Donovan and Anor v Kensington Pharmacy and Newsagency

LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998

Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 CASES CITED: Brisbane South Regional Health Authority V Taylor (1996) 186 CLR 541 Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139.

HEARING DATES: 22/03/06, 23/03/06, 24/03/06

APPLICANT Solicitor Mr A Mulcahy Mulcahy Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Counsel Mr M Easton

• 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Application for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

1 The application in Matter No IRC 5363 of 2005 was filed on 18 October 2005 and subject to conciliation and directions before Commissioner Murphy on 3 November 2005 and 30 November 2005 at Tweed Heads and Byron Bay Court Houses respectively. At the conclusion of those proceedings the respondent made application pursuant to s 173 of the Industrial Relations Act 1996 ("the Act"). 2 Directions issued to prepare the matter for hearing, on an estimate of two days required, and the matter was reallocated to the Commission as presently constituted for conduct of arbitration. 3 The application in respect to Matter No IRC 6764 of 2005, an application for relief from victimisation pursuant to s 213 of the Act, was filed on 22 December 2005, some two months out of time. That matter was allocated to the Commission as presently constituted and subject to directions by teleconference on 17 January 2006 at which time the matters were joined and directions issued for filing of material in both the substantive issues and the out of time issue. 4 The matters were listed for hearing from 10.00 am on 22, 23 and 24 March 2006 at Tweed Heads Court House. 5 Mr Mulcahy, solicitor of Mulcahy Lawyers, appeared on behalf of Mr Paul Taylor, the Applicant. 6 Mr M Easton of Counsel appeared on behalf of Tweed Shire Council ("the Council") with Ms C Hann of the Local Government Association of New South Wales. 7 The first matter heard was an application to exercise discretion to admit the application in Matter No IRC 6764 of 2005 out of time. Mr Mulcahy tendered an outline of submissions (exhibit 1 in that matter), the essence of which is found in paras 4 and 5 in the following terms: 4. An Application for Relief in relation to unfair dismissal pursuant to Section 84 of the Industrial Relations Act 1996 was filed in the Registry on 18 October 2005 as file number IRC 5363 of 2005 and is listed for hearing concurrently with the Applicant's Application for Relief from Victimisation.

5. The Applicant submits that there were two reasons why the Application for Victimisation was not filed at the same time as the Application for Relief from Unfair Dismissal, namely: (a) That although the Applicant was legally represented, the Applicant's legal representative was unaware of the provisions of Section 213 (3) the Industrial Relations Act 1996 and in fact, sought specific advice from the Registry of the Industrial Relations Commission on 20 October 2005 concerning any limitation period and was advised that there was no such limitation and that the twenty-one day period only related to claims of unfair dismissal; and

(b) At the time that the instructions were given to pursue a claim for Relief for Unfair Dismissal the Applicant was unsure as to whether or not to submit a further claim for Relief for Victimisation which may bring him within the costs jurisdiction of the Industrial Court and expose him to the possibility of a costs order but in light of advices that there was no time limitation sought to test the waters with an Application for Unfair Dismissal before deciding on instructions to claim additional or alternative compensation for victimisation. 8 Exhibit 1 continues to assert that the respondent would not suffer any hardship by an exercise of discretion to admit the application out of time. 9 Mr Mulcahy relied upon the Judgment of his Honour, Deputy President Sams in Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385. 10 Mr Easton opposed an exercise of discretion to admit the application out of time, submitting that s213 proceedings and s84 proceedings are significantly different types of proceedings with different scope for remedy. 11 Mr Easton submitted that Mr Taylor had the benefit of legal advice from Mr Mulcahy from at least 26 September 2005 when his concern was with the threat of an unfair dismissal. Mr Easton put that the Applicant had procrastinated, allowing the threat to turn to reality without seeking to exercise a statutory right to seek relief, then further procrastinated in asserting that the termination of employment was due to victimisation. 12 Mr Easton referred to Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 (Wright J, President, Walton VP, McKenna C) as authority that a blanket view of ignorance is no excuse. 13 Mr Easton further submitted that Mr Mulcahy could not sustain ignorance as he had appeared recently in a matter brought pursuant to s 213 of the Act. 14 Mr Easton put that there would be considerable hardship to the Respondent if discretion were exercised to admit the application out of time. 15 Mr Easton submitted that the application was entirely without merit and should not benefit from discretion on that ground. 16 The obligation to make application within 21 days and the Commission's discretion to accept an application out of time are found in s 213 ss (3) and (4) in the following terms: (3) An application for an order under this section must be made within 21 days after the contravention concerned.

(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 17 The principles to be applied in the exercise of discretion are appropriately canvassed by his Honour, Sams DP in Donovan, which flow from Brisbane South Regional Health Authority V Taylor (1996) 186 CLR 541 and Hurrell. 18 It is clear from the submissions of Mr Mulcahy that the Applicant and his legal adviser gave active consideration to the lodgement of an application pursuant to s 213 within the statutory time limit and chose not to. 19 I do not accept that the application was misdirected by advice from the Industrial Registry on 20 October 2005. No particulars of the Registry officer concerned or the precise nature of the question directed were offered, however, in any event, the time limitation is plainly and clearly stated on the face of the legislation and there can be no excuse or exception on the basis of failure by a qualified legal practitioner to properly consult the legislation upon which advice and action is to be founded. 20 Having regard to the reasons for and length of delay, the hardship that may be afforded the parties, and relevant conduct, I concluded that there is no basis for the exercise of discretion to admit the application out of time. 21 An ex tempore decision refusing to admit the application pursuant to s 213 of the Act out of time was issued in the following terms, concluding proceedings in Matter No IRC 6764 of 2005: HIS HONOUR: Yes, thank you. The exercise of discretion to admit an application out of time is governed by principles set down in s.213(4) of the Act. An exercise of discretion is to be an exception rather than the rule. S.213(4)(a) requires me to consider the reason for and the length of delay in making the application. In contemplating that I cannot go past paragraph 5B of the applicant's submissions which reveals that there was an active consideration of an application for relief from alleged victimisation at an appropriate time and a conscious decision made not to pursue that application.

In consideration of s.213(4)(b) I'm required to consider any hardship that may be caused to the applicant or other party if the application is not rejected. I conclude that there is no hardship to the applicant in rejecting the application out of time. There is an apparent hardship to the respondent. The reason for the time limit is for the parties to be able to address things in a timely way.

Had the application been made in time and been part of the conciliation processes things may well have been different. They may have not but as Mr Easton points out that was not the fault of the council at the relevant time. It's not necessary for me to consider subsection 213(4)(c) conduct in relation to which the order is sought. All of the conduct that is subject to consideration falls within the purview of the s.84 application.

I am obliged to reject the application out of time principally on the basis that the applicant made a conscious decision at a relevant time not to proceed. Matter number 05/6764 is dismissed as out of time. We will now proceed with the other matter.

Matter No IRC 5363 of 2005 - Application pursuant to section 84 22 Mr Mulcahy brought evidence from the Applicant and Mr Bill Walton, a friend of the Applicant who attended as a witness to the Applicant's final meeting with the respondent. 23 Mr Easton brought evidence from Dr John Griffin, General Manager of the Council at the relevant time; Mr Ian Young, Human Resources Officer Employee Relations of the Council; Mr Steve Birney, an employee of the Council and New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) delegate; Mr Darren Lyndon, employed by the Council as a Headworks Operator; Mr David Oxenham, employed by the Council as Manager Water; Mr Wayne Watson, employed by the Council as a Senior Headworks Operator; Mr Michael Rayner, employed by the Council as Acting General Manager; Mr Trent Green; employed by the Council as an apprentice electrician; and Mr Peter Haywood, employed by the Council as a Water & Sewerage Operations Engineer. The Evidence

