The St Cecilia's College School Board v Grigson
[2007] WASCA 72
•30 MARCH 2007
THE ST CECILIA'S COLLEGE SCHOOL BOARD -v- GRIGSON [2007] WASCA 72
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2007] WASCA 72 | |
| Case No: | IAC:3/2006 | 1 MARCH 2007 | |
| Coram: | WHEELER J (Deputy Presiding Judge) PULLIN J LE MIERE J | 30/03/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE ST CECILIA'S COLLEGE SCHOOL BOARD CARMELINA GRIGSON |
Catchwords: | Industrial law Denied contractual benefits Appeal against quantum of damages awarded by Full Bench Whether appellant was denied the right to be heard Whether appellant was denied procedural fairness Whether Full Bench erred in construction of EBA |
Legislation: | Industrial Relations Act 1979 (WA), s 35, s 90 |
Case References: | Nil |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE ST CECILIA'S COLLEGE SCHOOL BOARD -v- GRIGSON [2007] WASCA 72 CORAM : WHEELER J (Deputy Presiding Judge)
- PULLIN J
LE MIERE J
- Appellant
AND
CARMELINA GRIGSON
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : RITTER AP
- SMITH C
MAYMAN C
Citation : [2006] WAIRC 5293
File No : FBA 10 of 2006
(Page 2)
Catchwords:
Industrial law - Denied contractual benefits - Appeal against quantum of damages awarded by Full Bench - Whether appellant was denied the right to be heard - Whether appellant was denied procedural fairness - Whether Full Bench erred in construction of EBA
Legislation:
Industrial Relations Act 1979 (WA), s 35, s 90
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J F I Curlewis
Respondent : Mr G T Stubbs
Solicitors:
Appellant : Lavan Legal
Respondent : Dwyer Durack
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Le Miere J. I agree with those reasons and have nothing to add.
2 PULLIN J: I agree with Le Miere J.
3 LE MIERE J: The appellant appeals under s 90 of the Industrial Relations Act 1979 (WA) ("the Act") from the decision of the Full Bench of the Western Australian Industrial Relations Commission in which the Full Bench allowed the appellant's appeal from a decision of a Commission constituted by a Commissioner. The order of the Commission was made on the application of the respondent who claimed that she had been harshly, oppressively or unfairly dismissed from her employment by the appellant and that she had not been allowed by the appellant a benefit to which she was entitled under her contract of employment. The Commission declared that the respondent was unfairly dismissed by the appellant and that reinstatement was impracticable and ordered the appellant to pay the respondent denied contractual benefits of four years' salary at the rate of $79,774.00 per annum, six weeks' salary, being $10,228.38 as paid maternity leave, 22.806 calendar days' pay as accrued long service leave and expenses for removals, accommodation and travel. The Full Bench allowed the appellant's appeal against the decision of the Commission, set aside the orders that the appellant pay to the respondent four years' salary at the rate of $79,774.00 per annum and ordered that the appellant pay the respondent instead the sum of $130,956.00. The appellant now appeals against the order of the Full Bench that the appellant pay $130,956.00 to the respondent.
The respondent's employment
4 The appellant conducts a Catholic school in Port Hedland. The respondent was employed by the appellant as head of primary at the school. In 2004 the appellant decided to restructure the school by closing the secondary school and consolidating the school at the primary school. The position of Head of Primary was to be abolished and replaced by two Assistant Principal positions. The appellant offered the respondent the position of Assistant Principal at a lower salary than that applying to her previous position. The respondent declined the position of Assistant Principal and maintained that she was employed under a fixed term contract in the position of Head of Primary. The appellant attempted to persuade the respondent to accept the position of Assistant Principal, cancelled a removalist the respondent had arranged to remove her belongings to Perth and told her, her salary would be adjusted, effective
(Page 4)
1 January 2005, and that if she did not accept the position of Assistant Principal she would fulfil a position as a classroom teacher. In December 2004 the appellant wrote to the respondent stating that it had concluded that the respondent had resolved to abandon her employment. The respondent returned to Perth in December 2004.
Respondent makes claim to Commission
5 The respondent initiated proceedings in the Commission claiming that she had been unfairly dismissed by the appellant and claiming that she had not been allowed by the appellant a benefit under her contract of employment. The appellant argued that it was entitled to make the position of Head of Primary redundant and that it had not unfairly dismissed the respondent nor denied her a benefit to which she was entitled under her contract of employment.
6 Commissioner Scott made the following findings. The respondent had a fixed term contract that entitled her to continue employment with the appellant as Head of Primary until 31 December 2009. The appellant's conduct towards the respondent constituted "hounding of [her] to accept the lesser position notwithstanding that she was unequivocal in her rejection of that position, and was entitled to do so". The appellant had unfairly dismissed the respondent. The appellant had breached the contract of employment and accordingly the respondent was not allowed by the appellant a benefit under the contract of employment. The respondent was entitled to the benefit of the remuneration attached to the unexpired portion of her fixed term contract, that is salary at the rate of $79,774 per annum until 31 December 2009 subject to a deduction in respect of the period relating to the birth of the respondent's third child. It was likely that the respondent would have taken 12 months' maternity leave in respect of her third child. Accordingly, the respondent would not have been paid her salary for that period and would have received instead six weeks' pay in accordance with the appellant's paid maternity leave policy.
7 The Commission declared that the respondent was unfairly dismissed and that reinstatement was impracticable but that any claim for compensation or loss in respect of salary, if established, would be "double counting" and the respondent did not seek that. The Commission ordered the appellant to pay to the respondent contractual benefits that she had not been allowed including four years' salary at the rate of $79,774.00 per annum and six weeks' salary of $10,228.38 as paid maternity leave.
(Page 5)
Appeal to Full Bench
8 The appellant appealed from the decision of the Commission to the Full Bench on seven grounds. The Full Bench allowed the appeal on grounds 6 and 7 and found that the other grounds had not been made out. Grounds 6 and 7 attacked the amount that was awarded to the respondent with respect to her denial of contractual benefits claim for a loss of salary. Acting President Ritter, with whom the other members of the Full Bench agreed, found that the appeal should be allowed for the reasons set out in par 100 of his reasons:
"In this case the Commission was assessing a denial of contractual benefits, or damages, claim with respect to a fixed term contract of employment that spanned the period 2002 to 2009. The contract was wrongfully terminated at the end of 2004. The hearing before the Commission was concluded on 10 June 2005. Therefore the period over which the contract should have run, if it did so according to its terms, spanned the period both before the hearing and in the future until 2009. The assessment exercise by the Commission therefore involved both looking backwards as to what had occurred to date and looking forwards as to what might happen until the end of 2009. With respect to an assessment of damages suffered prior to the hearing, the Commission should have had regard to whether the respondent had mitigated her loss. (See for example Perth Finishing College at 2313, and see generally regarding mitigation the Sealanes decision referred to above). With respect to the assessment of what might happen in the future, the Commission should have taken into account the likelihood of other employment and other damages reducing contingencies, within the remaining contractual period. The Commission did not engage in this exercise and accordingly the appeal should be upheld."
9 Counsel for the respondent had submitted that if the Full Bench upheld the appeal it should remit the matter to the Commission for further hearing and determination on the ground that it would be appropriate for the Commission to receive additional evidence as to what occurred subsequent to the hearing before the Commission. The Full Bench rejected that submission. The Acting President held that it would not be appropriate to remit the matter to the Commission at first instance on the basis submitted by counsel for the respondent. The Commission at first instance was obliged to assess the denial of contractual benefits claim on
(Page 6)
- the basis of the evidence before it. The fact that the Commission had erred in its approach to this assessment did not mean that the respondent should have the opportunity of providing updated evidence to the Commission. The Acting President held that the Full Bench ought not remit the case to the Commission at first instance but itself assess the quantum of the claim because the Full Bench was in as good a position as the Commission at first instance to make an assessment of the denial of contractual benefits claim on the basis of the evidence which had been given.
10 In considering the quantum of the denial of contractual benefits claim, at the request of the parties, the Acting President considered the written submissions made to the Commission at first instance on this issue. The Acting President said that those submissions did not address the quantification of the denial of contractual benefits as they should have by taking into account whether the respondent had mitigated her loss and future contingencies such as her prospects for alternative employment. The Full Bench issued an order requiring the parties to file submissions in respect of the assessment of quantum by the Full Bench in accordance with the Full Bench's reasons for decision. The Acting President said that if any party contended that in lieu of written submissions a further hearing should be convened then they might make that submission in writing.
