Before the Commission is a Notice of Motion filed by the applicant in the proceedings, Mr Andrew Dadley (the applicant) on 1 February 2022, seeking an order that a different member of the Commission exercise arbitration powers in relation to his unfair dismissal application (applicant's notice of motion). The applicant seeks the order pursuant to subs 173(1) of the Industrial Relations Act 1996 (NSW) (the Act).
The applicant's notice of motion arises in the context of unfair dismissal proceedings commenced by the applicant pursuant to s 84 of the Act following the termination of his employment by the Commissioner of Fire and Rescue NSW (respondent) on 17 September 2020.
The applicant has been employed by the respondent and its predecessor, NSW Fire Brigades, since 1994, most recently as a permanent firefighter.
On 30 July 2020, the applicant was found guilty of the following serious offences:
1. one count of sexual assault without consent; and
2. one count of assault with act of indecency.
The alleged victim of these offences is also an employee of the respondent.
The applicant maintains his innocence and filed a Notice of Intention to Appeal on 5 August 2020 in the Supreme Court of New South Wales Registry.
On 17 September 2020, the respondent terminated the applicant's employment.
On 13 October 2020, the applicant commenced the unfair dismissal proceedings.
The applicant was sentenced to a term of imprisonment on 29 October 2020, and he was granted bail pending the anticipated appeal.
On 2 November 2020, the Commission as currently constituted, conducted an unsuccessful conciliation in respect of the unfair dismissal application.
On 18 December 2020, I made an order staying the unfair dismissal proceedings pending the finalisation of the appeal lodged by the applicant in respect of the criminal matter: see Dadley v Fire & Rescue NSW [2020] NSWIRComm 1084 (Stay Decision).
On or about 15 September 2021, the Court of Criminal Appeal quashed the applicant's conviction.
On 9 December 2021, I listed the matter for Directions. At the directions hearing, the applicant indicated his intention to exercise his right pursuant to subs 173(1) of the Act to have a different member arbitrate the unfair dismissal proceeding. The respondent has asserted the applicant's right pursuant to subs 173(1) has been extinguished.
The applicant's notice of motion was listed for hearing on 7 April 2022. At the conclusion of the hearing, I adjourned for a short time before making the order sought by the applicant, that a different member of the Commission be allocated the matter for arbitration. This decision constitutes the Commission's reasons for making that order.
The factual background to the application is not in contest and was contained in the affidavit of Mr Gregory Masselos, solicitor, read in support of the applicant's notice of motion, affirmed on 1 February 2022.
The Commission was assisted by both written and oral submissions in the applicant's notice of motion. The applicant relied upon the Grounds and Reasons annexed to the applicant's notice of motion. The respondent filed an Outline of Submissions in Notice of Motion, on 22 February 2022 (respondent's written submissions). The applicant relied upon the Applicant's Reply to Respondent's Outline of Submissions on s 173 application, filed 11 March 2022 (the applicant's written reply submissions). The parties delivered oral submissions at the hearing on 7 April 2022.
The determination of the applicant's notice of motion turns upon the construction of subs 173(1) of the Act, which is in the following terms:
"173 Members who may exercise arbitration powers after attempted conciliation
(1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers."
The words of subs 173(1) give a clear right to parties participating in a conciliation to request a different member of the Commission arbitrate the matter. It is well established that this right will be extinguished if the request takes place after the arbitration of the proceedings has commenced: see Public Service Association of NSW v Department of Corrective Services [1994] NSWIRComm 148 (Corrective Services) at p 11.
Subsection 173(1) serves an important purpose in the context of the functions of the Commission, where resolution of matters by conciliation is given primacy: see s 3(g), s 86 and 87 of the Act. That purpose was described by the Full Bench in Corrective Services in the context of predecessor provision contained in s 209 of the Industrial Relations Act 1991 (NSW), and subsequently endorsed in the context of subs 173(1) in Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132; (2005) 141 IR 423 and Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") v Lorraine Linda Asciak [2009] NSWIRComm 159 (Brennan) at [35] in the following terms:
"It is in the nature of conciliation that a member of the Commission may both express views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration. It is inherently desirable that the member and the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail. Section [173(1)] reflects the view that conciliation may be enhanced by the parties being able to freely explore settlement of a claim without that inhibition."
