Fairweather v Ladehai Pty Ltd T/as North Star Holiday Resort

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 20 December 2002 Matter No IRC 1191 of 2002

VIVIENNE FAIRWEATHER AND LADEHAI PTY LTD T/AS NORTH STAR HOLIDAY RESORT

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 367 1 The application in this matter was filed on 4 March 2002 and was first before Commissioner Murphy for the purposes of conciliation on 18 April 2002. The matter was then subject to further conciliation before Murphy C on 6 June 2002. On that occasion Mr Bruce Francis appeared on behalf of Ms Fairweather ("the applicant"). Mr R Thompson appeared on behalf of Ladehai Pty Ltd T/as North Star Holiday Resort ("the respondent" or "Ladehai").

2 These proceedings failed to resolve the matter and resulted in a Notice of Motion put by the respondent, seeking disqualification of Mr Francis as the applicant's representative in the proceedings, and an exercise of right pursuant to s173 of the Industrial Relations Act 1996 ("the Act"). 3 The matter was removed from Murphy C to the Commission as presently constituted and subject to Directions proceedings on 15 July 2002. On that occasion Mr Francis continued his appearance on behalf of Ms Fairweather. Mr N Stevens, solicitor of Windeyer Dibbs, appeared on behalf of Ladehai. 4 Directions were issued scheduling the hearing of the Notice of Motion on 20 September 2002, and subject to the outcome of those proceedings, the substantive proceedings on 21, 22 and 23 October 2002.

5 Ms Fairweather was employed by Ladehai Pty Ltd T/as North Star Holiday Resort, Coast Road, Hastings Point, from 20 March 1998 to conclusion of that employment on 25 February 2002. Her application describes the employment as a Receptionist in the Caravan Park industry, working part time, 25 hours per week. The reason for termination of that employment provided in the application, is "inappropriate attitude". Ms Fairweather states remuneration at $375.00 per week and nominates the "North Star Enterprise Agreement" as the relevant state industrial instrument governing employment..

6 It would appear that Ms Fairweather was also employed in conjunction with her partner, Mr Peter Francis, as night caretakers. That employment has ceased and there is dispute and litigation concerning allegations of underpayment of wages not raised in these proceedings, which, on the application, deals entirely with the Receptionist duties.

7 Mr Bruce Francis was associated with Ladehai in various capacities from 1993, taking up the position of Commercial Manager from July 1997. That employment was terminated on 5 October 2000, which is also subject to litigation pursuant to s106 of the Act.

8 The Notice of Motion filed by the respondent on 16 September 2002 seeks: A. The Respondent will on 20 September 2002 at 10.30am move the Commission at Mullumbimby Court House, for an order that:

1. The Applicant's Application be struck out for abuse of process.

2. The Applicant pay the Respondent's costs of this Motion.

B. Grounds and reasons: 1. The Respondent is a body corporate and capable of maintaining suit in its own name.

2. The Respondent relies upon the reasons set out in its earlier Notice of Motion filed on 5 July 2002 in these proceedings. 3. The Applicant by her Representative has engaged in an oppressive and vexatious issuing of Summonses for Production and Summonses to Give Evidence against the Respondent, officers of the Respondent, employees of the Respondent and contractors of the Respondent (the Summonses) to the extent that it amounts to an abuse of process by the Applicant.

The number of persons and the amount of material sought on Summons in the Notice of Motion and in the Proceedings generally display that the purpose of the proceedings is not relief under Section 84 of the Industrial Relations Act 1996.

The Respondent forwarded a letter of offer to the Applicant's Representative in which it offered the Applicant six months of her salary in full and final settlement of the Proceedings. Such an offer is equal to the maximum compensation available for the Applicant under Section 89 (5) of the Industrial Relations Act 1996. Such offer remained open for seven (7) days from that date and as at the time of this motion has not been accepted by the Applicant.

In addition to the above grounds and reasons the Respondent relies upon the facts as set out in the Supplementary Affidavit of Nicholas Peter Stevens sworn on 16 September 2002.

