Industrial Relations Commission of New South Wales CITATION: Stewart v. Tulgeen Group Diability Services [2008] NSWIRComm 1001 APPLICANT Australian Services Union PARTIES: RESPONDENT Tulgeen Group Disability Services FILE NUMBER(S): IRC 1462 of 2007 CORAM: Connor C CATCHWORDS: termination of employment - claim of unfair dismissal - issues of jurisdiction - whether a matter has been formally withdrawn - functus officio - argument over whether a matter has been concluded - matter still remains a live issue - question of the status of the employer to be considered LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Ainsworth v. Wilding (1896) 1 Ch.673 Bailey v. Marinoff (1971) 125 CLR 529 CASES CITED: Bindoff v. Bio Septic Pty Limited - unreported Ex parte Hassell; re Quirk (1937) 37 SR(NSW) 192 Smith v. Boston (1999) 97 IR 1 Wentworth v. Wentworth (1999) NSWSC 638 HEARING DATES: 11.12.2007 DATE OF JUDGMENT: 31 January 2008 APPLICANT Stanley Koulouris Australian Services Union LEGAL REPRESENTATIVES: RESPONDENT Dominique Rideaux Clark Rideaux DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 31 January, 2008 Matter No IRC IRC 1462 of 2007 Ross Stewart and Tulgeen Group Disability Services Application under S.84 of the Industrial Relations Act, 1996 INTERLOCUTORY DECISION [2008] NSWIRComm 1001 1 On Monday, 19 November, 2007 I handed down a decision on an application lodged by the Australian Services Union under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. Mr Ross Stewart, a member of the ASU employed as a co-ordinator of a nursery and work crew with Tulgeen Group Disability Services in Bega for approximately 12 years, was summarily dismissed by it on Wednesday, 16 August, 2007. The ASU claimed that Mr Stewart's dismissal was unfair and it sought monetary compensation over that dismissal on behalf of Mr Stewart. 2 The matter was allocated to me and I set it down for a preliminary hearing in the Commission's premises at 90 Crown Street, Wollongong on Monday, 8 October, 2007, proceeding by way of a teleconference for the convenience of the parties. The file was allocated to me only for conciliation in accordance with the established practice for the Commission. I adjourned the proceedings for a mention on Tuesday, 23 October, 2007 which I vacated at the request of the parties and set the matter down for further mention on Monday, 5 November, 2007 and Monday, 19 November, 2007 (also in Wollongong with teleconference proceedings). 3 Conciliation failed to settle this matter and there was a jurisdictional issue concerning the Part 6 application the ASU has lodged on behalf of Mr Stewart flowing from the operation of the 2005 Federal Workplace Relations Amendment (Work Choices) Act, ie Work Choices purportedly excluded from the Federal unfair dismissal regime employees of corporations as defined in S.51(xx) of the Commonwealth Constitution, ie foreign, trading and financial corporations with less than 100 employees. I understand that Tulgeen engages less than 100 employees - 94 employees, I believe. Work Choices has also excluded entirely from State jurisdiction employees of all S.51(xx) foreign, trading or financial corporations. Tulgeen is relying on Work Choices as an apparent barrier to the Part 6 jurisdiction. 4 Tulgeen is incorporated and its aim, according to its memorandum of association, is: "...to further the interests of, train, educate and promote the welfare generally and facilitate the wellbeing of individuals with a disability..." That is to say, charitable or welfare activities. Nevertheless, its activities in its memorandum of association are to: "...buy, sell, promote, establish, develop and conduct any business, real estate, establishment or development..." Mr Rideaux , representing Tulgeen in the proceedings, argues that those activities are trading activities within the meaning of S.51(xx) of the Constitution and, notwithstanding its charter as a charity, it is nevertheless a trading corporation and, as such, falls under Work Choices and outside the Part 6 jurisdiction. 5 Attempts at conciliation by me failed. I was subsequently informed by telephone in the morning of Monday, 19 November, 2007 by a representative of the ASU (Mr Livingstone) that, in that light, the ASU had considered its position and intended to pursue its claim in the Federal industrial jurisdiction as an unlawful dismissal. It sought to withdraw its Part 6 application and I granted it leave to discontinue the proceedings in chambers without the appearance of either party, informing Mr Rideaux by telephone of that fact. Mr Rideaux indicated his concurrence to that course of action. I issued a decision in the customary manner confirming that position. 6 However, Mr Livingstone of the ASU contacted me again by telephone later on Monday, 19 November, 2007 to inform me that the ASU now wished to press the Part 6 application on behalf of Mr Stewart and he subsequently wrote a letter to me dated Monday, 19 November, 2007 (but only received by me by facsimile transmission on Tuesday, 27 November, 2007) in the following terms: "...As discussed with you...we wish to confirm that conciliation of this matter has not brought the parties to a conclusion or a mutually acceptable resolution. We would also like to confirm that, having reviewed the matter, we now wish to continue pursuing the matter and therefore now request that it now move to the commencement of arbitration in the New South Wales Industrial Relations Commission. The ASU would now be seek ( sic ) a directions hearing in due course and now await further advice or direction from the Commission..." 