Q-VIS Ltd v Gordon

[2002] WASCA 22

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   Q-VIS LTD -v- GORDON [2002] WASCA 22

CORAM:   ANDERSON J  (Presiding Judge)

SCOTT J
McKECHNIE J

HEARD:   1 FEBRUARY 2001

DELIVERED          :   1 FEBRUARY 2002

FILE NO/S:   IAC 5 of 2001

BETWEEN:   Q-VIS LTD

Appellant

AND

SIMON DOIG GORDON
Respondent

Catchwords:

Industrial law - Unfair dismissal - Claim for compensation - Assessment - Relevance of concurrent remedies

Legislation:

Industrial Relations Act1979(WA), s 23A(1)(ba)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr P G Clifford & Mr T M Retallack

Respondent:     Mr R L Le Miere QC & Mr D G Berg

Solicitors:

Appellant:     Wilson & Atkinson

Respondent:     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8

Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299

Gilmore v Cecil Bros & Ors (1996) 76 WAIG 4434

Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107

Manser v Spry (1994) 181 CLR 428

1. ANDERSON J  (Presiding Judge): This is an appeal from the Full Bench of the Industrial Relations Commission dismissing the appellant's appeal from a decision of Beech C in an unfair dismissal case. The point which is presented for consideration is whether, in assessing the monetary compensation which may be awarded under s 23A(1)(ba) of the Industrial Relations Act1979 (WA), the Commissioner should make an allowance by way of a discount from the amount awarded if, at the time of the assessment of compensation by the Commissioner, it should appear that the applicant for relief in the Commission has commenced proceedings in a common law court for damages for breach of contract (that is, for damages for wrongful dismissal as that cause of action is known to the common law) or for specific performance of that contract which may result in a monetary award.  Beech C assessed compensation in a manner as to which no exception is now taken except for this aspect of the assessment.

2. It was contended before him, I think, and anyway it was contended on appeal to the Full Bench, and it is now contended before us, that the respondent, who was the applicant in the unfair dismissal proceedings, should suffer some form of discount from his monetary compensation awarded in those proceedings on account of his pursuit of common law damages outside the Commission.

3. Central to the argument is the proposition that no award of compensation in unfair dismissal proceedings which fails to take account of the fact that there are concurrent common law proceedings on foot instigated by the applicant can be fair or equitable or in accordance with the substantial merits of the case.

4. This proposition was rejected by the Full Bench and, in our opinion and with great respect, it was rightly rejected.  The mere fact that the victim of an unfair dismissal has started other forms of action in order to obtain relief arising from the fact of his or her dismissal does not amount to so‑called double dipping.

5. Putting that another way, it cannot be relevant, in my opinion, to say in answer to a claim for compensation in an unfair dismissal case brought pursuant to s 23A(1)(ba) that the applicant may have other remedies - that he can sue at common law.

6. I can see nothing in the Act, that is, the Industrial Relations Act, including the requirement in s 26 that the Commission is to act according to equity and good conscience and the substantial merits of the case which

requires the Commission to take into account the fact that the applicant may have other monetary remedies, or that he does have other monetary remedies, or that he may have begun proceedings to enforce those remedies.

1. That he may have such rights and may have moved to exercise them does not affect the fair assessment of his loss or injury within the meaning of s 23A(1)(ba). It seems to me that any unfairness that might conceivably arise out of the pursuit by an applicant of concurrent proceedings for relief would not arise unless and until there was a failure by one tribunal to take into account an actual monetary award made by the first tribunal arising from the dismissal. They are my reasons for coming to the conclusion that this appeal should be dismissed.

2. SCOTT J: I agree, for the reasons given by the Presiding Judge, that the appeal must be dismissed. In my view where, as here, the application under s 23A of the Industrial Relations Act1979 was brought prior to the conclusion of the civil proceedings, the learned Commissioner at first instance had an obligation under s 23A(1)(ba) to make an assessment of the appropriate compensation in all the circumstances of the case as they then appeared. It would have been improper for that Commissioner to take into account the fact that other proceedings were then in existence unless those proceedings had been concluded and an award of damages in the civil proceedings had been made.

3. That was not the case here, and indeed it is not the case even today, that those proceedings have been concluded.  It simply is a forensic fact that the proceedings under the Industrial Relations Act 1979 were heard first and proceeded to conclusion. All that is being said today in these appeal proceedings is that a writ has been issued to claim common law damages. In those circumstances, in my view, the fact of the issue of that writ had nothing to do with, nor could it be taken into account in, making an assessment of compensation under s 23A of the Industrial Relations Act 1979.  I agree that this appeal should be dismissed.

4. McKECHNIE J:  For the reasons given by the presiding Judge of this Court and also by Scott J, I also agree that this appeal should be dismissed.