Pecotic v. A V Jennings Holdings Limited [2007] NSWIRComm 1001 - NSWIRComm 2007 case summary — Zoe

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Pecotic v. A V Jennings Holdings Limited [2007] NSWIRComm 1001

[2007] NSWIRComm 1001

Industrial Relations Commission (NSW)|2007-07-01

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2007-07-01

Source

Original judgment source is linked above.

Judgment (586 paragraphs)

[1]

CITATION: Pecotic v. A V Jennings Holdings Limited [2007] NSWIRComm 1001

[2]

APPLICANT Elma Mary Pecotic PARTIES: RESPONDENT A V Jennings Holdings Limited

[3]

CATCHWORDS: termination of employment - misconduct - allegation of a threat of violence by employee - the spreading of unsubstantiated rumours in an office - allegations of bullying by a supervisor - complaint of harassment of employee by supervisor - policy for dealing with harassment and discrimination in the workplace - requirement that full details of a complaint of any harassment in the workplace be provided to the alleged offender - deterioration in working environment - psychological assessment of stressed employee by psychologist - the proper role for a psychologist in assisting in work related stress - counselling of employee - disciplinary interviews - reallocation of matter for arbitration - evidence - claim of privilege rejected - subpoenas on computer records - undertaking not to proceed in any other jurisdiction - restrictions on evidence in reply - the ethics of advocacy - requirement that a distressed witness be available for cross-examination - computer records and diary entries as corroborative evidence rejected as self-serving and open to challenge - the question of fairness in dismissal - procedural unfairness - lack of warnings of impending dismissal - disciplinary meeting of employee in a condition of stress - the appropriate remedy for an unfairly dismissed employee - implications for a dismissed employee from unnecessary delays in the proceedings - reinstatement or re-employment impracticable - application for reinstatement, re-employment or monetary compensation dismissed - conclusion that the dismissal of the employee was fair in the circumstances - application for costs by parties reserved

[5]

Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v. Paris (1999) 93 IR 209 Berger Paints Case (1984) 9 IR 273 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Brown v. Coca-Cola Amatil (Australia) Pty Limited (2002) 123 IR 33 Browne v. Dunn (1893) 6 R 67 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 CCH Australia Limited v. Bowen (1998) 79 IR 206 CGEA Transport Limited v. Transport Workers Union of Australia (2001) 110 IR 211 Clyne v. New South Wales Bar Association (1960) 104 CLR 186 Commissioner of Police v. Police Association of New South Wales [2005] NSWIRComm 132 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Devey v. Enacon Parking Pty Limited - unreported Elizabeth Drive Nursing Home Case - unreported Fletcher v. Commissioner of Taxation (1988) 84 ALR 295 Henderson v. Rural Lands Protection Board (1997) 74 IR 142 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Hospital Employees' Federation of Australia v. Western Hospital (1991) 4 VIR 309 Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2001) 121 IR 122 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 CASES CITED: Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 Moran v. Abbott Australasia Pty Limited (1994) 54 IR 288 North v. Television Corporation Limited (1976) 11 ALR 599 Nowra Bomaderry Leagues Club v. Federated Liquor and Allied Employees' Union of Australia (1986) 15 IR 463 Oldfield v. Keogh (1941) 41 SR(NSW) 106 Outboard World Pty Limited v. Muir (1993) 51 IR 167 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Parramatta City Council v. Health and Building Surveyors Association of New South Wales (1988) 26 IR 398 Pacific Power v. Crump (1993) 48 IR 296 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Public Service Officers Case (1979) AR 375 Public Service Professional Officers Association of New South Wales v. Forestry Commission of New South Wales (1990) 39 IR 46 Reece v. Trye (1846) 9 Beav. 316 Riteway Express Dispute Case [2002] NSWIRComm 1009 Roupell v. Haws (1863) 3 F and F 784 State of New South Wales v. Seedsman - unreported Sukkar v. Video Intercom Pty Limited [2006] NSWIRComm 1088 Tasovac v. New South Wales Police Service (1998) 83 IR 410 Todd v. Mainfreight Distribution Pty Limited - unreported Tringali v. Stewardson, Stubbs and Collett Pty Limited (1966) 1 NSWR 354 Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Waind v. Hill and National Employers' Mutual General Association Limited (1978) 1 NSWLR 372 Walsh v. Sangra Holdings Pty Limited [2006] NSWIRComm 1094 Western Suburbs District Ambulance Service v. Tipping (1957) AR 273

[65]

