Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149

Industrial Relations Commission of New South Wales in Court Session

CITATION : Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149 APPLICANT: PARTIES : Christine Packer RESPONDENT: The Greater Murray Area Health Service and Anor FILE NUMBER: IRC 2741 of 2000 CORAM: Boland J CATCHWORDS : Practic and procedure - jurisdiction - joinder of unfair dismissal and unfair contract proceedings - whether Commission and Commission in Court Session can sit simultaneously - joinder application refused LEGISLATION CITED : Industrial Relations Act 1996 GIO Australia Ltd v O'Donnell (1996) 70 IR 1 Hollingsworth v Commissioner of Police (1998) 81 IR 276 CASES CITED : Kellogg (Aust.) Pty Limited v National Union of Workers, New South Wales Branch (unreported) 25 September 1998 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 HEARING DATES: 07/13/2000 DATE OF JUDGMENT: 08/14/2000

Applicant: Ms P Lowson of Counsel LEGAL REPRESENTATIVES: Respondent 1: Mr G Hatcher of Counsel

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: BOLAND J

DATE: 14 August 2000

Matter No 2741 of 2000

CHRISTINE PACKER V THE GREATER MURRAY AREA HEALTH SERVICE Application for under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 On 16 June 2000 Christine Packer (" the applicant") filed a Summons for Relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The Greater Murray Area Health Service was named as the first respondent and the Health Administration Corporation was named as the second respondent. 2 On 6 January 2000 the applicant had made application under s 84 of the Act relating to alleged unfair dismissal. The unfair dismissal claim was based on allegations relating to demotion of the applicant to a lower grade than that previously held by the applicant. The unfair dismissal claim has been the subject of proceedings before a member of the Commission but conciliation, I am informed, was unsuccessful. The claim has not at this stage proceeded to arbitration. 3 On 16 June 2000 the applicant filed a notice of motion seeking an order that the proceedings initiated by the applicant under s 84 of the Act (matter No. 25 of 2000) be joined and heard with the application under s 106 of the Act. 4 The notice of motion came on for hearing before me on 13 July 2000. 5 Ms P Lowson, of counsel, appeared for the applicant and Mr G Hatcher, of counsel, appeared for the first respondent. 6 Mr Hatcher immediately put into issue the Court's jurisdiction to entertain the notice of motion. His fundamental submission was that because the Commission in Court Session did not have jurisdiction to deal with an application made under s 84, it had no jurisdiction to deal with such an application in any sense, by way of joinder or otherwise. Essentially, Mr Hatcher argued that the Commission and the Commission in Court Session were separate and distinct; the Commission in Court Session did not have the power to deal with unfair dismissal claims; for the Commission and the Commission in Court Session constituted by a Presidential Member who is also a judicial member to sit simultaneously would create a conflict in the exercise of powers under the Act. Reliance was placed on the comments of Wright J, President, in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 448 where his Honour referred to the separateness and distinctness of the Commission in Court Session from the Commission. 7 Ms Lowson responded to the issue of whether the Court could join the matters by arguing that there was a general power under s 162 of the Act for the Commission to determine its own procedure. Ms Lowson also referred to rules 84 and 85 of the Industrial Relations Commission's Rules to support her proposition relating to joinder. Ms Lowson also submitted there was an inherent power in the Court to manage its own procedures. 8 I allowed Ms Lowson to proceed to make out a case in support of the applicant's notice of motion without ruling on the threshold argument by Mr Hatcher as to whether I had power to even entertain the notice of motion. 9 Ms Lowson tendered an affidavit by Marshall Sheehan, solicitor for the applicant in which the deponent expressed the view that the total factual matrix of the applicant's employment encompassed both the unfair contract proceedings and the unfair dismissal proceedings. The deponent also stated that there would be efficiencies in cost and time if the matters were heard together. Mr Hatcher objected to the views expressed by the deponent in his affidavit. The affidavit was accepted into evidence. Ms Lowson also tendered a statement of particulars by the applicant which had been filed in the unfair dismissal proceedings. Mr Hatcher objected to the tender of the statement as to the truth of its content. The statement was received into evidence. 10 Ms Lowson's submissions may be summarised as follows: 1. The relief sought by the applicant in the unfair dismissal proceedings includes reinstatement or re-employment to a position equivalent to the one held by the applicant prior to a staffing review in 1997, which would be at a level of at least Nurse Manager Grade 4. During the 1997 staffing review the applicant was not working in her substantive position, but was filling a higher grade position that was assessed at Nurse Manager Grade 7. The proceedings under s 106 of the Act seek redress in relation to the applicant's peremptory removal from this position in early 1998, and the consequent loss of income and career opportunity that followed; 2. There is no statutory prohibition on the Commission hearing two matters, one of which falls within the jurisdiction of the Commission and the other within the jurisdiction of the Commission in Court Session; 3. The basic principle is that the Commission should take the course that is most conducive to the just resolution of the dispute, having regard to the desirability of limiting the costs and delay of litigation: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078; 4. A risk exists that, if the proceedings are not joined, different tribunals may make different findings of fact. 11 Mr Hatcher opposed the notice of motion, expanding on his earlier arguments relating to jurisdiction. Consideration