SUBMISSIONS ON BEHALF OF THE RESPONDENT
60The Respondent's submissions did not address the merits of the Applicant's submissions regarding the delegation issue. Rather, the Respondent confined its submissions to the issue as to whether the Applicant should be granted leave to amend her claim in order to pursue the delegations issue. If the Applicant is ultimately allowed to amend her claim in that regard, then the Respondent would need to file evidence in reply and make final submission in order to address merits of the Applicant's arguments on delegation.
61The Respondent argued that the issue of the appropriate delegation to Ms Cvetkovic to require the Applicant to attend a fact finding interview was not raised before the Opening Submissions by the Applicant's counsel.
62The Respondent also argued that Counsel for the Applicant raised the issue of delegations again in the proceedings on 22 April 2010:
LOWSON: .... But dealing first with the delegation manuals, those documents, as I have indicated, are part of the case that we put forward in respect of challenging the appropriate delegations of Ms Cvetkovic and Mr Tout in respect of the steps they took or purported to take, more properly, in relation to the disciplinary investigation into Ms Ganino's conduct. These are the only documents, you will recollect, Commissioner, that I think L3 is the summons for documents that we have tendered in these proceedings and these documents were sought under I think the third summons, this was all that was produced and we intend to rely on the fact that this is all that has been produced to make out, as part of our case, in addition to the unfairness and in addition to the procedural unfairness, that there is in fact a straight invalidity issue arising on this case.
EASTMAN: Well, Commissioner, I dealt with this the other day: there is no issue raised in the application for unfair dismissal where part of the allegation of unfairness relates to invalidity which in a sense is saying these decisions could never have been made because the appropriate people don't hold a delegation and I indicated that in the absence of anything in the application and in the absence of any evidence about those matters, simply tendering delegation manuals without any context or without any evidence is not a proper way to deal with the evidence and it's not relevant to any issue in the proceeding because the question of what's now called validity is just not before the Commission and it's not a matter that we've been put on notice or we've raised.
And you'll recall yesterday I asked Ms Ganino with respect to her letter in reply to Mr Tout, that's the 6 July letter where she's making submissions, that in the first part of the letter she identifies a series of complaints about Mr Tout's involvement and I put to her that she didn't identify as part of those complaints any issue with respect to his delegation to make the decision and she agreed with that. So having agreed with it, I think it's clear that it's just not part of the case, it's never been part of the applicant's case and we oppose now, on day 7 of the hearing, to be told that now this is going to be part of the case.
.....We've not had any opportunity to lead any evidence about any matter concerning delegation and we're not really told other than, "Well, we think delegations are in issue and there's an invalidity thing" what the applicant relies on this material for. So we oppose its tender on that basis.
LOWSON: ....The issue in relation to delegations is there. The respondent has an extensive legal team that can look at the issue and consider it for themselves. Somebody has already considered it because, according to Mr Tout, they thought that, but for an abundance of caution, he should obtain a specific delegation on [8] July.... All that was left to do then was to sack Ms Ganino, which doesn't say anything about a number of very important steps that occurred and I indicated on the last occasion that the disciplinary procedures, and , Commissioner, you would now know in more detail the extent of the dispute in relation to the disciplinary procedures, but regardless of which one you look at, delegations are required. As I said on the last occasion, in my submission, the respondent has been on notice since they got that summons in November that this was a matter that we were pursuing. There was correspondence in relation to the matter as well, at least in relation to whether further material was available. Matters were identified in the documents that were produced and we asked for further documents but nothing else was forthcoming....
...the evidence in the correspondence [6 July 2009] is that [Ganino] raised it, albeit on a narrow basis where she identified that [Tout] was not the correct director.
63In correspondence to Mr Tout, dated 6 July 2009, Ms Ganino responded to a letter he had forwarded to her by Express Post mail dated 29 June 2009. She advised Mr Tout that she was concerned that he was writing to her to confirm that he was considering terminating her contract of employment. She pointed out that, according to the RTA's Discipline Guidelines (version 6.0) effective 3 November 2009, that he was not " the appropriate person to do so ". Ms Ganino went on to quote from the Guidelines:
(a) "The Relevant Director"
The Guidelines state at page 3:
" Directors are responsible for determining disciplinary outcomes in serious misconduct matters involving staff within their Directorate. "
I am not a staff member within your Directorate. Staff in the RTA's Legal Branch have, since the Legal Services Function Determination of 19 October 2006, been within the Directorate of the Chief Executive's Office of the RTA - not your Directorate of Corporate Services & Reform.... Consequently, you are not, according to the Guidelines, the relevant Director to determine any disciplinary outcome or action in respect of me....
64The Applicant pointed to Mr Stout's statement evidence wherein he stated that although he held the view that he held corporate-wide authorities for discipline and decision making in relation to Ms Ganino's employment. Nevertheless, for abundant caution, he obtained a signed delegation from Mr Michael Bushby, Acting Chief Executive, dated 8 July 2009, in which the Acting CEO purported to delegate to Mr Tout, Director Corporate Services from that day until revoked by him, " all of the functions, powers and authorities of the Chief Executive of the RTA in relation to the employment of Ms Rosanna Ganino, Senior Solicitor Liability Litigation, RTA Legal Branch, including the Determination of any disciplinary investigation, action or process in relation to that employment by affirming, varying or terminating that employment. "
65Ms Lowson pointed out that the issue of delegation was raised by the Applicant's Solicitors in October 2009 when correspondence was forwarded to the Respondent on 29 October 2009 referring to that statement evidence and seeking copies of the delegations that Mr Tout held or the position he held covering the period from 6 January to 8 July 2009. When nothing was forthcoming from the Respondent, the Applicant issued the summons.
66The Respondent summarised the Applicant's written submissions as follows:
(a) the Applicant wishes to advance a complex and detailed argument about legislative provisions which were not referred to in her list of authorities;
(b) the Applicant assumes that failure on the part of the Respondent to provide instruments of delegation means that the Respondent is unable to prove that a delegation is not valid;
(c) the Applicant also assumes that where the Delegations Manual is silent on an issue, then only the CEO has the power to authorise the decisions in the various steps in a disciplinary process;
(d) the Applicant suggests that, in the absence of evidence as to authority to make decisions in individual steps within the disciplinary process, then the individual decisions are invalid;
(e) the suspension with pay was not authorised and therefore was not valid;
(f) issues as to which of the Delegations Manuals were applicable at the relevant time and the alleged lacuna that was identified in the 2007 Manual;
(g) the engagement of Mr Madden and Mr Hopkins and the "issue of allegations of 29 February and 12 May 2008" are all invalid;
(h) each of the fact finding interviews was invalid;
(i) the failure of the Respondent to produce documents authorising a disciplinary interview;
(j) the failure of the Respondent to produce a sub-delegation from Mr Tout to Ms Cvetkovic;
(k) the termination was unlawful;
(l) the Applicant's list of authorities, which did not include reference to s 49 (2) of the Interpretation Act 1987 (NSW), was not provided in a timely fashion as per the Commission's directions but on 16 April 2010 after prompting from the Respondent two days before.
67The Respondent submitted that none of the above matters were raised in the application filed on 4 August 2009; her evidence in chief or her statement in reply; none of the documents attached to the Applicant's written submissions refer to the claims now advanced in the submissions; and none of the matters were raised prior to the commencement of the hearing. It was pointed out that some issues were raised for the first time in submissions despite the fact that the Applicant was capable, and did, raise issues during the disciplinary process ranging from bias to failure to provide ERISP recording equipment.
68It was argued that the mere request for documents contained in one of many summonses could not possibly be taken as putting the Respondent on notice that a new claim would be raised. The Applicant is seeking the setting aside of all decisions on the basis that the various persons involved in the fact finding and disciplinary process had acted ultra vires regardless of the merits of the substantive claim and despite the fact that the Applicant did not put the Respondent on notice that it intended to challenge all aspects of the suspension, fact find and disciplinary process as invalid.
69The Respondent conceded that the only issue it was aware of related to whether Mr Tout was the appropriate Director. It was pointed out that all other issues were new issues which the Respondent was not put on notice about and which involve an application to make a substantial amendment to the Applicant's case seven days after the commencement of the hearing and after the Applicant's evidence has closed. The Respondent relied on the principles enunciated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as supporting its submissions that leave should not be granted to amend the Applicant's application. Those principles apply to proceedings in this Commission (see PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Traffic Authority of New South Wales Division of New South Wales Government Service [2009] NSWIRComm 181 (29 October 2009) at [13] and also Fonseka v Epic Hotels Pty Ltd (No 2) [2009] NSWIRComm 178:
Firstly , there is no automatic entitlement to amend. The High Court held that the requirement to make amendments for the purpose of deciding "the real issues in the proceedings" does not impose some unqualified duty to permit the late addition of any new claim.
The High Court distinguished the circumstances in Aon by the fact that the Applicant in those proceedings had deliberately chosen, and persisted in its approach, to limit the manner in which the original claim was framed.
Secondly , the High Court held that the requirement of avoiding a multiplicity of proceedings and proceeding in an orderly fashion to fix a trial date did not oblige a court to accept the addition of new claims at the last moment before trial particularly when it cannot be inferred that further proceedings would be instituted if the amendments are not accepted.
The Respondent pointed out that there is no evidence and no inference can be drawn that refusing the amendments would result in further proceedings being instituted. It was argued that the Applicant was too late to commence proceedings aimed at challenging the validity of the numerous decisions made during the disciplinary process which she claims to be invalid.
Thirdly , the High Court did not follow Queensland v JL Holdings (1997) 189 CLR 146 wherein an amendment application was determined by reference to whether any prejudice to the opposing party can be compensated by costs. The Court held that a just resolution of proceedings does not permit a party to raise any arguable case at any point in the proceedings, on payment of costs.
The High Court determined that the Applicant bore the onus of establishing a basis for leave having regard to a number of factors including the extent of the new claim; its effect on the proceedings; and the extent to which the objectives of case management would not be met if the amendment is allowed.
Finally , the High Court held that the Applicant was required to provide an explanation as to why the matter had proceeded to trial in its existing form when defences served more than 12 months earlier had identified the central issue to the claim it sought to bring.
The Respondent argued that the Applicant failed to give any evidence or any explanation as to why the new claims were raised for the first time in opening submissions.
70It was argued that the amendment will cause the Respondent prejudice for the following reasons - firstly , it has not filed any evidence in relation to the issue of delegations within the RTA as it did not have notice of the claim. It could have given evidence about how delegations operate within the RTA, evidence about the 2007 and 2009 Delegations Manuals and their relevance to the present matter; and Mr Tout and Ms Cvetokvic could have given evidence about their specific circumstances.
71Secondly , the written submissions of the Applicant went well beyond the delegation issued identified in the opening remarks. On that basis, the Respondent has not had the opportunity to cross-examine the Applicant about the claims being made on her behalf and, in particular, the reason why the Applicant did not pursue her contentions for such a significant period of time.
72Thirdly , if the Applicant is allowed to make such amendments to her claim, then the Respondent will require additional time to address those amendments and may need to call additional witnesses to address those issues. In other words, the amendments will result in an increase in the time for hearing the matter.
73The Respondent likened the Applicant's approach to " a trial by ambush " and completely antithetical to the objectives of the Commission - which include the provision of a just, timely and effective dispute resolution service and the public interest to use resources efficiently: (see s 3 (g) of the Industrial Relations Commission Act 1996 (NSW) and Practice Note 17). It was pointed out that it was well accepted that questions of procedural fairness must be considered in the context of those objectives (see Aon Risk at [25] - [27]).
74The Respondent concluded that the Applicant should not be permitted to pursue a claim alleging invalidity of every step or decision in the fact finding and disciplinary processes when it has not been raised previously and was explained for the first time in submissions dated 28 April 2010.