Financia Pty Ltd v Taglienti - [2023] SASCA 139

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FINANCIA PTY LTD v TAGLIENTI
[2023] SASCA 139
Judgment of the Court of Appeal
(The Honourable Justice Doyle and the Honourable Justice Bleby)
20 December 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - WHAT IS
INDUSTRIAL LAW - SOUTH AUSTRALIA - SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL AND ITS PREDECESSORS - POWERS
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT
In July 2023, the Full Bench of the South Australian Employment Tribunal (the ‘SAET’) unanimously dismissed an appeal from a decision of an Auxiliary Deputy President Magistrate of the SAET. This is an application for leave to appeal against that decision.
The respondent was employed by the applicant, Financia, who is a mortgage broker. The respondent signed an employment contract in August 2021. The applicant and respondent also entered into a training contract in September 2021 pursuant to the South Australian Skills Act 2008 (SA) (the ‘SAS Act’).
The director of Financia, Mr Spadavecchia, advised the respondent that her employment was to be terminated on one week’s notice on 16 May 2022. It was contended the respondent had breached her obligations under the employment contract by making disparaging remarks about Mr Spadavecchia at a professional development day held some days earlier.
Mr Spadavecchia offered an alternative to the respondent that she resign, with four weeks’ notice paid in lieu as well as payment of outstanding commissions received by Financia up to 16 May 2022. The respondent provided her formal resignation that day.
The respondent instigated proceedings against Financia in the SAET seeking payment of outstanding commissions and that she be remunerated from June 2022 to October 2022.
The Deputy President at first instance found that Financia had constructively dismissed the respondent. Accordingly, it was found that Financia had breached its obligations under the training contract in contravention of s 51C of the SAS Act. It ordered that Financia pay outstanding commissions as well as compensation to the respondent pursuant to s 65(2)(h) of the SAS Act.
Financia appealed to the Full Bench of the SAET. The Full Bench dismissed the appeal. It held that the Tribunal’s powers under s 65(2) allowed for the provision of a remedy in respect of compensation for underpayment of wages. It further held that Financia’s act of terminating the training contract in the absence of the requisite authorisation was illegal, having regard to the offence provision in s 51C.
On this application for leave to appeal, Financia complained that the Full Bench erred in law in multiple respects.
The proposed grounds of appeal included, broadly, that:
1.the Full Bench applied the wrong ‘threshold question’ to enliven the discretion to enable a payment of compensation as the contract was determined by the SAET to be terminated on 15 May 2022;
2.the Full Bench did not consider material matters put to it in respect of the exercise of that discretion;
3.when assessing the quantum of the compensation, the Full Bench exceeded its jurisdiction; and
4.Financia was denied natural justice, as the effect of s 67 in depriving the parties of legal representation in tribunal proceedings required an inquisitorial approach.

Held (by the Court), refusing leave to appeal.
1.An appeal to this Court from a decision of the Full Bench of the SAET lies on a question of law only. The right of appeal does not extend to where the Court must determine any question of fact.
2.The significance of the ‘threshold question’ identified by the application lies only in whether the Deputy President should have identified 16 May as the relevant date. As a matter of practicality, the difference lies in one day’s pay. Refusing leave on this ground does not give rise to any substantial injustice.
3.Financia did not have the right to act as it did, given the existence of the training contract and the protections under the SAS Act. If the proper legal characterisation of the facts as found is that Financia had engaged in a repudiatory breach, rather than an unlawful termination, the power in 65(2)(h) of the SAS Act was nonetheless manifestly available.
4.The nature of the duty to give assistance to self-represented litigants will vary depending on the circumstances of the case. Financia’s complaint in this regard, insofar as it supports a question of law, is not particularly strong.
5.The conclusion by the Full Bench that the purported termination of the training contract deprived the respondent of her ongoing wages is robust. It is unlikely that the best result for Financia on appeal would be anything other than some level of reduction in the compensation ordered, which was not a large sum. It cannot be said that there is a prospect that Financia has suffered a substantial injustice.

South Australian Skills Act 2008 (SA) ss 51C, 64, 65(2), 65(2)(f), 65(2)(g), 65(2)(h); South Australian Employment Tribunal Act 2014 (SA) ss 32, 67, 67(3), 67, 67(4), 68(1), referred to.
Blyth Chemicals v Bushness (1933) 49 CLR 66; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Ors [2000] 203 CLR 194; Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; Danielle Taglienti v Financia Pty Ltd ATF Unit Trust [2023] SAET 10; Financia Pty Ltd ATF Financia Unit Trust v Danielle Taglienti [2023] SAET 85; Haritos v Commissioner of Taxation (2015) 233 FCR 315; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) [1997] SAWCT 10; Kenny v Ritter [2009] SASC 139; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133; Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200; Smoker v PJ Commercial Products Pty Ltd [2009] SAIR Comm 12; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Vetter v Lake Macquarie City Council (2001) 202 CLR 439, considered.

FINANCIA PTY LTD v TAGLIENTI
[2023] SASCA 139
Court of Appeal – Civil: Doyle and Bleby JJA

THE COURT: On 14 February 2023, an Auxiliary Deputy President Magistrate of the South Australian Employment Tribunal found that the applicant, Financia Pty Ltd (‘Financia’) had breached its obligations under a training contract with the respondent, Ms Danielle Taglienti, by purporting to terminate the training contract in contravention of s 51C of the South Australian Skills Act 2008 (SA) (the SAS Act).[1] The Deputy President made the following orders:[2]
1.Pursuant to s 65(2)(f) of the SAS Act, the Training Contract is terminated with effect from 15 May 2022.
2.Pursuant to s 65(2)(g) of the SAS Act, the respondent shall pay to Ms Taglienti her outstanding commissions earned during her employment as a trainee in the sum of $2,019.54, less any amount required to be deducted under Australian taxation laws.
3.Pursuant to s 65(2)(h) of the SAS Act, the respondent shall pay compensation to Ms Taglienti for its breach of the Training Contract. I assess the quantum of the compensation based on Ms Taglienti’s financial loss, mitigated by her finding alternative employment in a lesser role as of 5 October 2022. Consequently, the amount of compensation owed to Ms Taglienti shall equate to the base rate of her salary for the period between 15 June 2022 and 4 October 2022, less any amount required to be deducted under Australian taxation laws.
[1] Danielle Taglienti v Financia Pty Ltd ATF Financia Unit Trust [2023] SAET 10.
[2] [2023] SAET 10 at [108].
Financia appealed to the Full Bench of the Tribunal pursuant to s 67 of the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act). The Full Bench unanimously dismissed the appeal.[3]
[3] Financia Pty Ltd ATF Financia Unit Trust v Danielle Taglienti [2023] SAET 85 at [75] (Gilchrist DPJ and Kelly DPJ), [76] (Lieschke DP).
This is an application for leave to appeal against that decision.
Background
Financia is a mortgage broker. By an employment contract dated 17 August 2021, Financia employed Ms Taglienti. The employment contract specified that Ms Taglienti’s employment was to commence on 6 September 2021. It provided that Ms Taglienti was employed on a full-time basis, working Monday to Friday. She would be remunerated with a base salary of $56,000 per annum, plus superannuation, with an entitlement to commissions. The contract set out the commission structure. It further specified that as the base salary was above the provision in the relevant award, any further increase was solely at the discretion of Financia.
On 15 September 2021, Financia also entered into a training contract with Ms Taglienti, pursuant to the provisions of the SAS Act. The training contract nominated 31 August 2021 as the commencement date of the traineeship. It specified that it was on a full-time basis, for a duration of 24 months, with a two‑month probationary period.
At the time the contracts were entered into, the principals of Financia were Mr Leon Spadavecchia and Mr Angelo Benedetti. By the time of the events in May 2022 that led to the present proceedings, Mr Benedetti had left the business.
On Friday 13 May 2022, Ms Taglienti, together with other employees of Financia, attended a professional development day organised by an entity called AFG (an acronym of ‘Australian Finance Group’). AFG is a mortgage aggregator which provides support services to Financia. Mr Spadavecchia did not attend this event. The Deputy President found that during the course of the development day, Ms Taglienti made negative comments about Mr Spadavecchia.
On the morning of Monday 16 May 2022, Mr Spadavecchia called Ms Taglienti into a meeting. Mr Spadavecchia advised Ms Taglienti that her employment was to be terminated with one week’s notice, due to her comments at the development day, which had been reported back to him. Following further discussion, Mr Spadavecchia gave Ms Taglienti the option of resigning instead, with four weeks’ notice paid in lieu and payment of outstanding commissions received by Financia up to 16 May 2022. Ms Taglienti provided her resignation by email that day, while still at the premises of Financia. Mr Spadavecchia acknowledged her resignation by return email.
Ms Taglienti commenced proceedings in the Tribunal. She sought payment of outstanding commissions, remuneration from 15 June 2022 to 5 October 2022, being the date she secured alternative employment, and an order that she be allowed to complete the Diploma of Finance and Mortgage Broking.
The Deputy President made the orders set out above. It was not ultimately in dispute that she should make the first of those orders terminating the training contract pursuant to s 65(2)(f) of the SAS Act.
Section 51C of the SAS Act makes it an offence to purport to terminate a training contract without authorisation:
51C—Offence to terminate etc training contract
A person who, without being authorised to do so under this Act—
(a) terminates or purports to terminate a training contract; or
(b) suspends or purports to suspend a training contract,
is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
However, s 64(1) provides:
(1)If an employer has reasonable grounds to believe that an apprentice or trainee employed by the employer is guilty of wilful and serious misconduct, the employer may (without first obtaining the approval of the Commission) suspend the apprentice or trainee from employment.
If an employer does suspend a trainee from employment under this subsection, it must follow various steps set out in the balance of that section. Otherwise, if a dispute arises between the parties to a training contract or one party is aggrieved by the conduct of another party, s 65(1) provides that a party to the training contract can apply to the Tribunal for consideration of the matter. Section 65(2) then sets out the powers of the Tribunal in a matter so brought before it. These include the power to terminate a training contract as at the date specified in the order (s 65(2)(f)), the power to order an employer to pay any remuneration to which an apprentice or trainee is entitled (s 65(2)(g)) and the power to order an employer to pay compensation for any breach of the training contract (s 65(2)(h)).
The hearing at first instance
At the hearing before the Deputy President, Ms Taglienti relied on an affidavit which she supplemented with oral evidence. Mr Spadavecchia gave evidence, as did Mr Adam Pisani, with whom Ms Taglienti had spoken at the development day. The Deputy President also received a letter from Ms Briony Miglis, a person to whom Ms Taglienti had spoken at the development day.
Financia contended that Ms Taglienti’s disparaging comments about Mr Spadavecchia amounted to serious and wilful misconduct. It accepted that this could not have permitted it to terminate the training contract but contended that it would have permitted Financia to suspend it for seven days, unless cancelled or extended under s 64 of the SAS Act. However, it maintained that Ms Taglienti’s conduct permitted it to terminate her employment without notice pursuant to certain clauses of the employment contract.
The Deputy President found that Financia had constructively dismissed Ms Taglienti.[4] She made this finding on the basis of the agreed fact that Ms Taglienti was given the option to resign with four weeks’ pay in lieu of notice, rather than having her employment terminated for misconduct. She then found:[5]
In my view, the conduct of Ms Taglienti, whilst being ill-advised and certainly justified the respondent raising it with her, falls short of amounting to serious and wilful misconduct justifying the termination of her employment in accordance with clause 24 of the Employment Contract. The respondent’s reaction to Ms Taglienti’s conduct was disproportionate and, in any event, the respondent was not permitted under the SAS Act to terminate her training contract.
Accordingly, I find that the respondent has breached its obligations under the Training Contract by its purported termination of the Training Contract in contravention of s 51C of the SAS Act.
[4] [2023] SAET 10 at [96].
[5] [2023] SAET 10 at [101]-[102].
The Deputy President then noted the discretionary nature of the remedial powers under s 65(2) of the SAS Act. She noted that the discretion was to be exercised judicially, having regard to all the circumstances of the matter, balancing factors in favour of and against the making of orders. She then approached that discretionary exercise as follows:[6]
In determining whether to exercise powers to make orders, I take into account: the conduct complained of and my findings in relation to such conduct not being sufficiently serious to warrant the termination of Ms Taglienti’s employment; that Ms Taglienti lost the opportunity to complete her traineeship; and her financial loss as a result.
Additionally, I take into account that the respondent was not permitted to terminate Ms Taglienti’s Training Contract and that the statutory scheme governing traineeships envisages that a training contract should continue unless completed or brought to an end in an authorised manner.
These factors are mitigated by the respondent’s inexperience as a registered employer, its attempt to seek advice, and I accept that these proceedings have been a learning process for the respondent.
However, the interests of justice in this matter weigh in favour of SAET exercising its discretion and orders being made.
[6] [2023] SAET 10 at [104]-[107].
The Deputy President then made the orders referred to above.
The appeal to the Full Bench
On appeal to the Full Bench, Financia contended that the only order the Deputy President should have made was that the training contract be terminated. It contended that the orders for payment of commissions and compensation should be set aside.[7]
[7] [2023] SAET 85 at [4].
Pursuant to s 67(3) of the SAET Act, the appeal was by way of rehearing. Consistently with that stipulation, pursuant to s 67(4), the Full Bench was permitted to draw inferences of fact from evidence or other material before the Tribunal. It was necessary for Financia to establish error on the part of the Deputy President.[8]
[8] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Ors [2000] 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ).
Having regard to the complaints that Financia now seeks to raise on this application for leave to appeal, it is necessary to identify the errors for which Financia contended before the Full Bench on that appeal by way of rehearing.
Financia’s first complaint was that the Deputy President had erroneously limited her consideration to the question of serious misconduct. Financia submitted that a broader enquiry was required, arising from the actions of Ms Taglienti. It submitted that it appeared that the Deputy President had apparently and erroneously limited the scope of the Tribunal’s discretionary task under s 65 of the SAS Act by reference to the power in s 64 to suspend for serious and wilful misconduct.[9]
[9] [2023] SAET 85 at [43].
Financia also submitted that the Deputy President erred in finding, in any event, that Ms Taglienti did not commit serious and wilful misconduct.[10] In this regard, it submitted that the Deputy President had erred in not taking into account the fact that Ms Taglienti had previously been disciplined, the fact that she was not a naïve, inexperienced worker, and that she had substantial workforce experience and a master’s degree in podiatry.
[10] [2023] SAET 85 at [44].
Financia also complained that the Deputy President gave no explanation for her finding that Ms Taglienti’s statements at the development day were not motivated by malice, and that her reasons in this regard were inadequate.[11] It submitted that Ms Taglienti was equally at fault in that she could have availed herself of the dispute resolution procedure provided for by the training contract.[12]
[11] [2023] SAET 85 at [49].
[12] [2023] SAET 85 at [50].
Financia further submitted that in circumstances where Ms Taglienti was clearly unhappy at work, the Deputy President should have viewed her resignation as genuine. Her conduct at the development day included taking steps to find alternative employment. It submitted that there was no basis for concluding that Ms Taglienti was willing to take steps to repair the relationship. It pointed to her denial of wrongdoing and maintaining a ‘false narrative’ as to the events of the development day, which ultimately resulted in an adverse credit finding against her.[13]
[13] [2023] SAET 85 at [51]-[52].
Importantly for the present application, Financia submitted that the Deputy President erred in making orders 2 and 3, because s 65(2)(h) of the SAS Act limited the compensation that may be ordered to that which arises as a result of a breach of the training contract. It is to be recalled that under the employment contract, Ms Taglienti’s salary was above the Award rate. Financia submitted that the effect of the orders, which included compensation calculated by reference to Ms Taglienti’s base salary under the employment contract, effectively included a penalty on Financia for breach of the SAS Act.[14]
[14] [2023] SAET 85 at [53].

Financia also made a submission as to the correct approach that the Deputy President should have taken, which the Full Bench characterised as follows:[15]
It submitted that the correct approach was to focus upon what would have happened if the procedure prescribed by the Act had been complied with. It submitted that it had reasonable grounds to believe that Ms Taglienti was guilty of wilful and serious misconduct. It submitted that it therefore would have been entitled to suspend Ms Taglienti without seeking the Commission’s prior approval. It would have then been obliged to inform the Commission of the suspension, which would have resulted in the matter being mediated before the Commission and ultimately referred to the Tribunal if that was unsuccessful. It submitted that the referral would have led to the position where, among other things, the Tribunal would have determined whether Ms Taglienti’s conduct was wilful and serious misconduct, and if not, whether the circumstances provided a basis to bring the Training Contract to an end at that time or some other time. It submitted that the only way that the Deputy President’s decision as to compensation can be explained, is that she must have been satisfied that the Training Contract would have continued until at least October 2022. It submitted that there was no explanation as to how she reached that conclusion, nor was there any evidence that supported it.
