John Charles Reynolds v The Cue Club [1995] IRCA 512

CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - Industrial Relations Act 1988 ss Nicholson -v- Heaven and Earth Gallery (1994) 126 ALR 233 JOHN CHARLES REYNOLDS -v- THE CUE CLUB No. WI 1588 of 1995 COURT: MCILWAINE JR PLACE: PERTH DATE: 19 JULY 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. WI 1588 of 1995 BETWEEN: John Charles REYNOLDS Applicant AND: EDYOSAVAN PTY LTD t/as THE CUE CLUB Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) This is an application under Part VIA Division 3 of the Industrial Relations Act 1988. It is an application by Mr John Charles Reynolds against the Cue Club. The application is dated 15 May 1995 and the applicants seeks reinstatement and compensation and there is a further amplification of the remedy sought in paragraph 25. That document was filed in the Court on 17 May 1995 and has been marked as MFI "2" in these proceedings. On 25 May 1995, Mr Bubner, the Managing Director of the Cue Club, has acknowledged in the Notice of Employer's Appearance, that the full name of the company is Edyosavan Pty Limited trading as the Cue Club. That document was signed by Mr Bubner on 24 May 1995 and filed in the Court on 25 May 1995. On 9 June 1995, a further Notice of Employer's Appearance was filed in this Court and it has been acknowledged to me today that it was signed by Mr L.H. Pilgrim of L.H. Pilgrim and Associates. The date that appears on the document is 8 June 1995 and paragraph 9 reads : "is anyone representing you", "yes". Then there is an indication given that there is an "employer organisation" involved by the tick recorded in paragraph 9. In paragraph 14 again it is suggested that there is an employer organisation in paragraphs 10 and 12, and at the bottom of the form there is a declaration that "all the facts in this notice are correct and complete to the best of my knowledge and belief." That declaration was signed by Mr Pilgrim and again it is ticked that there is an employer organisation involved. In evidence before me, Mr Bubner this morning agreed that at 8 June 1995 the company was not in any employer organisation and therefore on behalf of the company it appears to me that an incorrect document, to say the least, has been filed in these proceedings. This morning when the proceedings came on for hearing an appearance slip was handed to the court showing Mr Pilgrim as appearing on behalf of The Cue Club. The appearance slip which is MFI "1" has been changed to include notification of the claim that Mr Pilgrim is now an employee of the respondent. On 18 July 1995 a facsimile document was received in the Registry under the hand of Mr Pilgrim on the letterhead of a company, which describes itself to be Human Resources Consultants, complying with a direction of the Registrar to provide a summary of the facts for the court's assistance. Nowhere on that document even as late as 18 July 1995 has there been a candid disclosure to the Court of the change in the representation of the respondent. Also tendered to me was a document apparently sent by facsimile on 17 July 1995, again on company letterhead, to Mr C McIntosh of the firm of solicitors Messrs Murie and Edward which is exhibit "6". Again there is no suggestion that Mr Pilgrim is acting as an employee of the company. There has also been a failure to disclose this alleged contract of employment, or the change in the representation to the applicant's representative in these proceedings. Mr Bubner gave evidence that there was a contractual arrangement between the respondent and Mr Pilgrim entered into for the purpose of these proceedings. The document marked MFI "8" purports to be a contract between the parties probably signed on 13 July 1995 indicating that the contract shall commence on 17 June 1995. Now, on the face of that document, there is no reference to any consideration. I am satisfied that Mr Bubner, who impressed me as being a truthful and co-operative witness has not been fully informed of the situation by Mr Pilgrim. Until I gave him the opportunity this morning he had not read the case of Nicholson -v- Heaven and Earth Gallery (1994) 126 ALR 233. On the other hand I am convinced Mr Pilgrim was well aware of this case and the question of legal representation before this court has been clearly outlined by his Honour, the Chief Justice of the Court in that judgment. As I understand it the first time that Mr Bubner became aware of that case and the detailed discussion of the basis of representation in this court was when I made it available to him in the witness box and asked him to read it. If Mr Bubner had been fully informed of the situation prior to that time and the implications for the respondent imposed by this contract, then I may well have taken a different view about it. But it appears to me that Mr Bubner has not been fully informed of the consequences of the contractual arrangement that has purportedly been established. Another matter of concern is that the contract does not disclose any consideration. It was only after a request from me that the information was provided and I agreed to it being written down. I have allowed the details of the remuneration between Mr Pilgrim and Mr Bubner to remain confidential in the sense that they have not been made part of the public proceedings, but I do not make any order preventing disclosure if there are any other matters that are to flow from my decision in this matter. Even if I were to accept this document as something other than a sham contract to avoid the specific provisions of the legislation, then the contract does not purport to commence from 9 June 1995 which is when the second notice of employer's appearance was filed. This is the first time that Mr Pilgrim, in my view, sought to mislead the court about his right to appear in these proceedings. In those circumstances I regard the document which has a facsimile date on it of 13 July 1995, but purports so comment on 17 June 1995, as being a sham and a device to avoid the provisions of the legislation. It is quite clear that section 469(7)(a) of the legislation allows an officer or an employee of the party to appear. Now, quite frequently before this court a number of employees represent their employer who is a party to the proceedings , certainly there is no objection to that as it is allowed by the Act. However, they are generally the Industrial Relations Officer of the company, they are in permanent paid employment, they are not engaged for the specific task of representing the employer in this court. They may well be a Human Resources Manager, they may well be a Finance Officer, or indeed some other officer of the company, but not somebody who is specifically engaged for the purpose of avoiding the provisions of the Industrial Relations Act 1988. The legislation is quite clear, it refers to an officer or employee of the employer. I find that Mr Pilgrim is not an employee of the respondent, and therefore I am unable to grant him any right of appearance in these proceedings. Moreover, in view of his lack of candour in disclosing the accurate situation when he filed the Notice of Employers Appearance, I find that he has mislead the Court by, specifically claiming that he was representing an employer organisation of which the company was a member. In those circumstances, I would not be inclined to grant him leave to represent the company in these proceedings. I know that that places the company in a difficult situation, but it has been solely brought about by the fact that Mr Pilgrim has failed to be truthful in his dealings with the court, the solicitor for the applicant or with the respondent to this application. In the circumstances I decline to allow the company to be represented by Mr Pilgrim any further in these proceedings. On the application of the respondent through its Director, Mr Bubner and despite the opposition of the applicant I grant an adjournment of today's hearing. After hearing from the solicitor for the applicant on the question of costs and granting an opportunity to Mr Pilgrim to address me on that issue, I order Mr Pilgrim to pay the costs of the applicant thrown away by the adjournment of the proceedings. The costs are to be paid to the solicitor for the applicant within 14 days. I assess those costs at $700.00. I certify that the preceding seven (7) pages are an edited copy of the Reasons for Judgment of Judicial Registrar McIlwaine delivered on 19 July 1995 at Perth. Associate: Caroline Sternberg Date: September 1995 Appearances: