ADMINISTRATIVE LAW – certiorari law – administrative tribunal – jurisdictional error – bias – statements critical of evidence of witnesses – waiver – further critical statements in reserved judgment
INDUSTRIAL LAW – application for an order nisi for writs of mandamus and certiorari directed to a Full Bench of the Australian Industrial Relations Commission (“the Commission”) – proceedings before the Full Bench involved an appeal from a decision of a single Commissioner in the exercise of the power to arbitrate conferred by s 170CG of the Workplace Relations Act 1996 (Cth) (“the Act”) – issue before the Commissioner related to whether there was a valid reason for the termination of the appellant’s employment on the grounds of conduct - whether the Commissioner’s failure to make findings about the conduct of the appellant manifested a failure to comply with s 170CG(3)(a) of the Act – whether the Commission is obliged to give reasons for decisions which deal with material legal and factual issues presented for determination.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Edwards v Justice Giudice [1999] FCA 1836
Case
[1999] FCA 1836
Decision Date
CaseChat Overview and Summary
In the case of Edwards v Justice Giudice, the applicant, Ms Edwards, sought relief from the Full Bench of the Australian Industrial Relations Commission, which had overturned a decision by Commissioner Tolley that Ms Edwards' employment termination was harsh, unjust, or unreasonable. The Full Bench had ordered that the matter be heard anew by another Commissioner, Cribb. The legal issues before the Court involved whether the Full Bench had committed a jurisdictional error, specifically by making comments critical of the evidence presented by witnesses, and whether any such error was waived by further critical comments made in the reserved judgment. The Court considered whether these comments amounted to a bias that affected the fairness of the proceedings.
The Court found that the comments made by the Full Bench were not such as to amount to a jurisdictional error. The criticisms of the evidence were made in the context of a summary of the case and did not affect the outcome of the proceedings. The Court held that the comments were not of a nature that would lead a reasonable observer to conclude that the Full Bench was biased. The Court further found that any potential bias was waived by the Full Bench’s continuation of critical comments in the reserved judgment. Thus, the Court dismissed the application for the writs of mandamus and certiorari.
The final orders of the Court were to dismiss the application and to direct the parties to file written submissions on the question of costs within specified timeframes.
Orders
Orders of the court
1. The application be dismissed.
2. The second respondent file and serve written submissions on the question of costs within 14 days of the date of this order.
3. The appellant file and serve written submissions in reply on the question of costs within 14 days thereafter.
Background
Background to the litigation
This is an application for an order nisi for writs of mandamus and certiorari directed to a Full Bench of the Australian Industrial Relations Commission (“the Commission”). The application was remitted to this Court by an order made in the High Court of Australia on 1 March 1999 by Justice Hayne.Background The appellant, Ms Edwards, was employed by the second respondent, Telstra Corporation Limited (“Telstra”), as a supervisor in its operator-assisted customer service department at its City West Call Centre in inner Melbourne. Ms Edwards’ employment was terminated by Telstra on 24 October 1997 after disciplinary charges were laid in respect of certain conduct alleged against her. An inquiry was conducted into that conduct by a Telstra inquiry officer. The disciplinary charges arose from an incident which occurred on 7 August 1997. It was alleged that Ms Edwards had received a complaint from a Telstra customer in her capacity as a supervisor and that the conversation with the customer had ended on a sour note. It was further alleged that Ms Edwards improperly traced the number from which the customer had called, engaged in further conversations with the customer and used foul language. The customer, Ms Kinsella-Taylor, made a formal complaint about Ms Edwards’ behaviour. Disciplinary charges were laid and an inquiry ensued. The inquiry officer recommended that Telstra terminate Ms Edwards’ employment and it duly did just that. Ms Edwards applied to the Commission pursuant to s170CE of the Workplace Relations Act 1996 (Cth) (“the Act”) for relief in relation to what she alleged was the harsh, unjust or unreasonable termination of her employment by Telstra. The application was heard by Commissioner Tolley who ordered Ms Edwards’ reinstatement to her employment with Telstra. Telstra applied for leave to appeal to a Full Bench of the Commission. The Full Bench was constituted by the first respondents. Leave to appeal was granted by the Full Bench and the appeal upheld. It determined to quash Commissioner Tolley’s decision. It directed that the matter be heard and determined by Commissioner Cribb.The reasoning of Commissioner Tolley The Commissioner summarised the evidence called on behalf of Ms Edwards. In so doing he made favourable comments about one of the witnesses called on her behalf. The Commissioner then referred to the evidence led on behalf of Telstra. He made unfavourable comments about some of its witnesses. The following was said about Ms Kinsella-Taylor’s evidence:“I have formed the view of this witness’ evidence that it has been carefully prepared and that to expect this Commission to accept that a person with Ms Kinsella-Taylor’s education and experience at the level of employment, both State and Federal, would be intimidated by the applicant in a verbal exchange is to expect the Commission to stretch its imagination beyond belief.” At the time of the incident which led to Ms Edwards’ dismissal Ms Stray was a co-worker of Ms Kinsella-Taylor and spoke with Ms Edwards when she telephoned Ms Kinsella-Taylor back on the relevant day. The Commissioner said of Ms Stray’s evidence:“Unfortunately, much of Ms Stray’s evidence was hearsay and supposition about what others had done and had a ring of having been formulated in collaboration with Ms Kinsella-Taylor. Ms Stray, like Ms Kinsella-Taylor, gave evidence, which stretched the limits of the Commission’s belief.”