Ahern v IA Group Pty Ltd [2013] QIRC 98

CITATION:John Ahern AND IA Group Pty Ltd (B/2012/4) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. John Ahern AND IA Group Pty Ltd (B/2012/4) COMMISSIONER BLACK 18 July 2013 DECISION [1] Mr John Ahern (the Applicant) has made an application for payment of pro rata long service leave on termination of employment. He relies on s. 43(4) of the Industrial Relations Act 1999 and claims in his application that his resignation from his employer was attributable to excessive hours of work and adverse effects that the job was having on his marriage. The application will be heard in Townsville on 25 and 26 of July 2013. IA Group Pty Ltd (the Respondent) has requested that one of their witnesses be allowed to give telephone evidence in the proceedings. The Applicant opposes this request. [2] Pursuant to directions issued on 26 November 2012, witness statements were prepared and exchanged between the parties between 7 January 2013 and 4 February 2013. The final stage in this process involved the filing of statements in reply by the Applicant on 4 February 2013. The only statement in reply lodged by the Applicant was a statement in reply of Mr John Ahern. In this statement, Mr Ahern under the heading of "Other Matters" introduced content which was clearly not provided in response to the only statement filed by the Respondent. The new content referred to discussions alleged to have taken place between Mr Rod Casey and Mr Ahern. [3] In the circumstances, the Respondent filed a rebuttal statement prepared by Mr Casey. Subsequently, the Respondent sought leave for Mr Casey to give his evidence via telephone on the basis that Mr Casey will be in Italy at the time of the substantive hearing on 25 and 26 July 2013. The Applicant has opposed this application. [4] In the circumstances, I informed the parties that I would decide the matter in contention on the papers and asked the parties to file written submissions by Friday, 12 July 2013. In preparing submissions, I requested that the parties have regard to the transcript of proceedings on 12 February 2013. [5] During the proceedings on 12 February 2013, Mr Reidy, Counsel for the Respondent, requested that Mr Casey be allowed to give his evidence by telephone. This request was opposed by Mr O' Donnell on behalf of the Applicant. Ultimately, however, the issued was not resolved and a decision now needs to be made prior to the start of proceedings on 25 July 2013. [6] I have now had the opportunity of reviewing the submissions filed. In arriving at my decision in the matter I have taken into account the submissions filed, the content of the Commission's Practice Note dealing with the taking of evidence by telephone, and the relevant provisions of the Industrial Relations Act 1999, the Evidence Act 1977 and the Uniform Civil Procedure Rules 1999. [7] Section 320(2) of the Industrial Relations Act 1999 provides that in proceedings the Commission is not bound by technicalities, legal forms, or rules of evidence and may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. [8] While the Practice Note provides that telephone evidence will not be taken where credibility is an issue, the Practice Note nevertheless operates subject to the unfettered and overriding discretion of the Member of the Commission into whose hands a particular matter falls. [9] I have formed the view that there is no statutory barrier to the taking of evidence by telephone and that it is a matter for my discretion as to whether Mr Casey is allowed to give his evidence by telephone. Notwithstanding the discretion, given that the matter is in dispute between the parties, I consider it appropriate to be guided by the practices permitted under the Evidence Act 1977 and the Uniform Civil Procedure Rules 1999. [10] Under r. 392 of the Uniform Civil Procedure Rules 1999, evidence may be received by telephone with a discretion to be exercised about whether any conditions should be imposed. [11] Under s. 39R of the Evidence Act 1977, a person may give evidence by telephone upon the application of a party to the proceeding before the court. The evidence can be given from a location inside or outside Queensland, including a location outside Australia. Section 39Y of the Evidence Act 1977 further provides that if it is necessary to put a document to the person giving telephone evidence, the court may permit the document to be put to the person by sending a copy of it to the external location in any way and the copy then put to the person. -- 1 of 2 -- 2 The document put to a person in this manner is admissible as evidence without proof that the transmitted copy is a true copy of the relevant document. [12] The determination of this matter turns on an examination of the particular facts and circumstances relevant to the issue in contention. In this regard, the Applicant in his reply statement introduced new content relating to Mr Casey. While Mr Casey's name had been mentioned in the first statement of Mr Ahern, and in the first statement of Iesha Stewart, the references did not have any significant bearing on the determination that has to be made by the Commission about "domestic or other pressing necessity" or about "illness or incapacity", nor had the Respondent lodged any statement by Mr Casey in the first instance. Notwithstanding this, in his statement in response, Mr Ahern asserted in paragraph 16 that "I can categorically state that Rod Casey knew of my health situation, as well as my troubled marital relationship". [13] In the circumstances, I consider that the Respondent was obliged to answer the assertions made by Mr Ahern. The Respondent did this by filing the statement of Rod Casey on 22 February 2013. It follows that Mr Casey is entitled to be heard in the proceedings and, given his residency in Italy during the hearing on 25 and 26 July 2013, I consider that it is appropriate to allow Mr Casey to give evidence via telephone. [14] It follows that I do not intend to accede to the Respondent's request that paragraphs 16-19 of Mr Ahern's statement in response should be struck out. [15] Mr Casey's telephone evidence is allowed in accordance with the following directions: (a) The witness statement of Mr Rod Casey is admitted into evidence as his evidence-in-chief; (b) Cross-examination by the Applicant and re-examination by the Respondent will be via telephone; and (c) The Respondent is to make the following arrangements to facilitate the giving of Mr Casey's evidence by telephone: (i) Mr Casey to ensure that he has access to a telephone; (ii) Mr Casey to provide an oath by affirmation; (iii) Mr Casey to be advised that evidence is being given in formal court proceedings, and is being recorded, and that he may be cross-examined by the representative of the applicant and may be questioned by the Commissioner and that he must be careful to respond to questions put and answer only the questions that are put; and (iv) Subject to relevance and reasonableness, ensure that Mr Casey has copies of statements or documents filed or exchanged in the proceedings either in hard copy form or comprising an electronic copy saved in advance on his computer. [16] I so Order. G.D. BLACK, Commissioner. Submission Details: 2013 12 July (Respondent's Submissions) 15 July (Applicant's Submissions) Released: 18 July 2013 -- 2 of 2 --