Industrial Relations Commission of New South Wales CITATION: Linda Gillian Chapman and Marist Youth Care [2007] NSWIRComm 1003 APPLICANT Linda Gillian Chapman PARTIES: RESPONDENT Marist Youth Care FILE NUMBER(S): IRC 3221 of 2006 CORAM: McKenna C CATCHWORDS: Unfair dismissal – respondent's notice of motion seeking stay of proceedings on basis of related workers' compensation claim – alternative application seeking variation of directions for filing and service of materials – notice of motion dismissed – directions for hearing varied to allow respondent additional time – matter to be relisted for conciliation LEGISLATION CITED: Industrial Relations Act 1996, s84 HEARING DATES: 19/01/2007 DATE OF JUDGMENT: 25 January 2007 APPLICANT (on the substantive application) Mr Knapp, family member LEGAL REPRESENTATIVES: RESPONDENT (on the substantive application) Mr D Klepac, Employment Relations Manager Catholic Commission for Employment Relations DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 25 January 2007 Matter No IRC 3221 of 2006 LINDA GILLIAN CHAPMAN AND MARIST YOUTH CENTRE Application by Linda Gillian Chapman re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 REASONS FOR DECISION [2007] NSWIRComm 1003 1 On 19 January 2007, I made the following decision: 1. The respondent's applications in the notice of motion for the stay of proceedings and for costs are dismissed. 2. The directions for hearing are varied as follows: (a) The respondent's materials are to be filed and served by 4.00pm on Monday, 29 January 2007; (b) the applicant's materials in reply (if any) are to be filed and served by 4.00pm on Tuesday, 6 February 2007. 3. The hearing dates of 27-28 March 2007 are confirmed. 4. The file will be remitted to the Registry with a view to listing a further conciliation conference as soon as reasonably practicable after 6 February 2007. 5. I will publish reasons for this decision in due course. 2 I now publish those reasons. 3 These proceedings stem from an application by Linda Armstrong under s84 of the Industrial Relations Act 1996 in which she alleges that she has been harshly, unreasonably or unjustly dismissed by the respondent, Marist Youth Care. The Catholic Commission for Employment Relations (CCER) has filed a notice of motion on behalf of the respondent, seeking a stay of the proceedings and costs. In the alternative, the respondent seeks a variation to the directions for hearing. 4 By way of brief background, the applicant was employed by the respondent as an Administrative Officer – Social Work. The applicant last worked for the respondent on 6 September 2006 at its Adolescent Care Unit, which is located at Westmead. The applicant considers that she was subjected to threatened dismissal and, subsequently, a constructive dismissal which was harsh, unreasonable and unjust. On the other hand, the respondent contends that there is no basis on which the applicant could claim to have been dismissed, constructively or otherwise - and that the employment relationship remains on foot subject to the applicant returning to work at a position and location in accordance with directions earlier given. 5 The circumstances relevantly leading to the claim now before the Commission emerged around August 2006, when a new manager approached the applicant about changing her job and work location. The applicant advised that she did not wish to change jobs, citing a range of reasons including the impact of the range of duties and additional travel time on her family responsibilities. The applicant considered it was unfair that she should be expected to relinquish her existing position to, as she perceived it, accommodate the employment of the new manager's former secretary. The new manager subsequently sent an email to staff advising of the date that his former secretary was "planned to replace" the applicant. Later still, the applicant was informed that her original position at Westmead no longer exists and that she should present for work at head office. 6 For its part, the respondent considered that it was acting within its contractual rights to require the applicant to relinquish her existing position in favour of a different job at another location. The respondent regarded both of the alternative positions as amounting to simple transfers, being transfers that it considered it was entitled to make. 7 After various discussions and written exchanges, the respondent ultimately gave certain directions to the applicant about where she should present for work, being directions to which the applicant continued to object. Hence, the parties were at an impasse concerning their views as to their respective rights in relation to the applicant commencing duties in the alternative role at a more distant location. 8 Around this time, the applicant suffered a range of stress-related symptoms and took time off work; she has not returned to work. She subsequently filed a workers' compensation claim. The applicant's workers' compensation claim has been accepted by the respondent's insurer and the applicant has been receiving statutory payments. 9 On 4 October 2006, the applicant filed this application for relief alleging she had been constructively dismissed by the respondent. The matter was listed before Murphy C on 25 October 2006 and again on 15 November 2006, but conciliation was unsuccessful. As such, Murphy C gave directions for the filing and service of evidence at the following intervals: applicant - 13 December 2006; respondent - 17 January 2007; applicant - 24 January 2007. 10 According to the Industrial Registry's records (date-stamped on the applicant's statement), the Parramatta office of the Registry "received" the applicant's statement on 13 December 2006; the statement was then recorded as "filed" at the Registry's Bridge Street office the following day, 14 December 2006. It is clear the applicant complied with direction to file her materials by 13 December 2006. However, there was then a delay of a few days before the applicant received stamped copies of her statement for service on the respondent, which were mailed to her by the Registry. The applicant then served her statement on the respondent by registered mail, which she mailed on 18 December 2006. The respondent's solicitor received a copy of the applicant's statement on 22 December 2006, obviously later than the date that had been specified for service. Given the circumstances, I do not consider that the applicant can be criticised for not serving the statement on 13 December 2006; it appears she did the best she could, but short delays were occasioned before she received stamped copies for service and by the use of mail. Equally, however, the respondent did not have the benefit of possession of the applicant's statement until 22 December 2006, which was the last weekday before Christmas. 11 The matter was listed for call-over before Deputy Industrial Registrar Hourigan on 16 January 2007, for the purpose of setting hearing dates – which was the day before the respondent's materials were due to be filed and served. Apparently, the respondent sought to have the directions for hearing waived or varied - being a course not available in proceedings before a Registry officer. That same day, the respondent filed a notice of motion in the following terms: A. The respondent will [on a date and at a time to be fixed] move the Commission … for: 1. An order to stay the proceedings pending the resolution of Ms Linda Gillian Chapman's workers compensation claim. 2. Each party has liberty to restore on 14 days notice. 3. Any other order the Commission sees fit. 4. Costs. B. Grounds and reasons 1. Ms Linda Gillian Chapman (the employee) has not been dismissed. 2. The employee's last day of work was 6 September 2006. 3. The employee has been in receipt of workers' compensation payments from 11 September 2006. 4. Marist Youth Care (the employer) seeks a stay of these proceedings until the workers' compensation claim is resolved. 5. The employee would suffer no prejudice in a stay of these proceedings as she is in receipt of workers' compensation payments and has suffered no loss. 4[sic] The employer undertakes not to dismiss the employee with less than 14 days notice. 5[sic] The employer is prejudiced as in these proceedings, the employee has raised issues which may be the subject of workers' compensation proceedings. 6. The matters in issue may be resolved through workers' compensation legislation. 7. Any other grounds or reasons the Commission sees fit. 12 In addition to the notice of motion, the CCER also made a written application concerning the directions for hearing. The letter read as follows: We refer to the Notice of Motion for stay of the unfair dismissal application against our client, Marist Youth Care, which we understand has been allocated for determination to Commissioner McKenna. The stay is sought because the applicant has a workers' compensation claim on foot against the respondent as well as unfair dismissal proceedings. The conflict between these became apparent last week after the respondent had the opportunity to consider the current status of [the applicant's] workers compensation claim (which was confirmed to it by the insurer on 2 January 2007) and take advice given the applicant's evidence was served on 22 December 2006. Unfortunately the existing directions provide for the respondent to file and serve its evidence by 17 January 2007. We have been advised by Deputy Registrar Hourigan that she is unable to alter these directions as in accordance with Practice Direction 17 as only [sic] a member of the Commission has the power to alter existing directions. In the circumstances, we seek that the Commission waive compliance with the direction as to filing evidence by 17 January 2007 until such time as the stay application is determined given that the substance of our stay application deals directly with the filing of evidence which is likely to deal with matters which will be addressed in the workers compensation claim brought by the applicant. We confirm we will be in a position to file evidence within 7 days of a determination of our stay application should the Commission rule against our application. It is our understanding from the applicant, who is unrepresented, that this application is opposed. We undertake to forward a copy of this letter to the applicant. 13 In correspondence dated 16 January 2006, the applicant confirmed that she was opposed to any application from the respondent to waive compliance with the directions. 14 Both the hearing of the notice of motion and the determination of the parties' respective applications concerning the directions have been specifically allocated to me, albeit that some matters arising for determination otherwise would be dealt with, pursuant to Practice Direction 17, only by a Presidential Member. 15 The hearing of the notice of motion proceeded on 18 January 2007. The applicant was represented by a family member, Mr Knapp. The respondent was represented by Mr Klepac, CCER's Employment Relations Manager. 16 Mr Klepac adduced evidence from Nadya Haddad, who deposed that the respondent sought a stay of proceedings for the reasons outlined in the notice of motion (which is reproduced earlier in this decision) as well as for reasons outlined in a letter dated 11 January 2007. The letter in question relevantly read: Dear Ms Chapman Marist Youth Care ats Linda Gillian Chapman We refer to your claim currently before the Industrial Relations Commission. As you are aware our client denies terminating your employment. We are concerned that at the same time as pursuing your claim in the Commission, you also have a workers compensation claim on foot for which you have received weekly payments. It is also our understanding that the workers compensation insurer is currently discussing a return to work program despite your claim that your employment has been terminated. In reviewing your statement filed in the Commission it is also apparent that you raise a number of issues which are of relevance to your workers compensation claim. In particular you allege in paragraphs 20, 32, 43 and 63 that the symptoms you allege are a consequence of the requirement to relocate to Blacktown by our client. Similarly the claims in paragraph 54 of your statement appear to be in contradiction to the return to work program under discussion with the workers compensation insurer. In these circumstances we believe our client will be prejudiced by the continuation of your claim before the Commission while your workers compensation claim remains unresolved. Prejudice to our client will arise because it will have to canvass issues in the Commission which may prejudice its position in workers compensation proceedings. Our client will also be prejudiced as any order or award of compensation by the Commission may be made prior to your workers compensation claim being finalised. In these circumstances we are instructed to seek a stay of your claim pending resolution of your workers compensation claim. You should be aware a stay does not affect your rights to pursue either claim other than that your claim before the Commission will be delayed pending resolution of your workers compensation claim. We will be filing a notice of motion with the Commission seeking an order to stay your claim. We will forward a copy of the notice of motion and supporting affidavit in due course. You may if you wish either consent or oppose the stay application. You should seek legal advice if you are uncertain as to which course of action you wish to take. Yours faithfully Nadya Haddad Employment Relations Advisor 17 The respondent's applications for the stay and costs in its notice of motion, and the application to waive or vary the directions given by Murphy C, are opposed by the applicant. The applicant wishes the matter to proceed in accordance with the existing programme. Consideration 18 Having considered the issues raised by the parties, I am not satisfied the respondent has established a case that there should be a stay of proceedings. The first of the grounds and reasons set out at paragraph B1 of the respondent's notice of motion goes directly to the core of the parties' differing contentions, in as much as it asserts that the applicant "has not been dismissed". The question of whether all the circumstances amounted to, for example, a constructive dismissal or a repudiation of the contract of employment, is a matter for determination in the substantive hearing of the application. It would be premature to seek to determine that issue at this stage or to grant a stay for reasons related to the respondent's contentions on that central, contested matter. 19 Second, the applicant's workers' compensation claim has been accepted by the respondent's insurer. As such, it is difficult to accept that there would be a basis for staying the unfair dismissal proceedings pending the outcome of workers' compensation proceedings. The respondent raised issues of prejudice that may arise in relation to workers' compensation proceedings, e.g., the applicant's statement adverts to matters potentially relevant to her workers' compensation claim. Mr Klepac submitted that if the respondent had to "answer those matters now" in the unfair dismissal proceedings, it may have a prejudicial effect on the respondent in any workers' compensation proceedings. However, in circumstances where the insurer has accepted liability and is providing benefits to the applicant, there would seem to be, at best, a theoretical possibility of prejudice. As Mr Knapp submitted, the Commission was being asked by the respondent to stay proceedings, or "stand on the sidelines", for an indefinite period on the basis of something unknown which may happen in the future concerning a workers' compensation claim which is presently undisputed. 20 Mr Klepac submitted also that if the outcome of the unfair dismissal application is a finding that the applicant was dismissed, then the respondent may be faced with another set of proceedings concerning the dismissal of an injured employee. Again, the theoretical potential of further proceedings of this nature would not be sufficient to grant the stay. 21 Mr Klepac submitted that the applicant would not be in any different financial position if the stay application were granted, because she is receiving statutory benefits. He submitted that the benefits would continue for 26 weeks, and that the matter could be relisted if there was a material development, e.g., if the parties were unable to agree on the terms of a return to work under the auspices of the rehabilitation programme. Mr Knapp submitted that the very fact of the delay in determining the unfair dismissal application would prejudice the applicant and act to her detriment, particularly when considered in the context of the applicant's stress-related conditions. In this respect, I note the views of the applicant's physician that he expected there would be a good prognosis for full recovery once all the legal issues are resolved. Mr Knapp also submitted that as the respondent has not moved from its stance that that applicant should work at a location other than Westmead, and given the applicant's own views, nothing was likely to change if the matter were to be deferred with a view to discussions about a return to work. 22 The applicant has been in receipt of workers' compensation benefits since around September 2006, so the conclusion of a period of 26 weeks is fast approaching. Moreover, the parties have been unable to agree on a return to work despite conciliation under the umbrella of these proceedings. Moreover, neither party was aware of any timetabling for discussions around the rehabilitation provider's recommendations. It is open to the parties, should they wish, to hold further discussions about a return to work given the submissions of both that they remain interested in a negotiated outcome. However, I do not consider that, in the circumstances of this case, the arbitration should be deferred solely or principally on account of the possibility that a rehabilitation programme may have certain outcomes. 23 Third, in December 2006, the applicant was examined by an organisation named Rehabilitation Services Pty Ltd, on referral from the respondent's insurer. That organisation produced an "initial assessment report", which outlined some of the recent history to the making of the workers' compensation claim. Among other matters, the report noted that the applicant had initiated proceedings before the Industrial Relations Commission. Perplexingly, given the fact that the applicant had filed an application alleging that the respondent had constructively dismissed her and that she was seeking compensation, Rehabilitation Services inferentially concluded that the applicant had not been dismissed. That is, Rehabilitation Services has been pursuing a course which, among other matters, has involved at least some discussions around a return to work programme. Mr Klepac submitted that it is reasonable to infer the workers' compensation claim represented "a pathway that may lead to a return to work". However, the rehabilitation provider is apparently proceeding on the assumption that the applicant has not been dismissed – notwithstanding the applicant's contention that she has been constructively dismissed. The fact the applicant apparently held discussions about a return to work under the auspices of a rehabilitation provider's recommendations potentially muddies the waters concerning her claim that she has been dismissed. The applicant has not had the benefit of legal representation in the proceedings before the Commission. In this respect, Mr Knapp submitted that the applicant had participated in discussions about a return to work as part of the "protocols and procedures" of the workers' compensation claim. Once the workers' compensation forms had been lodged by the applicant, those discussions were, he submitted, "in a sense unavoidable" for the applicant. Mr Knapp submitted that the applicant had participated in all procedures expected of her "in good faith" and has tried to leave open the possibility of returning to Westmead. In this respect, the applicant also submitted that she still remains open to negotiating a conciliated outcome. 24 Rehabilitation Services' report and recommendations proceeded on the basis that the employment relationship between the applicant and the respondent had not terminated, notwithstanding the fact that the applicant had proceedings on foot alleging that she had been constructively dismissed. In my view, the report can carry no weight in relation to determining the issues contested between the parties, at least to the extent it apparently presupposes that the employment relationship had not terminated by constructive dismissal. I also accept the submission that an unrepresented workers' compensation claimant such as the applicant would participate in such discussions as might be arranged consequent upon the making of a claim, potentially unaware of the possible implications concerning related unfair dismissal proceedings. In this respect, I note that the report by Rehabilitation Services described the applicant as "cooperative". 25 Fourth, the application form filed by the applicant in these proceedings seeks compensation only. Nonetheless, the applicant deposed that in the initial conciliation conference before Murphy C she indicated her preparedness to consider a return to work at Westmead. At a subsequent conciliation conference before Murphy C, the applicant had changed her mind about the practicability of a return to work, irrespective of the location. Later still, she discussed with Rehabilitation Services issues around a return to work. There is nothing in the least unusual about applicants changing their minds about the outcome(s) they hope to achieve. I do not consider that the conciliation discussions before Murphy C and the discussions the applicant held in connection with the report and recommendations by Rehabilitation Services are a sufficient basis to grant the stay application. 26 Despite the submissions of the CCER, I have not been satisfied that the matters relied on by the respondent support the making of an order to stay the proceedings. The notice of motion in this respect is dismissed. 27 The notice of motion also sought costs, but nothing was advanced in support of that particular application. I accept Mr Knapp's submission that the application appeared to have been "ill conceived" and there was no ground on which the applicant should have to bear the respondent's costs on the notice of motion. That aspect of the notice of motion is also dismissed. 28 I turn now to the respondent's alternative submission, namely, that the directions should be varied to allow late filing of the respondent's materials. Mr Knapp submitted that the applicant is genuinely concerned that the stay application was just a delaying "ruse" by the respondent in circumstances where it failed to comply with the directions for hearing – being a contention which was denied entirely by Mr Klepac. Mr Knapp submitted that the respondent should have had its materials in on time, irrespective of any stay application. He submitted further that the applicant was opposed to any amendment to the timetable for directions. He foreshadowed that the applicant would also object to the tender in the arbitration of any materials which had not been filed by the time specified in the directions. 29 It would have been a better and more prudent course for the respondent to file its materials by the due date, instead of making the stay application on the eve of the date the respondent's materials were due. Nonetheless, having heard the parties' submissions, and considering particularly the late service of the applicant's statement on the respondent, I propose to vary the directions for hearing to allow the respondent additional time to file and serve its materials. As a corollary, the applicant will also need to be given additional time to file and serve any materials in reply. In reaching this conclusion concerning additional time, I note also that there is still a reasonably comfortable time buffer until the hearing dates in March. 30 Lastly, both parties were willing to attempt further conciliation but neither party had made any approaches to the other for that purpose. The present allocation to me is concerned only with the notice of motion and directions. That being the case, I propose to remit the file to the Registry so that it may be allocated and listed for further conciliation, on a date as soon as reasonably practicable after 6 February 2007. _________________ 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. 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