If the statutory right under subs 173(1) was easily extinguished, then that would undermine the object of the provision. Accordingly, it is consistent with the statutory purpose of subs 173(1) that the circumstances where the right to request another member arbitrate the matter is extinguished, be construed narrowly.
The respondent argues that the applicant is too late in making his request, as the Commission has already commenced exercising arbitration in the matter. The respondent relies upon two specific events to ground their objection to the applicant's request as follows:
1. The Commission staying the applicant's unfair dismissal application on 18 December 2020 (see Dadley v Fire & Rescue NSW [2020] NSWIRComm 1084); and
2. The issuing of directions by the Commission on 9 December 2021 (Directions) and the applicant being in default of the directions without explanation.
Before considering whether either of these events had the effect of extinguishing the applicant's right to have another member arbitrate the matter, it is necessary to consider when "the exercise of the Commission's arbitration powers in the dispute or matter" has commenced. This question has been examined in several decisions of the Commission.
In Brennan a Full Bench of the Commission considering the interpretation of subs 173(1) in the context of an unfair dismissal claim under Pt 6 of Ch 2 of the Act. The Full Bench stated (in obiter dicta) that (at [35]):
"1. The arbitration powers constrained by s 173(1) are those exercisable in relation to the matter, in this case an unfair dismissal application, brought under Pt 6 of Ch 2 of the Act. This much is clear from the use of the definite article 'the' in the phrase "in relation to the dispute or matter" in the subsection.
2. Hence, the inquiry as to whether arbitration powers have been exercised for the purpose of s 173(1) must be directed to the particular statutory context in which the arbitration proceedings arise. Thus, the question in the present case is whether an arbitral power was exercised under Pt 6 of Ch 2 ... That question must be answered having regard to the particular statutory conditions for the exercise of arbitral power under that Part."
Accordingly, the question that arises is not just whether arbitral powers have been exercised, but specifically, whether those arbitral powers have been exercised under Pt 6 of Ch 2 of the Act, having regard to the statutory conditions for the exercise of arbitral power under that Part.
This interpretation of subs 173(1) was affirmed by the Full Bench in the subsequent decisions of Commissioner of Police v Bunait [2010] NSWIRComm 16 (Bunait) and Interim Transport Industry - Courier and Taxi Truck Contract Determination [2010] NSWIRComm 51 (Interim Transport Industry).
Applying the Full Bench's interpretation of subs 173(1) in Brennan, the Full Bench found in that matter that the hearing of an out of time application did not constitute an arbitration of the matter. Subsequent Full Benches have found that; the issuing of directions did not constitute the exercise of arbitral functions (Bunait); and the hearing of an application that a matter be dismissed on the basis that is was frivolous or vexatious was an interlocutory step before the arbitration (Interim Transport Industry).
The Commission as currently constituted is bound by those Full Bench decisions and accordingly, the test pronounced in Brennan must be applied in determining whether either of the two events relied upon by the respondent, extinguished the applicant's right to have another member of the Commission arbitrate his unfair dismissal case.
I now turn to consider that question in the context of the specific events that have transpired in these proceedings.
[2]
Did the Commission exercise arbitration functions in the matter, in the context of determining the stay application?
The respondent argues that the Commission exercised arbitration functions in respect of the matter when hearing and finally determining the applicant's stay application. The respondent's submissions with respect to this argument was in the following terms (respondent's written submissions):
8. Following the unsuccessful conciliation of the matter, on 14 December 2020, Commissioner Webster heard the Stay Application.
9. The parties agreed, and the Commission apparently proceeded on the basis, that the Commission was empowered under Section 67 of the Civil Procedure Act 2005 (NSW) (CPA) to make relevant orders.
10. The Commissioner was called to consider and determine matters squarely relevant to the substantive matter.
11. Without limitations to the proceedings generally the Respondent relies on the Commissioner having heard the following submissions:
(a) In the Applicant's Outline of Submissions on the Stay Application (Applicant's Stay Submissions) the Applicant submitted at:
(i) [19] the outcome of the NSWCCA will have a 'strong impact' on the substantive proceedings.
