Carmichael v JSG Holdings Pty Ltd [2004] ICQ 45 (2004) 176 QGIG 542

542 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 2004 ######################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Ian Charles Carmichael AND JSG Holdings Pty Ltd (No. C19 of 2004) PRESIDENT HALL 13 July 2004 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission now reported at 175 QGIG 1101. By that decision the Commission dismissed the now appellant’s application for reinstatement for “unfair dismissal” within the meaning of Chapter 3, Part 2 of the Industrial Relations Act 1999. Both at first instance and on the appeal the appellant has represented himself. Since the criticisms made of the Commission’s decision on the appeal are suggestive of a failure to understand the Commission’s decision, I propose to take the liberty of speaking directly and without citation of authority, and to sacrifice precision to avoid turgidity of style. -- 1 of 2 -- 23 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 543 The purpose of Chapter 3, Part 2 of the Industrial Relations Act 1999 is to provide remedies to an employee who is unfairly dismissed by his employer. Here, the appellant was not dismissed. The appellant resigned. Both under the general law and under the Industrial Relations Act 1999, resignation is a unilateral act which terminates the relationship of employer and employee. A resignation does not require acceptance by the employer to be effective. In circumstances in which the respondent did absolutely nothing, it is impossible to conclude that the dismissal was at the initiative of the employer. I quite accept that other employers might have treated the resignation as a call for help and engaged the appellant upon the concerns and dissatisfactions, giving rise to the resignation. But the respondent was under no obligation to respond so and Chapter 3, Part 2 does not redress the respondent’s omission to do so by granting a remedy available to the appellant. On the appeal, an alternative argument was advanced that the respondent was content to allow a situation to develop in which the appellant had no alternative but to resign. For present purposes, I am prepared to accept that such a resignation may properly be branded as a “constructive dismissal”. The difficulty is that the submission is not a submission which was made at first instance. The general rule is that an appellant is bound by the conduct of his case at first instance. The rule is a sensible one. The respondent is entitled to assume that the case developed at first instance is the case which the respondent has to meet, and to confine its evidence and questioning to that case. The rule is of particular importance in proceedings under Chapter 3, Part 2 conducted by self-represented litigants on the basis of informal pleadings. Here, there can be little doubt that the cross-examination by the respondent and the evidence led by the respondent would have been different if the respondent had appreciated that it was faced with the alternative argument raised on the appeal. Indeed, the appellant himself is confronted with the difficulty that because the argument was not developed at first instance, evidence essential to a particular aspect of the submission viz., his diminished capacity to work arising out of a workplace related injury, was not led. The appellant seeks to meet that difficulty by leading additional evidence. Whilst there is discretion to allow further evidence it should not be exercised to allow the admission of evidence which was available at the time of the hearing at first instance and which was not called because a different case was run. In fairness to the respondent I should add that the argument would fail in any event. The decision of the Commission at 175 QGIG 1101 describes an incident involving the appellant and a co-worker. To succeed in appealing that decision, the appellant would have to persuade this Court to take a view of the altercation differing from the view taken by the Commission. The appeal to this Court from the Commission is limited to the grounds of error of law and excess or want of jurisdiction. A finding of fact which is not supported by any evidence or which is perverse is both an error of fact and an error of law. But a decision by the Commission to accept evidence which supports a particular conclusion rather than other evidence which leads to a different conclusion is a pure finding of fact. This Court has no power to intervene. Even on the view of the altercation adverse to the appellant, I have some sympathy for him. Indeed, he may well have a remedy. But the remedy which he chose to pursue was not a remedy open to him. The Commission was right to dismiss his application and I dismiss the appeal. I reserve all questions as to costs. Dated 13 July 2004. D.R. HALL, President. Released: 13 July 2004 Appearances: The Appellant in person. Mr A. Walker of Redchip Lawyers, for the Respondent. -- 2 of 2 --