24 The evidence established that Mr Taylor commenced employment with the Council on 1 December 1995 as a water plant operator. Mr Taylor was experienced in this position having held similar employment at Brisbane Council for a period of approximately 15 years immediately prior to engagement by Tweed Shire Council. 25 Mr Taylor's duties required the collection of water samples, operation of water treatment plant/s, and the monitoring of water quality at the Clarrie Hall Dam and adjacent catchment areas. 26 On 20 February 2004 an illegal dumping of sewerage waste into the Tweed River occurred at a place said to be less than one kilometre upstream from the Uki Water Treatment Plant. At this time Mr Taylor deposed he was the operator in charge of the Uki Water Treatment Plant and expressed his dissatisfaction with the manner in which the incident was dealt with by management and took some issue with what he asserted was an indirect reference to himself in media reports surrounding the matter. Concurrent with these events Mr Taylor was in conflict with senior management concerning cattle in the dam catchment areas. 27 These events continued to trouble Mr Taylor over the ensuing two years, compounded on his evidence by deterioration in his relationship with his immediate supervisor, Mr Wayne Watson, predicated upon difficulties in Mr Watson's family life to which Mr Taylor took an adverse view and claimed had a deleterious effect on the operational efficiency of the water treatment plant. 28 The illegal dumping of waste in February 2004 was dealt with by way of public enquiry which led to prosecution and conviction of the culpable party in the Land and Environment Court. The evidence is that the judgment of the Land and Environment Court was delivered on 3 February 2005. 29 Mr Taylor was subject to complaint that he had used a Council utility after hours. 30 On 12 May 2005 Mr Taylor read a prepared statement to a meeting attended by Mr Oxenham, Mr Haywood, Mr O'Dwyer and Mr Birney. The statement concerned Mr Taylor's general complaint in respect to the management of the Bray Park Water Plant and the conduct of Mr Watson. The statement, conveniently found as Annexure E to Mr Taylor's affidavit (exhibit 2), consists of five closely typed pages in which Mr Taylor canvassed events from the Uki water treatment issue in 2004, the conduct of Mr Watson, and cattle management in the dam catchment areas in a manner critical of all levels of management. This statement concluded in the following terms: When I leave the Water Treatment plant you will lose an experienced diligent Operator. But that will probably suit the hierarchy because they can appoint someone who won't dispute their unorthodox management style. I'd be very interested to hear explained the theory behind rewarding a supervisor relient on bullying tactics to motivate his men.

I have forwarded this document to Human Resources and The General Manager to highlight these concerns.

I intend to pursue a substantial severance package to secure mine and my family's future, that has been jeopardized through no fault of mine. I will no longer tolerate working in such a disrespectful, disreputable and dispirited place of employment. Depending on how Tweed Shire Council deals with my case will depend on when I report back to the NSW Ombudsman and The Independent Commission Against Corruption.

31 It was established that Mr Taylor was assisted by the Council to refer any and all issues of concern to him to the New South Wales Ombudsman and the Independent Commission Against Corruption. 32 During the course of his statement Mr Taylor was critical of what he described as management repeatedly questioning his use of a Council vehicle and mobile phone, and alleged that an employee from the Occupational Health and Safety Section of Council bullied and abused him during 2004 whilst he was recovering from a lower back injury and complained that he had been excluded from preliminary discussions of a major upgrade to take place at a water treatment plant where he had acquired an expectation to be engaged in the future. 33 These allegations are not sustained. On the evidence the Occupational Health and Safety section of Council did no more than put in place the appropriate rehabilitation program as required by the Workplace Injury Management and Workers Compensation Act 1998. 34 Mr Taylor's evidence was that on advice and reflection he resiled from the intention to pursue a significant severance package. 35 In his oral evidence Mr Taylor continued to be critical of management in particular, asserting that management should have handled Mr Watson's situation much better. 36 This evidence swung from criticism of Mr Watson to criticism of management for failing to support Mr Watson, but at no time offered any positive view as to what should have or could have been done. 37 Management's response to the difficulties between Messrs Taylor and Watson was to engage an independent mediator at Council's expense to attempt to reconcile the issues and the relationship. A local solicitor was engaged, a formal mediation agreement was signed by Messrs Taylor and Watson and a meeting arranged. 38 The evidence is that this discussion degenerated into a squabble over the amount and justification of overtime, concluding in a proposal that Mr Taylor examine Mr Watson's most recent group certificate. Mr Watson initially conceded to this request but on reflection withdrew on the basis that his taxation records were a private and confidential matter. 39 This was seized upon by Mr Taylor to offer insult and abuse to Mr Watson in the workplace. 40 It is curious to contemplate what an examination of a group certificate might reveal or how it might resolve any difficulty in Mr Taylor's mind as to the level of overtime and earnings of Mr Watson. 41 I must regard the proposal for examination of Mr Watson's group certificate to be an ill advised and unhelpful initiative, the only result possible being that Mr Taylor would intrude into Mr Watson's personal affairs. In any event, the proposal certainly had no positive effect on the relationship; and on the evidence there is room for serious doubt as to whether Mr Taylor approached the mediation on any basis other than a further opportunity to torment Mr Watson. 42 During the course of these events Mr Taylor dismissed concerns by Council in respect to his alleged misuse of a Council vehicle, mobile phone, overtime levels, and the extent of time spent away from the water treatment plant/s attending the Council Depot as trivial. When asked to respond to these allegations Mr Taylor sought advice from Mr Mulcahy who wrote to Council on 28 September 2005 (exhibit 3, p113) in the following terms: We act for Paul Taylor who is employed at your Bray Park Water Treatment Plant.