33 As I indicated earlier in this decision, it became necessary for me to vacate the hearing of the matter for final submissions on Wednesday, 21 February, 2007 and set the matter down for those submissions on Thursday, 29 March, 2007 (and subsequently Friday, 27 April, 2007). At the commencement of the hearing on Wednesday, 21 February, 2007, Mr Cross submitted that I should adjourn the proceedings and I agreed to do so. His reason for making that submission were essentially on the grounds of natural justice. 34 The fact is that Mr Dean had on Tuesday, 30 January, 2007 provided written submissions - some 20 pages in length - to me and to Mr Cross in support of his argument that Mrs Pecotic's dismissal by A V Jennings was unfair. He did not address the fundamental issue of the remedy Mrs Pecotic would be seeking, which I understood to be primarily reinstatement in employment, however. Mr Cross' written submissions, provided to me and Mr Dean on Wednesday, 14 February, 2007, was 16 pages in length and it did address the question of the appropriate remedy. On Monday, 19 February, 2007 Mr Dean filed his written response to Mr Cross' written submissions but that document was 142 pages long. 35 That is an eccentric procedure. I do not accept that a reply to written submissions of fairly modest proportions would permit such a lengthy document in response. It seems clear to me that Mr Dean has simply held his primary submissions back to inconvenience Mr Cross, giving him only two days to address the issues in that lengthy document. I do not propose to rely on it. It would appear that, although Mr Dean has conceded in written submissions he supplied to me, the onus of proof rests on him to establish the unfairness of Mrs Pecotic's dismissal, he has adopted an approach where, in fact, he is expecting A V Jennings to really advance a case that it has not acted unfairly. 36 Written submissions are provided to assist the parties - and the Commission - in the preparation of their respective cases. They are not designed to provide some tactical advantage by one party over another. And since the process of proceeding with written submissions has created this problem, I rejected any further written submissions and indicated that I proposed to proceed instead only with oral submissions. 37 On Monday, 19 February, 2007 Mr Dean also filed a written response - 43 pages - to material which Mr Cross had provided in the proceedings on Wednesday, 25 October, 2006 concerning the lengthy delays in the proceedings (which Mr Cross attributes primarily to Mr Dean's conduct of the case). Mr Dean disputes the allegation made by Mr Cross that he was responsible for the delays in this matter proceeding, asserting instead that A V Jennings and its representatives in this hearing were primarily responsible for that delay. I was prepared to accept that material and will discuss it later in this decision. But clearly Mr Cross is entitled to more than two days to examine Mr Dean's written submissions, necessitating the vacation of the hearing on Wednesday, 21 February, 2007 and its rescheduling to Thursday, 29 March, 2007. 38 Mr Dean's oral submissions extended for the whole of Thursday, 29 March, 2007. Consequently, it became necessary for a further day to be allocated for Mr Cross' submissions and for Mr Dean to reply - Friday, 27 April, 2007.

[516]

180 Mr Dean indicated in his written response to the document Mr Cross had supplied that it had not been Mrs Pecotic's intention to delay the proceedings and, indeed, he argues that it was A V Jennings that was responsible for the delays. Mr Dean sets out his own chronology of events. Essentially, he has argued that from the outset the conduct of the representative of A V Jennings in the initial proceedings before O'Neill had mislead him in the interlocutory orders he made on Tuesday, 7 February, 2005, adversely affecting Mrs Pecotic's rights in relation to the prosecution of her Part 6 application and necessitating O'Neill C to recuse himself and for the matter to be reallocated to me. The solicitor representing A V Jennings had contacted O'Neill C on Wednesday, 9 February, 2005, sending by electronic means to him a letter enclosing the purported interlocutory orders made and that those orders were inconsistent with the orders made by O'Neill C on Tuesday, 7 February, 2005. 181 In his written submissions Mr Dean highlights the fact that originally A V Jennings had provided only an outline of what it expected Mr Bunter to subsequently provide by way of his evidence on or about Tuesday, 28 February, 2006. A more detailed statement of Mr Bunter's evidence did not come forward until much later. A V Jennings indicated that, since Mr Bunter no longer worked for it, he could not be compelled to provide a written statement at that time. In due course a written statement was provided by Mr Bunter. Mr Dean has asserted that the contents of the outline of Mr Bunter's anticipated evidence and the written statement were in conflict and that A V Jennings was attempting to deliberately mislead me and he relies on that assertion to support his claim that it was delaying him in the proper preparation of Mrs Pecotic's case. I do not see any conflict in the outline of submission provided on behalf of Mr Bunter and what he ultimately gave in evidence that would have in any manner prejudiced Mr Dean in the preparation of his case for Mrs Pecotic or his cross-examination of Mr Bunter. 182 Mr Dean claimed that A V Jennings had not come to these Part 6 proceedings by Mrs Pecotic with "clean hands". He wrote: "...The respondent does not come into the Commission with 'clean hands' and should not now come into what is essentially a court of 'equity and good conscious [ sic ]' and say the conduct of the applicant was the cause of delay when any delay was due to the perverse conduct of the respondent... The applicant is aware of the obligation of the parties to minimise delay and expense... The respondent sought to complicate and confuse the proceedings by trying to portray the applicant as introducing new matters when in fact the matters were introduced by the respondents..."