Industrial Relations Commission of New South Wales CITATION: Casari v Sydney South West Area Health Service (No 2) [2010] NSWIRComm 95 PARTIES: Carlos Casari (Appellant) Sydney South West Area Health Service (Respondent) FILE NUMBER(S): IRC 2428 of 2008 CORAM: Boland J President; Walton J Vice-President; Kavanagh J CATCHWORDS: APPEAL - UNFAIR DISMISSAL - Full Bench of the Industrial Relations Commission held on appeal that dismissal of appellant was unfair but reinstatement impracticable - Full Bench ordered re-employment with back payment to date of dismissal on the condition the appellant resigned immediately - Court of Appeal held that Full Bench exceeded it jurisdiction - Matter remitted to Full Bench - Whether Full Bench should receive new evidence regarding appellant's suitability for reinstatement - Full Bench considered appellant had suffered profound injustice but no basis established to grant leave to adduce new evidence - Maximum compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 CASES CITED: CCH Australia Ltd v Bowen (1998) 79 IR 206 Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 Orr v Holmes (1948) 76 CLR 632 HEARING DATES: 1 June 2010 DATE OF JUDGMENT: 15 July 2010 Mr A G Rogers of counsel (Appellant) D'Agostino Solicitors LEGAL REPRESENTATIVES: Mr M J Kimber SC with Mr I Taylor of counsel (Respondent) Maddocks Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President KAVANAGH J Thursday 15 July 2010 Matter No IRC 2428 of 2008 CARLOS CASARI v SYDNEY SOUTH WEST AREA HEALTH SERVICE Application by Carlos Casari for leave to appeal and appeal against a judgment of Justice Schmidt given on 10 December 2008 in Matter No IRC 1449 of 2007 DECISION OF THE COMMISSION [2010] NSWIRComm 95 1 In a decision given on 2 July 2009 (Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217), the Full Bench granted leave to appeal and upheld an appeal by Carlos Casari against a decision and orders of Schmidt J in which her Honour dismissed Mr Casari's application for relief from unfair dismissal. 2 The Full Bench found, however, there had been a loss of trust and confidence in Mr Casari by his employer and that reinstatement for the purpose of future employment with the employer was impracticable. Nevertheless, the Full Bench found Mr Casari had suffered significant humiliation and distress caused by the summary dismissal that, in the circumstances, was not justified. The Full Bench decided that the appellant should be re-employed in his former position from the date of that decision with back payment to the date of his dismissal, but only for the purposes of the appellant affecting a resignation from employment. This was reflected in the orders made as follows: (4) The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions: (i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision; (ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed. 3 The respondent, the Sydney South West Area Health Service, invoked the supervisory jurisdiction of the Court of Appeal to overturn the orders of the Full Bench. In a decision given on 22 March 2010 (Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47) the Court of Appeal held the Commission had no power to make Order 4. The Court of Appeal's reasons for doing so were that first, s 89(2) of the Industrial Relations Act 1996 did not authorise an order that a former employee be re-employed in their former position. Secondly, the Commission failed to make findings that were an essential precondition to the exercise of the statutory power. Thirdly, s 89(2) did not authorise an order that requires a person to resign and not to return to work. The Court of Appeal relied upon the reasoning in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539. The Court of Appeal also held that s 89(8) of the Industrial Relations Act was not a power 'enabling the Commission to do whatever it thinks is fair and/or reasonable'; conditions made under s 89(8) must be attached to something capable of constituting an order under s 89. 4 The orders made by the Court of Appeal were as follows: 1 An order that the record of the Full Bench of the Industrial Relations Commission of New South Wales in Matter No IRC 2428 of 2008 be brought up to this Honourable Court. 2 An order in the nature of certiorari that Order 4 of the Full Bench of the Industrial Relations Commission of New South Wales of 2 July 2009 in the said proceedings be quashed. 3 An order that the matter be remitted to the first defendant to be decided according to law and in conformity with the decision of this Court. 5 The matter came back before the Full Bench of the Commission on 1 June 2010 at which time counsel for Mr Casari sought to move on a notice of motion seeking to adduce further evidence concerning certain undertakings he would give to the Commission and that such evidence should be taken into account in determining whether reinstatement was impracticable. The proposed undertakings were to the following effect: (i) he will relinquish his mobile telephone (i.e. destroy it or give it away); (ii) he will not bring any mobile telephone or camera to work under any circumstances; (iii) the only uses he would make of a mobile phone or camera would be by borrowing such devices for short-term casual use; (iv) he will consent to personal searches of his property and person by the employer, which may be conducted without prior notice to the Appellant, so as to establish that he is not carrying any mobile telephone or camera; (v) he will submit to any other terms and conditions which the Commission considers appropriate for his reinstatement. 6 The appellant sought to rely on s 191(2) of the Industrial Relations Act, which provides: However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. 7 In the alternative, it was submitted, in effect, that the Full Bench should reconsider its decision that reinstatement was impracticable because the evidence of an absence of trust and confidence was not sufficiently persuasive to establish that reinstatement was impracticable in a circumstance where such a belief was grounded, in what the Commission accepted, by the false view taken by the respondent as to the seriousness of the event. 8 The respondent opposed the appellant's motion and contended that the question of impracticability of reinstatement had been determined and that it was not open to the Full Bench to reconsider that issue. Consideration 9 The Full Bench did consider whether it should reinstate Mr Casari. However, it found it was impracticable to do so for the purpose of future employment (at [74]). If the appellant wished to challenge that finding then he needed to take the necessary proceedings alleging jurisdictional error or in some other way challenge the finding in the proceedings that were instituted by the respondent in the Court of Appeal. That was not done. 10 The finding by the Full Bench that reinstatement was impracticable formed an essential aspect of the reasoning of the Court of Appeal. It is now not open to the appellant to seek to revisit the impracticability question. The respondent is correct: it would amount to an abuse of process to do so. 11 As to the question of further evidence, we do not consider there is any proper basis to grant leave for that purpose. The question of impracticability has already been determined. The time to have sought to bring further evidence was before the application for leave to appeal and appeal was heard and determined by the Full Bench. As the respondent submitted, by the time the appeal was set to be heard, the appellant had had the benefit of the decision of Schmidt J and sufficient time to contemplate the findings contained therein and had ample time to consider whether undertakings could be received and accepted by the Full Bench and possibly make a difference to the outcome. Yet no attempt was made to call such evidence on the appeal (nor was any such evidence advanced before Schmidt J). 12 We do not consider the further evidence in respect of which the appellant seeks leave would place 'such a different complexion upon the case that a reversal of the former result ought certainly to ensue' (Orr v Holmes (1948) 76 CLR 632 at 642 per Dixon J) and such evidence was available to the appellant prior to the commencement of the hearing: CCH Australia Ltd v Bowen (1998) 79 IR 206 at 211. 13 We should add that we have come to these conclusions reluctantly because it means that the appellant has suffered a profound injustice at the hands of a public sector employer. However, as the Court of Appeal determined, contrary to long established practice in such matters, the Commission is not able to do what it thinks is fair and reasonable under s 89(8) of the Industrial Relations Act, at least so far as an order of re-employment is concerned. 14 One of the consequences of the judgment of the Court of Appeal is to remove an element of flexibility the Commission has utilised in appropriate unfair dismissal cases and thereby to shift the focus squarely back to reinstatement as being the primary remedy. Submissions by employers contending there is an absence of trust and confidence will need to be critically considered in that light. 15 The Full Bench has found (at [71]) that: [T]he dismissal of the appellant was harsh, unjust and unreasonable because the summary dismissal was wrongful and carried with it (in the circumstances of the appellant's removal) an unjustifiable stigma; the seriousness of the conduct engaged in was less than conceptualised by the respondent (or in the first instance decision) and there were significant subjective mitigating factors in favour of the appellant, which indicate that dismissal was too harsh a sanction. That finding remains untrammelled. 16 We note that Mr Casari has not been in employment since he was dismissed. He is 65 years old. The only remedy left available to the appellant, inadequate as it might be, is compensation. The respondent had no active submission to make on the issue of the quantum of such compensation. We have determined that the respondent shall pay to the appellant the maximum available under s 89(5) of the Industrial Relations Act, that is, an amount of compensation not exceeding the amount of remuneration of the appellant during the period of six months immediately before being dismissed. 17 We note that the respondent decided it would not, following observations by the Full Bench, press any claim for costs. Orders 18 The Full Bench makes the following order: (1) The Sydney South West Area Health Service shall pay to Carlos Casari within 14 days an amount of compensation equal to the amount of remuneration that Mr Casari earned during the period of six months immediately before he was dismissed. ______________________________________ 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.