Byrne & Anor v Australian Airlines - [2001] NSWIRComm 75 - NSWIRComm 2000 case summary — Zoe

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Byrne & Anor v Australian Airlines

[2001] NSWIRComm 75

Industrial Relations Commission (NSW)|2000-02-18|Before: Sams DP, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-02-18

Before

Sams DP, Mr J

Catchwords

11/17/2000
12/01/2000
03/01/2001 DATE OF JUDGMENT: 04/12/2001

Source

Original judgment source is linked above.

Catchwords

11/17/200012/01/200003/01/2001 DATE OF JUDGMENT: 04/12/2001

Judgment (73 paragraphs)

[1]

CITATION : Passas and Skouloudis Group Pty Ltd t/as O Kosmos [2001] NSWIRComm 75 APPLICANT PARTIES : Mr Bill Passas RESPONDENT Skouloudis Group Pty Ltd t/as O Kosmos FILE NUMBER: 2579 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - whether applicant a casual employee - whether applicant resigned - whether dismissal "harsh unreasonable or unjust" - procedural fairness - conduct of proceedings. CATCHWORDS : Held, applicant not a casual employee - applicant did not resign - unsubstantiated allegations - respondent's conduct during proceedings appalling - respondent's evidence incomplete and unreliable - evidence of applicant preferred - no procedural fairness - no grounds for dismissal - reinstatement impractical - compensation appropriate taking into account applicant's age, length of service, employment record, limited employment opportunities - maximum compensation ordered. LEGISLATION CITED : Industrial Relations Act 1996 Byrne & Anor v Australian Airlines (1995) 185 CLR 310 Outboard World v Muir, 51 IR 167 at 182 Bankstown City Council and Paris, 93 IR 209 Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 CASES CITED : Wang v Crestell Industries Pty Ltd, 73 IR 454 Rapp v Wauchope RSL Club, 891 IR 116 Bigg & Anor v New South Wales Police Service, 80 IR 434 Burke v McGirr (1995) 87 IR 54 Busways v Johnson, 55 IR 255 Herson v One.Tel (unreported) Sams DP, Matter IRC5181 of 1998, 18 February 2000 HEARING DATES: 11/16/2000; 11/17/2000; 12/01/2000; 03/01/2001 DATE OF JUDGMENT: 04/12/2001

[7]

5 At the hearing of the application on 16 November 2000, Mr Reitano, of Counsel, appeared for the applicant with Mr Stomo, of Counsel, for the respondent. The applicant's evidentiary case, including oral evidence from Mr Passas and his wife, proceeded and concluded uneventfully. 6 However, the proceedings took an extraordinary and unexpected turn midway through the respondent's evidence, when Mr Skouloudos withdrew his instructions to Counsel. Mr Stomo was forced to seek leave to withdraw from the proceedings and leave was granted. Mr Pertsoulis, the respondent's solicitor, immediately sought an adjournment to enable his client to instruct new Counsel, foreshadowing that the respondent would seek to admit new evidence. Mr Pertsoulis consented to a costs order, in favour of the applicant, for the wasted proceedings on 17 November. Mr Reitano reluctantly agreed to the adjournment subject to three provisos: one, that a costs order of $3,000 be made, payable within seven days; two, that one day only be set for the completion of the case and, three, that the only evidence in the case be that which had been filed in accordance with the Commission's directions. 7 The Commission made the costs order as proposed, set a further date for hearing and listed the matter for further argument as to the admission of fresh evidence. 8 On 1 December 2000, the case took another unfortunate turn. Mr Pertsoulis applied for a new date for hearing, made no application to admit fresh evidence and acknowledged that the costs order made fourteen days earlier had not been complied with. Mr Reitano pressed the Commission to make an order or direction under s162(2)(c) and (d) that the evidence filed to date be the only evidence admissible in the case. The Commission declined to do so. However, I stressed to Mr Pertsoulis that I expected the case to conclude on the next occasion. 9 Another bizarre turn of events occurred on 1 March 2001. Ms Peterson, Solicitor, now appeared for the respondent; Mr Pertsoulis having filed a notice of ceasing to act. Ms Peterson requested an adjournment as she had only received instructions the day before. She advised that if the adjournment application was not granted, she would seek leave to withdraw from the proceedings. She informed the Commission that Mr Skouloudis was in Melbourne and unable to continue his evidence. 10 Mr Reitano strongly resisted the adjournment application. He further advised that the 16 November costs order had still not been complied with. The Commission refused the adjournment application. Directing my remarks to the respondent, I said: Well, I regard the behaviour of your client to be impertinent. He is treating the Commission with contempt, and I will not tolerate it. There has been no explanation as to why he is not here, or sought to excuse himself from continuing his evidence which was mid stream on the second last occasion. His former solicitor was well aware that the proceedings today were to be continued, and indeed, concluded today. There was an understanding reached in respect of wasted costs when the indulgence of the Commission was sought on a previous occasion and granted. Well, the Commission does not propose to grant any further indulgences to your client Miss Peterson, and I have absolutely no hesitation at all in refusing your adjournment application. The case will proceed to conclusion today and assume that the evidence that is in now is the evidence that is to be relied upon by your client. In which case the corollary of that is your case, evidentiary wise, is concluded. Is that the case? PETERSON: There is nothing I can say to dispute it. We don't have any evidence here today. HIS HONOUR: I propose to continue the case. Mr Reitano, are we up to your submissions? PETERSON: Might I be excused from further attendance, your Honour, there is no further assistance I can give the court and I thank you for listening to me. HIS HONOUR: I am sorry you have been put in this position but there is only one person who is to blame for the position that the court finds itself in and whatever be the consequences, the respondent will have to wear them. I propose to continue the matter ex parte. Leave is granted for you to withdraw, Miss Peterson. 11 This chronology and extract from transcript should be sufficient to demonstrate the respondent's appallingly cavalier approach to this matter and this Commission's determination to protect its processes from such abuse and disrespect. The respondent's part heard evidence was not much better.

