Kinneen v Whelans Australia Pty Ltd
[2018] WASCA 5
•10 JANUARY 2018
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: KINNEEN -v- WHELANS AUSTRALIA PTY LTD [2018] WASCA 5
CORAM: BUSS J
MURPHY J
LE MIERE J
HEARD: 1 DECEMBER 2017
DELIVERED : 10 JANUARY 2018
FILE NO/S: IAC 2 of 2017
BETWEEN: ROBERT KINNEEN
Appellant
AND
WHELANS AUSTRALIA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :J H SMITH ACTING PRESIDENT
P E SCOTT CHIEF COMMISSIONER
S J KENNER ACTING SENIOR COMMISSIONER
Citation :KINNEEN v WHELANS [2017] WAIRC 00302
Catchwords:
Industrial Appeal Court - Whether court has jurisdiction to hear appeal
Legislation:
Industrial Relations Act 1979 (WA), s 90(1)
Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA), reg 4(1)
Licensed Surveyors Act 1909 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr W E Edwardes
Solicitors:
Appellant: In person
Respondent: Chamber of Commerce & Industry WA
Case(s) referred to in judgment(s):
Underdown v Dowford Investments Pty Ltd (2005) 85 WAIG 1437
BUSS J: I agree with Le Miere J.
MURPHY J: I agree with Le Miere J.
LE MIERE J:
Summary
The appellant referred to the Western Australian Industrial Relations Commission (the Commission) a claim that he had not been allowed by the respondent a benefit to which he was entitled under his contract of employment with the respondent. The appellant claimed that the respondent had breached a term of his contract of employment that the respondent would provide him with training to become a licensed surveyor under the Licensed Surveyors Act 1909 (WA). The Commissioner who heard the appellant's claim found that the contract of employment did not contain the term alleged by the appellant and, if it did, it was not breached by the respondent and dismissed the appellant's claim. The appellant appealed to the Full Bench of the Commission. The Full Bench unanimously dismissed the appeal. The plurality found that it was a term of the contract of employment that the respondent would provide the appellant with training to become a licensed surveyor but the term had not been breached by the respondent. The appellant has appealed to this Court from the decision of the Full Bench on a number of grounds. For the reasons which follow none of the grounds of appeal are grounds on which an appeal lies to this court and the appeal must be dismissed.
Appellant's employment
The appellant was employed by the respondent. The appellant claims that it was a term of his contract of employment that the respondent would provide him with all the necessary training to become a licensed surveyor under the Licensed Surveyors Act. The appellant entered into a professional training agreement with Mr Jonath, a licensed surveyor employed by the respondent, which was registered with the Land Surveyors Licensing Board. The training agreement included training for the appellant to complete the Board's final examination at Boya. In March 2011 the appellant attempted the Boya examination which he failed. Shortly after finding out he had failed the examination he resigned from his employment with the respondent.
Appellant claims he was denied a contractual benefit
The appellant referred to the Commission a claim that he had not been allowed by the respondent a benefit to which he is entitled under his contract of employment. The appellant said that the respondent had not provided him with the necessary training to become a licensed surveyor as a result of which he failed the Boya examination and resigned his employment.
Claim dismissed by Commissioner
The Commissioner dismissed the appellant's claim. The Commissioner found that it was not a term of his contract of employment that the respondent would provide him with all the necessary training to become a licensed surveyor. The Commissioner further found that if there was such a term in the contract of employment, for the appellant to succeed he would have to establish that the term was that he would be provided with the training prior to March 2011 because the appellant resigned his employment in March 2011 and it was only if the term was that the training be completed by this time that the respondent could be in breach of it. The Commissioner found that the respondent had not promised to complete the appellant's training by March 2011.
Appeal dismissed by Full Bench
The appellant appealed to the Full Bench of the Commission. The Full Bench unanimously dismissed the appeal. The plurality, Smith AP and Scott CC, upheld grounds 1 and 2 of the appeal to the effect that the Commissioner erred in finding that it was not a term of the appellant's contract of employment that the respondent was obliged to train the appellant to become a licensed surveyor. That finding was based in part on the finding that the professional training agreement was part of the contract of employment. The plurality upheld ground 3 of the appeal in so far as it asserted that the Commissioner erred in finding that the appellant did not need to become a licensed surveyor for his employment as a surveyor party leader to continue. The plurality dismissed ground 4 which was to the effect that the Commissioner erred in finding that the respondent had not promised to complete the appellant's training by March 2011. The plurality held that that finding was fatal to the appeal because, as the Commissioner had found, it is only if the term was that the training had to be completed by March 2011, when the appellant resigned, that the respondent could be in breach of the term. The plurality held that the Commissioner did not err, as alleged by the appellant in ground 5, by failing to explore the reasons the appellant resigned, or as alleged by the appellant in ground 6, that the Commissioner erred by failing to make any finding about the adequacy of the training provided by the respondent. Kenner ASC found that the training agreement was not part of the contract of employment, it was not a term of the contract of employment that the respondent would provide the appellant with all the necessary training to become a licensed surveyor and, if there was such a term, there was no term that the respondent would do so by March 2011 and therefore the respondent had not breached the contract of employment.
Appeal to this court
The appellant now appeals to this court from the decision of the Full Bench. There are eight grounds of appeal. The respondent has moved that judgement be entered summarily for the respondent on the basis that the Court does not have jurisdiction to hear this appeal and if the Court determines that some of the grounds of appeal purport to be within jurisdiction, such grounds have no reasonable prospects of success and ought to be dismissed.
An appeal lies to this court from a decision of the Full Bench on the grounds set out in paragraphs (a), (b) and (c) of s 90(1) of the Industrial Relations Act 1979 (WA) but upon no other ground. Ground (a), that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter, has no application to this appeal. If any of the grounds of appeal enliven the jurisdiction of the Court it can only be because they fall within grounds (b) or (c) of s 90(1) of the Industrial Relations Act. Ground (b) is that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against. Ground (c) is that the appellant has been denied the right to be heard.
At the outset of the hearing of the appeal the presiding judge explained to the appellant the very limited jurisdiction of this court to hear appeals from the Full Bench. The appellant submitted that his appeal comes under s 90(1)(b) of the Industrial Relations Act because he claims that the Full Bench's decision is erroneous in law. The appellant did not submit that the Full Bench had made any error in the construction or interpretation of any Act, award, industrial agreement or order in the course of making its decision. In relation to some of the grounds of appeal the appellant referred to the Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA) and in particular to reg 4(1). However, the appellant did not submit that the Full Bench had made any error in construing or interpreting reg 4. The appellant's complaint is that the Land Surveyors Licensing Board and the respondent did not act in accordance with the regulation and the Full Bench's findings of fact and reasoning process were wrong when regard is had to reg 4. Those arguments do not bring any of the grounds of appeal within s 90(1)(b) of the Industrial Relations Act and do not enliven the jurisdiction of this court.
At the hearing of the appeal the appellant said 'I'm not so sure whether I was given a proper opportunity to present something that comes under ground 1'. That is a reference to ground 1 of the appeal that the Full Bench erred by not receiving into evidence a document that was not in evidence before the Commissioner. That is not a ground of appeal that the appellant has been denied the right to be heard and does not enliven the jurisdiction of this court. I will now refer to each of the grounds of appeal separately.
Ground 1
Ground 1 of the appeal is that the Full Bench erred in their decision not to allow the submission of Appendix C ‑ Employee Management Plan. This document refers to a goal of the appellant to obtain a licence through ongoing training in February/March 2010. The appellant did not tender it in evidence or refer to it before the Commissioner. The Full Bench held that it had a discretion to receive additional evidence but would not receive the document in evidence because it did not meet the test set out in Underdown v Dowford Investments Pty Ltd (2005) 85 WAIG 1437 that the new evidence would only be admitted if it were not available to the appellant at the time of the trial and could not by reasonable diligence have been made available, that the evidence is credible and it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached.
The appellant says that the document is relevant to his claim that it was a term of his contract of employment that the respondent provide the training before March 2011. In his written submissions the appellant says that the Commissioner should have directed him to have a good look through his file for anything that had a time limit to it. In his oral submissions the appellant said that the Commissioner asked him if he had any documents showing there was a time limit to the training he was to receive from the respondent. In his oral submissions the appellant said that the Commissioner asked him if he had a time limiting document and the only thing he could think of was the time schedule under Appendix B of the professional training agreement. In his written submissions the appellant says he did not mention the document at trial because he had forgotten it.
There is no reason why the appellant could not and should not have put the document before the Commissioner. The Commissioner gave the appellant an opportunity to do so.
There is no reason why the Full Bench should have allowed the appellant to place before it, in support of his appeal, a document that could and should have been placed before the Commissioner. The Full Bench made no error in not receiving the document in evidence. This ground of appeal does not disclose that the appellant has been denied the right to be heard. An appeal does not lie on ground 1.
Ground 2
Ground 2 is that the Full Bench erred in law by denying that the respondent was obliged to complete the appellant's training by March 2011, or, to put it another way, that the professional training agreement was not time‑limited. In advancing this ground the appellant refers to reg 4(1) of the Licensed Surveyors (Licensing and Registration) Regulations. The appellant says the Full Bench should have found that the professional training agreement was 'time limited' because reg 4(1)(b) provides that the period of field service shall be a period of 24 months.
The appellant has not identified any error in the construction or interpretation of the regulation in the course of the Full Bench decision. Indeed, in his oral submissions the appellant said that the Board made an error of law in registering the professional training agreement but that 'that wasn't an error of law by the Full Bench'. In so far as the ground of appeal alleges any error by the Full Bench the appellant's complaint is not that the Full Bench made an error in the construction or interpretation of the regulation in the course of its decision. His complaint is that the Full Bench made an error in finding the relevant term of the contract of employment was not 'time limited' because the regulation provides that the period of field service shall be a period of 24 months. This ground asks the Court to review the merits of the decision of the Full Bench. That is not within the jurisdiction of this Court.
Ground 3
Ground 3 is that the Full Bench erred in their decision that because the appellant conceded in the first instance that he could not prove that he would have passed the Boya exam had he received the necessary training, and that he could have delayed undertaking the Boya exam for another six months, there was no need to investigate the adequacy of the training.
The appellant's complaint is that the Full Bench made an error in its findings of fact or in the reasoning process by which it arrived at its decision. The ground does not assert that the appellant has been denied the right to be heard nor that the Full Bench made an error in the construction or interpretation of reg 4 or any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 3.
Ground 4
Ground 4 is that the Full Bench erred in their decision that the appellant expected to be trained until he became licensed. The appellant says he never made such a claim. Again the appellant's complaint is that the Full Bench erred in its finding of fact or in its reasoning process. The ground does not assert that the appellant has been denied the right to be heard nor that the Full Bench made an error in the construction or interpretation of any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 4.
Ground 5
Ground 5 is that the Full Bench erred in their decision that the professional training agreement did not require the respondent to train the appellant to successfully become a licensed surveyor. This ground does not assert that the appellant has been denied the right to be heard nor that the Full Bench made any error in the construction or interpretation of any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 5.
Ground 6
Ground 6 is that the Full Bench erred in law in their statement that there was no requirement for Mr Jonath to exclusively and personally instruct the appellant.
In the course of his submissions the appellant referred to reg 4 and asserted that having regard to that regulation and other things the Full Bench should have found that Mr Jonath was required to train the appellant exclusively and personally. However, the appellant does not identify any error in the construction or interpretation of the regulation in the course of the Full Bench decision. The appellant's complaint is that the Full Bench erred in its fact finding and reasoning. This ground does not assert that the appellant has been denied the right to be heard nor that the Full Bench made any error in the construction or interpretation of any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 6.
Ground 7
Ground 7 is that the Full Bench erred in the assumption that training leave of the employment contract related to the performance of the appellant's substantive role, not to the professional training agreement whereby he was being assisted to become a licensed surveyor. The appellant's complaint is that the Full Bench erred in its fact finding and reasoning. This ground does not assert that the appellant has been denied the right to be heard nor that the Full Bench made any error in the construction or interpretation of any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 7.
Ground 8
Ground 8 is that the Full Bench decision contains errors such as wrong dates, and other typographical errors and phrases that are misleading to the reader. The appellant subsequently provided a schedule of the alleged errors. The transcription errors alleged by the appellant are not significant; they could not have led the Full Bench into error. None of these alleged errors amounts to an assertion that the appellant has been denied the right to be heard nor that the Full Bench made any error in the construction or interpretation of any Act, regulation or other relevant instrument in the course of its decision. An appeal does not lie on ground 8.
Conclusion
The appellant's grounds of appeal raise arguments about factual findings or the reasoning process of the Full Bench or, in the case of ground 8, typographical or other transcription errors. None of these grounds raise any ground that the Full Bench erred in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making its decision or that the appellant has been denied the right to be heard. These grounds in effect ask the Court to review the merits of the Full Bench decision. That is not within the jurisdiction of the Court. The Court does not have power to review the Full Bench decision on the grounds set out in the appellant's notice of appeal.
None of the grounds of appeal fall within the grounds set out in paragraphs (a), (b) or (c) of s 90(1) of the Industrial Relations Act. Therefore, the appeal is not within the jurisdiction of this Court and must be dismissed.
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