CITATION : 2012 WAIRC 00371 CORAM : COMMISSIONER S J KENNER HEARD : TUESDAY, 12 JUNE 2012 DELIVERED : WEDNESDAY, 20 JUNE 2012 FILE NO. : U 81 OF 2012 BETWEEN : NADIA MIREZ TOOHEY Applicant AND HAROLD HAWTHORNE SENIOR CITIZENS CENTRE AND HOMES INC. Respondent 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 933 Catchwords : Industrial law (WA) – Harsh, oppressive and unfair dismissal – Application referred outside of 28 day time limit – Principles applied – Commission satisfied that discretion should not be exercised – Acceptance of referral outside of time not granted – Application dismissed Legislation : Industrial Realtions Act 1979 (WA) s 29(1)(b)(i), 29(3) Result : Application dismissed Representation: Applicant : Mr R Jones as agent Respondent : Mr G McCorry as agent Case(s) referred to in reasons: Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 Reasons for Decision 1 Ms Toohey was employed as the General Manager of the Harold Hawthorne Senior Citizens Centre and Homes from April 2010 until 15 November 2011, when she was summarily dismissed. The Centre is a not-for-profit organisation that provides community and aged care services. As the General Manager, Ms Toohey was responsible for the overall management of the Centre, including staff and volunteers and financial matters. The circumstances surrounding the termination of Ms Toohey’s employment in November 2011 are controversial. However, as this application alleging unfair dismissal was not filed until 11 April 2012, it is necessary to consider whether the Commission should exercise its discretion to extend the time within which Ms Toohey’s application may be brought, it being some four and a half months outside of the 28 day time limit imposed by the legislation. 2 On 12 June 2012 the application was listed for hearing as to whether the Commission should accept Ms Toohey’s application out of time. At the end of the hearing, the Commission indicated that it would not exercise its discretion and dismissed the application, with reasons to be published in due course. These are my reasons for so concluding. 3 For reasons which will become apparent shortly, it is important to note that there is also an application before the Commission brought by Ms Toohey, alleging that she was denied various contractual benefits by the Centre. The contractual benefits sought in that application include the balance of Ms Toohey’s contract said to be due from October 2011 until April 2012, and in addition, the payment of various leave entitlements said to be owing to her. Essentially, the same claim for relief is made in these proceedings. 4 Ms Toohey testified that when she commenced with the Centre, she accepted an appointment for two years to April 2012. Ms Toohey was subject to a six month probationary period after which her employment was confirmed. Ms Toohey testified that some time prior to 15 November 2011, she was attending a Board meeting as a part of her duties. She was requested to leave the meeting while issues in relation to her performance as the General Manager were discussed. It seems that issues concerning Ms Toohey’s performance in the role of General Manager of the Centre were communicated to her by the Board in letters dated 18 and 24 October 2011. Ms Toohey responded in writing to these matters by letter of 24 October 2011 but seemingly, did not satisfactorily address the issues in the view of the Centre. 5 Ms Toohey went on sick leave from about 21 October 2011. The Centre wrote to Ms Toohey on 15 November 2011 advising that her employment was terminated summarily without notice. A number of matters are raised in the letter of termination, including Ms Toohey’s overall work performance; a deterioration in the financial standing of the Centre; poor staff management; and an allegation of improper use of the Centre’s resources. Ms Toohey testified that she was verbally informed some days prior to 15 November that her employment was going to be terminated. 6 Whilst it was not entirely clear, it seemed at the time that Ms Toohey’s main concern was that she receive all her entitlements on termination of employment. She understood that because her employment had been terminated summarily, she would not receive salary in lieu of notice. However, she was expecting to receive her accrued leave entitlements. Ms Toohey testified that she did not commence these proceedings at the time of her dismissal because she was speaking to colleagues and others about what she should do, and hoped that the new General Manager would deal with the issue of her entitlements promptly. That seemed not to be the case, and further allegations were made by the Centre against Ms Toohey in relation to the misuse of the Centre’s assets. 7 Ms Toohey also said that at around the time of her dismissal, she was looking after her elderly grandparents in Sydney. She was also dealing with some health issues. In about mid-December 2011 Ms Toohey said that she made contact with legal advisors about possible legal action against the Centre and became aware that there were time limits to commence unfair dismissal claims. She said she was not specifically informed as to what the time limitation was at that stage. During all of this time, Ms Toohey testified that she was hopeful that the Centre would honour its commitments to her in relation to her entitlements so that she could “move on”. 8 Also, in early December 2011, Ms Toohey took up a new short term appointment with another community services employer which was due to expire on 30 March 2012 but which came to an end somewhat earlier, on 20 February 2012. Additionally, Ms Toohey said that while at the time of taking her new appointment she had fully informed her new employer about her dispute with the Centre, the Centre contacted her new employer’s senior management. The Centre made allegations about Ms Toohey’s performance with the Centre in line with those supporting her summary dismissal. It was Ms Toohey’s evidence that the senior management advised the General Manager of the Centre that this contact was not appropriate. Despite this, Ms 934 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Toohey said this conduct by the Centre significantly compromised her position. Ms Toohey also testified that she became aware that the current General Manager of the Centre had received a telephone call from a former employee of her new employer, who Ms Toohey had been required to dismiss. According to Ms Toohey, the Centre General Manager gave this person Ms Toohey’s home address and contact details. Ms Toohey said that she received threats from this person as a consequence. 9 Ms Toohey said that she received further advice in relation to the 28 day time limit to commence her claim, when she made contact with the Registry of this Commission in early 2012. She said, however, that she still remained hopeful that the issue of her entitlements would be resolved without the need to proceed with matters formally. It seems that Ms Toohey then consulted with her current industrial agent in March 2012. A notice of application with particulars of claim was prepared with the declaration in the notice signed on 12 March 2012. A little later, particulars in relation to why her claim should be accepted outside of the 28 day time limit were completed and these bear Ms Toohey’s signature with the date of 5 April 2012. Despite these steps, the application was still not filed in the Registry until 11 April 2012. 10 It was contended on behalf of Ms Toohey, that the reason for the delay was that it was not until about early March 2012 that Ms Toohey was notified by the Centre that she would not receive the leave entitlements she was claiming. It was contended by Ms Toohey that in these circumstances, it would be unfair to not accept her application out of time. 11 The Centre opposed the application. It was submitted that there had been no legitimate reason advanced as to why there had been a delay of approximately four and a half months for the commencement of these proceedings. This is particularly so when Ms Toohey had taken legal advice and had received specific advice from the Registry of the Commission in early 2012, that the time limit applied, albeit that an application to extend time could be made. It was also submitted by the Centre that in reality, the present application seeks identical relief to the contractual benefits claim, and that Ms Toohey is seeking to “cover all the bases”, as it were, by bringing both sets of proceedings. Conclusion 12 The capacity to accept a referral out of time is provided for in s 29(3) of the Act. The relevant principles are well established and are set out in the decision of the Industrial Appeal Court in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683. There may be an issue in this case arising as to the lawfulness, and also the fairness, of the Centre’s dismissal of Ms Toohey whilst she was said to be on sick leave. However, on balance, given that Ms Toohey had advice as far back as December 2011, affirmed in early 2012, that time limits applied to her claim, and she did not take immediate steps to bring an application, I am not persuaded that the discretion should be exercised in Ms Toohey’s favour. When becoming aware of the time limits, it was incumbent on Ms Toohey to commence her claim without further delay. She plainly elected not to do so. 13 Moreover, as the evidence unfolded, it became apparent to the Commission that in reality, Ms Toohey’s complaint in relation to her unfair dismissal claim was the same as that brought in her contractual benefits claim, which is not affected by the 28 day time limit. That is, the relief sought in both proceedings is largely the same. Whether or not Ms Toohey engaged in conduct warranting the exercise by the Centre of its right of summary dismissal, and hence the denial of payments under Ms Toohey’s contract, can be adequately ventilated in those proceedings. 14 The evidence about the alleged conduct of persons associated with the Centre, after Ms Toohey left its employ, raises serious matters. These include possible breaches of privacy and defamation. However they are not resolvable in these proceedings. 15 For all of the foregoing reasons, the Commission concluded that it was not unfair in all of the circumstances to refuse to extend the 28 day time limit and the application was dismissed. 2012 WAIRC 00372 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NADIA MIREZ TOOHEY APPLICANT -v- HAROLD HAWTHORNE SENIOR CITIZENS CENTRE AND HOMES INC. RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 20 JUNE 2012 FILE NO/S U 81 OF 2012 CITATION NO. 2012 WAIRC 00372 Result Application dismissed Representation Applicant Mr R Jones as agent Respondent Mr G McCorry as agent 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 935 Order HAVING heard Mr R Jones as agent of the applicant and Mr G McCorry as agent of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby dismissed. (Sgd.) S J KENNER, [L.S.] Commissioner. 2012 WAIRC 00386 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NICOLE WHALAN APPLICANT -v- LUAN HOLDINGS T/A HARCOURTS PREMIER PTY LTD RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 25 JUNE 2012 FILE NO/S B 99 OF 2012 CITATION NO. 2012 WAIRC 00386 Result Application dismissed Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; and WHEREAS by a Notice of Hearing dated the 16th day of May 2012, the Commission advised the applicant that a hearing would be convened on the 28th day of May 2012 at 10.45 am for mention for her to show cause why the application should not be dismissed; and WHEREAS on the morning of the 28th day of May 2012 the applicant contacted the Registry of the Commission to advise that she would be unable to attend the hearing; and WHEREAS by a letter dated the 28th day of May 2012 the Commission directed the applicant to advise the Commission of her intentions regarding the application and the reasons for not attending the hearing by the 7th day of June 2012 and that her response would be considered by the Commission to decide whether the application would be dismissed; and WHEREAS by the 7th day of June 2012 the applicant had not contacted the Commission; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2012 WAIRC 00373 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES GAVIN WILLS APPLICANT -v- INTERTEK COMMODITIES RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 20 JUNE 2012 FILE NO/S B 66 OF 2012 CITATION NO. 2012 WAIRC 00373 936 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Result Application discontinued Representation Applicant Mr G Wills Respondent Mr A Cameron (as agent) Order WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 1 May 2012 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference no agreement was able to be reached between the parties; AND WHEREAS on 1 June 2012 the applicant advised the Commission to file the Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2012 WAIRC 00340 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION