APPLICATION TO DISMISS FOR WANT OF PROSECUTION APPEAL AGAINST TERMINATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00134

DELIVERED : friday, 9 march 2012

FILE NO. : PSAB 7 OF 2010

Appellant

AND

Director General of Health as a delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals Health Services Act 1972 for the Metropolitan Health Services Board

Respondent

CatchWords : Industrial law (WA) – Public Service Appeal Board – termination of employment – reinstatement – application to dismiss for want of prosecution – delay in prosecuting – principles for applications to dismiss for want of prosecution

Legislation : Industrial Relations Act 1979 s 27(1)(a)(ii), s 27(1)(a)(iv)  Industrial Relations Commission Regulations 2005  r 107(2)

Result : Appeal dismissed for want of prosecution

Representation:

Appellant : Mr D Ellis of counsel

Respondent : Mr D Matthews of counsel

Reasons for Decision

1                 These are the unanimous reasons for decision of the Public Service Appeal Board (the Board).

2                 On 31 March 2010 the appellant filed a Notice of appeal in this matter, in which he appealed against the respondent's decision to dismiss him.

3                 According to the Form 4 – Statutory declaration of service filed by the appellant on the 7 April 2010, the Notice of appeal was served upon the respondent on 1 April 2010.  Prior to 9 September 2011 the appellant did not pursue the appeal.  The Associate to the Board wrote to him on 9 September 2011, asking him to advise of his intentions regarding the appeal by no later than 4:00 pm on Friday 23 September 2011.  By letter dated the 19 September 2011 received by the Commission on 27 September 2011, the appellant advised that he ‘still wishe[d] to pursue this claim as per my original 31 March 2010 submission’.

4                 The Board then proceeded to list the matter for a scheduling hearing which was convened on 1 December 2011.  As a consequence, the appeal was to be listed for hearing.  At the hearing on the 1 December 2011, the appellant indicated that he seeks reinstatement to the position from which he was dismissed. The appeal was then listed for two days’ hearing, on 1 and 2 March 2012.

5                 On 11 January 2012 the respondent filed a Notice of Application (the application) seeking to have the appeal dismissed pursuant to s 27(1)(a)(ii) and (iv) of the Industrial Relations Act 1979 on the grounds that ‘further proceedings are not desirable in the public interest and there are other reasons the matter should be dismissed’.

6                 The Notice of Application attached a schedule which noted that Mr Maher had been dismissed from his employment on 25 March 2010 for misconduct related to the use of the Health Department salary packaging system in relation to meals and entertainment.  It noted that the appeal had been lodged on the 31 March 2010 and that Mr Maher sought reinstatement.  The schedule also noted that the appeal ought to be dismissed, in effect, for want of prosecution.  An affidavit of Tamara Jade Sweeney in support of the application for dismissal of the appeal set out the respondent’s view of the circumstances of the dismissal including that following investigation, the appellant had been found to have misused the meals and entertainment salary packaging system available to the respondent’s employees on 13 occasions. 

7                 According to Ms Sweeney, the appellant was one of many employees whose conduct was investigated by the respondent in relation to misuse of the meals and entertainment salary packaging system.

8                 Ms Sweeney says that the respondent substantively filled the position previously occupied by the appellant on 7 July 2011, approximately 15 months after the dismissal.

9                 Ms Sweeney says that the initial investigation into the allegations against the appellant was conducted by Mr Ross Emerson under the supervision of Ms Michelle Wakka.  Mr Emerson now works for Western Australian Country Health Service.  Ms Wakka also investigated the second set of allegations and brought the investigations of all allegations to finality.  She now lives and works in New South Wales.  The initial deliberative processes are said to have involved Dr Peter Flett, the Director General at the time, Mr Danny Cloghan, Executive Director and Mr Frank Furey, none of whom are currently employed by the respondent.  However, those who made the recommendation and the decision to terminate the appellant’s employment remain employed by the respondent.

10              Ms Sweeney also says that the solicitors acting for the respondent wrote to the appellant’s solicitor foreshadowing the application to dismiss and asking the reasons for the delay in prosecuting the appeal.  The letter said that ‘[t]hose reasons will be taken into account in deciding whether or not to bring the application’ (TJS4).  The applicant’s solicitor responded stating ‘we are instructed not to respond to your request for “reasons”’ (TJS5).

11              Ms Sweeney’s affidavit attached copies of documents relating to the termination and schedules setting out the occasions of misuse of the meals and entertainment expenses arrangements.

PRINCIPLES

12              In The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162, the Hon President set out the ‘five paramount matters’ or principles to be applied to applications to dismiss for want of prosecution and adopted the approaches taken in Ulowski v Miller [1968] SASR 277 at 280; Birkett v James [1978] AC 297 and Muto v Faul [1980] VR 27 (FCSC).  Those principals are:

[T]he length of the delay, the explanation for the delay, the hardship to the plaintiff if the application is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.

13              His Honour in Birkett v James (op cit) where the court held:

[T]hat the power of the court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and continuous or where there had been inordinate and inexcusable delay on the part of the plaintiff or his/her lawyers giving rise to a substantial risk that a fair trial would not be possible or to seriously prejudice to [sic] the respondent.

14              As noted in Ulowski v Miller (op cit) an order that an application be dismissed for want of prosecution is a discretionary matter, and ought not be fettered by any absolute or inflexible rules.  However, the paramount matters identified in AWU v Barminco (op cit) are appropriate in this case.

Length of delay

15              The appeal was filed on 31 March 2010 in respect of a decision to dismiss given on 25 March 2010.  The appellant took no action until after the Board wrote to him on 9 September 2011 asking him to advise of his intentions regarding the appeal and he responded on the 19 September 2011, 18 months after he had filed the appeal.  In accordance with the President’s comment in AWU v Barminco (op cit) this is ‘an inordinate and irrecoverable’ delay.

16              I note too that an appellant has 21 days from the date of the decision appealed against in which to refer the appeal (Industrial Relations Commission Regulations 2005, r 107(2)).  This is also to be considered in the context of the emphasis in this jurisdiction being on swift remedies (see Ulowski v Miller (op cit)).

The explanation for the delay

17              I note that prior to filing the application for the appeal to be dismissed the respondent’s solicitors wrote to the appellant’s solicitors seeking an explanation of the delay so that it could take that into account when deciding whether or not to bring the application.  The appellant’s solicitors simply responded that they were instructed not to respond to the request for reasons for the delay and indicated ‘that if there are matters of the type you raise to be addressed then Mr Maher will respond to the Board in respect of those matters’.

18              The appellant gave evidence that he was aware of a number of his former colleagues who were in a similar situation of having been dismissed, who had filed appeals to the Board.  Although he was not aware who had filed appeals PSAB 1 – 5 of 2010, his friend Mr Rafic Said was the appellant in PSAB 6 of 2010.  He understood that it was just a matter of waiting for his appeal to come up and that he would be in line after PSAB 6 of 2010 had concluded.  He also said that he had previously been advised by Mr Said’s industrial advocate, Mr Trainer, that it was appropriate to wait for his case to be called on.  The appellant said it was his understanding from other employees who had matters before the Board that this would take an extended period.  Although he said he did not know the date of Mr Said’s appeal being finalised he says that he read that decision and noted that he was referred to in it. 

19              I note that the decision in PSAB 6 of 2010, Mr Rafic Said v Director General of Health as a delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals Health Services Act 1972 for the Metropolitan Health Services Board was delivered on 28 April 2011 ((2011) 91 WAIG 836).  This was five months prior to the Board writing to the appellant to prompt him in respect of his appeal, and 13 months after he had filed the appeal.

20              It is the responsibility of an appellant or applicant to prosecute their claim.  There is no responsibility on the Board or on the respondent to activate the appellant’s claim or to prompt him to do it, it is a matter for him.  It is suggested by Mr Ellis for the appellant, that it might appear somewhat rude or impertinent for him to demand that his appeal be brought on.  However, it is common practice for applicants or appellants before the Commission and the Board, where there are no detailed case management rules which set out time frames for various stages in the litigation process, to request, either by means of a formal request or by making enquiries by telephone or email directed to the Commission that their matters be brought on.  To do so is not rude or impertinent.  On the contrary it is the appellant’s responsibility to do so.

21              As the respondent suggests, if that were not the case then there would be no such thing as an application to dismiss for want of prosecution and no principles established to deal with such applications.

22              In those circumstances, there is no reasonable explanation for a delay of this length.

The hardship to the appellant if the appeal is dismissed and the cause of action left statute-barred

23              There was no evidence from the appellant as to any hardship he would suffer should the appeal not proceed.  Mr Ellis, on his behalf, indicated that the hardship would be that the appellant will never have the opportunity to litigate his case even though he has mitigated his loss and found other employment.  The respondent correctly says that hardship requires more than being deprived of an opportunity to have his day in court.  It must be a hardship which flows from that deprivation.

24              There is nothing before the Board to enable a finding that the appellant would suffer hardship by not being able to pursue the appeal.

The prejudice to the respondent if the action is allowed to proceed notwithstanding the delay

25              Firstly, the respondent says that it will suffer prejudice in defending this claim as those people who were involved in the investigation and ‘deliberative processes’ in relation to the appellant are no longer employed by the respondent.  One such person is said to live in New South Wales and Mr Emerson is said to be employed by the Western Australian Country Health Service.  Dr Flett, Mr Cloghan and Mr Furey are no longer employed by the respondent.  All of those things make it difficult for the respondent to respond to the appeal.

26              However, those people who were involved in making the recommendation and the decision to dismiss the appellant are still employed by the respondent.  Also, according to Ms Sweeney’s evidence, the respondent has records of the investigation and decision making process.  In those circumstances, the respondent would not be prejudiced in defending this matter.

27              Secondly, the respondent says that the position occupied by the appellant is no longer available and the appellant seeks reinstatement.

28              In AWU v Barminco (op cit) the delay in prosecuting the appeal was 15 months and the appellant had not sought reinstatement.  His Honour the President noted that:

Had the delay been much longer and, had the appellant maintained the claim for reinstatement, then there would, in the absence of evidence to the contrary, have been sufficient hardship occasioned to the respondent to justify the dismissal of the appeal.  That is not so, at least not in circumstances of this case, where the hardship if the appeal succeeds is an award of compensation.

29              The Board does not have the power which the Commission has in dealing with unfair dismissal claims of awarding compensation, (State Government Insurance Commission v Terence Hurley Johnson (IAC) (1997) 77 WAIG 2169).  Its power is to ‘adjust’ the decision of the respondent.  If the appeal were successful the effect of the adjustment of the decision of the respondent to terminate the appellant’s employment would be that the decision would be quashed.  This would have the effect of placing the appellant back in the situation he was in prior to that decision, that is, back in the position he held.  The evidence of Ms Sweeney is that that position was substantively filled 15 months after the appellant was dismissed.

30              This constitutes a significant prejudice to the respondent in that if the appeal proceeds and is successful, the respondent is placed in a position of the appellant being entitled to return to that position, even though it has been filled after he had taken no action for 15 months.

31              In coming to this conclusion I would not want it to be thought that an employer faced with a claim of unfair dismissal could move swiftly to fill the position left vacant by the dismissal as means of avoiding the prospect of any reinstatement.  That is not the case in these circumstances where the respondent did not act with undue haste to fill that position, but did so after the position had been vacant for some 15 months, and the appellant had done nothing to prosecute his appeal in that time.

The conduct of the respondent in the litigation

32              There is no suggestion that the respondent has conducted itself in any way which may be appropriate for consideration in this application.

CONCLUSION

33              As there is a delay of 15 months, which is inordinate and irrecoverable, there is no reasonable explanation for the delay, no evidence of hardship to the appellant if the appeal is dismissed, there is the real potential for serious prejudice to the respondent if it does proceed, I would grant the application and dismiss the appeal for want of prosecution.