Industrial Relations Commission of New South Wales CITATION : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch on behalf of Maree Ploner v Westport Bowling Club Ltd [2002] NSWIRComm 10 PARTIES : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch Westport Bowling Club Ltd FILE NUMBER: IRC3894 of 2001 CORAM: Harrison DP CATCHWORDS : Application for costs against employer - refusal to negotiate reinstatement - alternative settlement not acceptable to union - strike action - application for costs refused LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Copperart Pty Ltd v Martin (1995-96) 68 IR 58 Bankstown City Council v Paris (1999) 93 IR 209 HEARING DATES: 08/20/2001; 09/21/2001; 10/22/2001 DATE OF JUDGMENT: 02/05/2002 APPLICANT Mr C Acev Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW LEGAL REPRESENTATIVES: RESPONDENT Ms M Knight Clubs NSW JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 5 February 2002 Matter No IRC 3894 of 2001 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF MAREE PLONER) AND WESPORT BOWLING CLUB LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE COSTS [2002] NSWIRComm 10 1 The substantive proceedings in this matter, pursuant upon an application by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the Union') on behalf of its member, Ms Maree Ploner ('the applicant'), resulted in a decision issued on 22 September 2001 finding in favour of the applicant. Orders issued for reinstatement; payment of wages for the period from termination of employment to reinstatement; and preserving continuity of employment and associated entitlements. The Union now seek an order for costs pursuant to s181(2)(c) of the Industrial Relations Act 1996 ('the Act') to the amount of one thousand two hundred and seventy six dollars and seventy cents ($1,276.70). 2 In respect to the application for costs Mr Acev of the union put that a delegation by Union officials and job representatives to the General Manager of Westport Bowling Club ('the Club'), Mr R Livingstone, seeking reinstatement of the applicant was rebuffed with an expression of a firm and concluded view of fact adverse to the applicant. 3 Mr Acev put that the respondent maintained this position and refused to engage in conciliation or consider a proposition advanced by the Union that the applicant be reinstated pending the outcome of arbitration proceedings. Mr Acev submits that several attempts to advance this proposition during the course of proceedings were rejected. 4 Mr Acev relies upon the conclusion reached by the Commission that the respondent employer was wrong and that the applicant was not guilty of the misconduct asserted; putting that: "the only action taken by the respondent was to remain inflexible in respect to the process and repeatedly rejecting an offer of compromise, which was 'reasonable', in light of the Orders made by the Commission. 5 Mr Acev further submits that the respondent's actions were contrary to the objectives of s181(2)(c) of the Act, which he puts is to encourage settlement of proceedings. 6 Mr Acev's argument is concluded at pts 24, 25 and 26 of his written submission in the following terms: 24. Each party in Section 84 proceedings holds a view as to the respective strengths and weaknesses of their case Such positions must also be formulated after giving mind to the provisions of the Act which require parties to engage earnestly in efforts to settle claims. 25. It is respectfully submitted that the Respondent's position was not established as a result of applying such considerations, but highlights a belligerent refusal to compromise and a reliance on a position which in hind sight was not open to the Respondent due its lack of merit. 26. Both in consideration of the Respondent's conduct throughout the 'conciliation process' and in light of its rejection of a reasonable offer as put and maintained by the Applicant, it is respectfully submitted that the criterion in respect to Section 181(2)(c) for the Awarding of costs has been made out." 7 Ms M Knight of Clubs NSW on behalf of the Club opposes the application for costs, submitting that the conduct of the respondent could not be categorised as unreasonably failing to agree to a settlement, and accordingly there was no basis for an award of costs pursuant to s181(2)(c) of the Act. 8 Mr Knight relies upon a decision of a Full Bench of the Commission in Copperart Pty Ltd v Martin (Bauer, Glynn JJ, Murphy CC) (1995-1996) 68 IR 58, in particular at page 64 wherein the Bench states, "costs are not the automatic outcome of a refusal to settle". 9 Ms Knight further refers me to a decision of a Full Bench of the Commission in Bankstown City Council v Paris (Wright P, Peterson J, Bishop C) (1999) 93 IR 209. 10 Ms Knight notes that the applicant's employment was terminated on 6 June 2001 and that the respondent participated in conciliation proceedings before the Commission as presently constituted on 29 June 2001. Ms Knight notes that prior to that conference the members of the Union had participated in stop work meetings called by Union officials and, subsequent to the refusal of the request for reinstatement, the employees concerned went on strike which continued until the cessation thereof as directed by the Commission. 11 Ms Knight submits that the refusal of the request for reinstatement and subsequent proposition of reinstatement pending the outcome of arbitration proceedings was rejected based upon the Club's reasonable belief at the time that the applicant had in fact been involved in systematic theft from her employer. Ms Knight submits that in rejecting the proposition of settlement involving reinstatement, the Union was informed that the Club would be responsive to a monetary settlement and was informed that this was not an acceptable option so far as the Union and its members were concerned. 12 Ms Knight submits that the Act provides a right for parties to have their positions tested by arbitration and that the Club was entitled on the information available to it prior to the proceedings to form the view that the applicant was guilty of serious misconduct. Ms Knight further submits that the Club attended all conciliation proceedings, actively participating in discussions concerning the issues and possible solution, in no way impeding, frustrating or hindering the process of conciliation and accordingly could not be considered to have acted unreasonably. 13 Ms Knight submits that the issue of reasonable conduct must be considered in the context of circumstances and not, as Mr Acev asserts, "with the benefit of hindsight". 14 Ms Knight's submission contains the affidavit of Mr Richard Tait, an Officer of Clubs NSW, which sets out his representation of the Club during the course of the pre-arbitration proceedings. 15 In his submission in reply, Mr Acev argues that the affidavit of Mr Tait be rejected and that the assertions of reasonableness on behalf of the Club advanced by Ms Knight are not sustainable. CONSIDERATION 16 The affidavit of Mr Tait is not accepted. Nothing turns on this, as an account of the events attested to by Mr Tait are before the Commission in the evidence of Mr Burles at pages 42 to 54 of transcript in substantially similar terms. 17 The issues between the parties in the substantive matter were essentially those of fact; the employer having arrived at a view on the basis of some investigation that the applicant should be dismissed from employment due to theft, the Union holding the view that the applicant was not guilty. Attempts at resolution involved a consideration of various forms of compromise, each party being set in a contrary view; for the Union the compromise must include reinstatement, for the respondent compromise was available without reinstatement. 18 These positions were exacerbated in my view by the industrial approach of the Union in the early stages of the matter which sought to force reinstatement through industrial action contrary to the dispute settlement procedure, which can only be described as unlawful, improper and unreasonable. 19 This industrial action did not assist the applicant and in the context of this application does her and the Union significant harm. 20 Industrial action is an obstruction to the conciliation process. The focus of the Union was on the decision of the Club to terminate the applicant's employment, which it sought to overturn with force, rather than on the foundation of that decision which on examination in arbitration proved to be flawed. 21 The conduct of the parties is to be considered and assessed in the context in which it is taken. 22 The evidence is that both parties held firm negotiating positions, each offering a prospect of settlement not attractive to the other. 23 The evidence does not support a conclusion that the Club unreasonably failed to agree to a settlement of the claim. 24 I find there is no basis for an award of costs pursuant to s181(2)(c) of the Act. 25 The application is refused and matter No IRC 3894 of 2001 so concluded. oo0oo 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.