Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219

Industrial Relations Commission of New South Wales

CITATION : Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219 PARTIES : David Capotosto Uinta Beds Pty Ltd trading as Sleep City FILE NUMBER: IRC1542 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - issue of summons to union officials - summons properly issued by Registry officer on delegation - legal professional privilege not available to union officials - misconduct - employee's behaviour created unmanageable situation - discussion and resolution of issues frustrated by emotional reaction of employee - total breakdown in employment relationship - termination not harsh, unreasonable or unjust. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/16/2001; 08/17/2001 DATE OF JUDGMENT: 09/20/2001

APPLICANT Mr A Cardillo Solicitor of Harris Wheeler Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Ms P Ryan Solicitor Furnishing Industry Association of Australia

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 20 September 2001

Matter No IRC 1542 of 2001 David Capotosto & Uinta Beds Pty Ltd t/as Sleep City Application for relied from alleged unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2001] NSWIRComm 219

1 This matter was subject to arbitration proceedings on 16 and 17 August 2001 in Newcastle in accordance with directions issued following conciliation proceedings which established that the matter could not be resolved by agreement between the parties. 2 Mr A Cardillo, Solicitor of Harris Wheeler Solicitors appeared on behalf of Mr David Capotosto, the applicant. Ms Ryan Solicitor of the Furnishing Industry Association of Australia (NSW) Ltd appeared on behalf of Uinta Beds Pty Ltd, trading as Sleep City, the respondent employer. 3 Mr J Ryan of the Shop Assistant's and Warehouse Employee's Federation of Australia, Newcastle and Northern New South Wales ('the union') intervened on behalf of that organisation pursuant to a Notice of Motion filed by the union in response to summons to give evidence issued to Ms Maureen Matson and Ms Barbara Niebaart, officers of the union. 4 Mr Cardillo did not oppose the Notice of Motion. 5 The Notice of Motion sought to have the summons set aside and the officers of the Union not be required to give evidence. 6 Mr Ryan mounted an argument that there was no statutory base for the summons, submitting that the summons had not been issued by the Industrial Registrar or Deputy Industrial Registrar. This argument was not accepted. The summons is, in my view, properly issued by an officer of the Registry acting on legitimate delegation of authority. 7 Mr Ryan put a second argument that Union officials should not be required to give evidence concerning their representation of and advice to members, asserting that the principles of legal professional privilege be applied. 8 These arguments were not accepted. An ex tempore ruling was made, found in transcript at page 18 in the following terms: HIS HONOUR: Thank you. Union officials do not as a matter of law have refuge in legal professional privilege, simply because they are union officials. Union officials are not free or immune from summons to proceedings. There might be circumstances however where it is appropriate and proper to afford union officials the principles of legal professional privilege. Such circumstances would arise in point 1 of schedule B, the grounds and reasons to the notice of motion to set aside.