Simjanovska and Roads and Traffic Authority of New South Wales [2006] NSWIRComm 267

1 Ms Simjanovska ("the appellant") seeks leave to appeal and if leave is granted, to appeal against the decision of Connor C given on 24 March 2006 in matter number IRC 4554 of 2005. 2 By way of background, the appellant has commenced proceedings alleging and seeking relief from victimisation under Ch 5, Pt 1, Principles of Association of the Industrial Relations Act 1996 ("the Act"). Conciliation was attempted (albeit unsuccessfully) in September 2005 and October 2005. In January 2006 the file was returned to the Registry to be reallocated for arbitration under new centralised listing arrangements which formally commenced on 9 January 2006. 3 In February 2006 the matter was reallocated to Connor C for hearing on 2 March 2006. 4 The Roads and Traffic Authority of New South Wales ("the respondent") moved the Commission by notice of motion to dismiss the appellant's application for want of jurisdiction. The appellant moved the Commission, by notice of motion, to adjourn any such jurisdictional challenge in order that it may proceed and be heard concurrently with the substantive application for relief from alleged victimisation. 5 The appellant's notice of motion sought, in the alternative, the dismissal of the employer's notice of motion. The Commissioner observed, and we are unsure why, that the substantive application was not before him and then proceeded on 2 March 2006 to hear the adjournment motion (which he refused) and the motion challenging jurisdiction (which he granted). 6 In the result, the appellant's substantive application was dismissed for want of jurisdiction as a threshold determination in the proceedings before the calling of evidence. 7 In the course of giving reasons for so deciding, the Commissioner entered into discussion about the internal listing practices of the Commission and in particular Practice Direction 17 which, we may observe at the outset, was unfortunate and inappropriate. There can be no justification for individual members of the Commission commenting adversely about such matters where no issue in that regard requiring adjudication is joined between the litigants and where such matters have no material bearing on the issues raised for determination. 8 This is particularly so in the present case where the Commissioner acknowledged in the course of his reasoning that the particular listing practices about which he adversely commented are directed expressly to applications other than the victimisation application which was before him, namely, to unfair dismissal applications. We consider that this approach mostly likely distracted the Commissioner from the issue he was actually required to determine. 9 Whilst the grounds of appeal were not expressed with complete clarity by the appellant, it became apparent during the course of the appellant's submission that the she challenged the Commissioner's decision on two essential bases. First, that the Commissioner had erred in finding that the application was outside the jurisdiction of the Commission under s 210(1)(e), s 210(1)(f) and s 210(1)(g). Second, and in the alternative, it was contended that the Commissioner erred in deciding that matter as a threshold issue before the taking of evidence (or at least sufficient evidence) necessary to decide the jurisdictional point. 10 We would observe that, on one view, the Commissioner dismissed the application in the exercise of a discretion not to extend time to bring the application. However, that issue dissolved in the appeal as Mr R Warren of counsel, who appeared for the respondent, correctly and fairly conceded that the Commissioner's decision as to jurisdiction had been the foundation upon which turned the out of time decision. Thus, the essential question for the appeal became the jurisdictional issue (or the related issue of prematurity). We would add that the correctness of this concession is confirmed by the fact that the Commissioner seems to have overlooked the fact that there were relevant continuing acts by the respondent which, if falling within s 210, would have brought the matter in time. 11 We also note that Mr Warren conceded, again we think correctly, that a finding in favour of the alternative ground of appeal, namely that the decision at first instance was premature, would be a proper basis, if made out, to uphold the appeal. 12 We consider that leave to appeal should be granted and the appeal upheld upon the alternative basis for the appeal advanced by the appellant. We consider the Commissioner's findings on jurisdiction were premature and not properly available on the material before him. We so find, notwithstanding our reservations about the appellant's reliance on s 210(1)(e) and s 210(1)(f) (which we consider are deficient because of the appellant's reliance upon an entitlement under a Federal Act and Federal instrument) because we consider the Commissioner prematurely found an absence of jurisdiction under s 210(1)(g). 13 Section 210(1)(g) is in the following terms: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: … (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or … 14 There is no dispute here that proceedings had not been commenced for the purpose of that sub-section at the time of any alleged act of victimisation. However, there was material before the Commissioner (which was not referred to in his decision) which would have, if established by evidence brought in the proceedings, meant the application fell within the jurisdiction of the Commission under s 210(1)(g). 15 That material suggests that the appellant had indicated, prior to any relevant alleged act of victimisation, that she would bring proceedings via her union in this Commission. There is some uncertainty whether that particular assertion was communicated to the respondent but that was a matter to be determined (possibly as a jurisdictional fact) on the evidence in the proceedings. It is also clear that the appellant asserted that she would bring various complaints under the Dispute Resolution Procedure of the relevant award. Given the aforementioned considerations that the appellant may have actually identified that she would bring proceeding in the Commission, it is strictly unnecessary to decide whether such a step would constitute "proceeding" for the purposes of s 210(1)(g), but we would indicate, as a preliminary view that, on a liberal and beneficial construction of the section, and having regard to the scheme and policy of the Act, that the invocation of a dispute settlement procedure under an award may well have constituted the appellant proposing "to participate in proceedings" for the purposes of s 210(1)(g). 16 This leaves outstanding the question of whether the proceeding purportedly contemplated by the appellant in this way related to "an industrial matter". This again is a matter of some real uncertainty on the appellant's case at first instance and on appeal. What is clear, however, is that there were some elements of the appellant's case at first instance which could have related to an industrial matter and which were said to be connected to the appellant's announcement of proceedings which we have earlier discussed. Those were all matters properly the subject of evidence and submissions and not proper to be dealt with as a threshold matter resulting in a dismissal of the application on the material before the Commissioner. 17 In all of this it should be observed we have treated the appellant's case at its highest to determine the questions on appeal as the Commissioner was required to do at first instance. When approached in that way the decision to dismiss the matter essentially on jurisdictional grounds at the stage the proceedings had reached at first instance, was an error requiring correction on appeal and raised significant issues of justice which would warrant a grant of leave to appeal. 18 We make the following orders: 1. We grant leave to appeal.

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Judgment (13 paragraphs)

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