Ms Anne-Marie Modra v Yirara College of the Finke River Mission Inc

[2010] FWA 2900

[2010] FWA 2900

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Ms Anne-Marie Modra
v
Yirara College of the Finke River Mission Inc
(U2008/7117)

COMMISSIONER CRIBB MELBOURNE, 13 APRIL 2010

Application by applicant to re-open case.

[1] This decision concerns an application by Ms Anne-Marie Modra (the applicant) to re-open her unfair dismissal case against Yirara College of the Finke River Mission Inc (the respondent). The primary application has been formally heard and the decision reserved.

[2] Written submissions were provided by the applicant on 3 February 2010 and, in reply, on 17 March 2010. The respondent filed their material on 1 March 2010.

SUBMISSIONS

Applicant

[3] Ms Modra outlined a number of grounds in support of her application. The first contention was that, at the time of the hearing, there was a misapprehension of the facts in relation to Reverend Doecke’s employment status. It was stated that, since the end of the hearing of the substantive application, Ms Modra had become aware that Reverend Doecke was not on study leave but had been suspended from his employment. The applicant recounted that, after the hearing, she had been told by Mr Simmonds that he had been directed by Reverend Winderlich to say that Reverend Doecke was on study leave.

[4] Ms Modra argued that Mr Simmonds should be given the opportunity to provide evidence to this effect. She submitted that this was relevant to the question of the unfairness of her dismissal as it went to the credibility of Reverend Doecke and showed that the respondent had attempted to mislead the Tribunal. 1

[5] The second basis for the application to re-open the case was that further evidence had become available which was not available at the time of the hearing. It was said that this evidence related to the preferred remedy of reinstatement and any “loss of trust or confidence” on the part of the respondent. 2

[6] The evidence that had become available since the hearing was:

• Reverend Doecke’s employment was terminated in September 2009 and he was, therefore, no longer the Principal of Yirara College. This was said to be critically relevant to any consideration of whether reinstatement was the appropriate remedy. 3



• Mr Kahl, Director of the Lutheran Schools Association, witnessed a conversation during which Reverend Doecke allegedly instructed Ms Synnott to put pressure on the applicant. Mr Kahl’s evidence was sought to be put before the Tribunal as it could therefore be shown that Reverend Doecke was trying to force the applicant out. 4



• The applicant was informed that Reverend Doecke had sent an email to Reverend Winderlich gloating about how much he had hurt the applicant. It was requested that Reverend Winderlich be required to give evidence as it would reflect poorly on Reverend Doecke’s credibility. 5



• The reasons given for the applicant’s dismissal, by Reverend Doecke in a letter to the Northern Territory Teacher Registration Board, are different to those claimed by the respondent in the unfair dismissal case. 6



• A Music Teacher position has been advertised at Yirara College as of Term 2, 2010. This position was said to be almost identical to the applicant’s position prior to the requirement to report to Ms Synnott. This supported the applicant’s preferred remedy of reinstatement. 7

[7] In conclusion, the Tribunal was requested to exercise its discretion and allow the evidence, set out above, to be presented. It was highlighted that this evidence had not been available to the applicant at the time of the hearing of her unfair dismissal case.

Respondent

[8] The respondent opposed allowing the applicant to re-open her unfair dismissal case in order to present the evidence that she was seeking to.

[9] In the absence of any Federal Tribunal authorities on point, detailed decision summaries for 12 Queensland, New South Wales and South Australian Industrial Tribunals and Courts were provided. 8 In addition, a summary of the relevant Federal Court decisions was set out and were said to be binding on the Tribunal. The principles regarding re-opening a case were described as:

• The power to re-open a case must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation.



• The discretion to re-open a case may be exercised where there would otherwise be a denial of procedural fairness due to a party not having had a clear and adequate opportunity to argue its case.



• Re-opening may occur to correct a misapprehension as to the facts or the law.



• A matter is not to be re-opened where there has been no mistaken view of facts or error in law if only for a party to attempt to repeat arguments already made.



• A case is not to be re-opened to allow a party to bring additional evidence which was, on its face, available at the time of the hearing. 9

[10] With respect to the items of evidence contained in the applicant’s submissions of 3 February 2010, it was submitted by the respondent that:

1. Reverend Doecke – study leave

• Mr Simmonds is not part of the management of the College and so is not in a position to know first hand the employment status of Reverend Doecke.

• Reverend Doecke’s employment status is irrelevant to whether the applicant’s dismissal was fair.