(ii) [20] the character of the proceedings will be changed 'as the fact of the conviction was the only ground relied upon' by the Respondent.
(iii) [30] the operation of the public interest and the consequence of inconsistent judicial findings weighed in favour of the Stay Application being granted.
(iv) [33] that emphasis on the relationship with the criminal appeal, the dismissal, and the reason for dismissal and the consequence for the substantive hearing also weighed in favour of the Stay Application being granted.
(b) In the Respondent's Outline of Submissions on (sic) filed in response to the Stay Application on 9 December 2020 (Respondent's Outline of Submissions) …, the Respondent submitted Commissioner Webster should have regard to:
(i) [10]-[14] the impact of the NSWCCA granting Mr Dadley's appeal on the substantive determination.
(ii) [17] a response to the point at (11.a.iii.) above.
(iii) [16] and [18] the impact on staff and its relevance to the matter.
(iv) [18] the Respondent's express intention to maintain its position irrespective of the NSWCCA Appeal outcome.
(v) [23] the relevance of FRNSW's reputation, though in the context of delay, the disposition of the Commission to the point was still relevant.
12. The above submissions were also subject to oral argument before the Commission.
13. The Stay Application proceedings involved the making of certain undertakings by the Applicant, relevant to the conduct of proceedings and remedy. While an undertaking should be taken to have been made to the Commission at large, the consideration of those undertakings and their bearing on, not just the Stay Application but, the final determination of the substantive application indicates the Stay Application must be understood to be part of the arbitration of the matter."
On 18 December 2020, the Commission issued the Stay Decision, staying the proceedings until the conclusion of the applicant's appeal to the Court of Criminal Appeal in respect of his conviction.
In the Stay Decision, the relevant legislation and legal principles to be applied in the context of determining the stay application are set out, noting that the power to stay the proceedings is reposed in the Commission by s 67 of the Civil Procedure Act 2005 (NSW): see [16]-[29]. After considering the relevant legislation, authorities and legal principles, the Commission concluded at [29]:
"There is a need to balance all of the factors in the case, including the competing interests of the parties to determine whether it is appropriate to exercise the discretion to grant the stay sought. In this regard, the applicant bears the onus to demonstrate that it is appropriate to depart from the usual practices adopted by the Commission in managing the proceedings. The fact that criminal proceedings remain outstanding where charges, or in this case, a conviction is in respect of the same issue that has led the termination does not give rise to an automatic right that the proceedings are stayed."
The Stay Decision then set out the parties' submissions on relevant factors in determining the stay application, extracting the written submission of the parties: [30]-[34]. At [35]-[37] of the Stay Decision, the following was said about the process being undertaken to determine the stay application:
"35. In determining the Notice of Motion, the Commission is exercising a discretion which necessarily requires the balancing of competing interests of the parties and a consideration of the interests of justice and the public interest.
36. It is in the public interest that the Commission conduct proceeding consistent with s 67 of the Civil Procedure Act which enables the Commission to stay the proceeding noting the overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court (and Commission).
37. The need to resolve the proceedings quickly pulls directly against the need for the Commission to adopt and approach that is just in this matter. The need to do justice to the parties and conduct the proceedings in a fair manner is also in the public interest."
What follows is an analysis of the factors relevant to the balancing of the competing interests of the parties, including:
1. The considerable delay the stay sought would cause to the proceedings, noting it was "anyone's guess" how long it will take for the criminal proceedings to be brought finally to an end;
2. The interests of the respondent in caring for the wellbeing of the victim, and interest in wanting to resolve finally, the backfilling of the applicant's role;
3. The impact of the delay on the quality of the evidence; and
4. The undertaking the applicant offered to not seek backpay in his application for the period of the stay.
The Stay Decision noted that while the reputation of the respondent may be relevant in the balancing exercise, there was no evidence that this would be materially impacted by the stay of the proceedings: [42].
