Industrial Relations Commission of New South Wales CITATION: Boda v Department of Corrective Services [2005] NSWIRComm 1119 APPLICANT: Sarolta Boda PARTIES: RESPONDENT: New South Wales Department of Correctrive Services FILE NUMBER(S): 1827 of 2005 CORAM: Ritchie C Claim of Unfair Dismissal Had made a claim before GREAT,but after conciliation had withdrawn her claim. Appeal before GREAT had now lapsed. Submitted was not told about ability to file before IRCNSW by then legal representative until after filed appeal with GREAT Respondent submitted that as she had commenced proceedings before GREAT thefore IRCNSW does not have jurisdiction to hear matter in accordance with s.90(b) CATCHWORDS: Applicant submitted that unfair if not allowed to proceed as she did not proceed with GREAT appeal. S.90 there to ensure no duplication or duality of proceedings. Found it would be unfair not to allow the application to proceed. Found that forum shopping and abuse of process did not take place Application accepted out of time Application to proceed to hearing. LEGISLATION CITED: Industrial Relations Act 1996 Tasovac v NSW Police Service 83IR 410 Director General of the Dept. of Corrective Services v Mitchell (1992) 42IR 38 CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 Kingston v Keprose Pty Ltd (1987) 11NSW LR HEARING DATES: 07/04/2005 DATE OF JUDGMENT: 07/22/2005 APPLICANT: Ms. S. McKinnon of IR Australia Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT: Ms. T. Anderson of Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 22 July 2005 Matter No IRC 1827of 2005 IN THE MATTER OF : Sarolta Boda and Department of Corrective Services Application by Sarolta Boda re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERIM DECISION [2005] NSWIRComm 1119 Background. 1 On 21 January 2005 Ms. Sarolta Boda (the applicant ) was terminated from her position with the New South Wales Department of Corrective Services (the respondent). On 31 January 2005 the Public Services Union (the Union) on behalf of the applicant filed a Notice of Appeal(Ex.1) against the respondent in the Government and Related Employees Appeal Tribunal (GREAT) pursuant to the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act). 2 A conciliation conference of the applicant's appeal before GREAT was heard on 18 March 2005. The conciliation did not result in settlement of the appeal. 3 On 8 April 2005 the applicant's appeal was withdrawn. As at that date neither party had exchanged any evidence. On 11 April 2005 the applicant filed an application under Ch.2 Part 6 of the Industrial Relations Act 1996 (the Act). 4 The application came before the Commission as presently constituted on 5 May 2005. This conciliation was also unsuccessful. 5 The respondent at the conciliation raised the preliminary point that because the applicant had commenced proceedings before GREAT this disallowed her from making application before this Commission. 6 As a consequence I directed the parties to file and serve an outline of their submissions with respect to this preliminary point and the matter was set down for hearing on 4 July 2005. After hearing submissions I reserved my decision. 7 On the day of the hearing the applicant was represented by Ms. S. McKinnon an agent and the respondent was represented by Ms. T. Anderson of Counsel. Applicant's Submission. 8 As a consequence of the applicant withdrawing her appeal from GREAT she no longer had a right of redress from GREAT. The time at which the application of s.90 of the Act must be considered is immediately prior to the commencement of the arbitration of the claim. The provision of the Act should be construed beneficially so as to give effect to the purpose or objects of the legislation. A literal interpretation of s. 90 of the Act with respect to "commencing " would be unfair as it would deny the applicant any redress at all with respect to her claim of unfair dismissal and does not further the purpose of s. 90 of the Act with respect to the prevention of a "duality of approach". 9 As the applicant had no longer an alternative remedy with GREAT then there was no possibility of duplicity of approach by GREAT and this Commission. 10 As the applicant withdrew her appeal prior to the appeal being heard before the Tribunal ( of GREAT), no Tribunal had to be constituted. The appeal never got that far. 11 The applicant filed her appeal one week after her termination and filed her claim before this Commission one working day after she withdrew her appeal. This is analogous to that envisaged with s.85(2) of the Act which requires this Commission to accept an application lodged out of time if a similar application had been filed in the Federal industrial relations system and then withdrawn and filed within time in this Commission. 12 The applicant was not made aware by her Union of her rights to file a claim for unfair dismissal in this Commission prior to her filing with GREAT. 13 On 26 May 2005 the applicant filed a Form 11 -Undertaking Not To Proceed With Other Redress Relating to Dismissal stating that she would not proceed for redress etc under the Government and Related Employees Appeal Tribunal Act 1980. 14 The applicant would suffer great hardship if she was denied the opportunity to seek redress in relation to her dismissal from the public service. In contrast the respondent would not suffer any hardship if the applicant was allowed to pursue her claim. Respondent's Submission. 15 It was the respondent's submission that the application was incompetent and submitted that this Commission did not have jurisdiction to make an order in relation to this claim. 16 The withdrawal of the applicant's appeal from GREAT and her application with this Commission was a classic case of "forum shopping". The prohibition specified in s. 90 of the Act came into force if the person had "commenced proceedings under the other Act." Proceedings were commenced when the originating process was filed and the applicant filed her appeal to GREAT on 31 January 2005. 17 An appeal to GREAT lapses if it is withdrawn. That an appeal has been lodged and then withdrawn, it has then lapsed, but the appeal has been on foot. The actual filing of an appeal withdraws this Commission's jurisdiction. 18 That the applicant because of what has occurred will not have her case arbitrated by any entity is entirely her fault. Considerations and Decision. 19 S. 90 of the Act is expressed as : The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. 20 The necessary starting point for consideration of this matter is the meaning and effect of s. 90. 21 As expressed in Tasovic v New South Wales Police Service 83IR 410 the intention and effect was: " to ensure that there was no duplication or duality of proceedings before the Industrial Relations Commission and the alternative tribunal." 22 In considering questions in relation to statutory construction, Kirby P. said in Director General of the Department of Corrective Services v Mitchell (1992) 42IR 38 at 43-44: "...[I]t must be appreciated that a court's function in ascertaining the meaning of the words used is not a mechanical one. It has long been the avowed objective of courts engaged in the task of statutory construction to give meaning to the words used by Parliament in a way that is conducive to tackling the mischief to which the legislation was addressed. There was, for a time, a tendency amongst even the highest common law courts to perform their functions with a blinkered concentration on the words used by Parliament, as if such words could have meaning in isolation from the context in which they were used. It is now increasingly appreciated that words of any language take their colour and nuances from the context. To isolate a phrase and give it meaning in isolation, may be to distort its meaning and to frustrate the achievement of the objective of those who used the phrase.... and in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at170 Mason J. and Wilson J. said: " Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations ....the advantage may well lie with that which produces the fairer and more convenient operation so long as it conforms with the legislative intention." 23 The clear purpose of s.90 is to prevent a party from running the same case before this Commission and another jurisdiction. 24 The respondent's submission was that because the applicant had filed an appeal before GREAT then she had "commenced proceedings ..." which automatically prevented her application before this Commission being actioned. The act of filing the appeal before GREAT "commenced proceedings". It was not a relevant issue that the appeal had been withdrawn post conciliation and could not be recommenced. 25 The applicant's submission was that the GREAT proceedings had ceased with the withdrawal by the applicant of her appeal and she should not be prevented from having her opportunity to have her claim heard by this Commission. 26 I note the comments of McHugh JA in Kingston v Keprose Pty Ltd (1987) 11NSWLR 404 at 423; "A purposive and not a literal approach is the method of statutory construction which now prevails." 27 I do believe and find that in this case the applicant should be allowed to be able to have her Ch2 Part 6 Unfair Dismissal Claim heard and determined by this Commission. I find that the interpretation by the respondent is too literal and I do not believe that justice would be served if the applicant was prevented from having her claim heard just because she had commenced and then withdrew her proceedings before GREAT. 28 I recognise that costs have been incurred by both parties as a consequence of the GREAT proceedings but I do not believe that should be preventative of the applicant's case proceeding. 29 I am also unconvinced that "forum shopping " to the extent submitted by the respondent has taken place. 30 I am also of the view that there has not been an abuse of process by the applicant. It was on 18 March 2005 when she was first advised by her then solicitor that she could have taken her claim to this Commission. It was after this comment that on 4 April 2005 the applicant went to see her current legal representative and she was given further advice. On 6 April 2005 at the mention of her appeal before GREAT that she instructed her current legal representative to withdraw her claim. 31 I do not believe a duplication of proceedings, which is the mischief sought by the architects of the Act to prevent, has taken place when considering all the facts in this particular case. 32 It is also my finding that taking into consideration the dates when the applicant first filed with GREAT post her termination, then withdrew and filed with this Commission I accept under s. 85(3) her out of time application. 33 As a consequence of my findings I allow the Unfair Dismissal application of the applicant to proceed to hearing. D. RITCHIE 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.