Industrial Relations Commission of New South Wales CITATION : Stephan and RL Whyburn and Associates [2000] NSWIRComm 154 APPLICANT: PARTIES : Tati Stephan RESPONDENT: RL Whyburn and Associates FILE NUMBER: 3856 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - reasons for dismissal - unrepresented litigant - whether jurisdiction exists when applicant does not seek reinstatement, re-employment or compensation pursuant to s89 of the Act - conduct of proceedings - whether application vexatious - Principles considered. CATCHWORDS : Held, jurisdictional issue not determined - vexatious application - application dismissed pursuant to s162(2)(h) of the Act - Recommendation made. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act 1996 (Cth) General Steel Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 Heidt v Chrysler Australia (1976) 26 FLR 257 Burton v Shire of Bairnsdale (1909) 7 CLR 76 CASES CITED : Sparks and Fred Hoskings (unreported) Sams DP, Matter IRC3939 of 1998, 5 March 1999 Wahba and Brighton Fruit Barn (unreported) Sams DP, Matter IRC4413 of 1998, 29 March 1999 Nilsen v Loyal Orange Trust (1997), 76 IR 180 Attorney General v Wentworth (1988) 14 NSW LR 491 HEARING DATES: 07/24/2000 DATE OF JUDGMENT: 08/17/2000 APPLICANT: Ms T Stephan, unrepresented accompanied by Mr E Stephan (her father) LEGAL REPRESENTATIVES: RESPONDENT: Mr N Dawson, of Counsel SOLICITOR Mr R Whyburn, RL Whyburn & Associates JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 17 August 2000 Matter No IRC99/3856 TATI STEPHAN AND RL WHYBURN AND ASSOCIATES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Tati Stephan ("the applicant"), seeking relief in respect to her alleged unfair dismissal by RL Whyburn and Associates on 31 May 1999. 2 The decision I was asked to make at an early stage of the arbitral proceedings, arises from an application by the respondent to dismiss the application on jurisdictional grounds; namely, that the application is incompetent because the applicant seeks no orders as to reinstatement, re-employment or compensatory relief from the Commission pursuant to s89 of the Act. 3 Before turning to consider the respondent's arguments, it is necessary for me to detail the conduct of these proceedings from when the matter was first listed before the Commission on 27 August 1999. 4 At directions and conciliation proceedings, the eighteen year old applicant, representing herself, stated that the only relief she was seeking was a written apology and a retraction of what the respondent had written on the Employment Separation Certificate as the reason for dismissal. The reason stated being "Gave false information to employer about inability to attend work". 5 Mr Dawson, of Counsel, outlined the respondent's case. Shortly put, it was said that the applicant had, after an extended period of sick leave, misrepresented her illness to her employer. The applicant claimed she was ill and had a doctor's certificate for the relevant period. This occasion of seven working days was preceded by a number of other sick days for which she, or her father, had rung the respondent advising of her illness. It consequently emerged that during the period 20-28 May, the applicant pretended to go to work, but went to a park instead. She dressed as if going to work, left for work, and returned home at the usual time. Her parents believed she was at work but, in fact, she says she went to the park to think and rest. This behaviour was as a consequence of her falling pregnant and not wanting to tell her parents or her employer. Apparently, even the doctor's certificate did not attribute her illness to the difficult pregnancy she was experiencing. 6 After seven days' absence, the employer innocently had called her home on 28 May and inquired of her father when she would be returning. This had become necessary due to the need for a temporary employee to be engaged if the applicant's sick leave was to be extended. 7 This phone call obviously exposed her real daily whereabouts to her family and her employer. She was subsequently dismissed for the reasons earlier referred to. 8 During the proceedings, Mr Eugene Stephan also spoke for his daughter and reiterated what the applicant was seeking. He described the Employment Separation Certificate as a lie, reflecting on her character, his family and their name. He demanded its retraction and an apology. Mr Dawson expressed concern that the applicant was asking the respondent to alter the Certificate such as to falsely state the reason for dismissal. The respondent was not prepared to do so. 9 I directed the parties to confer; however, no agreement could be reached. The Commission adjourned the matter until 9 December at Mr Stephan's request due to the applicant's pending confinement and with an indication that the applicant would be seeking legal advice. This was subsequently changed, at the applicant's request, to 31 March 2000. 10 On this occasion, the Commission chaired private conferences with the parties, with no settlement being reached. The applicant was again represented by her father. At his request, I adjourned until 7 April for further private conferences. 11 This date was changed, this time at the respondent's request, to 10 April, at which time Mr Whyburn appeared for the respondent. The applicant's father requested the application be listed for hearing. Accordingly, I formed the view that further conciliation would prove fruitless, set a date for hearing and issued directions for the filing and service of affidavit material. 12 At a return of subpoena hearing on 31 May 2000, the applicant did not attend and was not represented. 13 Despite non compliance with my directions, by both parties, affidavits were filed and the hearing commenced on 24 July 2000. 14 Prior to this date, Mr Stephan wrote to the Commission making what purported to be an application for an adjournment. At the hearing, he withdrew the application and Mr Dawson indicated that the respondent would like one more attempt, with the Commission's assistance, to resolve the matter through conciliation. 15 Mr Stephan wished the matter to proceed. When advised that the hearing would require his daughter and himself being subject to cross examination in the witness box, he claimed to be seriously disadvantaged. The Commission reminded him that he had been told many times, what course the proceedings would take, including requiring deponents of affidavits to be available for cross examination. 16 Mr Dawson proposed an offer of settlement which included re-issuing the Employment Separation Certificate, without the remarks Mr Stephan found offensive, and ticking the box "Unsuitable for this type of work". 17 Mr Stephan rejected this offer saying that the reason was still false. He believed she was dismissed because she was pregnant. He would be content, however, if the reason stated as "lying" was removed. He then said he preferred that no box be ticked on the Employment Separation Certificate. 18 Mr Dawson's understanding was that the Certificate would be rejected by Centrelink and, in any event, the existing Certificate had been used as a basis for claiming social security benefits. 19 Mr Stephan proposed ticking all the "no" boxes and the respondent pay for any monies the Department of Social Security might claim back from the applicant. After a short adjournment Mr Dawson placed on record two further offers of settlement: 1) A new Employment Separation Certificate be issued with no box ticked. However, if the Department of Social Security queries the reason, the respondent would be obliged to advise "Unsuitable for this type of work"; or 2) Withdraw the dismissal and allow the applicant to resign. Issue a new Employment Separation Certificate indicating resignation. However, if this creates difficulties with Social Security payments already paid, this is a matter for the applicant. 20 Mr Stephan said he would like to consider the offers. He then indicated that his daughter wished the offers to be in writing and wanted to use the offer as she sees fit, i.e. the offer not be secret. 21 The Commission reminded Mr Stephan that offers of settlement are usually confidential. Mr Stephan refused to accept confidentiality. Mr Dawson thereupon withdrew the offers and the matter proceeded to hearing. THE EVIDENCE 22 Short evidence was received in the form of two affidavits in the name of the applicant (Ex'1') and her father (Ex'2'). 23 In the witness box, the applicant was asked whether she sought reinstatement, re-employment or compensation. She indicated that she sought none of the remedies available under the Act. 24 Mr Dawson immediately made an application to have the matter struck out. His reasons for doing so were: i) there is no order the Commission can make pursuant to s89 of the Act; ii) the applicant seeks no remedy; iii) the provisions under Pt 6 ch 2 of the Act require a claim to be dealt with by the Commission. As there is no claim, there is nothing for the Commission to determine; iv) the applicant is seeking to run a case for a purpose not stated or intended by the statute; v) asking for " zero dollars " is not remuneration contemplated by the Act. 25 At the conclusion of the argument, I determined that I would allow a further seven days during which time Mr Stephan could make such further submissions he considered appropriate. Following the expiry of seven days, the Commission would rule on the respondent's application. 26 Mr Stephan responded in writing on 31 July, reiterating the views he expressed earlier on 24 July. 27 In addition, he proposed calling further witnesses, including the respondent's counsel, Mr Dawson, and requested an adjournment of four weeks. CONSIDERATION 28 This case demonstrated, once more, the problems associated with unrepresented litigants, who are far too emotionally connected to the case. The chances of a rational dispassionate approach to the issues involved, let alone ensuring an orderly conduct of the proceedings, are virtually non existent. 29 I would observe that nothing could have been more inimical to the applicant's interests than her father's aggressive and illogical intransigence to the respondent's offers of settlement and to the Commission's encouragement for him to see reason. Despite my pleadings and advice, both on the record and privately, he did his daughter's cause no favours by this behaviour. Every time he said that he would agree to a certain proposal of settlement, he quickly reneged and injected a completely new condition to agreement. It is impossible to negotiate a settlement under these conditions. 30 This was no better exemplified than by reference to his letter to the Commission responding to the respondent's jurisdictional application. I quote the final two paragraphs: I do want Tati to gain some benefit from this experience. She was placed under a great deal of stress, had a major complication to her pregnancy and has been unable to return to study or work for a number of reasons. However I have little more than disgust for her previous employer and would seek nothing from that company in terms of compensation. My background is that I work with computers and Internet site design. However, I was a journalist and have worked on publications including the Sydney Morning Herald . I would like Tati to benefit financially, but through some additional toil on her part. She had been doing the background work for this hearing and I would like her to write her story. This is the reason I was unable to agree to proposals which have included non-disclosure type caveats. 31 While I can well understand a father's natural protection of his daughter, particularly having regard for her difficult emotional and medical circumstances, I found his behaviour to be irrational and inconsistent. 32 Mr Stephan claims his daughter and his family's reputation is at risk by what is recorded on the Certificate. This completely misunderstands the nature and purpose of the Certificate. Despite explaining that the Certificate is not a reference for future employment and is confidential between the employer, the employee and the Department of Social Security, Mr Stephan refused to budge from his misconceived notion. Notwithstanding that a further offer was made, which included a new Certificate with the objectionable words deleted, he found another excuse not to agree to settlement; namely, he wasn't prepared to enter into a confidential settlement. 33 The above extract from his letter makes it clear why. He wants his daughter to write and publicise her story about the dismissal. This is extraordinary, bordering on the bizarre. 34 It is for these reasons that I have decided to take the rare and unusual course of dismissing this application as vexatious. I do so pursuant to the powers available to the Commission under s162(2)(h) of the Act. 35 This section is as follows: (h) The Commission may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious. 36 It follows from this conclusion that I do not find it necessary to express any view, or make any finding, on the employer's jurisdictional argument. 37 I will, however, discuss the definition of the term vexatious, as it is commonly understood, both generally and in an industrial context. This discussion will serve as a sound basis as to why I have found the application and the conduct of the proceedings to be vexatious. 38 The Macquarie Dictionary defines the term as: Vexatious: 2 (of legal actions) instituted without sufficient grounds, and serving only to cause annoyance and the Shorter Oxford defines it as: Vexatious: b (of legal actions) instituted without sufficient grounds for the purpose of causing trouble and annoyance to the defendant. 39 There are a number of authorities which have considered what constitutes a vexatious claim and the careful approach that needs to be taken before a finding of vexatious is made. See: General Steel Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125, Heidt v Chrysler Australia (1976) 26 FLR 257 and Burton v Shire of Bairnsdale (1909) 7 CLR 76. See also my discussion in Barbara Sparks and Fred Hoskings, Matter IRC3939 of 1998, 5 March 1999 and Mervat Wahba and Brighton Fruit Barn, Matter IRC4413 of 1998, 29 March 1999. 