We are instructed that Paul Taylor has made criticism of Council Administration concerning the Bray Park Water Treatment Plant and such complaint remains before the NSW Ombudsman.

We have been provided with copies of correspondence from your David Oxenham dated 5 September 2005, 7 September 2005 and 9 September 2005 allegedly constituting formal warnings under the Tweed Shire Council's disciplinary policy.

The alleged breaches are petty and Council policy is undefined.

We are instructed that such correspondence has been generated in retaliation for our client's complaints and whistle blowing activities and as such amounts to victimisation of our client Paul Taylor in the workplace.

We are instructed to seek your immediate withdrawal of the warning letters dated 5,7 and in particular 9 September 2005.

Should you fail to withdraw the warning letters as requested then our client will consider his further options of commencing proceedings in the Industrial Relations Commission in respect of victimisation under Sections 210 and 213 Industrial Relations Act 10996.

Your response is required within seven days. 43 Management replied on 30 September 2005 in the following terms: Please find attached a report prepared by Mr David Oxenham in accordance with Councils Disciplinary Policy 5.4/P.

Due to a series of disciplinary breaches including abuse of supervisors and insubordination you are hereby requested to show cause why you should not be dismissed from Council.

You are also advised that as at the time of receipt by you of this letter you are suspended from all duties on full pay for a period of 3 days, which will allow sufficient time for you to respond to this matter. You are therefore required to attend a meeting with Mr David Oxenham and Mr Ian Young at 11.00am on Friday 7 October 2005 in the Oxley Room Murwillumbah Civic Centre to present your case. You are at liberty to bring Union Representation if you desire.

I also advise that you are not to attend any Council premises without management approval and that you are required to immediately return your Council issued keys, mobile phone, vehicle and laptop computer.

If required I will arrange transport home for you. 44 The attached report is of three typed pages and details seven occasions of misconduct by Mr Taylor from 13 April 2005 to 20 September 2005. 45 Mr Taylor was afforded the three days off with pay to prepare a response. 46 Mr Taylor attended the meeting scheduled for 11.00 am on 7 October 2005 in the company of Mr Walton. 47 Mr Taylor refused to participate in the meeting other than to demand a formal reply to the correspondence from Mr Mulcahy of 28 September 2005. 48 Mr Walton, who is not an employee of the Council, was able to add little to the evidence as his only involvement was to attend the meeting at Mr Taylor's request. Mr Walton deposed that he was unaware of the issues and made no enquiry of Mr Taylor though he formed the view that Mr Taylor expected his employment to be terminated. 49 The evidence in this matter does not support any complaint made by Mr Taylor. Mr Taylor had the benefit of advice from the USU which he discarded in preference to representation by Mr Mulcahy by correspondence, which proved an inadequate substitute for direct consultation and discussion of the issues. 50 The evidence supports a finding that management have exhibited a capacity for patience and compassion, affording Mr Taylor a level of consideration and forbearance which has not been reciprocated. 51 There is no evidentiary basis for a view that Mr Taylor is or was in some way identified with the Uki Water Plant contamination of 2004 or has in any way failed to meet the technical requirements of his position. However, the evidence is overwhelming that Mr Taylor's conduct in the workplace was unacceptable and that he refused to accept advice, request or direction. 52 An ex tempore decision was issued on 23 March 2006 which is here restated and confirmed: HIS HONOUR: The reasons for termination of employment of Mr Taylor are conveniently found at paragraph 63 of exhibit 7 of the affidavit of Mr Young. This states that the decision to terminate the applicant was made on the grounds that the applicant was unable to follow any form of managerial instructions, was abusive to his supervisor, could not communicate with his supervisor and had made a threat to run the plant how he wanted. This was despite giving his word that he would cooperate through a mediation process. This conclusion by management is supported by the evidence in this matter and there are many examples and I will mention some in a moment. Mr Taylor was afforded procedural fairness. Exhibit 13 is a compilation of documents setting out the conduct issues subject to warning. Mr Taylor was afforded three days on wages to prepare an explanation, reply or defence to these allegations. He chose not to and council cannot be held responsible for that.