[15] [2023] SAET 85 at [54].
Finally, Financia submitted that it had been denied natural justice. In circumstances where the effect of s 67 of the SAET Act was that the parties were not permitted legal representation, the Deputy President’s role should have been inquisitorial such that neither party was prejudiced by its inability to be represented by counsel. Had the Deputy President done this, matters would have emerged that demonstrated the continuation of the training contract to be unviable.
The plurality in the Full Bench observed that the powers of the Tribunal under s 65(2) of the SAS Act are extensive and broad enough to provide a remedy for underpayment of wages and ‘to order compensation for the adverse consequences of an unlawful termination of a Training Contract’.[16] It held that there was nothing in the contract of employment that gave Financia any discretionary right to withhold commissions payable to Ms Taglienti. Ms Taglienti was entitled to the amount of $2,019.54 (this being the subject of the second order made by the Deputy President).[17]
[16] [2023] SAET 85 at [58].
[17] [2023] SAET 85 at [59].
As to the submission that the Deputy President should have viewed Ms Taglienti’s resignation as genuine, the Full Bench noted that Mr Spadavecchia did not challenge Ms Taglienti’s account of the events of Monday 16 May 2022. Ms Taglienti said that she felt ambushed and was unable to write her letter of resignation, and so asked her partner to do it for her. The Full Bench concluded that the only finding that was reasonably open was that but for Mr Spadavecchia’s threat of summary dismissal, Ms Taglienti would not have tendered her resignation and would have remained in employment with Financia.[18]
[18] [2023] SAET 85 at [61], referring to Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 at 205‑207.
As to the correctness of the order for compensation for lost wages, the Full Bench observed that s 51C of the SAS Act made it an offence for a party to terminate a training contract without authorisation. Financia had no such authorisation. It was that illegal action that had deprived Ms Taglienti of ongoing wages, so it was appropriate that there be an order compensating Ms Taglienti for her loss.[19]
[19] [2023] SAET 85 at [63]-[65].
The Full Bench accepted that a serious breach of trust can justify summary dismissal.[20] However, it also referred to the authorities that emphasised that the conduct must be such as to destroy confidence and make the continued relationship untenable.[21] On its review of the evidence, it held that it was clear that Ms Taglienti’s conduct was not an act of wilful disobedience. It rejected Financia’s submission that no award of compensation should be payable because Ms Taglienti committed serious and wilful misconduct.[22]
[20] [2023] SAET 85 at [65], citing John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) [1997] SAWCT 10.
[21] Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82 (Dixon and McTiernan JJ); Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [66] (Kiefel CJ).
[22] [2023] SAET 85 at [67].
Importantly for present purposes, the Full Bench then held:[23]
In any event, even if the approach put forward by Financia was adopted, in our view, it would not have resulted in a different outcome. The Deputy President effectively ordered 16 weeks pay by way of compensation. Even if it is accepted that Financia had reasonable grounds to believe that Ms Taglienti was guilty of wilful and serious misconduct, for the reasons explained above, the Tribunal would not have made that finding. The likely outcome is that the matter would have been referred to mediation.
[23] [2023] SAET 85 at [69].
The Full Bench then considered the likely outcome of a mediation, observing that termination of the training contract would have been seen as a last resort. It concluded that it was unlikely that a conclusion that the relationship was untenable would not have been reached before 5 October 2022.[24]
[24] [2023] SAET 85 at [70].
On the complaint of a denial of procedural fairness, the Full Bench referred to Kenny v Ritter[25] on the topic of the role of a judge with respect to a self‑represented litigant. It asked, rhetorically:[26]
How could the Deputy President, whose function was purely judicial, effectively discharge the obligations of counsel for the parties?” She can and should see to it that in the proceedings before the Tribunal, that the parties shall be dealt with justly and fairly. She cannot investigate the facts, advise and direct how the cases are to be conducted, or participate in those necessary conferences between counsel and a party which sometimes partake of the inviolable character of the confessional.
[25] [2009] SASC 139 at [16] (Gray and Layton JJ).
[26] [2023] SAET 85 at [72]-[73].
The Full Bench considered that the Deputy President had afforded Financia ‘considerable latitude’. It held that there was no denial of procedural fairness.[27]
[27] [2023] SAET 85 at [74].
Lieschke DP wrote separately, agreeing with the reasons of the plurality and emphasising certain matters. He emphasised that Financia had no right to dismiss even if serious and wilful misconduct was proved.[28] That was a relevant matter for the Tribunal under the processes required by the SAS Act.
[28] [2023] SAET 85 at [79].
As to Financia’s contention that the salary and commission entitlements under the employment contract did not fall under the training contract, and so could not be factored into any award of compensation for breach of the training contract, Lieschke DP considered that the flaw in this was that while there were two documents, there was only one contract of service.[29]
[29] [2023] SAET 85 at [87].
The Full Bench consequently dismissed Financia’s appeal.
The proposed appeal to this Court
Principles informing whether to grant leave to appeal
The question of whether to grant leave to appeal looks to the following considerations:[30]
·whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
·whether the decision raises an issue of general principle or importance; and
·whether allowing the decision to stand would work a substantial injustice to the applicant.
[30] Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [53] (Livesey P and Bleby JA).
The applicant submitted that permission will more readily be granted where leave was sought to appeal against a substantive order, as opposed to an interlocutory decision. So much may be accepted.[31] However, the applicant extended this submission to assert, without reference to authority, that on an application for leave to appeal it is not necessary to demonstrate a matter of general importance.
[31] Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168 at [7] (Bleby J).
It may well be, in a given case, that the prospect of a substantial injustice to a party warrants a grant of leave even if no question of general importance is raised. However, the applicant’s submission, made in answer to a submission by the respondent that no question of general importance is raised in the present matter, appears to have been directed at denying the relevance of the question of general importance to the question of leave. If that was the import of the submission, it is not correct. The matters identified above are all relevant to the question of a grant of leave, whether the proposed appeal is from an interlocutory or final decision affecting substantive rights.
The respondent submitted that none of the proposed grounds of appeal is strong and that this weighed against a grant of leave. The applicant, in a written Reply, characterised this submission as being to the effect that ‘there is no dispute that the appeal is arguable’. It submitted that this was ‘a highly significant, if not decisive factor in respect of permission’. This submission ignores principle. The considerations to be brought to account are as set out above. The applicant’s submission did not only mischaracterised the respondent’s submission, by equating ‘not strong’ with ‘arguable’, as if there was no difference of degree between those two characterisations. It also misstated the test by suggesting that a ground being ‘arguable’ was decisive of whether leave should be granted. It is not.
The proposed grounds of appeal
The proposed grounds of appeal to this Court are as follows:
1.The Full Bench erred in law by failing to assess the question of whether, and if so how much, compensation the applicant was required to pay pursuant to s 65(2)(h) of the SAS Act according to a proper application of the SAS Act. In particular:
1.1    The Full Bench applied the wrong threshold question to enliven the discretion to order the applicant to pay compensation;
1.2    Further and in the alternative, in determining the question of whether to order compensation, the Full Bench failed to consider the statutory discretion that arose upon a breach of the Training Contract being established or alternatively each of the material matters put to it in respect of the exercise of that discretion;
1.3    In assessing the question of quantum, the Full Bench exceeded its jurisdiction by ordering compensation for the breach of the Employment Contract (Exhibit R1 at trial) whereas its jurisdiction was limited to ordering compensation for breach of the Training Contract (exhibit A1 at trial); and
1.4 In assessing the question of quantum of compensation, the Full Bench failed to consider the statutory discretion in s 65(2)(h) of the SAS Act or alternatively to address each of the material matters put to it in respect of the exercise of that discretion.
2.The Full Bench erred in law by failing to give adequate reasons in respect of the matters particularised in ground 1.
3.The Full Bench erred in law by failing to find that the Member at first instance provided inadequate assistance to the applicant or “considered” the dispute referred to her in accordance with s 65 of the SAS Act and in particular at [70]-[71] failed to recognise the inquisitorial or in the alternative quasi-inquisitorial nature of the consideration of the dispute.
An appeal to this Court from a decision of the Full Bench of the SAET lies on a question of law only.[32] The applicant has not identified with precision the question of law that arises on each proposed ground. The identification of a question of law, the answer to which is capable of founding relief on the appeal, is an important step on any application for leave to appeal.[33] This Court can only reiterate that it is in the interests of an applicant for leave to identify clearly the question of law said to arise. It is not enough to articulate a ground that includes a question of law.[34] The right of appeal does not extend to where the Court must determine any question of fact.[35] The discipline of articulating the question of law arising is necessary if for no other reason than to ensure that the question arising on the appeal does not contain a latent question of fact.
[32] SAET Act, s 68(1).
[33] Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [24]; [33].
[34] See Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[25].
[35] Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [192].
With respect to Ground 1.1, the Deputy President terminated the training contract with effect from 15 May 2022. This was a Sunday. It was the day before the conversation that Mr Spadavecchia had with Ms Taglienti, leading to her email of resignation, which the Deputy President found to be in breach of the training contract. The applicant submitted that this order gives rise to a ‘threshold question’ as to whether the SAET could order compensation for breach of a contract which could only have occurred after the date of termination of the contract. It submitted that the answer to this turned on the statutory context and the effect of the exercise of a statutory termination of the training contract.
There is an oddity in the first order specifying 15 May 2022 as the date of termination of the training contract. Further, the applicant has here identified a question of law arising from the specification of the date. As the respondent observed, the applicant did not raise this question before the Full Bench. However, it is well established that it is competent, even expedient, for an appeal court to entertain a question of law raised for the first time upon the construction of a document or on facts admitted or proved beyond controversy.[36]
[36] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.
The difficulty with the ground lies in other considerations. It is unarguable that the Deputy President terminated the training contract consequent on the breach she identified as having occurred on 16 May 2022. Financia submitted on this application that the selection of the date of 15 May 2022, i.e., the day before, was consistent with its case that the relationship had already broken down.
However, bearing in mind that 15 May 2022 was a Sunday, and given the findings of the Deputy President at first instance, the significance of the ‘threshold question’ the applicant identified lies only in whether the Deputy President should have identified 16 May as the relevant date. Financia’s submission appears to depend on an uncritical assumption that the selection of this date was done as a matter of principle and was not, for example, the consequence of a slip.
As a matter of practicality, the difference lies in one day’s pay. The applicant has not sought to challenge the first order, by which the Deputy President terminated the contract as at 15 May 2022. Had it done so, the practical difference on one day’s pay would not have warranted a grant of leave to appeal. However, it is only by not challenging the first order that the ‘threshold question’ could be said to arise. In those circumstances, there can be no substantial injustice to the applicant in refusing leave to appeal on Ground 1.1. We refuse leave on this ground.
The applicant addressed Grounds 1.2 and 1.4 together. Its submissions with respect to these grounds were made under the heading, ‘incorrect approach to determination of damages’. The applicant submitted that ‘this ground’:
gives rise to questions of statutory construction as to the correct approach to determining the issue of compensation pursuant to s 65 of the SAS Act and the nature of the proceeding under that provision. They are questions that have not been the subject of determination by this Court.
Regrettably, again, the applicant did not identify with precision what those questions are.
Financia first submitted that the Deputy President was ‘deflected’ from its task by focusing on the question of whether Ms Taglienti had engaged in serious and wilful misconduct. It submitted that the test was not whether the conduct met a particular threshold. Rather, it was to take into account the nature and character of Ms Taglienti’s conduct when exercising the discretion under s 65(2)(h), having regard to the extent of departure by each party from its respective obligations.
Financia then complained that the Full Bench approached the issue as one of breach and damages in line with common law principles. As to the Full Bench’s finding that as Financia’s ‘illegal action’ had deprived Ms Taglienti of ongoing wages, it was ‘appropriate’ that there be an order compensating Ms Taglienti for her loss,[37] Financia submitted that the Full Bench had erred in finding that it was appropriate that compensation be paid on the basis that Financia had breached the SAS Act.
[37] [2023] SAET 85 at [62].
Assuming that a question of law going to the construction of s 65(2)(h) can be identified within these complaints, we do not think that the matters here relied upon are such as to warrant reconsideration by this Court.
In the first instance, the focus by the Deputy President on the question of serious and wilful misconduct was in response to an argument raised by Financia. The Deputy President rejected, as a matter of evaluative judgment, Financia’s submission that there had been serious and wilful misconduct.
The Deputy President concluded, separately, that Financia was not entitled to terminate the training contract. She then turned to the question of the discretion to make orders under s 65(2). In the paragraphs set out earlier, she identified the matters she took into account in considering whether to exercise the power to make orders under s 62, generally. She did not, in this consideration, explicitly distinguish between making an order terminating the contract, an order to award compensation and a decision as to how much compensation to award. However, her reasons identify, sufficiently, the matters she brought to exercising the discretion in respect of each of those matters.
The applicant’s first complaint about the reasons of the Full Bench was directed to the fact that s 65(2)(h) of the SAS Act empowers the Tribunal to order compensation for any breach of the training contract, not for a contravention of the Act. It is correct to say that the Full Bench characterised the termination of the contract by Financia as ‘illegal’ by reference to the offence provision in s 51C. However, this was in the context of identifying that it was that action which had deprived Ms Taglienti of ongoing wages and that it was therefore appropriate that there be an order compensating Ms Taglienti for her loss.
We accept that Financia has identified an argument that the Full Bench mischaracterised the power in s 65(2)(h) as being to compensate for a breach of the Act, rather than for a breach of the training contract. However, the important point was that Financia did not have the right to act as it did, given the existence of the training contract and its protections under the Act. In order for this complaint to have utility, Financia would have to show that ultimately, it made a difference to the power to award Ms Taglienti compensation under s 65(2)(h), which permits the Tribunal to order an employer to pay compensation for ‘any breach of the training contract’. This again highlights the importance of identifying the actual question of law on which the appeal is brought to sustain an order altering the outcome, and not just asserting error.
The question of the utility of this complaint cannot be separated from consideration of the next complaint. Financia also submitted that the conclusion that it had contravened the Act involved an error of law. It submitted that the ‘constructive dismissal’ that the Tribunal found Financia had engaged can only be properly characterised as a repudiation, which Ms Taglienti then accepted. Financia’s point was that the concept of constructive dismissal is a statutory concept, directing consideration to whether termination was at the initiative of the employer. In Financia’s submission, on the facts as found it did not terminate the contract; it permitted Ms Taglienti to accept a repudiation in her discretion. It could not be said, in those circumstances, that Financia breached s 51C.

The question of law that might be said to arise on these contentions is ‘whether, on the facts as found by the Tribunal, Financia unlawfully terminated the training contract?’ However, we are not persuaded that this question of law warrants a grant of leave. The Deputy President found that Financia purported to terminate the contract.[38] That was on the basis of the finding of constructive dismissal. We accept, for present purposes, that Financia has identified an argument that on a proper characterisation of the facts as found, Financia repudiated the contract, which repudiation Ms Taglienti then purported to accept. However, that then begs the question of what would follow.
[38] [2023] SAET 10 at [102].
On Financia’s own argument, by putting Ms Taglienti in a position where Financia would (purport to) terminate the training contract unless Ms Taglienti did so, it engaged in a repudiatory breach of the training contract. Of course, Ms Taglienti had no more authorisation to terminate the training contract than did Financia.
Ultimately, however, the fact that the Full Bench characterised this as ‘illegal action’ on the part of Financia by reason of s 51C was, in the circumstances, of little moment to the outcome. If the proper legal characterisation of the facts as found is that Financia had engaged in a repudiatory breach rather than an unlawful termination, the power in s 65(2)(h) was nonetheless manifestly available.
The Full Bench could not have found Financia guilty of an offence. It did not purport to do so. It identified the offence and then referred to Financia’s ‘illegal action’ in terminating the training contract, on the basis that Financia had no authorisation to do so. Assuming, in Financia’s favour, that this is an incorrect characterisation of the legal position, it is difficult to see that it makes any difference whatsoever to the outcome. The Full Bench’s finding was directed only to the question of whether Ms Taglienti should be compensated for having been deprived of ongoing wages by reason of Financia’s actions. Characterising Financia’s actions as amounting to a repudiatory breach, rather than an unlawful purported termination, would not result in a different answer to that threshold question.