• The Tribunal has previously ruled on an application to introduce new evidence beyond what was contained in Mr Simmonds’ witness statement. 10

2. Reverend Doecke – no longer Principal

This is not relevant as the applicant’s dismissal did not result from a personality clash with Reverend Doecke but from her bullying behaviour towards Ms Smith, Ms Synnott and others in the Music Department. 11

3. Mr Kahl’s evidence

It was stated that this was irrelevant to the question the Tribunal had to determine. Further, it was submitted that this may have been the incident which Ms Modra had alluded to during the hearing on 11 August 2009. If this was the case, the respondent stated that the application had already been denied. 12

4. Email from Reverend Doecke to Reverend Winderlich

As the applicant had not disclosed when she became aware of the alleged email, when it was written nor its contents, it was argued that the applicant was engaged in a “fishing expedition”. As well, the respondent contended that the applicant had had the opportunity to seek discovery prior to the hearing. 13

[11] In conclusion, the respondent submitted that the Tribunal should exercise sparingly the discretion to allow re-opening because of the public interest in maintaining the finality of litigation. The respondent argued that this was not a case that justified acting contrary to that public interest because:

• The applicant’s submission that the evidence she seeks to lead (except regarding Reverend Doecke’s move interstate) was not available in August 2009 is incorrect.



• The evidence the applicant seeks to tender is peripheral to the central question of whether the respondent was justified in dismissing the applicant and whether the process was fair.



• The applicant had ample opportunity to present her case over six days of hearing. She had the opportunity via her representative/solicitor to cross-examine Reverend Doecke and Ms Synnott about the matters she now seeks permission to lead.



• Even if it was proved that Reverend Doecke was not on study leave, it is not relevant to the matters the Tribunal has to decide.



• Even if the alleged evidence was not available to Ms Modra at the time of the hearing, it was said to not be sufficiently relevant to justify re-opening the case. 14

[12] In the alternative, if the application was granted, the respondent sought an order that any further evidence or argument should be presented in writing. 15

CONCLUSIONS

[13] I have carefully considered the submissions of the parties regarding the application to re-open the case. In reaching the conclusions set out below I have been guided by the principles which apply to applications such as this one. These principles have been referred to in the submissions of both parties.

[14] The applicant has sought to be allowed to re-open her unfair dismissal case in order to lead evidence regarding a number of matters. I will deal with each of these in turn.

Reverend Doecke’s employment status

[15] The applicant has sought that Mr Simmonds be allowed to give evidence that he had been directed by Reverend Winderlich to say that Reverend Doecke was on study leave when he, allegedly, had been suspended. This basis for this was a misapprehension of the facts and that allegedly the respondent had attempted to mislead the Tribunal.

[16] On the other hand, the respondent argued that Mr Simmonds was not part of the management of the College and so could not have first hand knowledge of this. Secondly, it was contended that this was irrelevant to the question of the fairness of the applicant’s dismissal.

[17] It is acknowledged that a ground for re-opening a case relates to correcting a misapprehension as to the facts or the law. However, with respect to the requirements of section 652(3) of the Workplace Relations Act 1996 (the Act), the facts regarding Reverend Doecke’s employment status at the time of the hearing do not appear to be relevant to the issues the Tribunal is required to decide. Therefore, I am not prepared to exercise my discretion to allow the case to be re-opened in this regard.

Reverend Doecke – no longer Principal

[18] The basis for the applicant seeking to re-open her case to allow for evidence regarding this and the following matters is that further evidence has come to light which was not available at the time of the hearing. It was contended that Reverend Doecke’s departure from the College was relevant as reinstatement remains the applicant’s desired outcome in the case.

[19] It was disputed by the respondent that this was relevant to the applicant’s dismissal as it was said that her termination was not due to a personality clash with Reverend Doecke.

[20] As the Reverend Doecke had not left the College at the time of the hearings, the evidence that is sought to be led, could not have been known to the applicant in August 2009. However, the evidence in the substantive matter does not, in my view, support the applicant’s contention that, with the Principal no longer being at the College, the way is now open for reinstatement. There were other members of staff, particularly Ms Synnott, who did not give positive evidence about the possible reinstatement of the applicant. Therefore, it can be said that, as the negative views regarding the potential for the applicant’s reinstatement went beyond Reverend Doecke, a case has not been made out for allowing evidence to be led on this matter.

Mr Kahl’s evidence

[21] It is not clear from the applicant’s submissions as to when the alleged conversation between Reverend Doecke and Ms Synnott occurred. However, it is reasonable to assume that the alleged directive was given whilst the applicant was still employed by the respondent.

[22] The applicant, therefore, had the opportunity to cross examine both Reverend Doecke and Ms Synnott about any such conversations during the six days of hearing. I have not been persuaded that this alleged evidence was not, on its face, available at the time of the hearing. