APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 4 FEBRUARY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00654

DELIVERED : Friday, 4 August 2023

FILE NO. : PSAB 10 OF 2022

Appellant

AND

Metropolitan Cemeteries Board

Respondent

CatchWords : Public Service Appeal Board - Failure to prosecute - Appeal dismissed    

Legislation : Industrial Relations Act 1979 (WA)

   Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr P O’Callaghan (in person)

Respondent : Mr B Di Girolami (of counsel)

Case(s) referred to in reasons:

Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129

Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986)

Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197

Trkulja v Markovic [2015] VSCA 298

Reasons for Decision

1         Mr Peter O’Callaghan was employed by the Metropolitan Cemeteries Board from 22 August 2017 as a Memorial Services Officer until his dismissal on 4 February 2022.

2         On 10 February 2022 the appellant appealed the respondent’s decision to dismiss him because he did not agree with the decision and believed it was extreme. The appellant sought to be reemployed by the respondent.

3         The respondent contends that the Public Service Appeal Board (Board) should not adjust the decision to dismiss because the appellant had demonstrated a complete disregard for the respondent’s lawful instructions and the respondent no longer had the necessary trust and confidence in the appellant to perform the inherent requirements of his role.

4         On 27 October 2022 the respondent applied to the Board to exercise its power under s 27(1) of the Industrial Relations Act 1979 (WA) (IR Act) to dismiss the appeal because the appellant had failed to comply with the Board’s directions concerning the provision of outlines of witness evidence and outlines of submissions.

5         The respondent submits that the appellant’s inaction to progress the application together with the appellant’s failure to respond to the Board’s correspondence, provides sufficient reasons for the Board to dismiss the application under ss 27(1)(a)(ii), (iv) and 80L(1) of the IR Act.

Question the Board Must Decide

6         The Board must decide whether to dismiss the appeal because the appellant has failed to comply with directions issued by the Board and has not pursued his appeal diligently.

Background

7         Following consultation with the parties concerning their availability, on 24 March 2022 the Board notified the parties of the listing of a Directions Hearing on 5 May 2022. The appellant failed to appear at the Directions Hearing, which was scheduled at a mutually convenient time for both parties.

8         On 11 May 2022 the appellant responded to a request from the Board to explain his non-appearance and provide his intention to progress his application, stating he had had urgent matters to attend to and wished to proceed with his application.

9         Subsequently the Board made several requests of the appellant to provide further details concerning his failure to attend the Directions Hearing.

10      On 27 May 2022 the Board requested the appellant respond to its requests for further details of the urgent matters that precluded him from attending the Directions Hearing.

11      On 23 June 2022 the respondent applied to the Board to dismiss the appeal on the basis:

1. The appellant has been afforded procedural fairness to present his case to the Board in accordance with the principles of natural justice (Russell v Duke of Norfolk [1949] 1 All ER 109, 118). The appellant was provided with a reasonable opportunity to present his case. However, the appellant failed to attend the Directions Hearing on 5 May 2022 as required by the Board.

2. The appellant has been provided with a reasonable opportunity to:

a. explain the reasons for his failure to attend the Direction Hearing; and

b. provide an explanation as to why he was unable to inform the Board prior to the Directions Hearing of his inability to attend.

Despite the opportunities afforded to the appellant, the appellant has failed to respond to the Board’s email dated 27 May 2022. It is in the public interest that the appellant assiduously apply himself to the pursuit of his claim (Kangatheran v Boans Limited 1987 (67 WAIG 1112 at 1113). The appellant has failed to prosecute the Application in this case.

The respondent in its detailed Form 4 – Response has provided sufficient materials to show it has a good defence to the Application and good cause to justify termination of the appellant’s employment. In the circumstances, it would not be in the public interest to proceed with a lengthy hearing in this matter.

The respondent submits that the appellant’s inaction to progress the Application together with the appellant’s failure to respond to Board correspondence, provide sufficient reasons for the Board to dismiss the Application under sections 27(1)(a)(ii), (iv) and 80L(1) of the Industrial Relations Act 1979 (WA).

12      On 3 July 2022 the appellant emailed the Board stating he would not provide any further information in relation to his inability to attend the Directions Hearing in May, as it concerned a personal matter. The appellant stated he wished to have his dismissal reviewed by the Board.

13      On 27 July 2022 the Board notified the parties it had set down a Directions Hearing on 24 August 2022 to hear the parties on the respondent’s application for the Board to dismiss the appeal.

14      At the Direction Hearing on 24 August 2022 the appellant provided further information as to his non-attendance at the Directions Hearing. The Board declined to dismiss the appeal pursuant to s 27(1) of the IR Act and heard from the parties on the steps required to progress the appeal to a hearing.

15      On 26 August 2022 the Board issued Direction [2022] WAIRC 00635:

1. THAT the appellant confirm to the Board, in writing, whether he continues to seek reemployment or whether he seeks a different remedy and seeks leave to amend his Form 8B – Notice of Appeal, by no later than 8 September 2022;

2. THAT the appellant file and serve upon the respondent any outlines of witness evidence and any documents, upon which they intend to rely by no later than 8 September 2022;

3. THAT the respondent file and serve upon the appellant any outlines of witness evidence and any documents, upon which it intends to rely by no later than 6 October 2022;

4. THAT the appellant file and serve upon the respondent an outline of submissions and any list of authorities, by no later than 27 October 2022;

5. THAT the respondent file and serve upon the appellant an outline of submissions and any list of authorities, by no later than 17 November 2022;

6. THAT the matter be listed for hearing on a date to be fixed; and

7. THAT the parties have liberty to apply on short notice.

16      On 7 September 2022 the appellant emailed the Board and stated that he did not wish to amend his Form 8B – Notice of Appeal and that he did not wish to call any witness evidence or submit any documents to support his appeal.

17      On 15 September 2022 the respondent emailed the Board in relation to the appellant’s email of 7 September 2022 stating:

The Appellant has not complied with Directions 1 and 2 set out in the Direction dated 26 August 2022 (2022 WAIRC 00635) (Directions) which impacts the Respondent’s ability to comply with Directions 3 and 5.

Namely, in respect of Direction 1, the Appellant has not confirmed whether he seeks reemployment or a different remedy e.g. reinstatement. The Appellant should be required to do so within 7 days.

In respect of Direction 2, Mr O’Callaghan stated in the directions hearing on 24 August 2022, that he would be giving evidence in his own right and agreed to provide an outline of witness evidence/witness statement by 8 September 2022. Given the Appellant’s non-compliance with the Directions and to avoid further delays in programming, the Respondent requests changes to the Directions issued by the Public Service Appeal Board requiring:

1. THAT the Appellant file and serve upon the Respondent an outline of witness evidence or witness statement and any documents upon which he intends to rely within 7 days; or

2. THAT the Appellant advise the Public Service Appeal Board and the Respondent in writing within 7 days that he does not intend to give evidence in his own right at hearing;

3. THAT the Respondent file and serve upon the Appellant any outlines of witness evidence or witness statements and any documents, upon which it intends to rely by no later than 31 October 2022;

4. THAT the Appellant file and serve upon the Respondent an outline of submissions and any list of authorities, by no later than 14 November 2022;

5. THAT the Respondent file and serve upon the Appellant an outline of submissions and any list of authorities, by no later than 28 November 2022;

6. THAT the matter be listed for hearing on a date to be fixed; and

7. THAT the parties have liberty to apply at short notice.

18      On 22 September 2022, in response to the respondent’s email dated 15 September 2022, the appellant sent an email to the Board stating that he would not be changing any information on his Form 8B – Notice of Appeal. Further, that he would not be calling any witnesses. The appellant did not copy the respondent’s representative into his correspondence with the Board. The appellant’s email is as follows:

I am unsure as to what I need to do next in relation to Mr Di Girolami's last email dated the 15 September 2022.

It was my understanding that I was required to indicate if I wanted to change any information on form 8B. I replied that I did NOT wish to change any information on the form.

I was also required to submit the names and details of any witnesses that I may call, and I indicated that I would NOT be calling any witnesses.

I believe I have submitted all the information that was required by the requested date, 08 September 2022.

19      On 30 September 2022 the Board emailed the parties, referring the appellant to the transcript of proceedings concerning his intention to give oral evidence at the hearing and the requirement to provide an outline of any witness evidence to be given at the hearing. The Board requested that the appellant confirm whether he intended to give evidence at the hearing and therefore be a witness. The appellant was provided with a copy of the transcript of the Directions Hearing on 24 August 2022.

20      In this email, the Board reminded the appellant to ensure he copies in the respondent’s representative into all communications with the Board. The appellant had failed to copy the respondent’s representative into some earlier correspondence.

21      On 9 October 2022, the appellant responded to the Board’s email dated 30 September 2022 stating he would give the following oral evidence in relation to his unfair dismissal:

I was unfairly dismissed, unfairly treated by senior management and poorly supervised by management in the last 12 months of my four years of employment at Metropolitan Cemeteries Board.

22      The Board emailed the appellant on 17 October 2022 advising the appellant that the witness information provided did not constitute a sufficient witness outline. The Board requested the appellant to outline the evidence that he will be giving at the hearing to support his claim that he was unfairly dismissed. The Board provided a copy of Practice Note 9 of 2021 which sets out the requirements of a witness outline.

23      On 19 October 2022 the appellant submitted a document that reproduced his letter dated 31 December 2021 to the respondent, which was written and sent prior to the decision to terminate his employment, as his witness outline.

24      On 27 October 2022, the Board emailed the appellant acknowledging receipt of the appellant’s email and again reminding him of the requirement to copy the respondent’s representative into all correspondence with the Board.