Financia then submitted that the analysis by the Full Bench overlooked a number of matters that were relevant to the exercise of the statutory discretion as to whether compensation should be ordered at all or as to the amount that should be awarded. It pointed to the following matters:
·the fact that there was a separate contract of employment that provided for an above-award salary;
·that Ms Taglienti had engaged in earlier breaches of discipline;
·the fact that the Full Bench reasoned that Ms Taglienti’s comments were inappropriate and justified a warning. Financia submitted that ‘it might be inferred’ that the Full Bench accepted that this was a breach of the employment contract.
·the cumulative effect of Ms Taglienti’s conduct;
·that the earlier conduct was repudiatory in nature;
·even if that earlier conduct was not repudiatory, it could be relied on when considering the later conduct as the ‘final straw’;
·that Mr Spadavecchia took advice from Fair Work Australia as to his rights and obligations and the erroneous advice that he was entitled to terminate Ms Taglienti’s contract.
In Financia’s submission, these matters informed not just whether there should be compensation, but the amount if any was to be awarded.
These complaints need to be framed within a question of law, which the applicant has not done. A question of law could be articulated in terms of ‘whether the Tribunal was required, in the exercise of its discretion, to take [certain matters] into account’. However framing the question in this way points up a further issue.
First, it is not clear that such a question of law would not require this Court to make findings of fact. For example, Financia has not identified any established fact as to the specific advice Mr Spadavecchia sought from Fair Work Australia or the factual premise on which Fair Work Australia gave that advice. As identified above, the Deputy President did expressly take into account the attempt by Financia to seek advice.[39]
[39] [2023] SAET 10 at [106].
Assuming that Financia can substantiate the submission that the Full Bench did not expressly refer to certain established factual matters on which it relied, the case for a grant of leave is weak. The conclusion by the Full Bench that the purported termination of the training contract deprived Ms Taglienti of her ongoing wages is robust. That is the case whether or not the facts are properly characterised as Financia having engaged in an unlawful termination of the training contract or a repudiatory breach of it. The further matters to which Financia points, assuming everything in its favour, might on one view recommend some reduction of the compensation. However, in the circumstances described above, they are unlikely to be regarded as weighty matters.
As to Ground 1.3, Financia argued that the compensation ought to have been limited to that payable for breach of the training contract, rather than the employment contract. This was a reference to the fact that the employment contract provided for above award wages. However, Ms Taglienti submitted, and Financia did not contradict in its written Reply, that the training contract required Financial to ‘meet all legal requirements regarding the apprentice/trainee, including but not limited to … payment of wages and conditions under the relevant employment arrangements’. That is to say, the remuneration obligation in the employment contract was apparently incorporated into the training contract. This ground has poor prospects of success.
As to Ground 2, which complains of a failure to give adequate reasons, Financia submitted that the Full Bench failed to give adequate reasons by not addressing the matters advanced as set out in Ground 1. This complaint is capable of raising a question of law. However, its weaknesses as a candidate for leave mirror those identified with respect to Ground 1.
Ground 3 complains that the Full Bench erred in failing to find that the Tribunal gave Financia inadequate assistance in circumstances where it was unrepresented and failed to recognise the inquisitorial or quasi-inquisitorial nature of the ‘consideration’ of the dispute.
Financia submitted that contrary to the situation where one party chooses to be unrepresented, the situation was different where parties are precluded from being legally represented, as is the case in an application under the SAS Act. Financia submitted that the ‘correct approach’ in such a case is that ‘the judicial officer will be required to play a more active role and the proceedings will be more inquisitorial than adversarial’. In this regard, it pointed to the language of s 65(1):
(1)     If—
(a)     a dispute arises between parties to a training contract; or
(b)     a party to a training contract is aggrieved by the conduct of another party,
a party to the contract may apply to SAET for consideration of the matter.
(Emphasis added)
In Financia’s submission, the highlighted language is similar to that employed in provisions conferring arbitral power. It does not necessarily involve the determination of legal rights or finding of contravention of a legal obligation. Financia submitted that the Full Bench should not have approached the matter as if it was an essentially adversarial process. The process under s 65 was comparable to that of a minor civil claim, which has been regarded as more of an ‘inquiry’. In this regard, Financia referred to the approach taken in proceedings under the predecessor provision to the SAS Act, the Training and Skills Development Act 2008 (SA):[40]
The TSD Act encourages self-representation and arising from this, the tribunal determined to conduct the proceedings as informally as possible. This included the tribunal members sitting at the bar table with the applicant. The applicant was advised of the procedure and was informed that as he was self-represented, the tribunal would be of an inquisitorial nature to ensure that the best evidence was adduced to assist the tribunal in reaching its decision.
[40] Smoker v PJ Commercial Products Pty Ltd [2009] SAIR Comm 12 at [15].
It can readily be accepted that a judicial officer has an obligation to give proper assistance to self-represented litigants in order to ensure a fair trial, and that this extends to where all parties are self-represented. Moreover, in this matter, the provisions of s 32 of the SAET Act applied.
The central contention of Financia was that the Deputy President was required to inform Mr Spadavecchia that if he wished to rely on the observations of two witnesses at the development day, Jovana Bogatic and Briony Miglis, he could and should have called them as witnesses. The outcome as found, in Financia’s submission, was that Ms Taglienti had engaged in the conduct alleged by Financia, but ‘with a relatively diluted motive’. Financia submitted that had they been called, it is ‘likely or possible’ that the Tribunal would have reached less favourable findings in respect of Ms Taglienti, ‘which in turn was capable of affecting the exercise of the Tribunal’s discretion’.