Full Bench supplementary reasons for decision
11 Both parties filed written submissions addressing the quantification of the denial of contractual benefits claim. Neither party submitted or requested that a further hearing should be convened.
12 The respondent filed written submissions on 30 August 2006. The respondent submitted that as a result of the treatment of the respondent by the appellant the respondent "may have to find employment in another independent system or the state system and is more likely to have to revert to teaching and then climb her way back up the promotional tree". The respondent submitted:
"If [the respondent] was to go back as a teacher then as at 7th July 2005 as a Step 13 teacher she would have been entitled to a salary of $47035 pa (exhibit R4, as updated).
Therefore the loss if one assumes [the respondent] will be able to obtain a teaching position from 2006, based on salary will be $32739 pa."
(Page 7)
- Exhibit R4 was the Independent Schools' Teachers' Award 1976 as varied ("the Award").
13 The appellant filed submissions on 4 September 2006. The appellant submitted that it was more likely than not that the respondent would have obtained employment within a period of one to three months from applying for work and that such appointment would be at least at the level consistent with the experience of the respondent, namely $79,774 per annum. That was the salary the respondent earned as Head of Primary at St Cecilia's excluding allowances. The appellant submitted that "the damages of the respondent, i.e. her ability to earn income in the capacity she wished, would endure only for a period of between one to three months, being the equivalent of $6,647.00 to $19,941.00" and the appropriate award would be in that range. The appellant did not refer to the respondent's submissions and did not address the salary that the respondent would or could earn as a teacher or the salary for a Step 13 teacher.
14 There were no submissions in reply and no oral hearing subsequent to the written submissions.
15 The Full Bench published supplementary reasons for decision on 26 September 2006. The Full Bench accepted that as a result of the treatment meted to her by the appellant, damages should be assessed on the basis that she would not gain employment within the Catholic school system and she would have to revert to teaching in the public sector or in another independent school system. The Full Bench found that although there was some prospect that the respondent may find work as Head of Primary or as a principal within four years, the respondent's loss should be assessed on the basis that she was likely to gain employment as a Step 13 teacher. The Full Bench said that was because if the respondent finds a position in the public sector or in another independent system she may find it difficult to climb the ladder very quickly to earn greater remuneration than from a Step 13 teaching position. The Full Bench concluded that the respondent's loss should be assessed as $32,739 per annum for four years, being a total of $130,956. That amount is the difference between the salary the respondent was paid as Head of Primary and the salary she was likely to earn as a Step 13 teacher.
Speaking to the minutes
16 On 25 September 2006 the Full Bench issued a minute of proposed orders to give effect to its supplementary reasons.
(Page 8)
17 The appellant filed a minute of proposed order together with submissions entitled "Statement of Reasons as to Proposed Minute". The minute provided that the appellant should pay to the respondent $84,096 in lieu of the sum of $130,956 specified in the Full Bench's minute. The appellant submitted that "[t]he award rate is not the applicable rate for Step 13, but the higher rate set out in Enterprise Bargaining Agreement". The appellant said that the Step 13 rate was the rate set out in Exhibit A40. Exhibit A40 is a document prepared by the appellant and given to the respondent in 2004 to state the salary she would have received if she accepted the position of assistant principal at St Cecilia's. It includes the statement that the salary for a four year trained teacher, Step 13, was $58,755. Therefore, the appellant submitted, the respondent's loss based on the Step 13 rate should be $79,779 minus $58,755, namely $21,024 per annum. The appellant submitted further that if the respondent was to start teaching again as a Step 13 teacher in a government school or other independent school the appropriate rate for the calculation is at least that of the rate in a government school and the equivalent of the Step 13 in the Catholic system is the 2.3 level in the government system. The government rate is $58,755 – identical to the rate of the Western Australian Catholic Schools (Enterprise Bargaining) Agreement No 1 of 2000 ("the EBA").
