T4333 - 14 September
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Miss Harriett Gunn and Fahan School
Industrial dispute - request for adjournment due to unavailability of witness - request denied - hearing to proceed as scheduled on Monday 20 September 1993 REASONS FOR INTERIM DECISION RE: REQUEST BY THE EMPLOYER FOR FURTHER ADJOURNMENT I am required to respond to a request made on behalf of Fahan School for an indefinite adjournment of a dispute hearing due to the unavailability of a witness through continued ill health over a long period. The request and its outcome are considered to be of such importance that they justify my written reasons. The principal matter concerns an application made by Harriett Gunn on 7 April 1993 for a hearing to settle an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act, 1984. The dispute was with Fahan School where Miss Gunn was employed as a teacher and it concerns:
The history of the matter to date is that subsequent to the lodgment of the dispute notice and following two hearing days Miss Gunn was dismissed from her employment as from 20 May 1993 and this gave rise to the lodgement of a further application1 by Miss Gunn for alleged unfair dismissal. Although first joined to T.4333 of 1993 this matter was adjourned sine die because of jurisdictional concerns raised by the Commission. The first day of hearing was 26 April 1993 when certain preliminary matters were disposed of followed by a private conference designed to both identify issues and explore the possibility of reaching a resolution through conciliation. Those present at that time were Miss H Gunn assisted by Mr Hunniford for counsel; and Mr Fitzgerald as agent for Fahan School, together with Mrs M Alexander (Principal of Fahan). Also present was Mr B McFarlane (Tasmanian Registered Teachers Association) as intervenor. The matter was then adjourned until 12 May, 1993 when the parties were to report to the Commission upon the outcome of separate further discussions which were to have occurred in the intervening period. At the recommencement of proceedings Mrs Alexander was again present with Mr Fitzgerald and it was reported that no resolution of the dispute had been found to that time and further conciliation proceedings then involving the Commission were held off record. On 24 May 1993 the Commission was advised that Miss Gunn had been dismissed on 20 May after being called to the Principal's office. It was also reported that the "Due Process" procedure referred to in Clause 14 of the Independent Schools (Teachers) Award did not occur. In addition Miss Gunn sought an adjournment which was based upon medical grounds. Finally on that day I ruled against an employer application that I disqualify myself and granted an adjournment until 15 June, 1993. On 15 June Mr Fitzgerald sought an adjournment of from 6 to 8 weeks due to the unavailability of Mrs Alexander due to her ill health. It was stated that Mrs Alexander's presence was required both as an important witness and as Fahan's instructing party. Both parties argued apposite cases concerning whether or not an adjournment of the length of time sought was justified in all of the circumstances. In the result I granted an adjournment until 18 June to allow for the production of supporting medical evidence in relation to Fahan's request for a lengthy adjournment, together with consideration of the implications of another matter (T.4401 of 1993) as they relate to matter T.4398 of 1993 (the dismissal of Miss Gunn). On 18 June 1993 a medical certificate was tendered supporting Mrs Alexander's absence from proceedings for a period of three (3) months from 17 June 1993. Again the parties argued from opposite positions regarding the fairness or otherwise of a long adjournment with particular reference to observance of the rules of natural justice as they affected both the employer and the employee in relation to the adjournment question. Mr Fitzgerald quoted and relied upon the majority decision of the NSW Industrial Commission in Court Session Cahill and Bauer J.J. (AILR 16 February 1983 at 74). The majority decision stressed the requirement for tribunals to demonstrate in the handling of contentious matters that essential procedures have been complied with fully. Their Honours said that in the case before them the manner in which conference proceedings were conducted denied the Builders Labourers Federation natural justice and they were not satisfied that the "AUDI ALTERUM PARTEM rule" had been complied with in the circumstances. Mr Fitzgerald also quoted from Osborne's Concise Law Dictionary, 7th Edition, which provides as follows: "audi alteram partem. (Hear the other side). That no one shall be condemned unheard is one of the principles of natural justice (q.v.). Reference was similarly made to the Australian Legal Dictionary (1st Edition(?)), S.E. Marentelli, which provides as follows: "audi alteram partem. Hear the other. audi alteram partem is one of the two