Financia also identified that it had sought, at trial, to rely on Ms Taglienti’s prior misconduct as an important part of its case. The Tribunal had ‘failed to elicit’ details of that prior misconduct and was not in a position to assess it and whether it justified a finding of repudiation. On the issue of damages, Financia submitted that Mr Spadavecchia had indicated he wished to adduce evidence of further misconduct of Ms Taglienti after 16 May 2022, but was ‘discouraged’ from adducing that evidence. Financia submitted that there was no reason for concluding that ongoing breaches of employment obligations by misconduct were irrelevant to the discretionary award of compensation.
It is worth taking a step back. This ground of appeal has several strands. It complains that the Full Bench should have found that the Deputy President provided inadequate assistance. It also complains that the Full Bench should have found that the Deputy President failed to ‘consider’ the dispute within the meaning of s 65. Finally, it includes a complaint that the Full Bench ‘failed to recognise’ the inquisitorial or quasi-inquisitorial nature of the consideration of the dispute.
Financia has not identified the question or questions of law that these grounds raise. Starting with the most general complaint raised in the ground, that the Full Bench ‘failed to recognise’ the inquisitorial or quasi-inquisitorial nature of the dispute, a question might be framed in terms: ‘whether an application under s 65 of the SAS Act requires the Tribunal to conduct the proceedings in an inquisitorial or quasi-inquisitorial manner?’ This is problematic. In a given case, the Tribunal’s duty might extend, for example, to asking questions of a party to elicit information relating to the issues central to the determination of the particular proceedings.[41] However, it is well understood that the nature of the duty to give assistance to self‑represented litigants will vary depending on the circumstances of the case. That there is an inquisitorial aspect to this particular jurisdiction is also understood. What that means in any given case will depend, to an extent, on all the circumstances.
[41] Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 at [63].
The question whether the proceedings before the Tribunal were required to be conducted in an inquisitorial or quasi-inquisitorial manner is therefore likely to be answered, ‘it depends’. That it is appropriate to conduct proceedings such as these in an inquisitorial manner in certain circumstances cannot be doubted. In others, even with the parties being unrepresented, a more adversarial approach may be appropriate. The duties of the Tribunal will depend on all the circumstances of the case. Reducing the question to a dichotomy between ‘inquisitorial’ and ‘adversarial’ is not helpful.
This aspect of the complaint is primarily directed to the statement by the Full Bench that the Deputy President ‘cannot investigate the facts, [or] advise and direct how the cases are to be conducted’.[42] This statement is not, in its terms, incorrect. We accept that it does not capture the extent of the positive duty of the Tribunal towards self-represented litigants in its exercise of this jurisdiction. However, that does not mean that Financia has identified a question of law capable of affecting the outcome. Even if this was considered to be an insufficient statement of the duty of the Tribunal in the context of this case, that is not the end of the matter. It would still be necessary to decide whether the Full Bench had erroneously failed to find that the Deputy President had failed to discharge her obligations to the self‑represented litigants. That would require consideration of the particular complaints in all the circumstances of the case.[43]
[42] [2023] SAET 85 at [72].
[43] See, e.g., Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 at [63].
This appears to be what is contemplated by the first part of the ground. However, we are not persuaded that Financia’s complaint in this regard is particularly strong. Here, the parties clearly enough conducted the proceedings in an adversarial manner. That was a function of the starting point that Financia had threatened Ms Taglienti with termination if she did not resign.
Financia’s complaints in this regard extend to the marginal. For example, the evidence of Ms Miglis, to whom Ms Taglienti spoke at the development day, was in the form of a letter. That is, Ms Taglienti did not have an opportunity to ask her questions. The Deputy President nonetheless preferred Ms Miglis’s account to Ms Taglienti’s. This speaks of the Deputy President conducting the proceedings to some degree in an inquisitorial, and not strictly adversarial, manner.
Having said that, some of the other complaints, such as that the Tribunal ‘discouraged’ Mr Spadavecchia from giving evidence on other misconduct of Ms Taglienti, might have greater purchase when considered against the obligations of the Tribunal to assist self-represented litigants. We do not exclude that this complaint might be arguable in some degree.
Part of the ground would appear to require this Court to investigate the circumstances of the conduct of the case, the disadvantage of Financia in those circumstances and the nature of the assistance given, or not given, by the Deputy President before asking whether, as a matter of law, the Deputy President was required to do more. An evaluation and determination of what occurred before the Tribunal is not inconsistent with the role of this Court on an appeal on a question of law.[44] However, these are not the end of the matters to be considered on the application for leave.
[44] Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [202].
The conclusion of the Tribunal that Ms Taglienti lost salary in consequence of what was, on Financia’s own case, a repudiatory breach of the training contract, is robust. It is unlikely, given that circumstance, that the best result for Financia on appeal would be anything other than some level of reduction in the compensation ordered in the exercise of the discretion under s 65(2)(h). That would require this Court to conclude that the discretion should have been exercised differently, having regard to all the matters to which Financia has drawn attention. While we do not think that Financia’s case in this regard is unarguable, it is not strong.
The Deputy President ordered that Financia pay compensation representing 16 weeks’ pay. On a base salary of $56,000, that equates to a sum of a little over $17,000, less any amount required to be deducted under Australian taxation laws. This is not a large sum. Even if Ground 3 can be said to raise a question of law, to the effect of whether the Deputy President was required to give greater assistance than she did, it is not one of general importance. Further, an answer in favour of Financia might, at best, result in a marginal improvement to it in the re‑exercise of the discretion under s 65(2)(h) in the order of a few thousand dollars. In those circumstances, it cannot be said that there is a prospect that Financia has suffered a substantial injustice.
Conclusion
We refuse leave to appeal. Financia should pay Ms Taglienti’s costs of the application.