Esther Vladislavovna Rikkone v New South Wales Masonic Club
[2023] FWC 2782
•24 OCTOBER 2023
| [2023] FWC 2782 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Esther Vladislavovna Rikkone
v
New South Wales Masonic Club
(C2023/3633)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 24 OCTOBER 2023 |
Application to deal with contraventions involving dismissal — jurisdictional objection — whether there was a “dismissal” within the meaning of s.386 of the Fair Work Act 2009 — Applicant resigned - Applicant not forced to resign — no dismissal – no jurisdiction to determine Applicant’s claim — application dismissed.
Introduction
Ms Esther Rikkone (Applicant) has filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Respondent to the Application is the New South Wales Masonic Club (Respondent).
The Respondent raises a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.
At the hearing, the Applicant appeared for herself, and the Respondent was represented by Ms Nicola Shaw, Senior Legal Counsel – Workplace Relations, Clubs NSW, assisted by Ms Lucinda Gramoski, Junior Legal Counsel – Workplace Relations, Clubs NSW.[1]
Materials relied upon
The Applicant relies upon her Affidavit affirmed 14 August 2023 (Exhibit A1), documents emailed to Chambers on 14 August 2023, and her submissions emailed to Chambers on 25 September 2023.
The Respondent relies upon:
a) its written outlines of submission dated 1 August 2023, 28 August 2023 (in reply), 15 September 2023, and 3 October 2023 (in reply); and
b) the Witness Statements of:
i)Ms Sophie Montgomery, Food, Beverage and Gaming Attendant, dated 31 July 2023 (Exhibit R1);
ii)Mr Paul Brasch, General Manager, undated (Exhibit R2);
iii)Mr Raju Banerji, Food and Beverage Attendant, dated 28 July 2023 (Exhibit R3); and
iv)Mr Aaron Eversham, Food and Beverage Manager, dated 1 August 2023 (Exhibit R4).
The Applicant also filed additional submissions by way of email to Chambers dated 18 October 2023. I note that I reserved my decision in this matter on 3 October 2023 (post the receipt of closing reply submissions by the Respondent on that date in accordance with the Amended Directions dated 19 September 2023). I did not grant the Applicant leave to file her additional submissions, and she did not seek such leave.[2] I reject the Applicant’s additional submissions, and have not considered them in this decision. As the High Court said in Re Application by the Chief Commissioner of Police (Vic)[3]:
“Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court.”[4]
The fact that a party in proceedings before the Commission is unrepresented, because of their particular circumstances, or a choice that they themselves have made, does not give license to informality at large, or the throwing of all semblances of practice and procedure out the window. Different members of the Commission may well extend indulgences to unrepresented litigants, but a line needs to be drawn somewhere. Whilst the Commission is not bound by the rules of evidence and procedure, such rules are principles of ‘natural justice’ (that the Commission is required to apply). Indeed, the suggestion that a party who is legally represented ought:
a)be disadvantaged in the manner in which their client’s proceedings are conducted procedurally before the Commission because the person on the other side is unrepresented (and not fully aware or appreciative of the law, procedure and/or the specific case that they have chosen to advance); or
b)incur additional time and costs flowing from on-going indulgences being granted to an unprepared and unrepresented litigant;
is a repugnancy to the proper administration of justice, and a denigration of the whole purpose of legal representation.[5]
In these proceedings, I granted the Applicant numerous indulgences in relation to extensions of time to file materials, and conduct her cross-examinations.[6] I have, however, drawn a line at allowing the Applicant to file additional submissions post reserving my decision, and in the absence of leave being requested or obtained to do so.
Respondent’s Evidence
The Respondent is a not-for-profit registered and licensed club.[7]
The Applicant commenced employment with the Respondent as a casual food, beverage and gaming attendant on 2 June 2023. Her employment came to an end on 15 June 2023. The Applicant worked six casual shifts during her employment with the Respondent (between 7 and 15 June 2023).[8] The sum total of the Applicant’s employment with the Respondent consisted of 12 days employment as a casual employee, whereby she attended the workplace for six shifts, many of which involved induction and/or training.
It was brought to the Respondent’s General Manager, Mr Paul Brasch’s attention, that between 10 and 13 June 2023, the Applicant had:
a) contacted the Club’s front desk on no less than seven occasions in one day looking for the Club’s Operations Manager and seeking his/her contact details (presumably to request front desk shifts); and
b) approached the housekeeping supervisor requesting housekeeping shifts.[9]
The Applicant sought to have a meeting with Mr Brasch on 13 and 14 June 2023, however, Mr Brasch was unavailable.[10]
Post an email exchange between the Applicant and Mr Brasch on 14 June 2023,[11] a meeting was scheduled between the Applicant and Mr Brasch for 12pm on 15 June 2023 (15 June Meeting). Mr Brasch requested that Mr Aaron Eversham, Food and Beverage Manager, also attend the 15 June Meeting.[12]
During the 15 June Meeting, Mr Brasch gives evidence that words to the effect of the following discussion occurred:
Mr Brasch: “Thank you for coming in. Esther, you have knocked on my door a couple of times lately whilst I was in meetings. This is your opportunity to tell me anything you wish to tell me.”
Applicant: “When I commenced Peter [O’Brien] promised me 5-6 shifts per week, I need more hours. I have also noticed dust on skirting boards, I think fresh flowers would be better than artificial flowers. I also wanted to talk about the training program.”
Mr Brasch:“Unfortunately, there is no guarantee of shifts for a casual employee. We roster according to the needs of the Club. I have read your resume and see that you have a strong management background.
I would like to discuss a few issues that other employees have raised to me. In fact, l have never had so many staff come to my office reporting issues about a new employee. Why is this?”
Applicant: “I am very offended by this. Why did you ask me to come in today? I am going then.”[13]
It is noted that Mr Eversham’s evidence as to the discussion that occurred at the 15 June Meeting is consistent with the foregoing evidence of Mr Brasch (i.e. that the Applicant claimed offence when being advised that other employees had raised concerns about her, and stood up and left the meeting stating “I’m going then”).[14] Mr Eversham also gave evidence that he was not aware that the Applicant had resigned at the 15 June Meeting when she got up and walked out, but found out the next day pursuant to being told by other staff members that they had received unsolicited text messages from the Applicant advising them of her resignation.[15]
Post leaving the 15 June Meeting, some three hours later, the Applicant returned to the Respondent’s workplace (unannounced) to drop off or return her work uniform.[16] At this time, Mr Brasch gives evidence as to the following discussion that occurred between himself and the Applicant:
Applicant: “Here is my uniform. I would also like the name and email address of the President of the Club”.
Mr Brasch: “I would like to explain something to you”
Applicant: “I am not interested”. “Just give me his [the President’s] name and email address”.
The Applicant then left the Respondent’s workplace.
I observe three things from the foregoing interaction:
a) Mr Brasch provided the Applicant with an opportunity to clarify her abrupt departure from the 15 June Meeting earlier that day, but the Applicant outright rejected that opportunity.
b) It appears that the purpose of the Applicant requesting the President’s contact details was to make a complaint. In other words, rather than seeking to clarify her employment status with the Respondent’s General Manager (Mr Brasch), the Applicant’s preference was to make a complaint to the President (who holds no apparent hands-on managerial responsibilities at the Respondent’s workplace).
c) The Applicant is not able to attend for work at the Respondent’s workplace absent a uniform. By returning her uniform, the Applicant, by her own hand, prevented herself from returning to shifts at the Respondent’s workplace.
On that same day or the day after (15 and/or 16 June 2023), the Applicant separately texted three of the Respondent’s employees (Mr Peter O’Brien (Operations Manager),[17] Ms Sophie Montgomery (Food and Beverage Attendant)[18], and Mr Raju Banerji (Food and Beverage Attendant)[19]) advising them all that she had resigned from her employment at the Respondent.
On 16 June 2023, the Applicant requested that her fingerprints be deleted from the Respondent’s fingerprint recording system. The effect of such fingerprints being removed is that the Applicant would no longer be able to register (as an employee) when attending or leaving shifts at the Respondent’s workplace.[20]
On 20 June 2023, being five days after the 15 June Meeting, the Applicant requested that she be “restored at work”. After noting that the Applicant’s resignation on 15 June 2023 had been accepted, the Applicant’s request to be restored at work was rejected by way of letter dated 21 June 2023.[21]
Between 15 and 29 June 2023, Mr Brasch received around 25 unsolicited emails from the Applicant which he considered to be at the very least annoying, and at worst harassment. Mr Brasch did not respond to these numerous emails from the Applicant.[22]
Applicant’s evidence
Much of the evidence relied upon by the Applicant is irrelevant to the question of whether or not she was dismissed by the Respondent.
To the extent that the Applicant’s evidence is relevant, as I understand it, she says:
a) the 15 June Meeting was arranged at her instigation to discuss her roster, and the possibility of her also taking up work at the front office, or in the housekeeping department;
b) she was intimidated by Mr Brasch and Mr Eversham at the 15 June 2023 meeting;
c) Mr Brasch advised the Applicant at the 15 June 2023 meeting that she complains too much and that in order to get paid, she will need to return her work uniform;[23]
d) at the 15 June Meeting:
i)Mr Brasch “resigned me” and stated to the Applicant “you gave us no other option”;
ii)Mr Eversham advised the Applicant that she ate during lunch breaks, and perhaps she is a “Russian spy”;
e) the Applicant asked Mr Brasch for a copy of her employment contract (via email and verbally, including at the 15 June Meeting), and was forced to resign (i.e. dismissed) because of that request;[24]
f) the Applicant was fired by Mr Brasch at the 15 June Meeting, and Mr Brasch closed his door in the Applicant’s face;[25]
g) after asking to be reinstated, the Applicant was told, in writing, that she would not be able to wear a skirt to work (referring to the letter dated 21 June 2023 contained at Annexure ‘F’ of Exhibit R2, in relation to the Respondent’s uniform requirements, i.e. male and female staff are to wear pants);
h) during her employment with the Respondent, and in the lead up to her dismissal, the Applicant was subjected to “mobbing, work-place harassment and intimidation, violation of privacy laws, deformation (sic) of the name laws, employment work, health and safety laws, privacy laws, human rights, sexual harassment and harassment, coercion, adverse actions, misinterpretation, religious and racial intolerance, and I have been forced to resigned (sic) without President of the club stood up into the situation. I have not bee (sic) provided with documents I requested or policies”; and
i) the Applicant “was forced to resign by Mr Brasch who asked [her] to bring a uniform to get paid, in the meeting [15 June Meeting] with Mr Eversham”.[26]
Legislation and case law
Section 386(1) of the Act reads:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.[27]
Under s.386(1)(b) of the Act, a forced resignation occurs where an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was forced by their employer.[28] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[29] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the objective probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee.
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately accept the resignation (without question) and act accordingly.[30] Further, once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn prior to acceptance by an employer – the employer must always consent to its withdrawal.[31]
Respondent’s submissions
In summary, the Respondent submits that the facts and circumstances of this case clearly identify that:
a) the Respondent did not terminate the Applicant’s employment at its own initiative;
b) the Respondent, objectively, played no part in the cessation of the Applicant’s employment;
c) the actions of the Respondent, on any analysis, cannot be interpreted as having the probable result of bringing the Applicant’s employment to an end;
d) the assertion that the Applicant was given an ultimatum, that she would need to resign and return her uniform to be paid, is not made out on the evidence, and false;
e) as at the time that the Applicant’s employment ceased with the Respondent, the Applicant had other choices or options open to her (i.e. other than resignation);
f) the Applicant resigned of her own initiative, and subsequently confirmed this decision by her own actions and conduct post her resignation, including by reference to her interactions with other staff members whereby she openly confirmed her resignation to them, returned her work uniform, and asked for her fingerprints to be deleted from the Respondent’s electronic fingerprint sign-in system; and
g) the evidence does not support any suggestion that the Applicant resigned in the ‘heat of the moment’. Importantly, the Applicant’s conduct post the 15 June Meeting only confirms the voluntary nature of her resignation.
Applicant’s submissions
The Applicant makes a number of submissions, assertions and claims in these proceedings that are either irrelevant, or not supported by evidence. Further, some of her submissions might be best characterised as encompassing matters of mystery, conspiracy, and intrigue.[32]
For the purposes of these proceedings, relevantly, the Applicant’s core contention is that Mr Brasch told her that he would ‘resign her’ on the spot at the 15 June Meeting (i.e. dismiss the Applicant, but label it as a resignation). The Applicant says that post this dismissal, and consistent with same, Mr Brasch advised the Applicant that if she wanted to get paid for the shifts she had worked (but not yet been paid for), she would need to return her uniform to the workplace. Accordingly, says the Applicant, because she wanted and needed to be paid, she had no choice but to accept her dismissal (labelled as a resignation) and return her work uniform to the Respondent’s workplace some three hours after the 15 June Meeting.[33]
Applicant’s objections to Respondent’s evidence
The Applicant made various submissions objecting to the witness statements and/or evidence of each of the Respondent’s witnesses. In short, such objections evolve around:
a) the Respondent’s witness statements not being in executed affidavit form;
b) the Respondent’s witnesses not having personally written their own statements; and/or
c) the Respondent’s witnesses being told or required (by management) to give the evidence they gave because of a fear of repercussions (e.g. job loss, or diminished roster opportunities).
In rejecting each and every objection or complaint made by the Applicant in relation to the evidence of the Respondent’s witnesses, I make the following points:
a) affidavit evidence is not normally required to be filed by parties to proceedings before the Commission, but it will be a matter for each Commission member in that regard. In this case, I took the approach that parties are able to file written witness statements, which are then adopted by the relevant witness under oath in the witness box, meaning that their written witness statement evidence becomes sworn testimony (that can then be tested under oath via cross-examination);
b) the fact that a representative (legal or otherwise) may draft a witness statement on instructions, or assist a witness to draft their witness statement, and then have the witness review that draft and make relevant amendments (deletions or additions) to arrive at an ultimate final form witness statement, is wholly unextraordinary. There is no rule or requirement that a witness, or a deponent to an affidavit, be its handwritten or typed author. What matters is that the relevant witness (or deponent) adopts his or her witness statement evidence (set out in a written form) as true and correct to the best of their knowledge and belief (i.e. based upon what that witness themselves saw, heard or otherwise perceived); and
c) the Applicant’s assertions that the Respondent’s witnesses were somehow forced or coerced to give evidence, or to give specific evidence (including false evidence), is unsupported by, and/or contrary to, the evidence of such witnesses. Indeed, each of the witnesses specifically rejected such claims during cross-examination.[34]
The Applicant also asserted that certain evidence in the proceedings, such as text messages she sent to other employees, was prohibited from disclosure or use in these proceedings on the basis that such disclose or use would breach the Privacy Act 1988 (Cth) (Privacy Act). The Applicant referred me to no specific provision of the Privacy Act, or any case law, in support of this contention. The difficulty with the Applicant’s submission is that the Privacy Act does not apply to information that is used in proceedings before the Commission.[35] Rather, other fair work statutory provisions and non-publication powers of the Commission apply to this information. It is thus apparent that the Applicant has absolutely no foundation for the submissions she has made regarding the Privacy Act, and her contentions in this regard must therefore be rejected as baseless.
Witness credibility
When a decision-maker makes findings of credit concerning a witness, elaborate detail for such findings are not required, and a detailed explanation for a decision to prefer the evidence of one witness over that of another is not required.[36]
Having had the opportunity to view and assess Mr Basch, Mr Eversham, Ms Montgomery and Mr Banerji, during their respective cross-examinations under oath, I find them each to be witnesses of truth. In my view, each of the Respondent’s witnesses gave straight forward, no nonsense, factual and impartial answers to the questions that were asked of them.
Having had the opportunity to view and assess the Applicant during her cross-examination under oath, I find her to be a most unimpressive and unreliable witness. In this regard, during cross-examination by Ms Shaw, I find that the Applicant:
a) at times displayed a misplaced and unjustified sense of outrage and entitlement when answering questions;[37]
b) was unable to, or had real difficulty in, accepting or responding to criticism;[38]
c) was prone to providing long winded speeches about irrelevant issues when responding to questions;[39]
d) made allegations in her answers to questions that were completely unsupported by any evidence;[40]
e) repeatedly sought to argue with, and talk back to the cross-examiner, Ms Shaw, including by way of indirect slander and false innuendo;[41]
f) was unable to provide direct answers to basic or straightforward questions, or sought to change the subject to matters of irrelevance;[42]
g) provided answers to questions that were never asked of her;[43]
h) claimed to have forgotten whether she sent resignation text messages to Ms Montgomery and Mr Banerji, and even when confronted with the evidence of such text messages in the witness box (which she claimed not to have read or seen, despite such evidence forming part of the witness statements and submissions that had previously been served upon her), was still unwilling to confirm that she was the author of such text messages;[44] and
i) openly sought to make accusations and allegations against the Respondent, its workplace premises, and its staff, that were nonsensical and/or without evidentiary foundation.[45]
In view of my findings in paragraphs [35] to [36] above, to the extent that there is any contest between the evidence of the Applicant, and the evidence of any of the Respondent’s witnesses, I have preferred the evidence of the Respondent’s witnesses.
Findings and Consideration
In limiting my findings in this matter to the evidence and submissions of the parties that are necessarily relevant to the determination of the jurisdictional objection raised by the Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general proposition or approach of ‘confinement’ stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[46]:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[47]
Mr Brasch’s evidence was completely unchallenged during cross-examination. The Applicant was provided with an opportunity to cross-examination Mr Brasch, however, she was unable to direct herself to relevant issues or questions. Ultimately, I stopped the Applicant’s cross-examination of Mr Brasch on the basis that, despite multiple objections and requests for her to return to the relevant subject matter of the proceedings, she simply refused, or was incapable of doing so.[48]
Mr Eversham’s evidence was also unchallenged during cross-examination.[49] Again, it was necessary for me to stop the Applicant’s cross-examination of Mr Eversham as the Applicant was again unwilling (or unable) to direct her questioning to relevant issues.[50]
The evidence of Ms Montgomery and Mr Banerji was uncontested to the extent that they each received an unsolicited text message from the Applicant on 15 or 16 June 2023 stating that the Applicant had resigned from her employment with the Respondent.
On the basis of the evidence relied upon by the parties, I make the following findings:
a) The Applicant attended the 15 June Meeting with Mr Brasch and Mr Eversham.
b) During the 15 June Meeting, Mr Brasch raised with the Applicant concerns that had been raised with him by other staff members as to the Applicant’s conduct and actions in contacting the front desk and housekeeping department.
c) The Applicant took offence to these concerns being raised with her, and abruptly stated “I am going then”, and walked out of the 15 June Meeting.
d) To the extent that the Applicant in her evidence asserts that Mr Brasch dismissed her at the 15 June Meeting, by “resigning me”, I reject the assertion. It is wholly contrary to the evidence of Mr Brasch and Mr Eversham as to what actually happened, and what was discussed, at the 15 June Meeting.
e) To the extent that the Applicant in her evidence asserts that Mr Brasch said to the Applicant at the 15 June Meeting that if she wants to get paid she will need to return her uniform, I reject the assertion. It is wholly contrary to the evidence of Mr Brasch and Mr Eversham. Indeed, Mr Eversham’s evidence is that he only (relevantly) witnessed the Applicant getting up and walking out of the 15 June Meeting. He is clear that there was no discussion (at all) about returning uniforms at the 15 June Meeting.
f) The Applicant’s decision to cease her employment with the Respondent was confirmed by the Applicant herself:
i)in her text messages stating that she had resigned to Ms Montgomery, Mr Banerji and Mr O’Brien;
ii)in returning her work uniform to the Respondent; and
iii)in requesting that her fingerprint data be deleted from the Respondent’s electronic fingerprint system.
g) The Applicant had every opportunity to clarify her employment status with Mr Basch on 15 June 2023 when she returned her uniform. She chose not to take up this opportunity on 15 June 2023, or thereafter.
In the events that had happened, there was no requirement or obligation upon the Respondent to acceded to the Applicant’s request (made in writing on 20 June 2023) that she be “restored” to work. The Applicant had made her decision to leave the employment of the Respondent, and she could not alter the effect of that decision absent the mutual consent of the Respondent (which the Respondent did not consent to).[51]
The Applicant’s employment with the Respondent ended at the hand of the Applicant herself. The manner in which the Applicant’s employment with the Respondent came to an end was not a termination at the Respondent’s initiative, nor was it a forced resignation. Any suggestion of a heat of the moment resignation evaporates having regard to the Applicant’s intentional acts in advising other employees of her resignation, returning her uniform, and requesting that her fingerprints be deleted from the Respondent’s electronic fingerprint system. The Applicant had ever opportunity to reassess her decision to end her employment with the Respondent post the 15 June 2023 meeting, but instead chose (by her own actions) to reaffirm her decision to leave.
The evidence in this matter does not support the core contention of the Applicant that she was told to resign and/or return her uniform, or that she would not be paid for shifts she had worked if she did not do so immediately. I find these contentions by the Applicant to be false.
I am unable to identify (on the evidence before me) any conduct of the Respondent that can be described as demonstrating an intention to bring the Applicant’s employment to an end. I am equally unable to identify any conduct of the Respondent (on the evidence) that might be said to bring about a “probable” end to the Applicant’s employment. In my view, it was not “probable” that the Applicant would resign in response to a concern being raised with her at the 15 June Meeting. Such concerns were legitimate, and Mr Brasch had every right to raise them with the Applicant at the 15 June Meeting (or at any other time).
The Applicant’s assertions that she has been intimidated, mobbed, discriminated against, harassed, and coerced at the Respondent’s workplace (by any of the Respondent’s employees) hold no evidentiary foundation whatsoever. They are unfounded and nonsensical allegations designed to pollute these proceedings with scandal. I completely reject them.
In view of my findings and conclusions at paragraphs [39] to [47] above, the Applicant has failed to prove that she was forced to resign from her employment with the Respondent, and has failed to bring any evidence to counter the Respondent’s evidence that she voluntarily left her employment. In the ultimate sense, I find that the Applicant was not forced to resign by the Respondent, and was not otherwise “dismissed” by the Respondent within the meaning of s.386(1)(a) or (b) of the Act.
Conclusion
Given that I have found that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no jurisdiction (or power) to proceed any further with the Applicant’s case. I will therefore issue an Order dismissing the Applicant’s Application, which will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant (Ms Esther Rikkone) appeared for herself.
Ms Nicola Shaw, Senior Legal Counsel – Workplace Relations, Clubs NSW, assisted by Ms Lucinda Gramoski, Junior Legal Counsel – Workplace Relations, Clubs NSW, appeared for the Respondent.
[1] The Respondent is a member of Clubs NSW (cf. s.596(4) of the Fair Work Act 2009).
[2] See email from Chambers to the Applicant titled “RE: C2023/3633 - Ms Esther Vladislavovna Rikkone v New South Wales Masonic Club”, dated 19 September 2023 (11:32am), copying in the Respondent and its representatives, and attaching Amended Directions dated 19 September 2023. This email is in response to the email from the Applicant to Chambers dated 18 September 2023 (10:30am). The medical certificate provided by the Applicant (as an attachment to her email dated 18 October 2023, 8:47pm) covers the period 16 October 2023 to 29 October 2023. In other words, the Applicant has filed her additional submissions in the period directly covered by the medical certificate. Further, the medical certificate only states that the Applicant is “unable to attend work” due to an unspecified and unidentified medical condition – it does not state that the Applicant is unfit or incapacitated.
[3] (2005) 214 ALR 422; [2005] HCA 18.
[4] Ibid, at [54]. See also Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1980) 147 CLR 246.
[5] The Commission’s website (running 24/7) has a wealth of information going to the preparation and filing of applications, evidence and submissions, as well as the manner in which proceedings are to be conducted before the Commission. In determining to grant an indulgence to an unrepresented litigant, the fact that this information is easily accessible and publicly available to all persons (including unrepresented litigants), ought not be ignored, minimalised or diminished without good reason.
[6] Transcript, PN693-PN695, PN701, PN793, and PN816. See also emails from Chambers to the Applicant dated 17 August 2023 (11:12am) and 19 September 2023 (11:32am).
[7] Exhibit R2, at [13].
[8] Ibid, at [20].
[9] Ibid, at [23]-[27].
[10] Ibid, at [28]-[30]. See also Email from the Applicant to Mr Brasch, 14 June 2023 (14:14).
[11] Ibid.
[12] Exhibit R2, at [31]. Exhibit R4, at [11].
[13] Ibid, at [32].
[14] Exhibit R4, at [12]-[14].
[15] Transcript, PN539-PN541 and PN546.
[16] Exhibit R2, at [33]. Transcript, PN714.
[17] Exhibit R2, at [37]-[39]. See also Exhibit R2 at [4] (incorrectly numbered as [4], being the paragraph after paragraph [35]), and Exhibit R4, at [15].
[18] Exhibit R1, at [9]
[19] Exhibit R3, at [12]-[14]. Albeit Mr Banerji refers to the date of the text from the Applicant advising him of her resignation to be 16 June 2023.
[20] Exhibit R2, at [35], and Annexure ‘F’. Transcript, PN716-PN717.
[21] Ibid, at [40], and Annexure ‘F’.
[22] Ibid, at [41]-43].
[23] Albeit note, Transcript, PN247, where the Applicant says that Mr Eversham (not Mr Brasch) stated to her that she asks too many questions.
[24] Email from Applicant to Lucy Lui, date unknown, identified as p.48 (last paragraph) of Exhibit A1, Annexure “ER01”.
[25] Email from the Applicant to President of Masonic Club and others, 15 June 2023 (17:31), identified as p.47 of Exhibit A1, Annexure “ER01”.
[26] Email from the Applicant to Ms Shaw of the Respondent, 11 June 2023 (21:04). Transcript, PN714.
[27] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[28] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680.
[29] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47].
[30] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16].
[31] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[32] See, for example, Transcript PN460, PN504, PN509, PN530, PN543, PN560, and PN562.
[33] Transcript, PN665-PN669, PN679-PN682, and PN771.
[34] Transcript, PN76-PN95 (Ms Montgomery), PN259-PN293 (Mr Brasch), PN349-PN360 and PN367-PN398 (Mr Banerji), PN502-PN503 (Mr Eversham).
[35] See, for example, Australian Privacy Principle 6, found at Schedule 1 of the Privacy Act 1988 (Cth).
[36] Sweeney v He [2023] NSWCA 68, at [182] per Brereton JA, applying Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[37] Transcript, PN683-PN684, and PN733.
[38] Ibid, PN733.
[39] Ibid, PN733-PN735.
[40] Ibid, PN184, PN460, PN504, PN509-PN511, PN543.
[41] See, for example, Transcript, PN682-PN685, PN718-PN719, and PN757.
[42] Transcript, PN628-PN630, PN716-PN725, PN734, and PN739.
[43] Ibid, PN637, PN640, PN657, PN660-PN662, PN671, PN685-PN686, PN693-PN695, PN701, PN709, PN734, PN737, PN749, PN757, PN779, and PN783.
[44] Ibid, PN686-PN709.
[45] Ibid, PN715, PN765, and PN770.
[46] (2006) 229 CLR 577.
[47] Ibid, at 634, [172].
[48] Transcript, PN162-PN324.
[49] Albeit Mr Eversham did get somewhat confused by dates: Transcript, PN569-PN578, and further clarified in re-examination, at PN600-PN602.
[50] Transcript, PN466-PN597.
[51] See paragraph [27] of this decision and the authorities cited therein.
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