In addition to the above grounds and reasons, the Respondent relies upon the facts as set out in the Affidavit of Harold Ian Beadel sworn 3 July 2002 and previously filed in these proceedings.

In addition to the above grounds and reasons, the Respondent relies upon the facts as set out in the Affidavit of Nicholas Peter Stevens sworn 5 July 2002 and previously filed in these proceedings.

The Applicant's Application should be struck out for the reasons set out above. 9 On hearing of the Notice of Motion Mr Hatcher, Senior Counsel, appeared on behalf of Ladehai instructed by Mr N Stevens, solicitor of Windeyer Dibbs. Mr Bruce Francis maintained his appearance on behalf of Ms Fairweather.

10 At the outset of these proceedings a further attempt at conciliation, pursuant to s 87(2) of the Act, was advanced on the basis of the offer of payment of 26 weeks wages made to Ms Fairweather. This offer was interpreted by the applicant to require that she desist from proceedings for the recovery of underpayment of wages in association with the night caretaker duties.

11 Mr Francis submitted that he was without sufficient knowledge or experience to advise Mr Fairweather in respect to this offer.

12 The matter was adjourned to allow consideration by Ms Fairweather and such discourse between the parties as may occur.

13 On resumption Mr Hatcher reported that the offer had been rejected and that no counter proposition had been put.

14 Mr Francis confirmed this position, reiterating his inability to offer assistance to Ms Fairweather in respect to the offer.

15 In support of the Notice of Motion Mr Hatcher referred me to a number of decided cases, which he contended established the principle that unqualified advocates should not be permitted to appear, making the distinction between self-representation of a litigant, a McKenzie friend, and the unqualified representation as exampled in the present matter. The relevant cases are Romanin v University Co-operative Bookshop Ltd [2001] NSWIRComm 171; Attorney General v Wentworth (1988) 14 NSWLR 481; Stephan v RL Whyburn and Associates [2000] NSWIRComm 154; Williams and others v Spautz (1991) 174 CLR 509; and R v E G Smith (1982) 2 NSWLR 608. 16 Mr Hatcher referred particularly to the statement of Marks J in Romanin at para 16: It is without question that this Court has inherent jurisdiction or power (without having to discuss the controversy as to whether what is involved is jurisdiction or power) to take such action as is necessary in support of its own processes. This extends, obviously, to any potential abuse of process.

17 Mr Hatcher relied on the development of indicia of vexation by Roden J in Attorney General v Wentworth and the adoption thereof by Sams DP in Stephan to support his argument that these proceedings were brought and are maintained vexatiously. At p454 of Attorney General v Wentworth Roden J stated: There are various means by which the Court can control proceedings before it, and protect its process from abuse. It enjoys inherent powers, but these do not extend to the making of orders which would prevent a potential litigant from instituting proceedings without leave. The relationship between the inherent powers and the statutory provision, and the history of the development of the latter, were considered and explained in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311.

In their joint judgment, in Inglis, Barwick CJ and McTiernan J said (at 319): "…the making of unwarranted and vexatious applications in an action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court's process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand."

The extreme nature of the remedy provided by s 84 (and by corresponding provisions elsewhere) has been the subject of much judicial comment. In Re Boaler [1915] 1 KB 21, Kennedy LJ said (at 34) of the Vexatious Actions Act 1896 (UK) , that it: "seriously abridges the right of the subject to …. redress in the Courts of Law". More recently, and closer to home, in R De W Kennedy (Finance) Pty Ltd Ley (Holland J, 29 March 1978, unreported) Holland J, referring to, the powers of the court to control litigation and litigants, said: "… The most drastic is the power on an application by the Attorney General ... to forbid a vexatious litigant from starting any legal proceedings in any Court, ... without first obtaining the leave of the Court. This denies to such a litigant a right that all other citizens have, namely, to call upon the Court to adjudicate a claim simply by making it in Court in the prescribed manner." 18 Mr Hatcher submitted that the vast number of irrelevant Summons issued by Mr Francis were further evidence of the inappropriate manner in which this matter is prosecuted.

19 Up to and including the proceedings for Notice of Motion, Mr Francis had issued 53 separate Summonses, including six which were duplicated due to a change in location of proceedings on 20 September 2002 from Lismore Court House to Mullumbimby Court House (schedule attached).

20 Mr Hatcher further argued that the proceedings are agitated in a vexatious manner by Mr Francis in pursuit of and arising from his own dispute with Ladehai.

21 Mr Francis denied any vexatiousness in the proceedings, putting a simple submission that he was doing his best given his limited knowledge and experience; that despite these shortcomings, he was the only representative available to Ms Fairweather; and that should he be disqualified it would visit inappropriate harshness and unfairness upon Ms Fairweather.

22 The Notice of Motion was determined, allowing Mr Francis to continue representation, though with extreme caution. The determination is found at p51 of transcript in the following terms: HIS HONOUR: There are considerations of justice and fair play rising paramount in the issues in the notices of motion. The conduct of the proceedings by Mr Francis thus far have been far from helpful to his client and to the Commission and pose, on the evidence, unnecessary difficulties and unnecessary issues upon the respondent. I am, however, most reluctant to create a situation where an applicant has no representation whatsoever, however poor that representation might be, or to strike out an application on that basis. I am mindful of the submissions of Mr Hatcher concerning control of the proceedings by the Court - or the Commission in this case - and have formed the view that it would not be appropriate to remove Mr Francis as the applicant's representative though I would recommend very strongly that the applicant reconsider the representation. I am also minded not to strike out the proceedings but will impose a restraint on Mr Francis, so far as he continues to be the applicant's representative, that he issue no further subpoena without specific approval of myself and that any request to issue further subpoena be accompanied by the full statement of the grounds and reasons for so doing and the contribution the information sought is said to make to these proceeding. I think that, in the interests of fairness to both parties, it is appropriate that this matter be moved, on its existing time table, to conclusion.

23 The matter of return of Summons issued by Mr Francis was then dealt with. The bulk thereof were opposed by Mr Hatcher and either dismissed as irrelevant, incapable of compliance due to scope of material sought, or both; or not pressed by Mr Francis.

24 The parties were also directed to exchange lists of objections to affidavits, or parts thereof, prior to proceedings of 21 October 2002. 25 An Interlocutory Decision was issued on 9 October 2002 denying Mr Francis the right to issue Summons upon Ballina Lakeside Holiday Resort in the following terms: 1. An application by Mr Bruce Francis of 8 October 2002 on behalf of the applicant for authority to issue a Summons to Produce for service on Ballina Lakeside Holiday Resort is denied.

2. The Summons seeks to compel evidence of the procedures applied by a holiday facility not party to these proceedings. The explanation provided in the application for authority to issue Summons to Produce does not establish any basis that the procedures applied at Ballina Lakeside Holiday Resort have any relevance to the issues before the Commission in this matter, merely advanced on the basis of creating a foundation for speculation as to motive by a complainant.

26 In the proceedings of 21 and 22 October 2002 Mr Francis continued his appearance on behalf of the applicant. Mr Hatcher, instructed by Mr Stevens, continued his appearance for the respondent.

27 Mr Francis brought evidence from Ms Fairweather; and, under summons, Ms Irene Dawson, Ms Christine Dowsett, Ms Susan Taylor, and Ms Anita Mudge, employed by the respondent in the capacity of receptionists. 28 Pursuant to the directions covering objections, Windeyer Dibs directed correspondence to Ms Fairweather by express post on 2 October 2002 (Ex 9) in the following terms We refer to the recent proceedings before Harrison DP in the abovementioned matter. You will recall that the Commission directed that the parties exchange lists of objections. We have attempted to assist you in complying with this direction by setting out on the annexed chart the list of objections, the reasons for the objections, and the paragraphs of our affidavits, which would not be read, were the objections sustained.

As we apprehend the Deputy President's ruling, the issues for determination in the case are:

a) whether Ms Fairweather dealt with the customer in the manner complained of by Ladehai Pty Ltd

b) whether in the context of Ms Fairweather's employment over all, the conduct complained of, if established, was serious enough to warrant the action taken.

c) whether in the circumstances of Ms Fairweather's response to the complaints made by Ladehai Pty Ltd her subsequent termination of employment was in all the circumstances fair.

d) whether, were the termination to be found unfair, reinstatement in all the circumstances is practicable.

Whilst his Honour did not directly rule on the question of the wage claims, other than to rule that unpaid wages are irrelevant to the proceedings, we note that Ms Fairweather alleges that she was terminated by reason of making a complaint of underpayment rather than in relation to the conduct Ladehai Pty Ltd complains of. In these circumstances we have not objected to material establishing that Ms Fairweather made complaint about her wages but have objected to any material which attends upon the issue of whether that complaint was soundly based.

29 Mr Francis conceded that this correspondence correctly describes the issues. 30 At the completion of the applicant's case in evidence Mr Hatcher made application that the matter be dismissed, putting that the respondent had no case to answer and that the application was frivolous and vexatious. 31 Mr Hatcher put a further application that, pursuant to Rule 209 of the Industrial Relations Act 1996 Rules and Regulations, costs be awarded to the respondent, to be paid by the agent. 32 Rule 209(1) states: RULE 209 BARRISTER OR SOLICITOR OR AGENT TO REPAY COSTS DUE TO DELAY, MISCONDUCT, ETC

209(1) [Costs incurred unreasonably] Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Commission that a barrister, solicitor or agent is responsible, the Commission may, after giving the barrister, solicitor or agent a reasonable opportunity to be heard:

(a) disallow the costs as between the solicitor or agent and the solicitor's or the agent's client;

(b) disallow the costs as between the barrister and that barrister's instructing solicitor or as between the barrister and the client;

(c) direct the barrister, solicitor or agent to repay to the client costs which the client has been ordered to pay to any other party;

(d) direct the barrister, solicitor or agent to indemnify any party other than the client against costs payable by the party indemnified. 33 A decision was issued ex tempore in the following terms: HIS HONOUR: The application made by Mr Hatcher must succeed and I dismiss the proceedings. I turn first to the letter of termination of employment which is found at many places in the evidence, but conveniently at attachment J of exhibit 11, the affidavit of the applicant, on the file on 16 September 2002. Therein the respondent informs the applicant during the course of advising of the termination of employment in the following terms: "You continue to decline the office to discuss these serious concerns. Additionally, you have continued your unsatisfactory attitude with the ongoing correspondence. That correspondence shows you choose conflict over co-operation which as we have said is causing the problems. "

The documentary evidence preceding that termination of employment is, as Mr Hatcher points out, littered with requests by the employer to confer with the applicant concerning issues arising on the job. Whether in fact there was an issue of such seriousness in the phone call alleged is uncertain and not determinant in these proceedings. It was a matter that the applicant refused to confer further with the employer. The tone and measure of correspondence flowing from those events was certainly confrontationist and not indicative of any form of cooperation or attempt to get to the substantive issues to sustain the contract of employment. The continued approach by the applicant in that way compels the application by Mr Hatcher to succeed. I do not find that there's any lack of procedural fairness. Whilst North Star may have comprehensive procedures and policies there is no evidence of the applicant insisting upon or suggesting those procedures be applied. There is simply the stream of aggressive communication. The procedures adopted by the respondent, whether they are in conformity with a documented manual or procedure, is in my mind irrelevant. The procedures were basically reasonable and fair, inviting discussion and resolution of the issue. The application is dismissed. I should also say there is by no notion any practicality of reinstatement, given the conduct of the applicant and her representative.

