the performance of her role. We consider that the Commissioner’s finding can reasonably be read as referring to a very recent course of conduct on the part of Mr Coco which had the effect of destabilising the management of the Centre, and, read in that way, was not in error. In any event, this finding (like those discussed in paragraph [33] above) was made to contextualise the Centre’s denial of procedural fairness and was not essential to the Commissioner’s overall conclusion.

[36] The critical conclusions drawn by the Commissioner from the evidence overall were that Mr Coco’s conduct involved a conflict between his duty to the Centre as an employee and his rights as a member of the organisation and was inconsistent with an ongoing employment relationship with the Centre under Ms Brown’s management, and that in the light of such conduct the procedural deficiencies in Mr Coco’s dismissal were not sufficient to render his dismissal unfair. We consider that it was open to the Commissioner to draw those conclusions. While Mr Coco’s employment relationship with the Centre did not disqualify him from exercising the rights associated with his separate legal relationship with the Centre as one of its members, it was necessary for him to ensure that he exercised those rights in a manner which did not involve an irreconcilable conflict with or departure from his fundamental obligations as an employee. On the basis of facts which were not in dispute or were clearly established and not challenged in the appeal, the conclusion was reasonably available that Mr Coco had used his rights as a member to advance his employment interests, and had thereby rendered untenable the continuation of his employment relationship. We do not consider that the errors of fact in the Decision which Mr Coco has successfully demonstrated in this appeal vitiate the critical conclusions reached by the Commissioner as to why his dismissal was not unfair.

Denial of procedural fairness

[37] The obligation upon courts and tribunals to afford procedural fairness requires them to give each party a reasonable opportunity to present the party’s case, not to ensure that the party takes the best advantage of the opportunity to which the party is entitled. 11 In the proceedings at first instance, the Commissioner established a program of directions for the filing and service of the parties’ evidence. The timetable for the filing of the evidence was extended a number of times upon application. The dates set for the hearing of Mr Coco’s application was four months after the end of the timetable for the filing of evidence, and fourteen months after the application had been filed. There can be no doubt therefore that the Commissioner’s case management of Mr Coco’s application gave him a proper opportunity to put on all the evidence upon which he wished to rely.

[38] In those circumstances, when Mr Coco applied a week before the hearing was due to commence for leave to file two further witness statements, including the statement of Ms Gadsby, it was necessary for him to provide an adequate explanation as to why those witness statements could not have been filed and served in accordance with the Commissioner’s directions. It is clear that the Commissioner considered that no such explanation had been provided, and we agree with that conclusion. At all times since he filed his application, Mr Coco was aware of Ms Gadsby’s capacity to provide potentially relevant evidence for his case. Mr Coco did not in the appeal contend otherwise.

[39] Mr Coco’s contention was that the Commissioner failed to act in accordance with the principle stated in the passage from the Full Bench decision in Abigroup Contractors which we have earlier quoted by failing to consider the relevance and import of Ms Gadsby’s statement. However, that passage needs to be read in its full context; in particular we note the Full Bench’s rationale for its decision as follows:

“[27] However, it will often be the case that a party seeks to supplement that evidence by further evidence which responds to other proposed evidence or otherwise completes the party’s evidentiary case. Procedural fairness requires some latitude being given to the parties to enable them to do this especially if an aspect of the facts could not have been reasonably anticipated earlier. It is also in the interests of a fair and just determination of the matter that all relevant evidence is considered. When a party seeks to introduce new evidence not previously disclosed to the other side a good reason should be provided. The tribunal should ensure that the other party is not ‘ambushed’ and has a fair opportunity to deal with that evidence. Evidence of a relevant matter should not be excluded lightly and every effort should be made by the tribunal and the party seeking to lead further evidence to ensure that no consequent unfairness arises from the admission of further evidence.”

[40] That passage emphasises the need for latitude in a situation where a factual issue arises in a proceeding which could not have been reasonably anticipated earlier. Mr Coco was not in that situation. Procedural fairness did not require that he simply be given an opportunity to file new evidence which he could have obtained and filed in accordance with the Commissioner’s directions, or at least at some much earlier stage. It is clear from the transcript of the hearing, at the point where Mr Coco applied for the second time to have Ms Gadsby’s statement admitted, that the Commissioner regarded the statement as not responsive to any evidence which had been filed pursuant to the directions and likely to cause prejudice to the Centre if admitted, in that the Commissioner said “It's not covered in the applicant's material and it would put the respondent to some prejudice”. 12 That demonstrates that the Commissioner understood and took into account the nature of the evidence sought to be admitted, consistent with the decision in Abigroup Contractors.

[41] We admitted the statement of Ms Gadsby into evidence on the appeal for the limited purpose of considering Mr Coco’s argument that its contents were of relevance to his application and may have had a significant impact upon the outcome of the proceedings. Having considered the statement’s contents, we have reached two conclusions about it. The first is that, although the matters contained in the statement were undoubtedly relevant to Mr Coco’s application, it is unlikely that they could have led to a different outcome if admitted. It is correct, as Mr Coco submitted, that in the statement Ms Gadsby gave an account of a conversation with Mr Coco in which he told her that he believed that should she be elected as Chairperson, she would be of assistance to Ms Brown. That account, if put into evidence and accepted, would have been broadly corroborative of evidence which Mr Coco gave to similar effect. What significance it may have had is however doubtful, given the ambiguous nature of the reference to “assistance”. More importantly, Ms Gadby’s statement contained much more than merely an account of that conversation, and described the events which immediately followed her election as Chairperson on 21 November 2012. It is apparent on her account that her election ignited a political firestorm within the organisation, with the other members of the Management Committee regarding her election as illegitimate because of the way in which Mr Coco obtained the proxy votes which secured her election. This led to a significant conflict between Ms Gadsby, the Management Committee and Ms Brown about Mr Coco’s conduct and her status, and ultimately caused her to resign as Chairperson on 29 November 2012 (the day before the dismissal). This evidence, if it had been admitted and accepted, would have demonstrated the destabilising effect of Mr Coco’s conduct on the Centre and would probably have weakened his case.

[42] The second conclusion that can be drawn from the witness statement is that because it makes detailed allegations about the conduct of both the Management Committee generally and named members of the Management Committee specifically, it would have been necessary for the Commissioner, if she had decided to admit the statement, to vacate the hearing dates in order to allow the Centre to have a fair opportunity to obtain instructions about the statement and put on further evidence in reply.

[43] In Aon Risk Services Australia Limited v Australian National University 13the High Court emphasised that “[s]peed and efficiency, in the sense of minimum delay and expense” are essential elements of the just resolution of proceedings, and that not only the cost but the inconvenience and stress caused to parties are important considerations when considering a procedural motion likely to cause significant delay in the conduct of a matter.14 These considerations are imported into s.577 of the Act, which requires the Commission to perform its functions and exercise its powers in a manner that is, among other things, “quick”. In refusing to admit evidence which would have further postponed the hearing and determination of a proceeding which had already been attended by significant delay, we consider that the Commissioner acted consistently with these principles. The decision to refuse to admit Ms Gadsby’s witness statement was a discretionary one, and we do not consider that any appellable error can be identified in that decision.

Conclusion

[44] Section 400(1) of the Act requires permission to appeal not to be granted unless it is considered that it is in the public interest to do so. We do not consider that the public interest is attracted in this appeal. Despite the fact that Mr Coco has succeeded in identifying some factual errors in the Decision, we do not consider for the reasons we have earlier stated that those errors had sufficient significance to affect the outcome or cause an injustice to Mr Coco.

[45] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

C. Ryall of counsel for the applicant

D. Williams and M. Kavanagh solicitors with B. Gaeta for the respondent

Hearing details:

2014.

Brisbane:

5 August.

 1  [2014] FWC 332

 2   Transcript PNs 256-258

 3   Mr Coco’s evidence was that he obtained four proxies, but Exhibit 5 to Ms Brown’s statement contains 6 and perhaps 7 proxy forms in Mr Coco’s favour.

 4   Transcript PN 577

 5   Decision at [47]

 6   Decision at [48]

 7   Decision at [51]

 8   Decision at [149]

 9   Appellant’s written submissions, paragraph 39

 10  [2012] FWAFB 8453

 11   Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J

 12   See Transcript PN 62

 13   [2009] HCA 27

 14   Ibid at [98]-[101] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

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