40 However, these authorities have considered the term in the context of an application for costs against an offending party. The circumstances here are not directly analogous. Significantly, this is not a costs application, pursuant to s181(2)(c) - rather the Commission acting on its own motion pursuant to s162(2)(h) to dismiss the application as vexatious. 41 Nevertheless a judgment of Roden J in Attorney General v Wentworth (1988) is particularly apposite to the present proceedings. A summary of the meaning of vexatious is to be found at 491 of 14 NSW LR: It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following:- 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues for which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless. ... 42 In Nilsen v Loyal Orange Trust (1997), North J, in a costs application arising from an unfair dismissal application under the Workplace Relations Act 1996 (Cth), considered the question of whether proceedings had been instituted vexatiously. At p181 of 76 IR his Honour said: The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceedings. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage. 43 In my view, whether the test is one of general everyday usage or that as expressed above by Roden J, in respect to legal proceedings, I am sadly convinced that the application is vexatious and should be dismissed. I am strengthened in this finding by the extraordinary letter from Mr Stephan which casts serious doubt as to his motivation and his bona fides on his daughter's behalf. 44 His recent letter of 31 July, proposing a four week adjournment and more time to call further witnesses, including the respondent's counsel, causes me grave concern that this Commission is being "used" by Mr Stephan and the Commission's processes are being abused. Such conduct more than fits the definition of "serving only to cause annoyance". 45 It is arguable, that I have the power, under s89 of the Act, to make orders for an apology and a retraction of the words on the Employment Separation Certificate. Assuming, nevertheless, I had such power, I am able to conclude that it would be unlikely, as a matter of discretion, that I would do so. I make this observation, having read all of the affidavit evidence filed by both parties, and noting Mr Stephan's initial submission that he did not wish to cross examine any of the respondent's witnesses. 46 The affidavit evidence, unchallenged by the applicant, dealt with the circumstances of the dismissal and must be accepted. Indeed, there is little conflict with the applicant's evidence in any event. The common evidence was that: 1) the employer was not told, or aware, of the applicant's pregnancy; 2) the applicant spent a number of days pretending to go to work, leaving and arriving home at the usual time, so as to not alert her parents of her real destination or purpose; 3) at various times the applicant rang her employer to say that she was ill and would not be in. (It is disputed as to whether she told the employer in one phone call that her doctor had said to " stay in bed and rest "); 47 The uncontested evidence does not suggest the employer's stated reason on the Employment Separation Certificate was anything other than what it was. The applicant misrepresented the nature of her illness and what she was doing while off sick. I understand and sympathise with her emotional confusion, distress and her fears of telling her family of her pregnancy. On the other hand, she was an adult - albeit just eighteen years old - and she seemed very capable of sustaining the charade of her illness for a long time and successfully creating an illusion of what she was doing - fooling her family and her employer. I also find it difficult to believe, if she was as ill as she maintains, that she could spend day, after day, in a park thinking and resting. 48 In my view, in light of the evidentiary material relied upon, it would be unlikely the Commission would order, as a matter of discretion, the relief sought by the applicant. 49 The application is dismissed, pursuant to s162(2)(h) of the Industrial Relations Act 1996. 50 No further orders are made. 51 Finally, let me say that it is a tragedy this application was not settled in conciliation. As already observed, this was primarily due to her father's unsatisfactory representation. 52 Nevertheless, I intend to make one final plea to the applicant to accept one of the offers of settlement advanced by Mr Dawson on 24 July 2000. Noting that these offers were withdrawn at the time, I strongly recommend as follows: 1) The respondent reinstate the two offers of settlement put on record on 24 July 2000. 2) The applicant give favourable consideration to accepting one of the two options. 53 These proceedings are formally concluded Peter Sams Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.