Industrial Relations Commission of New South Wales CITATION: Pearson v. Premier Illawarra Pty Limited [2006] NSWIRComm 1164 APPLICANT Neil William Pearson PARTIES: RESPONDENT Premier Illawarra Pty Limited FILE NUMBER(S): IRC 2781 of 2006 CORAM: Connor C CATCHWORDS: termination of employment - bus driver - resignation - alleged constructive dismissal - loss of licence to drive a public vehicle - mental fitness of employee to present arguments in proceedings - procedure to deal with frivolous claim - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Allison v. Bega Valley Council (1995) 63 IR 68 CASES CITED: Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200 Rajski v. Scientec Corporation Pty Limited - unreported Webb v. Goulburn Masonic Village (2004) 136 IR 309 HEARING DATES: 07/11/2006 DATE OF JUDGMENT: 11/07/2006 EXTEMPORE JUDGMENT DATE : 11/07/2006 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Don Clode Premier Illawarra Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 6 November, 2006 Matter No IRC 2781 of 2006 Neil William Pearson and Premier Illawarra Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2006] NSWIRComm 1164 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr N W Pearson lodged an application concerning the termination of his services as a bus driver on school bus runs with Premier Illawarra Pty Limited (Premier Motor Service). Mr Pearson commenced employment on Tuesday, 31 August, 2004 and he resigned on Monday, 1 March, 2006. He has nevertheless claimed that his resignation was forced on him and he has sought his reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof. 2 Premier Illawarra is clearly a trading corporation for the purposes of S.51(xx) of the Commonwealth Constitution and it has in excess of 100 employees on its payroll. That would purportedly take Mr Pearson into the Federal unfair dismissal regime and by virtue of the 2005 Federal Workplace Relations Amendment (Work Choices) Act exclude him from the Part 6 jurisdiction. However, although Mr Pearson did not lodge his Part 6 application until Thursday, 20 July, 2006, the termination of his services was Monday, 1 March, 2006. Work Choices only came into effect on and from Monday, 27 March, 2006. I am satisfied that his Part 6 application remains competent on that account at least. 3 However, Mr Pearson's Part 6 application does have certain other fundamental jurisdictional problems associated with it, viz: (i) Mr Pearson resigned; Mr Pearson claims that he resigned because he was treated unfairly and was being harassed in his employment, ie his resignation was a constructive dismissal [ Allison v. Bega Valley Council (1995) 63 IR 68 and Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200]. (ii) Mr Pearson's licence to drive a bus has been suspended by the Minister for Transport and, of course, unless he regains that licence he may not be reinstated in employment as a bus driver - and that is purportedly his principal aim with the Part 6 application; and (iii) Mr Pearson's claim is also substantially out-of-time. He lodged his Part 6 application on Thursday, 20 July, 2006 - seven weeks after his resignation, ie well outside the 21 day time limit prescribed by S.85(1): he indicated in his Part 6 application that the reason for his delay in lodging his Part 6 application was the continued harassment he was experiencing from bus drivers and a woman's voice on the two way radio. 4 Mr Pearson recorded in his Part 6 application that he resigned because he "...was unfairly and falsely treated..." following an incident which occurred on the school bus he was driving when one student was moving around on the bus, asking him questions concerning the controls of the bus - eg for blinkers, wipers and door - which concerned him. He wrote in his Part 6 application that he "...thought something worse was going to happen..." and that the other students on the bus were misbehaving. He asserted that "...the passengers, teachers (and) Premier Illawarra...were trying to say I was schizophrenic...". 5 In discussions which Mr Pearson had on the telephone with a representative of Premier Illawarra management in the morning of Wednesday, 1 March, 2006, and later that day in a meeting at the Shellharbour depot, Mr Pearson was in an apparently emotional and confused state. He allegedly repeatedly claimed that "...the people (specifically Catholics) were out to get him..." and he sought that his roster be changed so that he did not have to drive school runs for children from Catholic schools. That request was refused and he was informed that everybody had a right to travel in the buses he drove. Mr Pearson also claimed that "...company management was spying on him and that the manager at the Shellharbour depot had been spying on him from his neighbour's property because he could hear his voice...". 6 Mr Pearson was asked to prepare an incident report to support his allegations - standard procedure for the bus drivers employed by Premier Illawarra - but he declined to do so. He was informed that a psychological assessment would be arranged for him and he would be informed of a time for an appointment. According to the formal response to Mr Pearson's Part 6 application by Premier Illawarra, his conversation was rambling but he indicated on several occasions his intention to resign and he did so. Clearly, Mr Pearson was in no fit state to drive a bus at the time but I am satisfied that the decision to resign was his decision and Premier Illawarra had not forced the issue. 7 Mr Pearson had also taken up some matters with the local police. I understand that the police have taken the matter no further. Because Mr Pearson had allegedly made some reference to a bomb threat, a police officer did, in fact, attend the Shellharbour depot of Premier Illawarra in the afternoon of Wednesday, 1 March, 2006. He spoke to Mr Pearson and formed the view that the issue was not a police matter but an issue for Premier Illawarra. Nevertheless, I am informed that a Catholic church in the region has now taken out an apprehended violence order against Mr Pearson. 8 Mr Pearson's Part 6 application has been allocated to me and I set it down for a preliminary hearing on Tuesday, 22 August, 2006. Those proceedings and all subsequent proceedings over this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. In the proceedings Mr Clode represented Premier Illawarra. Mr Pearson did not appear in the proceedings on that day. On Monday, 21 August, 2006 a letter was forwarded to me from a clinical nurse consultant of the Mental Health Court Liaison Service (the South Eastern Sydney and Illawarra Area Health Service) to inform me that: "...Mr Pearson is currently an inpatient of Shellharbour Hospital. It is anticipated at this stage that he will remain in hospital for at least a further fourteen days from this date. An adjournment of his matter before the Commission is respectfully requested..." I adjourned the proceedings for a mention on Tuesday, 19 September, 2006. Mr Pearson appeared in the proceedings at that time but clearly was in a distressed state and was not able to advance his claim in any constructive way at that time. 9 Mr Pearson informed me in the proceedings on Tuesday, 19 September, 2006 that he had been "...wrongly treated by the courthouse..." as well which "...gave him an order to go to hospital..." where he had remained for two weeks. In response to my inquiries concerning his current state of health, he responded that: "...The hospital's given me medication to take. They're trying to say I've got some mental disorder but I'm disputing that too... They are trying to put me underneath a community treatment order..." 10 Mr Clode in the proceedings on Tuesday, 19 September, 2006, described Mr Pearson's Part 6 application as frivolous and requested that I dismiss it. I declined to do so at that time. I adjourned the proceedings until Monday, 6 November, 2006 to permit Mr Pearson to obtain some assistance with his Part 6 application and informed him that he should seek legal advice and psychiatric help to proceed with his claim and the other issues which so obviously concerned him, ie the alleged harassment against him and the fact that his licence to drive a public vehicle had been revoked. However, I informed him that I would entertain a further application from Mr Clode on Monday, 6 November, 2006 to dismiss his claim if Mr Pearson had not attempted to advance his claims. In the proceedings before me on Monday, 6 November, 2006 Mr Clode again pressed that I dismiss Mr Pearson's Part 6 application. 11 How much assistance may I give to Mr Pearson, an unrepresented Part 6 applicant so obviously in some distress and mental disorientation in the proceedings before me? He is clearly not capable of proceeding further on his own. In the proceedings before me on Tuesday, 19 September, 2006 he expressed concern over the cost of legal representation. I informed him at that time that my regional assistant had a list of solicitors in the Illawarra region who may be prepared to perform pro bono work on his behalf. He has not apparently taken up that suggestion. 12 Samuels J in his judgment in the unreported decision of the Court of Appeal of the State Supreme Court (Kirby P, Samuels and Mahoney JJA) of Monday, 16 June, 1986 in Rajski v. Scitec Corporation Pty Limited [Matter No.CA 146 of 1986] commented (at p.6) in that respect: "...In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent..." 13 In the light of Mr Pearson's insistence that he be reinstated as a bus driver with Premier Illawarra and the refusal of Premier Illawarra to reinstate him, the course I would ordinarily adopt, consistent with Practice Direction No.17, would be to make the customary directions for the filing and serving of evidentiary material and for Registry staff to oversight the matter for arbitration. I do not propose to do so on this occasion, however. It would neither be fair to Mr Pearson nor Premier Illawarra to follow that standard course on this occasion. Whilst I have considerable sympathy and compassion for Mr Pearson, I see no good purpose being served by prolonging this matter any further in his own interests. 14 In terms of S.162(2)(h), the Commission is empowered to: "...dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious..." The words I have highlighted above - "...at any stage..." are important. This matter may not strictly be before me for arbitration. It was allocated to me in accordance with current practice for conciliation only and programming for arbitration. But as I read S.162(2)(h), it still empowers me to dismiss Mr Pearson's Part 6 application if I consider that it is frivolous or vexatious - and I do. Although Mr Pearson may genuinely believe that he has a Part 6 claim against Premier Illawarra, I am satisfied that he has none. I propose to conclude the matter before me and dismiss Mr Pearson's Part 6 application. 15 I am nevertheless obliged to give reasons for any decision I make, especially where I dismiss a claim [Webb v. Goulburn Masonic Village (2004) 136 IR 309 at pp.317 to 319]. But those reasons are self evident in this case. Mr Pearson's confused mental state may give him a defence for the lateness of the lodgement of his Part 6 application which would influence me to exercise my discretion under S.85(3) in his favour. But, as Mr Clode has suggested, the fact that Mr Pearson resigned takes him beyond jurisdiction under Part 6. S.84(1) applies only to cases where: "…an employer dismisses an employee and the employee claims the dismissal is harsh, unreasonable or unjust…" 16 Mr Pearson asserts that his resignation was forced on him, ie he was constructively dismissed by Premier Illawarra. But as the Full Bench of the Commission (Peterson and Marks JJ and Connor CC) in Allison v. Bega Valley Council commented (at p.72) for there to be a constructive dismissal the issue still turns on the attitude and conduct of the employer, viz: "…although the term 'constructive dismissal' is quite commonly used, it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so, despite on the face of it, their employer appears to have given his or her resignation?..." To my mind, Mr Pearson's resignation cannot be regarded as a constructive dismissal. Whilst Premier Illawarra would, naturally enough, be anxious that Mr Pearson not drive a bus in his mental condition, it seems to me that on Monday, 1 March, 2006 it did not propose that he resign: that decision was Mr Pearson's. Although Mr Pearson clearly perceived that he was under pressure to resign from various quarters, including Premier Illawarra management, I am satisfied that his perception was faulty. His resignation arose from his mental state and not from any logical assessment of the situation. 17 Mr Pearson's contract of employment has unfortunately been frustrated by his medical condition and continuing mental and emotional state. Whilst Mr Pearson still holds the licence to drive a public vehicle and showed it to me in the proceedings on Monday, 6 November, 2006, the fact remains that it has been revoked - and that continues to be the situation to the present time. There is consequently nothing that I may do to reinstate him in employment as a bus driver in terms of S.89(1), which is the remedy he is primarily seeking with his Part application. 18 Although Mr Pearson has not given me any indication that he is seeking it, I do not believe in any case that alternate work would be an option for him in Premier Illawarra's operations, in accordance with S.89(2). His current mental state would stand in the way of any such employment at this time. And the severing of his contract of employment, even were his resignation to be properly regarded as a constructive dismissal (which I conclude was not the case in any event), would prima facie be neither "harsh", "unreasonable" or "unjust", to use the language of S.84(1) because, simply stated, Premier Illawarra would have no other options open to it but to suspend his employment until his mental health improves. 19 In those circumstances, I propose to accede to Mr Clode's request and dismiss Mr Pearson's Part 6 application and urge Mr Pearson to address the medical problems which have led to the termination of his employment. 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.