Industrial Relations Commission New South Wales Medium Neutral Citation: Woelfl v Secretary of the Treasury [2015] NSWIRComm 1010 Hearing dates: 18 May 2015 Decision date: 02 June 2015 Jurisdiction: Industrial Court of NSW Before: Newall C Decision: Orders sought in Notice of Motion granted. Application pursuant to s.210 dismissed. Catchwords: APPLICATION FOR RELIEF FROM VICTIMISATION – motion for summary dismissal - claimed Anshun estoppel – application of Anshun estoppel. SUMMARY DISMISSAL OF PROCEEDINGS – summary dismissal appropriate only in the clearest of cases – estoppel forms clear basis for summary disposition of proceedings. APPLICATION MADE OUT OF TIME – where delay is de minimis – approach to discretion. Legislation Cited: Industrial Relations Act 1996 s.210(1), 210(3), 210(4), s.213(3), s.213(4). Public Sector Employment Management Act 2002 Government Sector Employment Rules 2014 Cases Cited: Agar v Hyde [2000] HCA 41; 201 CLR 552 Notaras v Knight [2008] NSWIRComm 219 Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl (No 5) [2014] NSWIRComm 51 Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2008] NSWIRComm 228 Category: Principal judgment Parties: Richard Woelfl (Applicant) Secretary of the Treasury (Department of Justice – Corrective Services NSW) (Respondent) Representation: Ms P Lowson (counsel) (Applicant) Mr J V Murphy (counsel) (Respondent) Solicitors: W G McNally Jones Staff (Applicant) I V Knight, Crown Solicitor (Respondent) File Number(s): IRC 15 of 2015 Judgment 1. An application was made to the Commission on 14 January 2015 pursuant to s. 210 of the Industrial Relations Act 1996 ('the Act') by Mr Richard Woelfl. 2. The matter agitated in that application, as it was refined by an Amended Application filed on 23 April 2015, was that Mr Woelfl had been dismissed from his employment for a prohibited reason or reasons, which were, put shortly, that as a member of an industrial organisation of employees Mr Woelfl had participated in proceedings related to an industrial matter before this Commission in 2009 and 2010. 3. Two issues arise with respect to this application at a preliminary stage. Application out of time 1. The first is that the application, so far as it is said to relate to a decision to dismiss Mr Woelfl from his employment on 18 December 2014, is on one view out of time. 27 calendar days elapsed between Mr Woelfl's dismissal and the acceptance of the application for filing on 14 January 2015. 2. The respondent did not oppose the grant of an extension of time so far as the application was considered to be 6 days late. It is for the Commission, however, not the parties, to determine whether a discretion will be exercised to grant an extension of time, although the attitude of the respondent party is one of the matters properly to be considered in the overall exercise of that discretion. 3. In this case there was, on the evidence, some confusion at the time of the original attempt to file the initiating process. It is not in my view entirely certain the application was brought to the Commission, if not formally accepted as filed, out of time. If there is a delay, it is de minimis. 4. So far as the application is brought out of time with reference to conduct of the employer on 18 December 2014, I would be disposed to exercise the discretion provided by s.213(4) of the Act to accept the application. 5. The respondent, however, submits that, properly viewed, the conduct of the employer complained of in the application under s.210 necessarily occurred not in December 2014 but on 17 May 2012 when the decision to dismiss him from employment was first conveyed to Mr Woelfl. 6. On that basis, the respondent submits, the application made under s.210 is not six days but more than two and a half years out of time. I observe that if it were accepted that the application was in fact brought two and a half years out of time, the discretion to accept it could not lightly be exercised. 7. I return to that matter below. 8. The second issue that arises at this preliminary stage with respect to the application under s.210 is that the respondent moves that the application be summarily dismissed or permanently stayed. That is advanced on the alternative bases that the application is an abuse of process, because an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, and, as set out above, for reason that it is filed out of time. That last proposition is advanced on the basis that the proceedings are filed two and a half years out of time, not that they are filed six days out of time, about which no submission is made. 9. Against each of these propositions, the applicant argues in essence that there is no continuum between the decision to dismiss Mr Woelfl in May 2012 and his dismissal in December 2014. It posits that the decision to dismiss in December 2014 is necessarily a discrete decision by the respondent. 10. That argument has the obvious effect in relation to the out-of-time submission. 11. As to the effect of this proposition on the assertion by the respondent that an Anshun estoppel lies, the applicant argued as follows. 12. The December 2014 decision to dismiss was, the applicant submitted, necessarily a fresh exercise of the delegated power. One does not know that a prohibited reason did not form part of that fresh decision to dismiss. Section 210(2) provides for a rebuttable presumption that such a reason did form part of the reason to dismiss, which presumption has not been displaced and at the least requires a full hearing to address it. 13. Additionally, it was submitted, it might be inferred from elements of the termination letter that the employer in part terminated Mr Woelfl for reason that it had expended a great deal of resources dealing with proceedings in the Commission and the Supreme Court. That would also be a prohibited reason within the meaning of s.210(1)(g). At the least, that question requires the ventilation of a full hearing. 