Industrial Relations Commission of New South Wales CITATION: Billy John Fosse and Western Suburbs Leagues Club Ltd [2005] NSWIRComm 1015 APPLICANT Billy John Fosse PARTIES: RESPONDENT Western Suburbs Leagues Club Ltd FILE NUMBER(S): 3746 of 2003 CORAM: Patterson C Unfair Dismissal - filed out of time following dismissal of criminal charges - Held - allowed to proceed due to representative error CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Griffith Ex-Services Club Ltd v Federated Liquor & Allied Industries Employees Union of Australia (NSW) Branch (1993) 51 IR 186 CASES CITED: HEARING DATES: 09/08/2004 EXTEMPORE JUDGMENT DATE : 02/07/2005 APPLICANT Mr K Earl of Counsel Mr G Kinsey Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr B Boon Solicitor Mr S Banister DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PATTERSON, C 4 March 2005 Matter No IRC 3746 of 2003 Billy John Fosse and Western Suburbs Leagues Club Ltd. Application by Billy John Fosse re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1015 1 This decision concerns an application for relief filed approximately eight months out of time. 2 The Applicant, Billy John Fosse, had been employed at the Western Suburbs Leagues Club (the "Club") for almost sixteen months when his services were terminated due to his alleged dishonesty. It had been his first job since finishing school in Year 10. He was nineteen at the time of dismissal and states that he has never previously been in "trouble". 3 Employed as a "beverage and gaming attendant" at the time of dismissal Mr Fosse was accused of making 28 Totalisator Agency Board ("TAB") transactions, over two days, totalling $19240, whilst on duty, and for which no payment was made. 4 Whilst initially placed on suspension, with pay, club management - in consultation with the TAB Audit Department - commissioned private investigators to examine Mr Fosse's alleged breach of procedure and fiduciary duty. 5 Mr Fosse's explanations of TAB equipment/systems failure, for example, which may have caused a $20 wager to register as $2000, were not accepted. In the assessment of his solicitor, Mr G Kinsey, there was "absolutely no evidence at all that (he) took this money, or bet on credit, or did absolutely anything wrong". A second issue raised by Mr Fosse was that he had never been placed on a TAB training course, as is the "usual practice", and that any allegation of his failure to comply with TAB protocol should, reasonably, be seen in that light. Indeed, when Mr Fosse had realised a problem with the system, or the manner of his operation of it, he claims to have contacted management and the TAB himself in search of a solution. 6 When the club's "intensive" investigation was completed, Mr Fosse was called to interview, with a witness of his choosing (his sister), and shown a "range" of the "evidence" gathered against him, including a summary interpretation of a video surveillance tape. His services were then terminated, without notice or payment in lieu thereof, and the matter was referred to Police (who placed him under arrest and locked him up sometime later). 7 Although this final interview was recorded on tape, with his permission, Mr Fosse was not provided with a copy or resultant transcript at the time of his dismissal or when he received his letter of termination a week later. 8 Neither was he provided at that time copies of any other material upon which the Respondent relied and/or passed on to Police such as: (i) the "Report" prepared by the private investigator; (ii) any "findings", advice or opinions provided to the Club by TAB; (iii) a copy of the video surveillance record (edited or otherwise) together with the investigator's interpretation summary; or (iv) any other relevant material generated within the Club concerning the allegations, failures within the system if any, and precise details which influenced the dismissal. 9 Given the serious nature of the allegations, and potential stain on this young man's personal reputation, I would have thought it prudent for management to have provided him with all of the relevant material in order that he may have sought professional advice prior to the dismissal being given effect and before the Police were informed. Had this been done, Mr Fosse could have offered a considered reply. Instead, the Club's approach - on one view - was hasty and tantamount to ambush. 10 Dismissal from the day of the final interview, 4 October 2002, as formalised in a letter dated five days subsequently, Mr Fosse - whilst having no knowledge of the industrial processes available through this place - seems to have become overwhelmed at the prospect of criminal proceedings at the time. 11 His father sought advice from a barrister acquaintance - known to the family for ten years - Mr Kenneth Earl, who specialises in the criminal jurisdiction. 12 The general thrust of Mr Earl's advice was confined to how young Mr Fosse should conduct himself if approached by Police and in the event of an arrest. 13 In the proceedings before me Mr Earl represented the applicant, instructed by Mr Kinsey, and offered himself to give evidence as to the events between him and Mr Fosse senior and, later, young Mr Fosse the applicant. 14 Mr Earl states that he clearly recalls the call from Mr Fosse senior "that his son was sacked … they're saying he is a thief … (and) that he's going to be charged by Police "and asking "what should we do". 15 Mr Earl "said words to the effect, Les, just tell him to wait until the police contact him … and you get him to give me a ring, I'll tell him what to do, in the meantime he's not to make any statement or speak to anybody about the matter". 16 When asked to attend Ashfield Police Station young Mr Fosse contacted Mr Earl who accompanied him to an interview after which he advised the applicant that he could expect to be charged. "The matter will be adjourned, the police will have to serve a brief setting out their evidence, and then the matter will be set for hearing". Billy Fosse had asked "what about my job" … to which Mr Earl replied with words to the effect "look, you're being charged with serious criminal charges, getting a job back, that's a civil matter, this takes precedence, you'll never get your job back whilst you're facing criminal charges. So we've got to get this out of the road first, then you can look after your dismissal … look after your loss of a job". 17 Hence, Mr Fosse made no application in respect of his so-called unfair dismissal and, when the criminal charges were heard by the Local Court on 18 June 2003, they were dismissed by the Magistrate with costs ordered against the Police Service. 18 Following those proceedings Mr Fosse asked what could now be done to "get his job back". Mr Earl told him that he should now "see a solicitor" who was experienced in the industrial jurisdiction "I don't do that work, so, see a solicitor and get him to prepare your application for unfair dismissal … I said 'do that soon' … "and he referred the applicant to Mr Kinsey who appears with Mr Earl in these proceedings. The application was filed within 20 days of the charges being dismissed. 