Hollingsworth v Commissioner of Police - [2002] NSWIRComm 336 - NSWIRComm 1998 case summary — Zoe

NSWNSWIRComm

Hollingsworth v Commissioner of Police

[2002] NSWIRComm 336

Industrial Relations Commission (NSW)|1998-05-28|Before: Sams DP, Schmidt JJ, Schmidt J, Walton VP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-05-28

Before

Sams DP, Schmidt JJ, Schmidt J, Walton VP

Source

Original judgment source is linked above.

Judgment (106 paragraphs)

[1]

CITATION : Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336 APPLICANT PARTIES : Ms Ceylan Goren RESPONDENT Linkware Australia Pty Ltd FILE NUMBER: 721 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - whether applicant resigned - constructive dismissal - allegations of sexual harassment - conflicting evidence - unrepresented litigants - principles of constructive dismissal. CATCHWORDS : Held, both unrepresented parties afforded fairness during the proceedings - Commission not moral judge - inappropriate workplace environment - behaviour between work colleagues too familiar - allegations of sexual harassment not proven - applicant's evidence not credible - applicant not innocent victim but willing participant - respondent's evidence preferred - applicant motivated by jealousy - termination of employment not at employer's initiative - resignation not relevant - mutual break in the employment relationship - no dismissal - application dismissed for want of jurisdiction. LEGISLATION CITED : Industrial Relations Act 1996 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 382 Stevenson and Greenstyle Pty Ltd and Penshurst Pty Ltd t/as Atama Furniture [2002] NSWIRComm 292 Allison v Bega Valley Council (1995) 63 IR 68 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 CASES CITED : Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, IRC5932 of 1997, 28 May 1998 Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, IRC5504 of 1999, 6 May 1999 Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, IRC4710 of 1999, 14 April 2000 Police Service of New South Wales v Batton (2000) 98 IR 154 Ward v Mobile Innovations Limited (2002) NSWIRComm 287 HEARING DATES: 09/03/2002 DATE OF JUDGMENT: 12/06/2002

[2]

[79]

75 Both parties were unrepresented. The Commission, as presently constituted, had recent cause to highlight the obligations on the Commission in such matters and to refer to the authorities which have set the principles to be applied in cases involving unrepresented litigants. See discussion in Stevenson and Greenstyle Pty Ltd and Penshurst Pty Ltd t/as Atama Furniture [2002] NSWIRComm 292: [142] At this juncture, I would refer to the principles the Commission is to have regard to in respect to unrepresented litigants. In Nicholls and Central Sydney Area Health Service (unreported) Matter IRC4131 of 1999, 25 August 2000, I said this: Sadly, this case starkly demonstrated one of the major problems with cases involving unrepresented parties; namely, that such parties are usually so emotionally and subjectively involved that a rational and dispassionate approach to preparing for, and conducting a proper case, is all but a forlorn hope. .... In view of these circumstances, it is appropriate that I should refer to the principles that the Commission should adopt in litigation involving an unrepresented party. The guiding principle is a simple one: " to ensure all parties are afforded the benefits of the rules of natural justice ". For a helpful discussion of the term 'natural justice' in the context of an unrepresented litigant see Davidson v Aboriginal & Islander Child Care Agency ( Ross VP, Watson SDP and Eames C) Print Q0784, 12 May 1998. While the principle of natural justice might seem simple enough, its application in an intensely emotional and difficult litigation is not always so. It is often a delicate balance involving a number of sensitive issues such as ensuring an unrepresented litigant is aware of his or her rights, ensuring the trial judge does not become an adviser or advocate and ensuring an orderly and sensible conduct of the proceedings. Two authorities are apposite. In Regina v Gidley , 3 NSWLR 168, the Court of Criminal Appeal said: The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case.

[80]

In Regina v Zorad , 19 NSWLR 91, the New South Wales Court of Appeal held that: 1. An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person. 2. The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial: a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused. b) would include the giving of advice that, notwithstanding a ruling on the voir dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done. c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn , advice of the existence to that rule. See also Herbert and Warrah Ltd [2001] NSWIRComm 109 and Stephan and R L Whyburn and Associates [2000] NSWIRComm 154. [143] In a recent appeal decision, Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150, where the appellant appeared unrepresented, the Full Bench said: [6] It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing. [144] For completeness, I cite the passage referred to by the Full Bench above in Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd : The Commissioner refused to let her re-open her case. We agree in the circumstances of this case with the Commissioner's action. There must be an end to litigation and in this case the applicant had had ample opportunity to make out and present her case. In fact, the Commissioner was at pains to make sure that she understood the process and he was generous in the guidance which he gave her as to the conduct of her case. The appellant made strong representations that the Commissioner erred in that he did not give the appellant all the help he should have given her as an unrepresented litigant. We do not share that view. Whether a person be represented or not, the responsibility for the conduct of their case remains with them. Whilst we agree that in the case of an unrepresented party the Commission should be prepared to assist with appropriate guidance and advice and give a measure of guidance as to the conduct of their case, that advice and guidance must not jeopardise or in any way compromise the independence of the Commission. Secondly, we share the Commissioner's doubts that her case would be materially advanced by her calling the respondent's witnesses.