34 Mr Hatcher then made application for costs pursuant to s 181(2) of the Act and pursuant to Rule 209 of the Commission's Rules against Mr Francis. 35 Mr Francis was given an opportunity to respond, offering the following: I believe that we were entitled to make an application for reinstatement. We don't think that what Vivienne had done was unfair and I don't believe that it was vexatious in any way, shape or form and that we don't believe that the respondent is entitled to costs. 36 An ex tempore determination on costs is found at p 199 of transcript in the following terms: I find the proceedings are frivolous and vexatious and have been agitated without reasonable cause. I order costs pursuant to rule 209 against the agent in an amount as agreed between the parties or as taxed by the Registrar. I will publish a full decision with reasons and orders in due course. 37 The case brought by Mr Francis and the evidence in support thereof was entirely misdirected. Mr Francis sought to argue that the termination of Ms Fairweather's employment was on the basis of failing to accurately record a telephone message and difficulties with an advance booking arising from uncertainty as to the applicable tariff schedule. These are not the issues on which the termination of employment was ultimately grounded. 38 The issues upon which the termination was grounded was the continued refusal by the applicant to meet and confer with the respondent as employer and employee concerning her contrary attitude and demeanour towards the respondent and other employees; associated with the dispute between Mr Francis and the respondent. This is detailed succinctly in a series of written communications put in evidence. 39 Attachment G to exhibit 8 is correspondence dated 8 February 2002 from Ian and Diana Beadel, on behalf of the respondent, to Ms Fairweather in the following terms:

We refer to the discussions with you regarding a range of concerns involving your employment performance.

Firstly On 24th August 2001 a formal warning was given by us to you regarding your unsatisfactory and inappropriate attitude towards customer care. This was in reference to our practice toward customer service standards in the North Star's mission statement and was significantly less than your duty and responsibility and your own job description of which you are and were in possession.

You have made it very clear that you do not accept or require any further training towards your work performance. Secondly On 2nd February 2002 we expressed our dissatisfaction at your behavior to a client summarised by him in an e-mail dated 2nd February 2002. You have seen this e-mail of which in part relates to:

1. Your interjection while the person was trying to seek information on prices and accommodation

3. Advising the prices for 2003 were not yet worked out.

You stated in your opinion your phone manner is excellent and you are also right on top of all the reception requirements. Again you rejected our offer of additional training. You also advised you love your work and are not under any pressure or have any health problems that are effecting your work performance.

These complaints are farther proof of your continuing unsatisfactory attitude and performance. This is your second formal warning and from now, you should regard your employment as being probationary in so far as it is necessary for us to constantly review your performance. We will again formally review your overall performance against the stated required standards on the 25th February 2002.

Should you wish to discuss the issues outlined please feel free to ask for a meeting at a mutually convenient time.

40 Ms Fairweather's evidence is that she did not consider that she needed additional training and rejected the detail and sentiment of this correspondence. 41 Attachment I to exhibit 8 is correspondence of five pages from Ms Fairweather to Ian and Diana Beadel, dated 15 February 2002, in which she denies she has ever been given a formal or informal warning; complains that the procedures set out in the staff handbook have not been followed; regards the statement by Ian and Diana Beadel that she indicated she does not require any further training as "nonsense"; and details an extensive procedure that she asserts should be followed. These points are set out in three numbered paragraphs, which state in part: ii. At least once every 12 months all staff should undergo a formal performance appraisal at which inter alia all short comings or inadequacies should be addressed and training/retraining programmes should be implemented together with a development programme. As you are aware, despite both this policy being clearly set out in the Staff Handbook and despite there being a clause in my employment contract that necessitates you conducting such a performance appraisal, I have never received a performance appraisal since starting employment at the North Star. I am aware however, that Val Wilkins used the North Star Performance Appraisal Form when assessing staff in a meeting with the former commercial manager, Bruce Francis. On that form Val Wilkins recorded higher marks for me than Susan Taylor, Sharon Temple-Smith, Anita Mudge and Ashley Beadel. 42 Ms Fairweather confirmed that Bruce Francis had written this letter on her behalf. She contended that this and other correspondence had been written by Bruce Francis on her instructions from notes she prepared for that purpose. 43 Mr Hatcher called for production of the notes, Ms Fairweather being required to so produce on 22 October 2002. A single handwritten page was produced (Ex 15) which, on Ms Fairweather's evidence, was written by Peter Francis. Exhibit 15 (addressed to "Brucey boy") deals with issues of overtime and communication, not matters subject to these proceedings. 44 Attachment J to exhibit 8 is a response from Ian and Diana Beadel in the following terms: Dear Vivienne,

