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T8659

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Victor Valentine Tunevitsch
[T 8659 of 1999]

and

Tastek Pty Ltd

 

COMMISSIONER A W PEARCE

HOBART, 22 December, 2000

Industrial dispute - alleged unfair termination of employment - whether further proceedings necessary or desirable - file to remain open.

REASONS FOR INTERIM DECISION

On 13 October 1999, Victor Valentine Tunevitsch (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Tastek Pty Ltd (the respondent) arising out of an alleged unfair termination of employment.

On 18 October 2000 the President convened a hearing, at the Supreme Court, Cameron Street, Launceston, before Deputy President Johnson, to commence on Thursday 18 November 1999 at 11.00 am.

On that day Mr K Stanton of Shields Heritage, Barristers and Solicitors, with leave, appeared for the applicant; Mr D Durkin appeared for the respondent together with Mr I Kitchener.

Upon direction the parties adjourned into conference. On resumption of the hearing that day, the Deputy President stated "Towards the end of the adjournment, I had the benefit of advice from Mr Stanton and Mr Durkin in respect of the status of those negotiations. The upshot is that the request that the applicant has of me is that I should adjourn these proceedings sine die to allow Mr Stanton to take further instructions on issues that have arisen during the course of the conciliation conference. I understand there to be no opposition to the adjournment from the employer's side." (p2). (my underlining).

After both parties confirmed that the Deputy President had correctly summarised their positions, proceedings were adjourned with leave reserved to the parties to have the matter restored to the list at a future time.

On 9 June 2000, the file records the Deputy President having spoken with the applicant's solicitor, Mr Stanton, and being informed that the matter had not settled and that Mr Stanton had written to Mr Tunevitsch for instructions. Mr Stanton also advised that the parties had not met to discuss the dispute for some time.

In light of that advice and his impending retirement, the Deputy President returned the file for reassignment.

On 4 October 2000 the Acting President reassigned the file to me whereupon I arranged for a communication to be sent to Mr Stanton seeking "....an early update of your client's future intentions regarding the application".

By letter dated 13 October 2000, Mr Stanton informed the Commission, in part, that "We no longer hold instructions from Mr Tunevitsch".

On 17 October 2000 I wrote to Mr Tunevitsch in which I summarised events to that time and invited him to convey his future intentions, adding, "...should I have not heard from you within 14 days....then I intend to discontinue the matter for want of prosecution".

A written reply was received on 30 October from Mr Tunevitsch confirming the 13 October advice from Mr Stanton; that the applicant was continuing the allegation of unfair dismissal and therefore sought to continue the proceedings. Subsequently, on 8 November 2000 a hearing was again listed at the Supreme Court in Launceston to take place at 1.00 pm on Wednesday 22 November 2000. However, on advice of Mr Durkin that he was unable to represent the respondent on that day, the matter was relisted for 9.30 am, at the same venue, on Friday 24 November 2000, the parties having been so advised on 13 November 2000.

On 24 November the applicant represented himself; respondent representation remained unchanged.

Having satisfied myself that the matter had not settled in the interim, I then placed a history of the application before the parties and on the record. My reason for having done so were then conveyed to the parties as follows:

"I have formed a preliminary view that there appears, at first glance, very little, if any, concerted attempt by the applicant to agitate the matter for the best part of 14 months. As a result, I am thinking, and I put it no higher than that, of dismissing the matter for want of prosecution.

The Act requires applications related to termination issues to be submitted within 14 days. The Act further mandates the commission to act in relation to a matter before it, to do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter. In addition, the commission is required to act according to equity and good conscience.

These concepts are to be applied equally to the parties coming before it. I therefore hold a concern that what appears on the surface, at least, to be a significant delay, may serve, or may have served, to well disadvantage one party.

Accordingly, I propose to hear the parties on the following issues, which for the convenience of the parties, I've reduced to writing:

1. Whether there is an acceptable explanation for the delay and whether it would be fair and equitable in the circumstances to continue to proceed further with the matter.

2. Whether, in the period since the application was lodged, the applicant has continued to make the respondent aware that he contests the decision to terminate his employment.

3. Whether there is any prejudice to the respondent, including any prejudice occasioned by the delay.

4. Whether in the circumstances of the substantive application being successful, the extent to which, if any, it may lead to the unsettling of other people or the established practices.

These are some of the principles drawn from the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen 1984 3 Federal Court Reports 344, and that matter was relevant to an application seeking an extension of time to hear a matter in respect of an application lodged outside of the prescribed time.

Whilst that is not the case before this Commission they are nonetheless, in my view, principles appropriate to be applied in determining whether further proceedings are necessary or desirable".

I then indicated that proceedings would be adjourned until 11.45 am that day, and that on resumption I wished to hear from the applicant and the respondent on matters 1 to 4 listed above. That duly occurred, following which a direction was given to the effect that any further submissions that were to be raised in relation to preliminary issues should be forwarded to the Commission and exchanged between the parties within 14 days.

By correspondence dated 27 November, I confirmed that direction (concerning the extent to which, if at all, the respondent may have contributed to the delay in proceedings).

Submissions and written responses.

In summary, the essence of the oral and written submissions of the applicant, relevant to the issue of delay, as I understood them to be, were:

1. That the applicant required some two weeks time in which to establish what had occurred since the matter was last before the Commission on 18 November 1999, with particular regard to subsequent conversations between his solicitor and the respondent's representative. Time to ".....demonstrate the contact made with whom, by whom, for what reason." (p.6).

2. That delay was created by the respondent (that is, the adjournment of 18 November 1999 was at the request of the respondent, not the applicant) in order for the respondent to provide further information to the applicant. (p.6)

3. That the applicant was ready to proceed on that day (18 November 1999).(p.6)

4. That it would be fair and equitable to the applicant's interests to continue with the matter.(p.7)

5. That the respondent, because it has not sought to pursue a settlement to the dispute, has suffered no prejudice. (p.21)

6. The written response of the applicant of 7 December (a copy of which does not appear to have been forwarded to the respondent) indicated that he has endeavoured to continue to make the respondent aware, but that the respondent has refused to return his telephone calls or respond to his faxes; and,

7. That due to the (alleged) non payment of certain entitlements by the respondent     "....that it would be nieve (sic) to suggest that the employer would think the matter resolved".

During the course of submissions the applicant made the following observations and the following exchanges also occurred:

MR TUNEVITSCH "...and I believe that this matter now needs to go from this court to a civil jurisdiction and that is another issue again.

This is one of the things, commissioner, I've been mulling over for the last 12 months or more. A lot of issues have happened in that time. They are still not clarified, they are still open and in fact they'll all be open to legal challenges. This is just one part of several different parts of a problem.

COMMISSIONER: All the commission is interested in, is whether you're an employee, firstly, and secondly, was there a termination of employment at the initiative of the employer. If that is established, then the commission has jurisdiction to deal with the matter. I think there are other issues which probably fall outside the ambit of what the commission can actually deal with. If you're suggesting you might take the matter elsewhere, we'd want some notification of that, as to whether you intend to proceed in this jurisdiction or elsewhere.

MR TUNEVITSCH: The matter was adjourned sine die for a particular reason so that we could collate further information. Now, the question is, was it an unfair dismissal or was it an unlawful dismissal. My advice is, it was unlawful. To pursue that matter, as I said before, I need to tie it together. Perhaps we adjourn the matter sine die....." (p.7)

..............................................

MR TUNEVITSCH "I am first to agree that it'll take the minutes that Kitchener would have in his possession of the March meeting. This showed that in fact he had the power to dismiss me as an employee" (p.10).

..............................................

MR TUNEVITSCH ".....what I'm throwing back to you is, is it unlawful or is it unfair and I believe I'm here to throw at you that it was unlawful and it doesn't belong in this court.

COMMISSIONER: It doesn't belong in this court?

MR TUNEVITSCH: It does not belong in this court.

COMMISSIONER: Your application for alleged unfair termination of employment?

MR TUNEVITSCH: That's correct.

COMMISSIONER: Well, if that is the case, why has the application not been withdrawn?

MR TUNEVITSCH: Because it needs to be kept on sine die so it may have to come back to the court if other avenues show that, or another court shows that, we need to be before this court.

COMMISSIONER: Do I take it from what you're saying, that your preferred preference would be to pursue it elsewhere but to leave the application lying in the commission sine die and I assume, to be resurrected after you have sought relief elsewhere?

MR TUNEVITSCH: Correct.

COMMISSIONER: That's the fundamental proposition that you're putting to me?

MR TUNEVITSCH: Yes." (p.12)

..............................................

In summary, the position of the applicant was that the matter should proceed to be heard in the civil jurisdiction, in which the applicant stated an intention to pursue an action on the doctrine of promissory estoppel to enforce an (alleged) oral agreement made between the applicant and the Director of the company. That concerns what the applicant alleges was an undertaking of five years employment, and which he claims was unlawfully bought to an end by the actions of the Director. The applicant contended that it could take "....in the next 6 or 20 months it takes to take this before the Court - as Damien stated, the Supreme Court....." (p.21)

Further to the above, that proceedings in this Commission should be adjourned sine die on the ground that proceedings elsewhere might ultimately suggest that the matter should be before this Commission. For example, that in the event of a finding by a superior Court that the alleged action was illegal, that will "make the case of unfair dismissal being negated and I will just seek reinstatement to the Company". (p.21)

In his written response, the applicant asserted that his intention to pursue an action of promissory estoppel, in the context of the four questions posed by the Commission, would deny the applicant natural justice and procedural fairness in this Commission, insofar that it was the view of the applicant that it would not be a hearing free from bias or a disinterested judge (sic) and thus the applicant would be denied a fair hearing.

For the respondent.

I have summarised the respondent's submission and written response as follows:

The respondent objected to any further delay. (p.12)

Further, the respondent emphasised the remarks of the Deputy President on 18 November that the adjournment was at the request of the applicant (confirmed at the time by both parties). (p.12)

The respondent expressed concern that the 'fading memory' syndrome will be exacerbated if there is an extensive delay in dealing with the matter before the Commission, which could be up to a further two years, having regard to the intention of the applicant to pursue certain issues in the Supreme Court. (p.20)

The respondent refuted suggestions that it was the cause of any delay - that he (Mr Durkin) had rung Mr Stanton on 24 January 2000 but the call was not returned. (p.13)

The respondent claimed to have not been contacted by the applicant or his representative in relation to the provision of information relating to the application for reinstatement. (The respondent claimed that certain documents had been provided to the applicant during the course of the conference on 18 November but Mr Durkin could not recall giving an undertaking to provide additional documentation and failing to provide those). (p.14)

That in the period since the applicant had been terminated, there had been changes in the administrative and operational arrangements of the respondent and particularly changes to the role that had previously been undertaken by the applicant in his role as operations Manager and which, on any order of reinstatement, would require that he be given extensive retraining for occupational health and safety purposes.(p.15)

That an order of reinstatement would be prejudicial to the respondent insofar as revised administrative arrangements that would occur in the wake of an order of reinstatement would lead to the termination of a full time office staff member.(p.15)

That in all the circumstances the matter be struck out.(p.16)

In his written response dated 11 December, Mr Durkin advised that he had contacted Mr Stanton of Shields Heritage on 8 December 2000 and claims to have been advised by him that the proceedings of 18 November 1999 were adjourned to allow the applicant to obtain "documents" from Tastek to assist with the prosecution of his case.