18 On 17 October the parties appeared before the Full Bench to speak to the matters contained in the minute of the Full Bench decision in accordance with s 35(3) of the Act. Counsel for the appellant submitted that the amount accepted by the Full Bench as the salary for a Step 13 teacher at the relevant time was the award rate whereas the Full Bench should have taken the Step 13 salary to be the amount set out in Exhibit A40. Counsel submitted alternatively that the loss should be assessed on the basis of "what would be a step 13 in the government system" and that that rate should be taken from the Government School Teachers and School Administrators Certified Agreement 2004 ("the GSTSA Agreement").
19 The Acting President delivered ex tempore reasons in which he decided that the Full Bench should make an order in the same terms as the minute of proposed order which was published by the Full Bench on 25 September 2006 and there was no requirement to vary the minute as applied for by the appellant. The other two members of the Full Bench agreed with the Acting President.
20 The Acting President said that the "speaking to the minute is not an opportunity for the bringing of fresh evidence". The Acting President
(Page 9)
- then referred to the supplementary reasons for decision of the Full Bench at par 15 where the Full Bench concluded that the respondent's loss should be assessed as $32,739 per annum for four years being a total of $130,956, that amount being the difference between the salary the respondent was paid as Head of Primary and the salary of a Step 13 teacher. The President continued as follows:
"7. The figures which were used by the Full Bench in that paragraph, and in the balance of the supplementary reasons for decision were taken from the respondent's supplementary written submissions which were filed in August 2006; in particular, I refer to paragraphs [16] and [17]. I note that those submissions and the figures referred to in those submissions were not challenged by the appellant at the time that those submissions were filed or subsequently prior to the supplementary reasons for decision being delivered.
8. The reference to a step 13 teacher in that paragraph was to a step 13 under an award called the Independent School Teachers Award 1976 No R27 of 1976 and, in particular, the wages clause which is clause 14 of the award. The figure provided in the submissions was said to be an updated figure. This was referred to by the respondent in their written submissions, as I have mentioned, without objection by the appellant."
22 The Acting President then referred to the alternative submission of the appellant that the same rate ought to have been used by the Full Bench because the equivalent of the Step 13 in the Catholic system is the 2.3 level in the government system and the government rate is identical to the rate of the Catholic schools' EBA. The Acting President said that from
(Page 10)
- the appellant's written submissions prior to the speaking to the minutes, it was apparent that in this submission the appellant was making reference to the GSTSA Agreement. The Acting President said that the difficulty with that submission was that the suggested rate for a government school was not in evidence. Further, there was no evidence which would form the foundation for suggesting that level 2.3 in the government system is an equivalent for Step 13 in the independent school system and it was not then appropriate for any application to be made to the Full Bench to receive any additional or fresh evidence.
This appeal
23 The appellant appeals to this Court on two grounds. The first ground is that the Full Bench erred in law in that it failed to apply the provisions of the EBA when assessing the amount to be paid to the respondent or alternatively failed to apply the provisions of the GSTSA Agreement to the respondent's prospects of future employment. The second ground is that the appellant has been denied the right to be heard. This was the primary ground argued by the appellant and I will consider it first.
Ground 2 – Denial of right to be heard
24 Ground 2 is:
"2 The learned Full Bench erred by denying the appellant a right to be heard in that without there being any evidence before the Commission to that effect:
2.1 The Full Bench accepted a submission from counsel for the respondent that the respondent 'will have to revert to teaching in the public sector or in another independent school system', when there was no evidence before the Commission to that effect.
2.2 Declined then to take into account the appellant's submission as to the remuneration amount paid to a step 13 equivalent position in a government school being a school within the public sector.
2.3 Alternatively, declined to receive any additional or fresh evidence as to the remuneration amount of a step 13 equivalent position in a government school.
- 2.4 In relation to the conduct of the proceedings under 2.1, 2.2 and 2.3, the Full Bench at each step denied the appellant procedural fairness and the right to be heard."
25 The starting point of the appellant's argument is the statement of the Full Bench at par 103 of its reasons for decision that the Full Bench "ought not remit the case to the Commission at first instance but itself assess the quantum of the claim" because the Full Bench is in as good a position as the Commission at first instance to make an assessment of the denial of contractual benefits claim on the basis of the evidence which has been given. The appellant says, in effect, that the Full Bench there said that it would assess the quantum of the claim on the basis of the evidence given before the Commission at first instance. The appellant then goes to par 15 of the Full Bench's supplementary reasons for decision. The Full Bench there said that it accepted the respondent's submission that as a result of treatment meted to her by the appellant damages should be assessed on the basis that she will have to revert to teaching in the public sector or in another independent school system. The appellant submits that there was no evidence before the Commission to that effect.
26 The respondent's submission to which the Full Bench referred was made in her written submissions as to appropriate orders filed on 23 August 2006. The respondent there submitted that notwithstanding her outstanding qualities the Catholic education system had treated her in a cavalier fashion. The respondent said that the treatment meted out to her by the appellant supports an inference that the Catholic education system's position was that the respondent should simply fall into line and accept whatever was offered to her. That treatment was said to include the appellant's disingenuous suggestion that the respondent had abandoned her employment, its attempts to frustrate her in leaving Port Hedland and its failure to recognise an obligation to pay redundancy when the position of Head of Primary was made redundant. The respondent submitted that those matters pointed to a system that was unlikely to be prepared to take the respondent back into that system because she had not toed the line and accepted the system's dictates.
27 The finding of the Full Bench of which the appellant complains is that as a result of treatment meted to her by the appellant damages should be assessed on the basis that she will have to revert to teaching in the public sector or in another independent school system. Scott C found that the way in which Mr Chinnock, the principal of the school, communicated with the respondent with respect to her accepting the position of assistant
(Page 12)
- principal "constituted hounding of [the respondent] to accept the lesser position notwithstanding that she was unequivocal in her rejection of that position, and was entitled to do so". The Commission found that given the manner of dismissal and the conduct of Mr Chinnock in relation to it, there had not been a fair go all round.
28 In its supplementary reasons for decision the Full Bench accepted the respondent's submission that the appellant treated her in a cavalier fashion. The Full Bench observed that the Commission had found that the appellant, through the acts of Mr Chinnock and Mr Riley, hounded the respondent to accept the position. These acts included the cancelling of the uplifting of the respondent's goods when it was her intention to leave town and a refusal by the appellant to pay the respondent a redundancy package in accordance with the EBA.
29 The appellant does not contend that there was not evidence before the Commission upon which the Full Bench could make those findings. The appellant's complaint is that there was no direct evidence, that is an assertion made by a witness giving testimony before the Commission that the respondent will have to revert to teaching in the public sector or in another independent school system in the future. That is not necessary. The Full Bench was entitled to find that the respondent will have to revert to teaching in the public sector or in another independent school system as an inference, or conclusion, drawn from its primary findings to which I have referred.
30 The appellant next complains that the Full Bench declined to take into account the appellant's submission as to the remuneration amount paid to a Step 13 equivalent position in a government school being a school within the public sector. The appellant says that the equivalent of the Step 13 in the Catholic system is the 2.3 level in the government system and the salary for a 2.3 level in the government system is that set out in the GSTSA Agreement, that is $58,755. Counsel for the appellant made that submission to the Full Bench at the speaking to the minutes. As I have said, the Acting President said that the difficulty with that submission was that the suggested rate for a government school was not in evidence and there was no evidence which would form the foundation for suggesting that level 2.3 in the government system is an equivalent for Step 13 in the independent school system. The Acting President was correct. The Full Bench made no error in not accepting the appellant's submission as to the remuneration amount paid to a Step 13 equivalent position in a government school within the public sector.
(Page 13)
31 Alternatively, the appellant submits that the Full Bench erred in declining to receive any additional or fresh evidence as to the remuneration amount of a Step 13 equivalent position in a government school.