19 Asked in-chief as to whether Mr Earl's practice had ever extended into the industrial jurisdiction he replied "not normally … I've been there once in front of Mr Cullen, that was many years ago in relation to …" and that he was not aware of the requirement for such an application to be filed with 21 days of dismissal in circumstances which were overshadowed by the possibility of criminal charges. 20 Asked in cross-examination by Mr Boon, solicitor for the respondent, why Mr Earl had not encouraged the applicant to examine his wider legal rights after dismissal he replied that he had "considered all his legal rights rested upon the outcome of criminal proceedings …. I assumed, and I'm prepared to accept now I'm wrong, that his legal rights depended on those criminal proceedings … standard advice". 21 In his evidence, Mr Fosse senior considers his son as a "good kid", recalled the events surrounding the dismissal, and subsequently, which had "caused him to be pretty shaken up … he was gonna play football … get a run out with Balmain … he thought (this) might bugger everything up, you know, he loved his job through and through". 22 Asked about his initial contact with Mr Earl: "COMMISSIONER: Q. Do you have a close relationship with your son? A. Yes, I do. Q. Do you recall, I know its been difficult for you, its been some time, but do you recall Mr Earl discussing anything about what you might do about the job loss? A. Well, I think I mentioned it first up and … Q. You told him that your son had been sacked. A. Yes Q. You told him that there were charges possibly pending? A. That's right. Q. He gave you certain advise that you've given evidence about. There was no discussion about the job loss and what might be done about it ?" A. Well, I was more worried about what was happening in (the Local Court. Q. That was the priority? Q. Yes, and then one thing to another, you know, like, later on. It was mentioned, yes, but that was down the track, I thought it was that, too, you know, like until you're found innocent you can't go on with anything else, I thought, I didn't know what your rules are. Q. What did your son do after the dismissal, did he go out seeking a job straightaway? A. Yes, yes, he did, yes. 23 When the applicant was asked what his father had told him of his conversation with Mr Earl, in respect to a claim for unfair dismissal, he replied: "A. Well, I had to prove I was innocent first before - Q. Who told you that? A. It was just, just what I thought, I suppose, common sense". 24 Filed on 8 July 2003 the matter first came before the Commission on 31 July whereupon both parties sought an adjournment in order to study the evidence earlier gathered as relied upon in support of the dismissal and the charges brought by Police. 25 The respondent also announced that the Club would be opposing an application that the matter proceed out of time and a date was fixed in August to deal with the question as to whether the Commission should exercise its discretion pursuant to section 85(3) which provides: "85(3) [ Commission may accept application lodged out of time ] The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application and, (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal." 26 However, following a joint request from the parties that additional time was required to study the evidence, the matter was stood out of the list until later listed for further directions in April 2004. With a hearing date then fixed for June, and adjourned, then July and further adjourned, the "jurisdictional" question finally proceeded in September. CONSIDERATION 27 As noted in the Section, the Commission is armed with a wide discretion to deviate from the strict requirements of "legal form" if fairness so demands. 28 In deciding whether to exercise its discretion in allowing this matter to go forward, the Commission has to be satisfied that a "sufficient reason" has been made out. That discretion is neither automatic nor exercised lightly. 29 Consistent with each case being decided on its own facts and circumstances, "sufficient reason" is not precisely defined in the Act, nor, according to the Commission, is it appropriate to do so. In Griffith Ex-Services Club Ltd v Federated Liquor & Allied Industries Employees Union of Aust (NSW Branch) (1993) 51 IR 186 a Full Commission observed at 190: "It is not appropriate to attempt to formulate any definition as to what constitutes a 'sufficient reason'." 30 Each case is determined on its own facts and circumstances and must take into account the potential injustice which may be visited upon the applicant were it not permitted to proceed against the potential prejudice to the respondent if it were permitted to proceed. 31 An examination of the leading authorities in this area, as they may be relevant to this matter, really boil down to a consideration of what justice between the parties is required. 32 Whilst ignorance of the law is no excuse, it must be acknowledged here that the manner of Mr Fosse's dismissal, the material relied upon and which was not supplied to him at first instance, the prospect of police charges then leading to arrest, was such as to have totally - and understandably - overwhelmed him. 33 He and his father believed that it was necessary to prove his innocence before any consideration be given to how he may retrieve his job. 34 This was confirmed by his barrister, Mr Earl, whose evidence I accept without any reservation. With respect to him, the delay is merely the product of representative error. 35 The charges having been dismissed, and then being referred by Mr Earl to a solicitor, Mr Kinsey, who is - unlike Mr Earl - experienced in this jurisdiction - the application was filed within 20 days. 36 And, even if the application had been filed within 21 days of dismissal, it is most likely - once first listed for conciliation - that it would have been stood out of the list pending conclusion of the criminal proceedings. 37 Any so-called prejudice claimed to be visited upon the respondent were the matter to now proceed due to the delay in filing the application would, therefore, seem to present no different a circumstance than if it had been filed within time. CONCLUSION 38 Having carefully considered the evidence and other material placed before the Commission, I am satisfied that there is sufficient reason, in terms of section 85(3), for the Commission to exercise its discretion in favour of the applicant. 39 The matter shall proceed with the parties directed to confer at first instance before attending a Report Back and Directions Hearing at 9.30 am on 30 March 2005. R J Patterson Commissioner 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.