[8]

THE EVIDENCE 12 The applicant had worked in the Australian Greek media since 1974, commencing as a journalist for the Hellenic Herald. In 1989 he began work with O Kosmos, where in 1993 he was promoted to sports editor. In 1978, the ownership of O Kosmos changed. The new owner was Mr Jim Skouloudis. 13 The applicant was appointed editor of the newspaper on 20 January 2000. His weekly wage was increased and converted to an hourly rate. Each week, he would tell the accountant how many hours he worked the week before, (usually fifty-five or sixty) and was paid accordingly. He said that he had not resigned his full time employment and was not re-employed as a casual. He rejected the statement on the separation certificate that he had resigned his permanent position and was a casual employee. It is clear from pay slips tendered in evidence that the applicant's employment arrangements materially changed in January 2000; although the applicant said he didn't look too closely at the pay slips. Pay advice slips before 20 January reveal accruals for Long Service Leave, Holiday and Sick Pay (Ex'A'). A pay advice for 26 January to 2 February, discloses no leave accruals (Ex'B'). 14 The applicant described the work he performed as editor and gave evidence that his work was similar to that performed by previous editors of the newspaper. He said Mr Skouloudis was editor in name only, just as he was when the previous editor, Mr Messaris, was in charge. 15 The applicant gave evidence that it was common knowledge in the office that he would be taking two months leave at the end of May to visit his elderly mother in Greece so as to arrange for her placement in a nursing home. In order to assist in financing her placement, he asked for, and was granted, all his outstanding entitlements to long service leave, annual leave and sick leave. He said he claimed no more than he was entitled to. He said Mr Skouloudis knew of his plans and approved the payment of accrued entitlements. 16 Despite knowing of the applicant's plans, Mr Skouloudis offered him the position of editor. The applicant expected to return to the editor's position upon his return from Greece. He rejected Mr Skouloudis' evidence that he was intending to go to Greece, for an indefinite period, without his wife. 17 Sometime in March 2000, the applicant received a phone call from Mr Skouloudis, in which Mr Skouloudis offered him the management of his nightclub, Knossos, which operated two nights a week. The applicant declined the offer for health reasons as he was working long hours at the newspaper. He suggested that his wife might be interested. Mrs Passas was subsequently employed for two months. However, on 22 May, she was dismissed following a disagreement with Mr Skouloudis. I shall refer to this matter in discussion of Mrs Passas' evidence. 18 The applicant gave evidence that on 23 May 2000, at about 1.00pm, the company accountant, Ms Tsoutsouras, approached him. She told him "you are finished" and gave him his final pay packet. The applicant asked "why, what do you mean?" Ms Tsoutsouras said she had been told to tell him he was sacked. After inquiring as to his holiday pay, she said "you don't have holiday pay because you are a casual".

[42]

It is extraordinary that none of these serious allegations and slurs on the applicant's reputation were raised in Mr Skouloudis' affidavit. Mr Skouloudis claimed he was too busy or simply forgot to include such matters in his affidavit. This excuse is utterly unbelievable. 38 Such fundamental omissions would have been enough for me to seriously doubt the veracity of any of them. However, more importantly, there is not one shred of evidence to substantiate Mr Skouloudis' wild and irresponsible allegations. I am completely satisfied that Mr Skouloudis deliberately and wilfully concocted these allegations to slander the applicant and mislead the Commission. 39 To demonstrate the absurdity of Mr Skouloudis' allegations, one needs only to refer to the uncontested evidence concerning the offer of the manager's job at Mr Skouloudis' nightclub. 40 Here Mr Skouloudis was offering a manager's job to someone who he claims was threatening, rude and arrogant and attempting to destroy his newspaper. Such evidence is a joke. 41 Similarly, why would Mr Skouloudis raise all the allegations if, as he maintained, the applicant had resigned? There was no resignation - Mr Passas was dismissed and Mr Skouloudis' allegations were a pathetic attempt to construct a case against the applicant. 42 Blind Freddy could see the truth of the matter. Mr Skouloudis dismissed the applicant after a disagreement with the applicant's wife. He used the applicant's intention of going to Greece as a pretext to get rid of the applicant and his wife. When he was required to explain his actions after the dismissal, Mr Skouloudis falsely constructed a web of lies and false allegations. 43 Mr Skouloudis said it was a coincidence that the night before Mr Passas' dismissal, he (Mr Skouloudis) had a disagreement with Mrs Passas and she had resigned. For this to be a coincidence stretches credulity to breaking point. This was no coincidence, but Mr Skouloudis' convenient means of getting rid of both of them. 44 However, I am not a bit surprised that he should do so. It was indicative of his entire approach to this case, demonstrated by his abuse of the Commission's processes; not to mention his appalling behaviour towards his legal representatives who were unceremoniously dumped when proceedings got uncomfortable for him. Moreover, it illustrates his contempt and disregard for any sense of fair play towards Mr and Mrs Passas. Mr Skouloudis should be thoroughly ashamed of himself. 45 By way of stark contrast, I found Mr and Mrs Passas to be witnesses of credit. There was nothing Mr Passas said, or that could be detected in his demeanour, which would demonstrate he was arrogant or rude; let alone that he would engage in sexual harassment or blackmail.

Byrne & Anor v Australian Airlines

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Judgment (73 paragraphs)

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Cases Cited (4)

Cited By (1)