Industrial Relations Commission of New South Wales CITATION: Bindoff v. BioSeptic Pty Limited [2005] NSWIRComm 1091 APPLICANT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PARTIES: RESPONDENT Bio Septic Pty Limited FILE NUMBER(S): 807 of 2004 CORAM: Connor C CATCHWORDS: termination of employment - allegation of the performance of work without authority or qualifications - whether matter already decided in prior proceedings - matter settled by conciliation Industrial Relations Act 1996 LEGISLATION CITED: Ex parte Hassell, re Quirk (1937) 37 SR(NSW) 192 CASES CITED: Smith v. Boston (1999) 97 IR 1 HEARING DATES: 06/15/2005 EXTEMPORE JUDGMENT DATE : 06/15/2005 APPLICANT Colin Drane Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES: RESPONDENT Doug Ferris DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 15 June, 2005 Matter No IRC 807 of 2004 Craig Robert Bindoff and Bio Septic Pty Limited Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1091 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union has lodged an application on behalf of its member, Mr C R Bindoff who was employed as a senior technical officer with Bio Septic Pty Limited to install and maintain septic systems in private dwellings. Mr Bindoff's services were terminated on Thursday, 29 January, 2004 after almost four years of employment. In its Part 6 application the AFMEPKIU has claimed that the termination of Mr Bindoff's services was unfair and it has sought his reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof. 2 The matter was allocated to me by Registry staff and set down for a conciliation and directions hearing on Thursday, 25 March, 2004. The AFMEPKIU sought that I vacate those proceedings. I adjourned the matter for mention on Monday, 5 April, 2004 but when conciliation failed to settle the matter at that time I programmed it for arbitration, directing the parties to provide the necessary evidentiary material in support of their claim. I subsequently received a request from the AFMEPKIU that I convene a further conference and proceedings for that purpose took place before me on Monday, 25 October, 2004 and Monday, 15 November, 2004. The matter remained unresolved, however and I programmed it again for arbitration. 3 The hearing of the matter ultimately was scheduled for Wednesday, 15 June, 2005. In the proceedings Mr Drane represented Mr Bindoff and the AFMEPKIU and Mr Ferris represented Bio Septic. It was Mr Bindoff's assertion that his dismissal had its genesis in a meeting with Mr Bob Martin, the manager of Bio Septic, on Tuesday, 23 December, 2003 - over a month before Mr Bindoff's dismissal - in which Mr Bindoff was criticised for discussing trade union business within the Bio Septic service department and pressuring staff to join the AFMEPKIU. Mr Ferris claimed that Mr Bindoff's dismissal flowed entirely out of his performing electrical work for which he was neither licensed nor authorised and over which he had received a prior warning. 4 It is on the strength of those competing and conflicting claims that the success or failure of the Part 6 application lodged by the AFMEPKIU on behalf of Mr Bindoff stands. It would, of course, be unfair for an employer to terminate the services of an employee or otherwise prejudice him in employment because of his trade union involvement [S.210(1)(a)]. It would not ordinarily be unfair if his dismissal flowed out of his performance of work he was not qualified to perform and over which he had received a warning in the past. 5 In fact, that issue has already come before Tabbaa C by way of a notification of an industrial dispute by the AFMEPKIU under S.130 and in a decision she issued on Tuesday, 3 February, 2004 she commented (at p.1): "...Upon investigation, it was confirmed that Mr Bindoff had not been dismissed as a result of his membership of the union. He had been dismissed for undertaking unlicensed electrical work following a previous warning in that regard..." There was no appeal from the decision of Tabbaa C. Therefore, a jurisdictional issue of some significance appears to emerge in this hearing: whether the Commission is functus in determining the issue before me because that has already occurred before Tabbaa C. The position was described by Davidson J of the State Supreme Court in Ex parte Hassell; re Quirk (1937) 37 SR(NSW) 192 at p.195, viz: "....It is established by the cases to which reference has been made that when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio , and cannot add to, amend or detract from what he has done...." A decision made by a member of the Commission, which is not overturned on appeal, remains final and binding, not only for the member of the Commission who made it but any other member of the Commission dealing with the same matter. 6 Nevertheless, the decision of Tabbaa C concluded (at p.2) that the AFMEPKIU had informed her that it intended to lodge the Part 6 application on behalf of Mr Bindoff and that it sought leave to discontinue the S.130 proceedings. Consequently, the comments made by Tabbaa C appear to be obiter dicta (and made apparently without lodging the certificate of attempted conciliation required under S.135 and proceeding into arbitration). That must mean that the issue remains live and unresolved before me still. The observations made by Tabbaa C may have some significance for me to consider in these Part 6 proceedings but, as a jurisdictional issue, they do not make the Part 6 application which the AFMEPKIU lodged on behalf of Mr Bindoff functus officio. Because of the withdrawal of the S.130 matter before Tabbaa C, she, in fact, decided nothing that effectively binds me [Smith v. Boston (1999) 97 IR 1. 7 Nevertheless, the jurisdictional uncertainty surrounding the observations made by Tabbaa C and whether the doctrine of functus officio applied in this case, encouraged me to explore conciliation further with this matter and the Part 6 application for Mr Bindoff was settled by conciliation on terms committed to a deed of release, signed by the parties and placed on the file. I commend the parties on the constructive manner in which this issue has ultimately been resolved. 8 But it should be appreciated by all concerned, that the settlement of this matter is not in anyway a condonation of conduct by any employee which would so clearly constitute an unsafe work practice. It is trite to say that employees should never perform work for which they are not qualified, especially when it involves electrical circuitry. In doing so, they leave both themselves and their employer open to prosecution and civil action in the event of an accident or damage to property. Such conduct also raises occupational health and safety issues of some substance. P J CONNOR 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.