Further at [44] it was stated that:
"I agree with the applicant that the outcome of the appeal process will have a direct and significant impact upon this matter and this is a relevant matter to be considered in the context of the stay application: see Environmental Group Ltd at p 41- 42. It is difficult to see how the applicant can succeed before the Commission if he does not have the conviction overturned, though theoretically it is not impossible. Although the Commission will need to consider for itself if the alleged conduct the subject of the criminal proceedings occurred, while the conviction stands, the respondent will have cogent arguments as to why the employment of the applicant is untenable. To some extent, this is articulated in their submission on the Notice of Motion: see 12 and [23] of the respondent's written submissions."
The respondent sought to place particular emphasis upon this aspect of the Stay Decision. It is important to note that the applicant had given an undertaking to discontinue the proceedings if he was not successful in the Criminal Court of Appeal. In the context of the stay application this was relevant to the question of the waste that may occasion having both the criminal matter and unfair dismissal application heard simultaneously. It is difficult to see how anything could be gleaned from the words in [44] which might give some insight into the Commission's disposition of the issues to be determined in the substantive matter, as was submitted by the respondent in oral submissions.
There were no final findings of fact relevant to the unfair dismissal proceedings determined in the Stay Decision. Nor could there have been given the preliminary nature of the stay proceedings.
The matters considered and determined by the Commission in the context of the stay application were different to the matters the Commission is required to consider and determine when arbitrating the matter pursuant to Ch 2 of Pt 6 of the Act. In particular, when determining the unfair dismissal application, the Commission is required to consider the factors contained in s 88 of the Act, which relevantly provides:
"88 Matters to be considered in determining a claim
In determining the applicant's claim, the Commission may, if appropriate, take into account -
(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and
(b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and
(c) whether a warning of unsatisfactory performance was given before the dismissal, and
(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and
(e) whether or not the applicant requested reinstatement or re-employment with the employer, and
(f) such other matters as the Commission considers relevant.
Further, in the event the applicant is successful in his application, the Commission will also need to determine what, if any relief it might order pursuant to s 89 of the Act. These were not matters considered in the Stay Decision and to the extend there were matters traversed that may be relevant to the arbitration of the substantive matter, these were not considered in the context of the arbitration "of the matter", but rather, in the context of the preliminary hearing of the stay application. This matter is clearly distinguishable from Corrective Services where the relevant application was made after the Commission member had commenced a hearing, arbitrating the substantive matter. This is not a case where a forensic advantage was gained by either party after discovering indications of "the Tribunal's thinking, as it were midstream": see Corrective Services at p 11.
It follows that the Commission had not commenced arbitration in respect of the matter by hearing and determining the stay application. The Commission was exercising its powers to consider and determine a matter peripheral to "the matter" under Ch2, Pt 6 of the Act.
[3]
Did the Commission exercise arbitration functions in the matter, in the context of the directions hearing on 9 December 2021?
After the Criminal Court of Appeal quashed the applicant's conviction, the Commission listed the matter for Directions. At the directions hearing, the applicant's solicitor informed the Commission that he was instructed to make an application pursuant to subs 173(1) of the Act that a different Commissioner hear the matter.
During the hearing of the applicant's notice of motion, the respondent indicated that there was some disagreement between the parties as to whether the subs 173(1) application was made prior to, or after directions were made on 9 December 2022. In the absence of the transcript in evidence, this was not a matter the Commission was able to resolve.
Ultimately, I have decided that nothing turns on this question. By issuing directions for the progress of a matter towards an arbitration, the Commission was not engaged in arbitrating the matter as contemplated by subs173(1) of the Act, even though there was a contest between the parties as to the appropriate directions to be made. This was an issue squarely considered in Bunait where the Full bench held that "the making of direction for the filing and serving of evidence to be relied upon by the parties in the arbitration proceedings…cannot be regarded as the Commission commencing to exercise arbitration powers": at [28].
It follows that the applicant's right to request another Commissioner arbitrate the matter has not been extinguished.
[4]
Orders
The Commission makes the following order:
1. The applicant's objection and request under sub s 173(1) of the Industrial Relations Act 1996 (NSW) that a different member of the Commission exercise arbitration powers in relation to the dispute or matter is granted.
[5]
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Decision last updated: 12 April 2022