Attempts to justify the conduct of Mr Taylor on the basis of some implication of culpability in a water quality issue of 2004, the personal life of Mr Watson, his immediate supervisor, and the participation in a mediation process and the unanswered letter by his solicitor are misdirected and disingenuous. The issue of water quality management have been subject to a number of inquiries, including reference to the Ombudsman and ICAC, and do not arise for consideration in these proceedings. The evidence supports a finding that Mr Taylor has adopted a confrontationist and volatile attitude towards management generally and Mr Watson in particular. There are a number of incidents of direct abuse of Mr Watson, which I find made out. Further evidence of Mr Taylor's attitude towards management is found in exhibit 9, the statement of Mr Birney, the USU delegate, commencing at paragraph 29 and through to paragraph 32. I go to Mr Birney's affidavit, exhibit 9. At paragraph 29 he states: "A meeting to discuss the technical issues was arranged for 12 July 2005 as the applicant was on annual leave beforehand. Those in attendance at the meeting were the applicant, Mr Oxenham, Mr Young and of course Mr Birney. At this meeting the technical grievances were discussed at length with the applicant. The applicant referred to the information he had received that day as "drivel" in an aggressive manner."

"Towards the end of the meeting David Oxenham answered some questions from the applicant. I cannot remember the specific questions. Each time the applicant replied in an ever increasing aggressive tone, culminating in the applicant saying words to the effect, I don't want to hear this drivel particularly from you, David, referring to Mr Oxenham." I find that most inappropriate conduct and behaviour. Further evidence is found in attachment C to exhibit 7, the affidavit of Mr Young, which records an interview with Mr Taylor on 25 May 2005 at a time when Mr Young was investigating Mr Taylor's complaints and concerns and issues with a view to resolving them in a way that assisted Mr Taylor. At the bottom of page 4 there is some discussion as to Mr Taylor's application for a salary increase. I take up Mr Young's report there where he records Mr Taylor as saying: "Well, I think the word has gone out not to put people up. So that's what's happened. We've had blokes come through and get trained up, left and worked somewhere else and they're all at 4.4 and I'm still plugging here. So when he told me, referring to Mr Watson, this time I went home and came back the next day and said, 'Wayne, I want to negotiate to the next point.' A couple of days later I bunged it on him, there was a pretty heated exchange, I made a bit of an arse of myself but I was just so frustrated. Question from Mr Young, "Was that when you went home? So why did you go home the second day?" Answer from Mr Taylor,

"Because I didn't want to belt him, it was very heated. It was funny, it blew up on the first day and the second day Steve Farrell picked me up. I was as good as gold, walked through the door and lost my cool and went home again."

Question from Mr Young, "What was the reason you did not get the salary point increase? Were you told?" Answer from Mr Taylor,

"Yes, it was because of the report writing. I've been chipped a couple of times not handing in forms. Not that I consider it an important part of the job." That is indicative Mr Taylor's attitude of dismissing requirements of management as trivial. It is not open to him to dismiss the issues of conduct as trivial and it is not open to him to refuse to comply with the lawful and reasonable instructions of management. Having considered all of the matters required to be considered directed by s 88 of the Act I find the termination of Mr Taylor's employment cannot be held to be harsh, unreasonable or unjust. The application for relief is refused. The proceedings are so concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.