25      The respondent has complied with the Board’s Directions.

The Principles and Law to Be Applied

26      Section 27(1)(a) of the IR Act provides for dismissal at any stage of the proceedings if the Board is satisfied that the matter or part thereof is trivial; further proceedings are not necessary or desirable in the public interest; that the person who referred the matter to the Commission does not have sufficient interest in the matter or for any other reason the matter or part should be dismissed, or the hearing thereof discontinued, as the case may be.

27      The onus rests with a party initiating proceedings to prosecute those proceedings diligently. Where the Board requires advice to be provided within given time frames for the purpose of the matter being dealt with expeditiously, it is not the role of the Board to continue to pursue parties to ascertain the status of matters and ensure substantive compliance with directions.

28      The Board's duty to a self-represented litigant, like any court or tribunal, is that it must do no more than what is required to diminish the disadvantage to a self‑represented person. The Board Members do not act as a representative of a party. To do more than is required to ensure a fair trial by conferring upon a litigant in person a positive advantage would be unfair to a represented opponent and would jeopardise the appearance of and the requirements of judicial neutrality.

29      The Board adopts the approach by the Full Bench in Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197, Smith AP and Beech CC (Harrison C agreeing) observed at [28]:

As Bell J in Tomasevic v Travaglini [2007] VSC 337 recently observed, it is the function of a judicial decision-maker to find facts on the basis of the evidence and in doing so is to ensure trial fairness and to elicit relevant evidence [127] - [128]. At [139] - [141] he explained:

139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR [International Covenant on Civil and Political Rights]. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

141 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

30      The right to a fair hearing does not entitle an unrepresented litigant to unconfined assistance. As Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) remarked at [14] (Rajski):

…[T]he absence of legal representation on one side ought not to induce a court (or a tribunal) to deprive the other side of one jot of its lawful entitlement…An unrepresented party is as much subject to the rules as any other litigant. The court (or tribunal) 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 unfair to the represented opponent.

31      The principles in Rajski were considered by E M Heenan J (Murray and Le Miere JJ agreeing) in Tobin v Dodd [2004] WASCA 288 at [14]. E M Heenan J considered the observations of the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 (Minogue). In Minogue, the Full Court had regard to the general principles in Rajski and also relevantly observed at [27].

In Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

‘What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.’

We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v R (1981) 147 CLR 512; 37 ALR 81; D A Ipp, ‘Judicial Intervention in the Trial Process’ (1995) 69 ALG 365, at 369-70.

It is elementary that a court (and a tribunal) ought to ensure that a self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of these rights. Notwithstanding this, the court (and a tribunal) should refrain from advising a litigant as to how or when he or she should exercise these rights: Trkulja v Markovic [2015] VSCA 298 [39] (Trkulja); Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308 [27] - [28] (Loftus).

Did the Appellant Approach the Appeal with Diligence?

32      The appellant has failed to submit on outline of evidence, any supporting documentation and has not submitted an outline of his submissions in support of this appeal. The appellant’s document submitted on 19 October 2022 does not comply with the directions to file an outline of witness evidence and supporting documents. The document was a replication of the notice of appeal and did not provide indications of the evidence to be given. The purpose of a witness outline is to provide the Board and the respondent the opportunity to understand the evidence that will be put at the hearing. The Board does not consider the document submitted adequately does this.

33      In addition, the appellant did not submit any documents or materials despite reference to documents and materials in his notice of appeal.

34      On 19 October 2022 the appellant emailed the Board notifying it and the respondent that he believed the information submitted by the respondent in its response of 11 March 2022 was inaccurate and misleading. Despite this notification the appellant failed to identify the alleged inaccuracies or submit any evidence in response to the alleged inaccuracies or make any reference to the alleged inaccuracies in an outline of submissions. The appellant failed to submit an outline of submissions.

35      The appellant did not take the necessary steps to comply with the Directions with due diligence and care, despite being provided with ample opportunity to remedy the deficiencies. In these circumstances it is not possible for the Board to find the facts of this matter.

36      As in Singh the Board considers it has a duty to ensure a fair trial by giving self-represented litigants due assistance. The appellant was self-represented in these proceedings. The Board is satisfied that the appellant was provided with the necessary assistance from the Board to ensure the appellant was fairly dealt with.

37      The onus rests with a party initiating proceedings to prosecute those proceedings diligently. Where the Board requires advice to be provided within given time frames for the purpose of the matter being dealt with expeditiously, it is not the role of the Board to continue to pursue parties to ascertain the status of matters and ensure substantive compliance with directions. The appellant has not met the onus which falls to him and has not pursued this matter appropriately.

38      The Board is of the view that the appellant understood the requirement of the Directions issued. The Board is satisfied the appellant was provided with sufficient assistance to understand the steps he needed to take to progress his application to hearing consistent with the principles in Rajski, Trkulja and Loftus.

39      The appellant’s approach to this matter resulted in the appellant’s case not being capable of being known and effectively frustrating the respondent from being able to answer. Consequently, there is an injustice to the respondent to continue this matter.

40      For the reasons set out above the Board finds the appellant has not met the onus which falls to him and has not pursued this matter appropriately and consequentially the Board has dismissed the appeal.