DECISION NO:209/97 CATCHWORDS INDUSTRIAL LAW -TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION -APPREHENDED BIAS -whether there was PROBATIONARY EMPLOYMENT - PROCEDURAL FAIRNESS - alleged ILL HEALTH. Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) Ss 170CC, 170EA, reg 30B Vijitha Gamini de ALWIS -v- HEALY STEWART WI 1427 of 1996 BEFORE: BOON JR PLACE: PERTH DATE: 2 July 1997 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1427 of 1996 B E T W E E N: Vijitha Gamini de ALWIS Applicant A N D: HEALY STEWART Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 2 July 1997 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WI 1427 of 1996 B E T W E E N: VIJITHA GAMINI DE ALWIS Applicant A N D: HEALY STEWART Respondent REASONS FOR DECISION 2 July 1997 BOON JR INTRODUCTION This is an application under section 170EA of the Workplace Relations Act 1996 (formerly, Industrial Relations Act 1988) (the Act). The applicant, Mr de Alwis, is seeking payment of compensation arising out of the alleged unlawful termination of his employment by the respondent, Healy Stewart. Mr de Alwis is a solicitor and Healy Stewart is a firm of solicitors practicing in Perth. On 16 September 1996, Mr John Healy, a principal of the respondent, wrote a letter to Mr De Alwis, giving him two weeks' notice of termination of his employment. In response to the termination of his employment, Mr De Alwis filed an application in this Court seeking relief. A primary submission of the respondent is that Mr de Alwis is, by virtue of section 170CC of the Act and Regulation 30B of the Workplace Relations Regulations, excluded as an employee covered by the operation of the provisions of Division 3 of Part VIA of the Act. In particular, the respondent alleged that Mr de Alwis was an employee engaged for a probationary period specified in advance and which was reasonable having regard to the nature and circumstances of the employment. Whether or not the employment of Mr de Alwis was excluded from the unlawful termination of employment provisions of the Act was set down for hearing as a preliminary issue. The matter first came before Judicial Registrar Ritter and proceeded to a hearing in relation to that preliminary issue. On 8 April 1997, Judicial Registrar Ritter made orders that the hearing of the application be adjourned for hearing before another Judicial Registrar on a date to be fixed. Judicial Registrar Ritter excluded himself from determining this case on the grounds that as he had recently advised of an indirect relationship between himself and Healy Stewart, this gave rise to a reasonable apprehension of bias. Judicial Registrar Ritter became aware after he had heard some of the evidence that Healy Stewart had merged with a firm of solicitors from which Judicial Registrar Ritter had accepted a brief in his capacity as a barrister. In providing his written reasons for his decision excluding himself from further determining the matter, Judicial Registrar Ritter, after noting that the matter had been set down for hearing as a preliminary issue, set out the history of the application as follows: "The respondent, represented by its counsel, Mr Morison, attended before the Court that morning. Mr de Alwis was unrepresented. In all of the circumstances there seemed no option but to grant the adjournment requested. The next available date for the Court and the parties was 20 February 1997. The hearing was then adjourned to 9:30 a.m. on that date. I also made an order, at the request of Mr Morison, that on or before 20 February 1997 the applicant provide a copy of a medical certificate explaining his absence on 10 February 1997 to the Court and to the respondent. (This order was not complied with in the time permitted.) I also made an order that any further adjournment application be made orally before the Court and after due notice to the respondent. The hearing of the application continued on 20 February 1997. Despite the order previously made concerning the time at which the hearing was to start, the hearing did not commence until 10 a.m.. Mr de Alwis continued with his cross examination of Mr Healy. The hearing continued until approximately 2:30 p.m.. There had been no luncheon adjournment although there had been some breaks during the course of the morning. At approximately 2:25 p.m. I ruled that Mr de Alwis' cross examination of Mr Healy come to an end within 30 minutes. By that time, Mr Healy had already been subject to a lengthy cross examination, given the context of the preliminary question that had to be determined. I had also earlier indicated to Mr de Alwis that, in light of the nature of the cross examination, I was exercising my powers under the Evidence Act (C'wlth) to limit his further cross examination of Mr Healy to one hour. The allowance of a further period of 30 minutes was to enable Mr de Alwis to cover one relevant matter on which he had not attempted, to date, to cross examine Mr Healy. Upon my making this ruling, Mr de Alwis requested an adjournment on the basis of his medical condition. I did not grant the adjournment but made orders which would allow Mr de Alwis to apply to continue with his cross examination of Mr Healy at a later date on certain conditions. The full text of the orders are reflected in the Court record. It is sufficient to say at this stage that I ordered that any application to further cross examine Mr Healy or to adduce further evidence by the applicant be made by notice of motion to be filed and served within seven days, and supported by medical evidence on affidavit. In the absence of any such application, I ordered that the respondent file and serve its closing written submissions within 14 days of 20 February 1997, with the applicant to file and serve written submissions 14 days thereafter. The applicant did not make any application of the type referred to above, although the Court was informally advised that Mr de Alwis had been admitted to hospital for tests. The respondent filed its closing written submissions on 7 March 1997. I have not considered these written closing submissions in light of the events set out below." By letter dated 15 April 1997, Deputy District Registrar Sheppard wrote to both parties advising them that the matter had been listed for directions on Wednesday, 7 May 1997, at 10.00 am and that if the matter proceeded to a hearing, the likely hearing dates were 14 and 15 May 1997. Mr de Alwis then contacted an officer of this Court and said that he was available on 7 May 1997 for the directions hearing but would not be available for the week of 14 May due to his Court and client schedule. A note of that telephone conversation was made on the Court's file. On the morning of 7 May 1997, the Court received a facsimile from another person apparently on behalf of Mr de Alwis stating that Mr de Alwis was "presently indisposed with an injured back" and would not be able to attend the directions hearing on that day. Mr Morison, for the respondent appeared at the directions hearing before me on 7 May 1997. I instructed Court staff to contact Mr de Alwis by telephone and the directions hearing was conducted with Mr Morison and myself physically present in the Court and Mr de Alwis making submissions by conference telephone. Mr de Alwis indicated that he sought an adjournment of the hearing dates set down for the following week. That application was refused. The matter proceeded to another hearing on 14 and 15 May 1997 before me on the preliminary question of whether or not there was a probationary period specified in advance which was reasonable in all of the circumstances. The evidence of Mr Walter Stanwyck, a witness for the respondent, was heard first at the request of the respondent. Mr Stanwyck was extensively cross examined by Mr de Alwis. Mr de Alwis started giving evidence before the luncheon adjournment on the first day of the hearing and took a considerable amount of time giving his evidence in chief. He was cross examined by Mr Morison for a relatively short period. Mr de Alwis had been giving evidence in re-examination for a period of over two hours by the time the matter was adjourned to another date on 15 May 1997. By that stage, the Court had not yet heard any evidence from Mr Healy. During the two days of hearing before me, Mr de Alwis made frequent references to his ill health. He indicated on several occasions that he may not be fit to continue giving his evidence. Mr de Alwis requested several short adjournments during the course of the two days of hearing and those adjournments were granted to enable him to recover. At about 3.35 pm on 15 May 1997, Mr de Alwis asked for a short adjournment as he was feeling "very dizzy". Just prior to the request for that adjournment, I had indicated to Mr de Alwis that I wanted him to finish his re-examination on that day. After the short adjournment when the hearing resumed, Mr de Alwis said that during the break he had telephoned his doctor who had apparently stated that Mr de Alwis must immediately go to see him. According to Mr de Alwis, his doctor had said that it was very unwise for him to remain in Court any more that day and accordingly Mr de Alwis asked for an adjournment of the hearing to another date. I expressed my concern that the matter had taken such a long time given the fact that it was only a preliminary issue which was at that stage being heard before me. Mr Morison for the respondent submitted that if Mr de Alwis wanted to continue to rely on his health condition to obtain further adjournments, he ought to provide some current evidence relating to his condition. I expressed my concern to Mr de Alwis about this position. When Mr de Alwis referred to two medical certificates he had provided to the Court, I indicated to him my view that provision ot a medical report rather than a certificate would be appropriate. To date the Court has received only a medical certificate dated 24 February 1997 from the Royal Perth Hospital saying that Mr de Alwis was treated as an in-patient on 20 February 1997 and was unfit for seven days due to a medical condition, and another certificate from his general practitioner, Dr Jon G Henderson dated 10 February 1997 which certified that Mr de Alwis was unfit for "work/school from 10 February 1997 to __________ inclusive, because of illness". Mr de Alwis stated that he would provide all the necessary medical certificates and a report about his health condition at the next hearing date. I adjourned the matter to a date to be fixed because in my view I had no option given Mr de Alwis' statement