7 Consequently, I set the matter down for programming on Tuesday, 11 December, 2007 (in Wollongong) for the purpose of programming the matter further. The question remained whether or not the matter had, in fact, been concluded before me by the initial decision taken by the ASU to withdraw its claim on behalf of Mr Stewart under Part 6. Mr Rideaux took that point. The argument advanced by Mr Koulouris, who now represented Mr Stewart and the ASU in the proceedings, was that the Part 6 application had not been concluded. I directed the parties to provide written submissions in support of their respective contentions and reserved my decision on the matter. 8 It is always open to a member of the Commission to correct an accidental slip in a decision that has been made, correctly state or clarify what he actually decided or act with the consent of the parties to amend a decision in any way [Ainsworth v. Wilding (1896) 1 Ch.673 at p.676]. But when the substantive issue before a member of the Commission has been concluded by his decision, that member may not alter it in any substantive way. He is functus officio. And as I indicated in my unreported decision of Wednesday, 15 June, 2005 in Bindoff v. Bio Septic Pty Limited [Matter No.IRC 807 of 2004 at p.3]: "...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..." 9 Mr Rideaux argued that the Part 6 application had been brought to a conclusion by the initial decision of the ASU to withdraw it and that the proceedings were therefore functus. Public policy requires the finality of litigation and, once a matter has been decided, it may not properly be re-opened without good reason [Wentworth v. Wentworth (1999) NSWSC 638]. Mr Rideaux referred in that respect to the decision of the High Court (Barwick CJ, Menzies, Owen, Walsh and Gibbs JJ) in Bailey v. Marinoff (1971) 125 CLR 529 and, in particular, the comments of Barwick CJ (at p.530), viz: "...Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed..." Davidson J of the State Supreme Court also summarised Mr Rideaux's argument in Ex parte Hassell; re Quirk (1937) 37 SR(NSW) 192 at p.195 in the following terms: "...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..." 10 On the other hand, Mr Koulouris claimed that the matter had not actually been brought to an end by my decision of Monday, 19 December, 2007. He submitted that a formal notice of discontinuance was required to bring this matter to a conclusion. He asserted that the unofficial telephone call made to me by Mr Livingstone on behalf of Mr Stewart and the ASU was insufficient to close the file on its own. 11 Rule 138 sets out the procedure for the discontinuance of matters, viz: "(1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings, so far as concerns the whole or any part of any application made by that party: (a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent; or (b) with the leave of the tribunal . (2) Leave of the tribunal may be given in chambers without the appearance of any person." And further, Rule 141 reads as follows: "(1) Except with the leave of the tribunal , a discontinuance or withdrawal under Rule 138...must be made by filing a notice stating the extent of the discontinuance or withdrawal. (2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party." 12 I believe that it follows from Rules 138 and 141 that a formal notice of discontinuance is not a requirement for a member of the Commission to grant leave for the discontinuance of the matter or to note a file that a matter to be withdrawn: telephone advice of an intention to withdraw a matter may suffice. But it appears to me that Mr Livingstone's conversation to me on Monday, 19 November, 2007 falls short of what I actually need on this occasion to bring the file to a conclusion. My decision of Monday, 19 November, 2007 was no more than a confirmation of what I had been told on the telephone by Mr Livingstone and Mr Rideaux. I had, in fact, decided nothing. To my mind, it does not conclude the matter and I therefore do not consider that the proceedings are functus officio. 13 For instance, in Smith v. Boston (1999) 97 IR 1 Sperling J of the State Supreme Court dealt with a claim of unfair dismissal of a school teacher over alleged misconduct, including an allegation of sexual relations with a student. The matter had been settled at first instance when the employer withdrew the charges against the school teacher but several years later the employer reactivated the claim. The dismissed employee challenged the employer's right to do so, arguing that the matter had been disposed of in the earlier proceedings but Sperling J disagreed, commenting (at p.13) that: "...The fatal flaw in the plaintiff's argument is that the case of sexual intercourse...warranting dismissal was not disposed of by the proceedings in the Commission. No determination having been made, no judgment given and no order made, the proceedings disposed of nothing. All the commissioner did was to record the parties' agreement for reinstatement..." Consequently, I do not believe that the matter before me has been properly concluded. 14 I propose to re-list this matter for further directions on Tuesday, 19 February, 2007 (in Wollongong) and, if the matter remains unresolved, I will refer it to Grayson DP on the basis that the conciliation process has been exhausted and that, as a threshold issue, the jurisdictional issue - whether or not Tulgeen is a S.51(xx) corporation and consequently the Part 6 application is beyond jurisdiction - will need to be determined. I would anticipate that the jurisdiction issue may require a Full Bench for determination and the parties will need to address the logistics of preparing for such a case in Sydney. 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.