limbs of the concept of natural justice, the other being nemo judex in causa sua. The audi alteram partem rule requires that both parties to any proceedings (especially judicial)(1) be given prior notice of the case they have to meet. (2) sufficient detail of the case against them so that they may be able to defend themselves, and (3) an opportunity to argue their case before the person deciding the case." Mr Hunniford argued that the rules of natural justice have not been departed from in this matter. He said also that the party in this instance is the Fahan School and not Mrs Alexander, and as with any other body such as a company in a similar situation as this it has to either state that it cannot call its witness within a reasonable time or has to make other arrangements to obtain alternate evidence. It was pointed out by Mr Hunniford that in the present case the employer was unable to say when Mrs Alexander will be available. It was further put that Miss Gunn would be prejudiced by further delays and she was ready to go back to work both for professional reasons and because she was dependent upon Government social security type assistance. Mr Fitzgerald indicated to the Commission that Fahan is not reliant upon the evidence of one witness as there are others, but the key witness was Mrs Alexander (transcript p.65). Later when referring to Mrs Alexander's unavailability through her medical condition Mr Fitzgerald had this to say: "MR FITZGERALD: We're not seeking to take advantage of the situation as a result of this condition. We would say that if the matter goes on any longer than the 3 months suggested by the medical certificate, then I don't think it's reasonable for the school to necessarily seek a further adjournment ... - and we would have to proceed with what material we had, possibly without Mrs Alexander which is not in our view, a desirable situation." (Transcript of 18/6/1993 at pages 74 and 75) A similar statement was made by Mr Fitzgerald earlier in proceedings on the same day when speaking to the contents of a medical certificate put forward as exhibit TCI 5; the employer's request for a three months adjournment; and the Commission's expressed concerns at that time. Mr Fitzgerald then said: "Just in terms of trying to in some way resolve the matter, we think would indicate - we can clearly understand that the matter can't be adjourned indefinitely. We realise there is an obligation. Following the 3 month period mentioned in TCI.5, I think the school would accept that if Mrs Alexander is not available at that time, then it would be forced to proceed with what it had." (Transcript 18/6/1993 at page 68) Subsequent proceedings were held on 29 June, principally for the purpose of allowing Miss Harriett Gunn to give sworn evidence, although other matters were also mentioned. Miss Gunn is yet to be cross-examined. In deciding to refuse the request of Fahan School for a further adjournment the following reasons are given: 1. The Commission accepts that there is a requirement to observe the rule of natural justice in dealing with the instance application and appropriately acknowledges the legitimacy of the authoritative sources quoted in this regard by the employer.
(a) have ample prior notice of the existence of the dispute and the time and place of hearing. (b) Have sufficient detail of the nature of the complaints which gave rise to this particular industrial dispute. (c) Be given every reasonable opportunity to argue its case. 2. It was Fahan School who employed Miss Gunn and not the Principal and this distinction needs to be recognised in terms of the request for a further adjournment at this time. 3. The Commission has recognised the employer's difficulty in not being able to call the Principal to give evidence because of the unfortunate circumstances relating to Mrs Alexander's ill health and granted a significant period of adjournment in the hope that this would overcome the problem. 4. Because the employer has earlier acknowledged on transcript that it would not be reasonable for the school to seek a further adjournment beyond the 3 months granted the Commission is entitled to rely upon that understanding. 5. The expressed terms of the present request is for this matter to remain adjourned until such time as Mrs Alexander can be certified as fit to give evidence. This form of request is considered to be quite unreasonable, particularly given all of the circumstances. 6. The circumstances of the applicant in this matter also need to be given appropriate weight in considering what is fair treatment. 7. The Commission has a responsibility to deal with this application and resolve a serious industrial dispute as expeditiously as possible, consistent with affording both parties natural justice. For all of these reasons the hearing scheduled for 10.30am on Monday 20 September, 1993 will proceed. The following day has also been set aside if needed.
A Robinson Appearances: Date and Place of Hearing: |