32 The Full Bench did not err in declining to receive any additional or fresh evidence as to the salary of a Step 13 equivalent position in a government school. The quantum of the respondent's denied contractual benefits claim was in issue before the Commission at first instance. The matter in issue included the likelihood of the respondent obtaining other employment and what salary she was likely to be able to earn in the future. The respondent's submissions to the Commission at first instance included written submissions entitled "Submissions on Denied Contractual Benefits" received by Scott C on 4 January 2006. Those submissions included the submission that the Catholic education system was unlikely to be prepared to take the respondent back into their system and that the respondent will have to find employment in another independent system or the State system and is likely to have to revert to teaching and climb her way back up the promotional tree. The respondent submitted that if she was to go back as a teacher then as at 7 July 2005 as a Step 13 teacher she would be entitled to a salary of $47,035.00 per annum (Exhibit R4, as updated) and therefore the loss, if one assumed that the respondent would have been able to obtain a teaching position from 2006, would be $41,611.36 per annum.
33 The substance of that submission was repeated by the respondent in her "Respondents Submissions as to Appropriate Orders" to the Full Bench dated 23 August 2006. Those submissions were served on the appellant before it filed its submissions entitled "Appellant's Submissions Pursuant to Full Bench Order 22 August 2006" on 4 September 2006. The appellant did not, in those submissions, object to the submissions of the respondent to which I have referred. The appellant did not, despite the invitation of the Full Bench, request an oral hearing to address those matters.
34 The Full Bench was entitled to make its finding that damages should be assessed on the basis that the respondent will have to revert to teaching in the public sector or in another independent school system. The Full Bench had stated in its reasons for decision that it would assess the denied contractual benefits claim on the basis of the evidence before the Commission. That is what it did. The evidence before the Commission included the Award that specified the salary for a Step 13 teacher. The materials before the Commission at first instance included the
(Page 14)
- respondent's submission that the updated salary for a Step 13 teacher under the Award was $47,035.
35 The appellant makes no complaint about the Full Bench accepting the updated salary figure rather than the salary figure specified in the copy of the Award that was the exhibit before the Full Bench. The appellant complains that the Full Bench assessed the salary of a teacher in the public sector or in another independent school system as being the Step 13 salary specified in the Award rather than in the GSTSA Agreement. As I have said, that Agreement was not in evidence before the Full Bench. In any event, the Full Bench was entitled to assess the salary of a teacher in the public sector or in another independent school system on the basis of the Award which specified the salary payable to a Step 13 teacher in independent schools. It is irrelevant that the award applies to Catholic schools as well as to other independent schools.
36 In summary, the Full Bench made no error in not receiving any additional or fresh evidence as to the remuneration amount of a Step 13 equivalent position in a government school.
37 The final part of ground 2 of the appeal is that in relation to the conduct of the proceedings referred to in pars 2.1, 2.2 and 2.3 of the grounds of appeal set out above, the Full Bench at each step denied the appellant procedural fairness and the right to be heard. For the reasons which I have stated, the Full Bench did not at any of those steps deny the appellant procedural fairness. Ground 2 is not made out.
Ground 1
38 Ground 1 is that the Full Bench erred in law in failing to apply the provisions of the EBA, or alternatively the GSTSA Agreement when assessing the amount to be paid to the respondent. The appellant put that ground on two bases. In so far as this ground asserts that the Full Bench denied the appellant procedural fairness in failing to apply the provisions of the EBA or the GSTSA Agreement to the respondent's prospects of future employment that ground adds nothing to ground 2.
39 The appellant further says that:
"The Full Bench by not applying the EBA rate to a Step 13 teacher was in error as to the construction and interpretation of the EBA in that the Full Bench did not apply the correct construction and interpretation of the EBA by applying an incorrect rate."
(Page 15)
40 Counsel for the appellant submitted that by not applying the EBA rate, the Full Bench did not construe the EBA at all and thereby erred in its construction. There might be a situation where an erroneous construction of some instrument caused it not to be applied. However, this is not such a case. The Full Bench decided to apply the Award rate rather than the EBA rate. The Full Bench did not engage in any construction or interpretation of the EBA. The appellant has not identified any error made by the Full Bench in the construction or interpretation of the EBA.
41 The Full Bench did not engage in any construction or interpretation of the GSTSA Agreement. Indeed, the agreement was not in evidence before it. The Full Bench decided to assess the salary of a Step 13 teacher by adopting the rate for a Step 13 teacher in the Award as updated. It was entitled to do so and made no error in law in doing so.
42 Ground 1 of the appeal is not made out.
Conclusion
43 For the reasons stated, I would dismiss the appeal.
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