Stephen G May T/A Little MUPPETS Child Care Centre v Hedley

[2004] WASCA 133

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   STEPHEN G MAY T/A LITTLE MUPPETS CHILD CARE CENTRE -v- HEDLEY [2004] WASCA 133

CORAM:   PULLIN J (PRESIDING JUDGE)

EM HEENAN J
LE MIERE J

HEARD:   1 JUNE 2004

DELIVERED          :   1 JUNE 2004

FILE NO/S:   IAC 4 of 2004

BETWEEN:   STEPHEN G MAY T/A LITTLE MUPPETS CHILD CARE CENTRE

Appellant

AND

CARA HEDLEY
Respondent

ON APPEAL FROM:

Jurisdiction              :  WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram   :SHARKEY P, COLEMAN CC, SMITH C

Citation Number       :  [2004] WAIRC 10651

File Number            :  FBA 36 of 2003

Catchwords:

Industrial relations - Appeal incompetent - Grounds of appeal not grounds referred to in s 90 Industrial Relations Act 1979

Legislation:

Industrial Relations Act 1979, s 90

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     In person

Solicitors:

Appellant:     In person

Respondent:     In person

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

Nil

Case(s) also cited:

Nil

1. PULLIN J:  This is an appeal from the order of the Full Bench of the Western Australian Industrial Relations Commission delivered on 6 February 2004.  The appellant's appeal to the Full Bench was from the decision of a single Commissioner and that appeal was dismissed.  The Commissioner on 30 September 2003 declared that the respondent was harshly and unfairly dismissed by the appellant, declared that reinstatement was impracticable and ordered that the appellant pay the respondent compensation in the amount of $1,680.42 less any taxation that may be payable to the Commissioner of Taxation.

2. The Commissioner reached the decision on facts which permitted that decision to be reached.  The Commissioner made findings that the respondent's employment was covered by an award; that the award provided for one week's notice; that despite a contention to the contrary on the part of the appellant there was nothing in the award providing for probationary employment; that the contract offered was for six months' duration, not three months' duration, as was contended for by the appellant, and that the respondent was unfairly dismissed for reasons which are set out in detail in the Commissioner's reasons.

3. The Commissioner calculated the compensation due to the respondent by reference to the amount she would have earned if she had worked with the appellant for six months and taking from that sum two amounts.  The first amount was what she was actually paid by the appellant and the second amount was what she was paid or expected to be paid in her new employment.

4. An appeal to this Court from a decision of the Full Bench is governed by s 90 of the Industrial Relations Act 1979.  It provides that an appeal lies to this Court on three grounds only.  The first is that the decision appealed against is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter.

5. The second is that the decision is erroneous in law in that there has been an error in the construction or interpretation of an Act, regulation, award, industrial agreement or order in the course of making the decision appealed against.

6. The third is that the appellant has been denied the right to be heard.  The section expressly provides that an appeal will not lie on any other ground.

1. I now deal with the three grounds of appeal set out in the notice of appeal in the order in which they were addressed in the written submissions.

2. The first ground argued is the second one which appears in the notice of appeal which was that there is a dollar value to the contract that had been broken and the Commissioner exceeded it. The appellant submits that the calculation of the amount of compensation is incorrect and argues that the total amount which could have been earned by the respondent while working for the appellant was less than the Commissioner had calculated. Even if there were an error as alleged, it is not an error of law of the kind referred to in s 90 of the Act and as a result, this ground must fail.

3. The second ground, which is the first ground in the notice of appeal, was to the effect that there was an inconsistency in calculation of anticipated earnings. This ground complains that the Commissioner made errors in the calculation of anticipated earnings in her new employment. This is a complaint about a finding of fact which was open on the evidence. It is not a permitted ground of appeal under s 90 of the Act.

4. The third ground argued, which is the third one in the notice of appeal, is to the effect that the lifestyle of the respondent limited her earnings rather than unavailability for employment. This ground complaints that the respondent only wished to work for two to three days per week and that the Commissioner failed to take this into account when calculating compensation. Again, this is a complaint about a finding of fact which was open on the evidence and an appeal on such ground is not permitted under s 90 of the Act. All three grounds are therefore incompetent and I would therefore conclude that the appeal must be dismissed.

5. EM HEENAN J:  I agree with the reasons for decision of the Presiding Judge and I too would dismiss this appeal.

6. LE MIERE J:  I too agree that the appeal should be dismissed for the reasons given by the Presiding Judge.