Donovan and Anor v Kensington Pharmacy and Newsagency - [2004] NSWIRComm 385 - NSWIRComm 2004 case summary — Zoe

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Donovan and Anor v Kensington Pharmacy and Newsagency

[2004] NSWIRComm 385

Industrial Relations Commission (NSW)|2004-07-01|Before: Sams DP

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Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Sams DP

Catchwords

10/13/2004 DATE OF JUDGMENT: 12/13/2004

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Original judgment source is linked above.

Catchwords

10/13/2004 DATE OF JUDGMENT: 12/13/2004

Judgment (146 paragraphs)

[1]

CITATION : Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 APPLICANTS: Ms Lynette Donovan PARTIES : Ms Kyrie Whitelaw RESPONDENT: Kensington Pharmacy and Newsagency FILE NUMBER: 4061, 4062, 4911 of 2004 CORAM: Sams DP Termination of employment - unfair dismissal - whether applicants actually dismissed - whether dismissals were harsh, unreasonable or unjust - casual shop assistants - hours of work - procedural fairness - conflict of evidence - allegation of victimisation - application under s213 of the Act - out of time application - concurrent proceedings - relevant principles. CATCHWORDS : Held, both applicants summarily dismissed - respondent's evidence not accepted - no notice or warnings of dismissals - no opportunity to give an explanation - no reasonable basis for dismissals - unblemished records of employment - both dismissals substantively and procedurally harsh, unreasonable and unjust - out of time application accepted - sufficient reasons established - similarity to out of time provisions for unfair dismissal applications - general principles in respect to discretion to waive time limits - delay not excessive - no hardship for employer - hardship for applicant - similarities between victimisation and unfair dismissal - no bar to concurrent proceedings - applicant victimised by respondent for informing other employees of an alleged breach by the employer of an industrial instrument - breach of s210 of the Act - reinstatement impractical - orders made for compensation - difficulty in apportioning compensation under both sections of the Act in concurrent proceedings - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Byrne v Australian Airlines Limited (1995) 185 CLR 410 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 CASES CITED : Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Nisbett v Kilfoyle t/as Kilfoyle Earthmoving (1996) 67 IR 214 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Public Service Association of New South Wales v Teterycz (1998) 82 IR 172 Wilson v Department of Education and Training (2000) 100 IR 1 HEARING DATES: 10/12/2004; 10/13/2004 DATE OF JUDGMENT: 12/13/2004

[83]

76 In Byrne v Australian Airlines Limited (1995) 185 CLR 410 the expression 'harsh, unreasonable or unjust' was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 77 The expression was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

[110]

96 There are, of course, general principles established by the Courts in respect to time limits and in particular the Commission's discretion to waive time limits. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension.

[111]

97 More recently, a Full Bench of this Commission said in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

[121]

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned.

[123]

108 Two Full Bench decisions of this Commission have discussed, in some detail, the provisions of ss210 and 213 of the Act and the meaning of the term "victimisation." In Public Service Association of New South Wales v Teterycz (1998) 82 IR 172 the Full Bench adopted the reasoning in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 and said: The Full Bench of the Industrial Relations Commission of New South Wales ( Cahill J., Vice President, Hill, Maidment JJ. and Redman C.) considered these provisions in its decision in Graham Davis v Amalgamated Television Services Pty. Limited (IRC7028 of 1997, 22 June 1998, Unreported). The Full Bench said: "The word "victimise" is not defined in the section nor anywhere else in the Act. This is in contradistinction to the precursor provisions of the 1991 Act. The relevant provisions of the 1991 Act were contained in s 481 which relevantly provided: Victimisation: offence 481(1) An employer, or an organisation, must not victimise a person because: (a) the person does not belong to an organisation of employees; or (b) the person has refused to engage in industrial action; or (c) the person is a member of an organisation of employees or is an officer or delegate of an organisation of employees or is otherwise an elected representative of employees; or (d) the person is a member of a Conciliation Committee; or (e) the person claims a benefit of an award or agreement to which the person is entitled; or (f) the person has informed any person that a breach or a suspected breach of an award or agreement has been committed by the employer; or (g) the person has appeared as a witness or has given evidence in proceedings, relating to an industrial matter; or (h) the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance of duties as an employee); or (i) the person, after applying for (and being unreasonably refused) leave without pay for the purpose, is absent from work through being engaged in duties as a member of an organisation of employees in respect of a matter affecting the industry in which the employee is working or in other duties as a member of a Conciliation Committee. (2) An employer victimises a person if the employer: (a) dismisses or threatens to dismiss the person from employment with the employer; or (b) alters or threatens to alter the position of the person in his or her employment with the employer to the person's prejudice; or (c) otherwise injures or threatens to injure the person in his or her employment with the employer; or (d) refuses to employ the person. Victimisation by an organisation (3) An organisation victimises a person if the organisation: (a) advises, encourages or incites an employer to victimise the person; or (b) takes or threatens to take industrial action or any other action against an employer with intent to coerce the employer to victimise the person; or (c) takes or threatens to take action having the effect directly or indirectly of injuring the person in his or her employment. . . . We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as: Victim

Donovan and Anor v Kensington Pharmacy and Newsagency

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