Barton v Barton & Anor [2001] QIRC 96 (2001) 167 QGIG 255

6 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 255 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement, s. 326 – interlocutory proceedings John Barton AND Melinda Barton AND Environmental Protection Agency (Nos. B1332 and B1333 of 2000) COMMISSIONER BLOOMFIELD 25 June 2001 Reinstatement – Interlocutory proceedings under s. 326 of Act – Request by applicants for further and better particulars of reasons for termination – Onus on applicants to prove dismissal harsh, unjust or unreasonable – Tipping’s case – Applicants will have opportunity to reply to respondent’s case – Dates in Directions Order brought forward to allow applicants some additional time to respond – Application otherwise refused. DECISION The applicants have applied pursuant to s. 326 of the Industrial Relations Act 1999 for further and better particulars of the reasons for their respective terminations on 18 August 2000. On that date they were informed in writing that their services were terminated by the Director General of the Environmental Protection Agency. The Director General said that his reason for coming to the decision to terminate was that he considered that:– -- 1 of 3 -- 256 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 July, 2001 “1. Your obstructive behaviour and delaying tactics in attempts to negotiate a mutually acceptable outcome regarding your allegations indicate clearly to me that the employer/employee relationship has completely broken down; and 2. Your behaviour is wilful and deliberate and inconsistent with continuing the employment contract.”. In the case of Mrs Barton an additional ground was cited:– “3. Reallocation of the work undertaken by you as a casual employee in the Cairns Regional Office, QPWS.”. Mr R. Oliver, of Counsel, referred me to R v Associated Northern Collieries (1910) 11 CLR 738 at 740-741 in support of his argument that it was fundamental that an opposite party be apprised of the case it has to meet. He also cited Trade Practices Commission v George Western Foods Pty Ltd (1979) 39 FLR 182 at 186 and Bailey v The Federal Commissioner for Taxation (1977) 136 CLR 214 in support of the submission that better particulars also limit the generality of the pleadings so as to more sharply define the issues which have to be determined. He also said that the conduct of the case would be expedited if the applicants knew the case that they may be required to answer. In the absence of material which would expand upon the respondent’s stated reasons for termination the applicants would be required to turn their attention to anything which they thought might be relevant to the employer’s decision. This would be a costly and time-consuming exercise and it may be not be necessary depending upon what the respondent raised in its own material. The applicants should not be put to that expense if the process could be short-circuited by the respondent being required to produce the particulars sought. The application was opposed by Ms B. Callaghan, of Counsel, on behalf the Environmental Protection Agency. She submitted that the onus lay with the applicants to establish that the intervention of the Commission was warranted. It was up to them to establish the case for intervention on the basis that the termination was harsh, unjust or unreasonable. The employer did not have the onus to prove the opposite. It is clearly established that the onus falls on an applicant to establish that a termination is harsh, unjust or unreasonable and that the intervention of an industrial tribunal is warranted (see Western Suburbs District Ambulance Committee v Tipping (1957) AR 273 and the cases cited therein). The problem which confronts the applicants is not much different, at this point in the proceedings, to that which confronts many applicants who appear before this Commission and other industrial tribunals. The grounds for dismissal are sometimes generalised and sometimes they have not been disclosed (such as in the case of Tipping). The adequacy, or otherwise, of reasons in support of a termination is a factor to be taken into account by the Commission in assessing whether a termination was harsh, unjust or unreasonable (again, see Tipping). It will be up to the respondent, in the development of its case, to defend the applications. However, save and except for evidence which might fall from a particular witness at the trial there will be no documents, nor other material which the employer relied upon to ground its decision, which will not be known to the applicants by the time that they prepare their witness statements. Further, an opportunity will be provided to the applicants to comment upon the respondent’s witness statements and material prior to the substantive hearing. The Vice President has already issued Directions, dated 13 June 2001, in connection with these matters which will require the applicants to lodge their material in support of their applications by 4.00 p.m. on Wednesday 5 September 2001. The respondent is to lodge its material to be relied upon in the proceedings by 4.00 p.m. on Wednesday 19 September 2001. The applicants are to prepare and lodge their material in reply by 4.00 p.m. on Wednesday 26 September 2001. I note that the time-frame for preparation of the applicants’ material in reply is rather tight having regard to the fact that the respondent is to produce its material by Wednesday 19 September 2001 and that the hearing is to commence in Brisbane on Monday 1 October 2001. On the present time-frame the applicants have only one week to receive the respondent’s material in Cairns and prepare and file a response in Brisbane. In the circumstances, I believe that the conduct of the case will be enhanced all round if additional time is provided to the applicants to respond to the respondent’s material. Accordingly, I propose to advance by one week all of the dates which are set out at points 5 to 10, inclusive, of the Further Directions Order of 13 June 2001. Accordingly, the following will now be the schedule of disclosure, and preparation and lodgement of documents:– 5. That the Applicants supply to the Respondent, by 4.00 p.m. on Friday 3 August 2001, a list of documents in their possession or under their control relevant to a matter in issue in the substantive proceedings. 6. That the Respondent supply to the Applicants, by 4.00 p.m. on Friday 3 August 2001, a list of documents in their possession or under their control relevant to a matter in issue in the substantive proceedings. 7. That the Applicants supply to the Respondent, by 4.00 p.m. on Friday 17 August 2001, copies of those documents contained in the list disclosed which the Respondent requests and for which the Applicants have no legal claim to privilege. 8. That the Respondent supply to the Applicants, by 4.00 p.m. on Friday 17 August 2001, copies of those documents contained in the list disclosed which the Applicants request and for which the Respondent has no legal claim to privilege. 9. That the Applicants supply to the Respondent, and lodge in the Industrial Registry, statement(s) of evidence, from all witnesses to be called (including the Applicants) and which are to be relied upon in the hearings of the substantive matters, by 4.00 p.m. on Wednesday 29 August 2001. 10. That the Respondent supply to the Applicants, and lodge in the Industrial Registry, statement(s) of evidence, from all witnesses to be called and which are to be relied upon in the hearings of the substantive matters, by 4.00 p.m. on Wednesday 12 September 2001. 11. That the Applicants supply to the Respondent, and lodge in the Industrial Registry, any witness statement(s) in reply by 4.00 p.m. on Wednesday 26 September 2001. Save and except for the above enhancement the applicants’ request for further and better particulars of the reasons for termination is refused. The Commission also draws the parties’ attention to paragraph 12 of the Further Directions Order of 13 June 2001. The Commission makes it clear that all material to be relied upon in-chief should be contained in witness statements. It would be the Commission’s expectation that any questions in-chief – if leave to ask them is granted – be limited to matters of clarification only. Special leave will need to be obtained to lead any additional evidence which is not included in the statements. This provision will be especially enforced in the event either party attempts to lead new material which goes to the substance of the matter. -- 2 of 3 -- 6 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr R. Oliver, of Counsel, instructed by Bottoms English, for Mr J. Barton and Ms M. Barton. Ms B. Callaghan, instructed by Ms R. Kinder, for the Environmental Protection Agency. Released: 25 June 2001 -- 3 of 3 --