14. In those circumstances, it was put, no Anshun estoppel lies because, while the 2012 decision to dismiss was based upon specific factual allegations that were found proven – so that it was reasonable for those acting for Mr Woelfl not to have agitated concerns about his union activities in respect of that dismissal - the 2014 dismissal is a fresh dismissal, the whole basis for which is not necessarily apparent, and in relation to which it is reasonable to agitate the question of Mr Woelfl's union activities. 15. As the applicant submitted, '[i]n seeking to strike out proceedings for an abuse of process, the moving party must demonstrate that the new matter – that the decision to terminate the applicant's employment on 18 December 2014 was a detriment that was based in whole or in part on prohibited reason/s – is sufficiently closely related to the threatened dismissal proceedings that it should have been pleaded and disposed of in those proceedings.' 16. That, in my view, correctly sets out the position. If the party agitating an estoppel can demonstrate that the termination of the applicant's employment in December 2014 was 'sufficiently closely related' to the threatened dismissal proceedings – that is, the 2012 decision to dismiss Mr Woelfl – then it follows that the matters now sought to be agitated should have been agitated at that time, and an estoppel lies. 17. On the evidence, the union activities to which the applicant now points all occurred before the 2012 decision to dismiss him. 18. It is the case that in the initial proceedings before this Commission (Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132) which were proceedings pursuant to s.83 of the Act, the PSA then representing Mr Woelfl argued with great breadth that the decision to dismiss was unfair. However, the proposition that Mr Woelfl's union activities had any part in the decision to dismiss him was not agitated in any way, although the issue of unequal treatment of Mr Woelfl was raised. Consideration 1. It is clear that the applicant's position, so far as it asserts that no estoppel may lie and so far as it asserts that the lateness of the application is a matter of days, not years, depends on the proposition that the employer's conduct in December 2014 was a wholly fresh and discrete exercise of power, and was not, as the respondent put it, merely the restatement of an earlier decision to dismiss. 2. The applicant advanced the following bases on which, it submitted, the 2012 conduct and the 2014 conduct were to be seen as wholly different matters. 1. The decision to dismiss in 2012 was based on particular allegations having been found proven by the respondent. 2. By its decision on 28 November 2014 the Full Bench determined that only some of the allegations were correctly regarded as having been found proven. 3. Pursuant to Clause 40 of the Government Sector Employment Rules 2014 the respondent was required to take into account submissions made by the applicant before making a decision to terminate the applicant's employment. 4. Mr Severin was the only person to whom the legislature had given the power to dismiss. 5. The act of dismissal is contained in the letter dated 12 December 2014, received by Mr Woelfl on 18 December 2014. 6. That letter does not refer to the earlier decision by Mr Schipp; the fact that other letters from Mr Severin do so refer is irrelevant, particularly having regard to the fact that under the Government Sector Employment Rules Mr Severin is the only person with the power to dismiss Mr Woelfl, and as such he is a distinct and separate decision-maker to Mr Schipp, the author of the 2012 decision. 1. In my view this fundamentally misconceives the position. 2. In May 2012 a decision was taken to dismiss Mr Woelfl for certain acts of misconduct arising out of his conduct as an employee in a very particular set of factual circumstances that need not be restated here. 3. That decision to dismiss Mr Woelfl was challenged by those representing him, as every right existed to do. That challenge went through a number of separate proceedings. 4. It concluded with a decision of a Full Bench of this Commission on 28 November 2014, (Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl (No 5) [2014] NSWIRComm 51) which decision was not challenged. That decision held that Mr Woelfl's conduct in those particular factual circumstances was misconduct, and that the decision to dismiss Mr Woelfl for that misconduct would not be harsh, unreasonable or unjust. 5. It is said by the applicant that there is not a complete congruence between the factual findings of misconduct made by Harrison DP in the first decision and the factual findings of the 28 November 2014 Full Bench. To the extent that they are different that is a matter of emphasis. The 28 November Full Bench found as a matter of fact, as had Harrison DP at first instance, that Mr Woelfl's particular conduct in the factual situation disclosed was misconduct. The 28 November Full Bench did not overturn the initial findings of misconduct made by the respondent in 2012. 6. Upon the 28 November Full Bench holding that to dismiss Mr Woelfl for his conduct would not be harsh, unreasonable or unjust, the respondent dismissed him. 7. The conduct of the employer challenged in the application presently before the Commission is the conduct it decided to carry out in 2012, but did not give effect to – that is by dismissing Mr Woelfl – because of a legal challenge to that dismissal being made before it was effected. That legal challenge ultimately failed. The dismissal was effected. 8. The letters provided to Mr Woelfl in December 2014 are clumsily worded in part. But that does not detract from their legal effect. The letters gave effect to the 2012 decision. I am not able to draw the conclusion urged on the Commission by the applicant that the wording of the termination letter means that the respondent in part decided to terminate Mr Woelfl because it had spent resources on defending his legal challenges. I do not think that is a finding available on the words of the letter. 9. Further, I do not accept that as a matter of law a fresh decision had to be made by the respondent. It was submitted that that was required pursuant to the Public Sector Employment Management Act 2002, ('the PSEMA') which by effect of transitional provisions still relevantly operated. I am unable to see that the PSEMA did require a fresh and discrete decision to be made in circumstances where a decision to dismiss has been made for articulated reasons and those reasons have not been impugned by subsequent court proceedings, in which proceedings it has ultimately been held that the decision to dismiss already communicated to the employee would not be harsh, unreasonable or unjust if given effect. 10. What flows from that is this. 11. What is being challenged in the instant application is conduct of the employer which it determined to take in 2012 for particular reasons and which it gave effect in 2014 for those same reasons, that is, misconduct by the employee in a particular factual situation. 12. So far as Mr Woelfl's union activities were thought to be, even by way of a rebuttable statutory presumption, any part of the decision to dismiss him, they were bound to be raised when the wide-ranging challenge to the dismissal was initiated by Mr Woelfl's agents, the PSA, in 2012. I am urged to find that it would not have been unreasonable for Mr Woelfl not to have raised that matter at that time. I cannot agree. 13. If a decision to dismiss is challenged in the Commission, it is incumbent on those challenging it to advance all bases on which they contend the decision is bad: Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2008] NSWIRComm 228, in which Schmidt J held (at [37]) 'Here, it cannot be overlooked that the reason for the dismissal was in issue in the s 84 proceedings. That matter may not be re-litigated in these proceedings. Mr Veney was obliged to bring his whole case in the s 84 proceedings as to the reasons for the dismissal.' 1. And indeed that was the approach taken. The first instance case was not run on the narrow issue of the facts of that evening alone; Mr Woelfl's work record at large was called in aid, as it should have been. This point now taken was not taken, or suggested, then. Nor was it taken or suggested in the three subsequent proceedings, but the critical matter is that it was not agitated when the question of the fairness of the original decision to dismiss was challenged. 2. In my view it is clear that the question of whether the respondent had determined to dismiss Mr Woelfl even in small part as a consequence of his union activities was 'sufficiently closely related to the threatened dismissal proceedings that it should have been pleaded and disposed of in those proceedings' as the applicant expressed it. Anshun estoppel 1. The form of estoppel styled an Anshun estoppel may arise when further proceedings are initiated after there have been initial proceedings concluded, as here. Put shortly, if the second proceedings could have been brought in the first proceedings, and the subject matter of the second proceedings is so clearly connected with the subject matter of the first proceedings that it would have been expected to be raised in those proceedings, the claimant will be estopped from bringing the second proceedings. 2. There is no doubt that the principle operates with respect to proceedings in the Commission: Notaras v Knight [2008] NSWIRComm 219. It operates in respect of unfair dismissal applications: Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union loc cit. 3. Notwithstanding that this is a s.210 application brought subsequent to a s.84 application, the principle enunciated by Schmidt J in Veney and set out above clearly must apply with equal force here. 4. In conducting his initial unfair dismissal case, Mr Woelfl can necessarily be expected to have advanced all bases on which he could attack the decision to dismiss him. 5. Mr Woelfl is estopped from advancing now a new and different basis on which he asserts that the conduct of the employer – the decision to dismiss him and his dismissal – is open to challenge. Summary disposition of proceedings 1. The immediate matter before the Commission is an application for summary dismissal of the proceedings. The tests for summary disposition of proceedings are well settled. 2. I proceed on the basis that the applicant will only be deprived of the opportunity to conduct his case in the usual way 'in the clearest of cases': Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575. 3. Here the applicant is in my view estopped from bringing the case he seeks to bring. A full hearing of the matter cannot change that, for the reasons I have given above. More, it is precisely at this point in a proceeding that an estoppel ought be argued, so that the very thing that the estoppel operates to prevent – duplication of proceedings and costs – can be avoided. 4. In my view the instant case is, because it turns on an estoppel, an appropriate case for summary disposition at this point and I will so order. 5. It is not necessary to deal with the fact that Mr Woelfl's union activities were on the applicant's own evidence slight and uncontroversial, and that his largest involvement was in a matter advanced by consent, so that the proposition that he was dismissed for those matters appears on its face remarkable. That is not the basis in which this application falls to be decided nor on which it has been decided. 6. It follows from what I have said above that the application under s.210 is on its face very substantially out of time. I do not however decide that matter. The proceedings are dismissed because the applicant is estopped from agitating the matters he now seeks to agitate. Disposition of the matter 1. The order that I make in this matter is as follows: 1. The application pursuant to s.210 made by Mr Richard Woelfl is dismissed. PETER NEWALL Commissioner Amendments 02 June 2015 - Coversheet/Decision date "01 June 2015" amended to read "02 June 2015". 02 June 2015 - Coversheet/Case title amended to read "Woelfl v Secretary of the Treasury" 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. Decision last updated: 02 June 2015