that he was not fit to continue to give evidence. On 20 May 1997, deputy District Registrar Sheppard advised the parties that the matter had been set down for hearing on Thursday, 12 June 1997. At some time after 10.00 am on 12 June 1997, the Court Registry received a telephone call from Mr de Alwis to the effect that he was at the Perth Central Railway Station, that he was ill but that he would be at the Court shortly. Mr Morison and Mr Healy had been waiting in the courtroom since just before 10.00 am. When Mr de Alwis arrived at Court, he advised that he had woken up early that morning with neuralgia and had taken some medication. As a result of taking the medication, he had blurred vision and double vision and his balance was affected. Mr de Alwis indicated that his doctor had advised him that the effects of the medication were unpredictable. He said that he was in severe pain on the left hand side of his face and neck. He said that he was unable to appear in person on that date. He said he was applying for an adjournment because he was in extreme pain and wanted the matter to be set down for further hearing after he had had an operation at Sir Charles Gardiner Hospital to relieve this condition. Mr de Alwis said that he did not know when his operation would take place but he was on a public hospital waiting list. Mr Morison on behalf of the respondent opposed the application for an adjournment. Mr Morison said that Mr de Alwis' alleged ill health had arisen on many occasions before that date. Mr de Alwis had not brought with him any medical report or certificate. I indicated to the parties that it was my view that there were three options available to me on that day. The first option was to force Mr de Alwis to proceed. However, I did not consider that this would be appropriate given what Mr de Alwis was saying about his medical condition and the effects of the drug he was taking. The second option would be to grant an adjournment to another date and the third option would be to simply dismiss the application of Mr de Alwis because he had repeatedly failed to prosecute the matter. Mr Morison objected to any adjournment on the grounds that the conduct of Mr de Alwis had been "appalling" throughout this matter. Mr de Alwis had not taken any opportunity of arming himself with current medical evidence despite the fact that this Court had made it plain that he should obtain a report. It was submitted that there was no other course open to the Court if the matter was not to proceed on that day, than to dismiss the application. It was submitted that the injustice to the respondent would be so great if the matter was adjourned once again that it would outweighed any injustice to Mr de Alwis. Mr de Alwis objected to Mr Morison referring to what had occurred at the proceedings before Judicial Registrar Ritter. It is apparently the submission of Mr de Alwis that as Judicial Registrar Ritter excluded himself from further determining the matter on the grounds of a reasonable apprehension of bias, that the entire hearing before Judicial Registrar Ritter was tainted. I do not agree with that submission. It is, in my view, perfectly proper for me to take into account the conduct of Mr de Alwis before Judicial Registrar Ritter in relation to his failure to prosecute the matter on the grounds of his alleged ill health when determining what is the most appropriate order to make at this stage. The events of the morning of 12 June 1997 constituted the sixth occasion on which Mr de Alwis either did not appear or stated that he could not continue with the hearing in this matter on the grounds of his alleged ill health. On a number of occasions this Court has advised Mr de Alwis that if he wished to continue to rely on his ill health he must furnish proper medical evidence in relation to his condition. Mr de Alwis has failed to do so. This jurisdiction is intended to provide an expeditious method of relief to persons who claim that their employment has been unlawfully terminated. It is not the fault of Mr de Alwis that the first hearing of this matter was aborted. It is my view, however, that Mr de Alwis can be blamed for his conduct throughout these proceedings in continually seeking to rely on his alleged ill health without furnishing any proper proof in relation to his medical condition. The way in which the proceedings are currently being conducted must come to an end. To continue the proceedings in these circumstances is an abuse of the Court's procedure. It is my view that the existing proceedings before me cannot be maintained as they are not being prosecuted. It would be improper for me to continue to allow Mr de Alwis further adjournments of this case in these circumstances because of the time and cost involved to the respondent. In the circumstances, I consider that the only appropriate order for me to make is to dismiss the action of Mr de Alwis. I certify that this and the preceding seven (7) pages are a true copy of the reasons for decision of Judicial Registrar Boon. Associate: Date: 2 July 1997 APPEARANCES Applicant (in person): Mr V.G. de Alwis Counsel for the Respondent: Mr I. Morison Solicitors for the Respondent Healy Stewart Dates of hearing: 14 and 15 May, and 12 June 1997 Date of judgment: 2 July 1997