Mr Durkin's notes from the 18 November 1999 conference proceedings (not tendered) indicate issues dealt with were statutory entitlements and the return of equipment but nothing to indicate the need of the applicant to obtain documents to support his claim of unfair dismissal.

Findings

The applicant asserted that he was a shareholder and employee of the respondent. His application claims that he was unfairly terminated and the remedy he seeks from a finding of unfair termination is one of reinstatement.

The respondent concurred that the applicant was an employee, adding that the employment of the applicant was terminated at the initiative of the employer, and who further contended that the termination was for a valid reason.

On the face of it, I have formed the view that the applicant was an employee with standing to make an application for the hearing and determination of an industrial dispute about an industrial matter, being the alleged unfair termination of his employment.

At a stage of the proceedings on 24 November 2000 the applicant asserted that the Director of the Company who purported to terminate his employment, Mr Ian Kitchener, did not have the authority to 'hire and fire'.

That is an issue which I consider is capable of being determined on the facts and evidence were the application to be pursued in this Commission, being an issue which would be relevant to determining whether or not there was a lawful termination.

A finding as to the lawfulness or otherwise of the alleged termination may, or may not, then lead into a consideration of whether there was a 'valid reason' for the termination.

No evidence or submissions have been put in proceedings on the issue of valid reason apart from the respondent's earlier stated contention.

A consideration of a 'valid reason' is in the context of Article 4 of ILO Convention 158 Termination of Employment at the Initiative of the Employer, Part II of which the Commission is obliged to have regard to when considering whether or not to issue an order in settlement of an industrial dispute concerning termination of employment.

Article 4 provides in general terms that employment shall not be terminated unless there is a 'valid reason' related to the capacity or conduct of the employee or because of the operational requirements of the business.

The remedy of the Commission, in the event that a termination was found, having regard to the evidence, facts and on the balance of probabilities, not to have been for a 'valid reason', or a finding that the employee had been denied procedural fairness (again, of which nothing has been put in proceedings to date), is that of reinstatement. The Commission is required to enquire into the practicality of reinstatement; a finding that it would not be practical may then lead to a consideration of compensation in lieu of an order of reinstatement.

It is against this background that the applicant proposes that proceedings be further adjourned, sine die. This proposal is in order that he may, as he stated his intention to be, to pursue, as I understand it, the illegality attaching to the alleged actions of the Director insofar as the termination of his employment bought to a premature conclusion his employment expectation of 5 years, and which he alleges was the subject of an oral agreement between himself and the Director.

His intention is to proceed through the civil court, but which intended action may not be before the court for some 6 to 20 months hence as stated by the applicant, or up to 2 years as contended by the respondent.

Were he to proceed with his application before this Commission in advance of the alternative course of action that he intends to pursue, there does not seem to me at least, to be any prejudice occasioned to the applicant relative to any alternative proceedings that may or may not materialise, other than an order of reinstatement, which is the remedy, prima facie, sought by the applicant in this matter.

The mere assertion of the applicant that he intends to pursue a matter elsewhere does not appear in my view to constrain this Commission from proceeding to hear and determine an application validly before it.

Conclusions

In considering the submissions and written responses to the questions posed at the outset of proceedings I conclude as follows.

Q1.

There is in my view an inadequate explanation from the applicant as to why proceedings have been delayed thus far. While the applicant asserts that "we need to roll up a number of issues in one" (p.11) those issues do not, I think, include the prosecution of the application for alleged unfair termination before this Commission.

I do not accept that the written response of the applicant, specific to the issue of delay, to be anything other than a reiteration of matters already raised on the record, except for his assertion that his unsuccessful endeavours to contact Mr Kitchener can be supported by Telstra records.

The applicant refers to correspondence with his former solicitor, "as late as June this year" - but does not indicate the nature of the correspondence and the extent to which, if at all, it is relevant to the question posed.

The findings on Q.1 are to be considered against the issues of fairness and equity addressed elsewhere.

Q.2

On balance, I conclude that the circumstances of this matter, being the termination of employment and extraneous issues involving directorships, company control and ownership, bankruptcy and trustees in bankruptcy, restraining order, valuations, return of property, alleged outstanding entitlements, litigation threats and accusations taken together with the underlying acrimony pervading the matter, are such as to reach a conclusion that the respondent could not have reasonably formed a view that the applicant intended to allow the matter to rest. The application of itself, is a statement that Mr Tunevitsch contests the termination, although to date, having resisted putting forward his case.

Q3.

On the submissions, I conclude that there is a potential for prejudice to the respondent, the prejudice occasioned by delay on the part of the applicant in resisting to prosecute the application and thus the potential effect it may have upon the availability of witnesses and the reliability of memory.

The claim of the applicant of prejudice to himself can only be, in my opinion, self induced through his reluctance to pursue his claim.

Q4.

I accept the submission of the respondent as to the changes that have occurred in both the administration and operational areas of the respondent's business in the period of time that has elapsed since the departure of Mr Tunevitsch. However, I make no finding on the relatively brief submission and assertion that the inevitability of the respondent's conclusions to necessarily flow from an order of reinstatement - future circumstances may dictate otherwise. Those propositions would need to be fully aired in the context of any consideration that might arise, in the event of further proceedings, on the question of the practicality of reinstatement.

Regarding the existence of any earlier opportunity for the applicant to state his case, I have reviewed the transcript of the proceedings of 18 November 1999 before Deputy President Johnson which shows:

COMMISSIONER: (sic) "When I convened these proceedings, in the course of doing so I had brief discussions with representatives of the parties. I set the matter down for the purposes of a conciliation conference to test the capacity of the parties to see if they could find a conclusion to the dispute, without the necessity for embarking upon the costs associated with an arbitrated hearing". (p.1)

In my mind those proceedings, on that day, were not intended as a forum for anything other than a conference.

Likewise, the proceedings I set down for 24 November 2000 were, unbeknown to the parties, intended by me as a hearing related only to the matter of determining the desirability or otherwise of further proceedings. It was not intended that I hear the parties on that occasion as to the merits of the substantive application.

In those circumstances, it could be inferred that neither of the Commission initiated hearings were for the purpose of hearing the applicant on the merits, or otherwise, of his claim.

This is a matter which appears to be not entirely devoid of some complexity, albeit perhaps peripheral to the central issue with which the Commission would be principally concerned - that being, was there a termination of employment at the initiative of the employer and if so, was the termination underpinned by a valid reason and procedural fairness. The remedy of the Commission on a finding which is favourable to the applicant, is that of reinstatement.

The action sought by the applicant in the civil court does not to my understanding, provide for the relief of reinstatement. That action may, or may not, possibly constitute a test of the genuineness of the extant application of Mr Tunevitsch which he may, or again may not, seek to reactivate at some future but indeterminate time.

On the issue of fairness and equity I am loathe to close the file on the basis that the applicant has stated an intention to pursue the matter elsewhere; an intention of course that may not ultimately manifest itself into a matter of fact. The applicant in my view has not stated conclusively that he will not pursue the matter in this Commission if pressed so to do; rather, I understand it to be that as a matter of choice he would prefer to pursue the matter elsewhere at first instance. My understanding however has not been tested.

Having regard to the stated intention of the applicant to proceed elsewhere, it is at least understandable why he may not be anxious to agitate the matter in this forum.

The respondent, as a party to the dispute, would I presume, be aware that the matter can be restored to the list, either at the discretion of the applicant or on the motion of the Commission or at its request.

On balance, I have chosen not to close the file.

 

A W Pearce
Commissioner

Appearances:
Mr K Stanton of Shields Heritage, Barristers and Solicitors (18 November 1999), and Victor Valentine Tunevitsch (18 November 1999 and 24 November 2000)
Mr D Durkin of Durkin and Associates, with Mr I Kitchener.

Date and place of hearing:
1999
November 18
2000
November 24
Launceston