Industrial Relations Commission of New South Wales CITATION : Theodorakopoulos and Central Sydney Area Health Service [2003] NSWIRComm 295 APPELLANT Kalleroe Theodorakopoulos PARTIES : RESPONDENT Central Sydney Area Health Service FILE NUMBER: IRC2067 of 2003 CORAM: Walton J Vice-President; Harrison DP; McLeay C CATCHWORDS : Appeal - Unfair dismissal - Procedural Fairness - Resignation - Ruling during Proceedings - Denial of Procedural Fairness - Leave granted - Apeal Upheld - Matter remitted. LEGISLATION CITED : Industrial Relations Act 1996 s84 CGEA Transport Limited T/as Southtrans. v Transport Workers Union of Australia (2001) 110 IR 211 CASES CITED : Hurrell v Queensland Cotton Corporation [2003] NSWIRComm 139 Stead v State Government Insurance Commission (1986) 161 CLR 141 HEARING DATES: 08/25/2003 EXTEMPORE JUDGMENT DATE : 08/25/2003 APPELLANT Mr D Shoebridge of counsel SOLICITOR Mr L Riches Taylor & Scott Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms E Collins of counsel SOLICITOR Mr G Jolly Minter Ellison JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, VICE-PRESIDENT HARRISON DP MCLEAY C Monday 25 August 2003 Matter No. IRC2067 of 2003 KALLEROE THEODORAKOPOULOS AND CENTRAL SYDNEY AREA HEALTH SERVICE Application by Kalleroe Theodorakopoulos for leave to appeal and appeal against a decision of Commissioner Connor given on 28 March 2003 in matter number IRC02/4181. DECISION OF THE COMMISSION EX TEMPORE [2003] NSWIRComm 295 1 This is an application for leave to appeal and if granted, appeal from a decision of Connor C given on 28 March 2003. 2 Whilst the grounds of the appeal were initially quite extensive they were reduced, upon the calling of the appeal, to essentially one issue - namely, whether there had been a denial of procedure fairness to the appellant Kalleroe Theodorakopoulos at first instance. 3 Much of the difficulty in this matter appears to have stemmed from an agreement reached between the parties that the Commissioner should attend, as a threshold matter, to the application by the appellant to extend time to bring her application under s 84 of the Industrial Relations Act 1996 and not to a jurisdictional issue which had also arisen at the commencement of the proceedings - namely, whether the appellant could bring an application under the section having regard to a purported resignation from her employment. 4 It was contended by the appellant that this agreement precluded an examination of the merits of the application (or the merits of the resignation question) and the Commissioner had infringed that limitation in the final paragraph of his decision, even though he had precluded the appellant from adducing evidence as to that matter. 5 The contentious paragraph of the Commissioner's decision, so described, was as follows: The obvious conclusion I draw from the evidence is that Miss Theodorakopolous's Part 6 application was something of an afterthought on her part. She intended initially to resign from her employment and only changed her mind when the other job that she had sought did not turn out to be as attractive a proposition as she first thought. I therefore consider that no good purpose would be served by Miss Theodorakopolous's Part 6 application going forward to a hearing on the merits. I do not propose to exercise my discretion under S.85(3) to permit that to occur. The Part 6 application is therefore dismissed. 6 However, we consider that this proposition by the appellant misstates the principal issue as to procedural fairness in this appeal which was identified by the respondent (and subsequently joined by the appellant.) That issue was whether the Commissioner had contravened or contradicted his ruling in the course of the proceedings by this final aspect of his decision, which ruling was expressed in the following passage from the record of the proceedings: COMMISSIONER: In the purposes of this exercise, all I need to know now, since the constructive dismissal issue is now to be argued at a later date, is actual dates. There is a termination of employment which activates the unfair dismissal application. I don't really need to know a great deal of detail about that because I'm not going to be able to answer that question. PATCH: That's a ruling? COMMISSIONER: That's a ruling. PATCH: Okay, I'll act accordingly. COMMISSIONER: Thank you, Mr Patch. I understood that was an agreement at the bar table in any event. I must say for the record there have been occasions in the past where I've actually considered the question of a constructive dismissal issue at the same time as I'm considering an out-of-time claim and pointed out that, notwithstanding the fact that an out-of-time claim form has certain factors I have to take into account when I'm considering my discretion in the matter, one of those things that I think we should take into account is the hopelessness of the case. If for instance an applicant has clearly resigned, then that may well be a fact that we take in account. In view of what has been agreed at the bar table, I'm not going to consider that in this type of contest. 7 It is important to note that these statements by the Commissioner related directly to a ruling by him that he would not allow the appellant's counsel to re-examine the appellant as to certain matters raised in cross-examination which we consider went squarely to the merits of the application or at least the merits of the jurisdictional issue which we have earlier identified. 8 In approaching this question we have applied the principles enunciated in CGEA Transport Limited T/as Southtrans. v Transport Workers Union of Australia (2001) 110 IR 211. In short, the Commissioner was obliged to observe procedural fairness in the proceedings at first instance although a mere breach of those requirements might not necessarily result in a re-trial and as a consequence of the failure required close examination. 9 We have given active consideration to the respondent's submission that the final passage of the Commissioner's decision was, in essence, confined to a consideration of the matters relevantly falling for consideration as to the extension of time question (see Hurrell v. Queensland Cotton Corporation [2003] NSWIRComm 139). 10 However, we consider, on balance, the Commissioner's deliberations were not so confined and that he, in fact, traversed into that area which he had precluded by his earlier ruling. We consider that this was a denial of procedural fairness as the appellant was entitled to proceed upon the basis of the Commissioner's ruling and should not have been precluded from bringing her case otherwise if a different criteria was to apply. 11 There remains then the question of whether that breach was such as to warrant intervention having regard to the principles in CGEA and the provisions of s 188 of the Act. 12 We consider that having regard to the decision in Stead v. State Government Insurance Commission (1986) 161 CLR 141 at [145] - [146], this is a matter where the breach of procedural fairness was such as would warrant a re-trial - the appellant was denied the opportunity to make submissions and call evidence as to the merits of the matter in relation to areas which activated, we consider, the Commissioner's decision. 13 As to the question of leave, we consider leave should be granted both in the interests of justice and because the matter is of some general significance in that it goes to the practices which should be properly adopted by members of the Commission in s 84 proceedings. 14 We order: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Connor C of 28 March 2003 is quashed. 4. The matter is remitted to McLeay C for hearing. 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.