We are quick to reply to your extended letter in response to the second formal warning issued to you on February 8th 2002 regarding unsatisfactory standard of customer care performance.

As we said it is our opinion that your performance problems arise from an "inappropriate attitude". Your letter reinforces such a diagnosis. We would urge you to accept the reality of our warnings and re-examine with us the facts supporting the difference between your on job performance and the standards required.

Let us again assure you our focus is singularly on unsatisfactory performance and the need to adjust behaviors on the job. Accordingly, we are not concerned (for the time being) with actions you have taken (subsequent to the second warning) through the Department of Industrial Relations regarding underpayment claims. Nor are we in any way confusing your performance with actions of any other former employee.

As you know your performance has been under constant review since February 2nd 2002. We are unable to anticipate a favourable outcome at our next scheduled review on the 25th February 2002 in the light of your denials.

Again, be assured this is simply diligent management of our business and a genuine effort to solve a performance problem fairly and expediently. Please take advantage of our offer to assist through further discussion prior to the next meeting. 45 Attachment K to exhibit 8 is return correspondence from the applicant to Ian and Diana Beadel in the following terms: I acknowledge receipt of your letter dated 19 February 2002. I believe that the sentence "we are unable to anticipate a favourable outcome at our next scheduled review on the 25th February 2002 in the light of your denials" means that you are threatening to terminate my services on that day. I believe that such a dismissal would be unfair and accordingly have today applied to the NSW Industrial Relations Commission to stop my "threatened dismissal".

On my Form 7A I nominated Bruce Francis as my representative because I have not been able to contact my union representative. I believe that the union will represent me in this matter. 46 This correspondence led to termination of employment, the communication thereof to the applicant is found at attachment L to exhibit 8, relevantly set out hereunder: Dear Vivienne,

We refer to our memoranda of February 8th and February 19th and your various replies to those memoranda.

Unfortunately, the concerns we expressed in those memoranda, regarding your unsatisfactory performance and approach to customer care, still exist. In fact there are several more incidents of concern since February 2nd which we urgently need to review with you.

Furthermore you continue to decline the offers to discuss these serious concerns, additionally you have continued your unsatisfactory attitude with the ongoing correspondence. That correspondence shows you choose conflict over co-operation which as we have said is causing the problems.

We do not consider that we can continue to work with you in these circumstances as such your employment is hereby terminated. 47 The involvement of Bruce Francis in promoting and extending the conflict gives foundation to Mr Hatcher's submission that the proceedings were agitated in a vexatious manner. The extent of material sought by summons going to issues irrelevant to these proceedings, though apparently of interest to Mr Francis in other litigation, amounts to an abuse of process supporting the order of costs. oo0oo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 20 February 2002 Matter No IRC 1191 of 2002

VIVIENNE FAIRWEATHER AND LADEHAI PTY LTD T/AS NORTH STAR HOLIDAY RESORT

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

1. The application of Ms Vivienne Fairweather pursuant to s84 of the Industrial Relations Act 1996 is dismissed.

2. Pursuant to s182 Rule 209 of the Commission's Rules, Mr Bruce Francis is ordered to pay costs incurred by Ladehai Pty Ltd t/as North Star Holiday Resort in these proceedings to an amount agreed, or as taxed by the Industrial Registrar. I so order. The Hon. R W Harrison Deputy President

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.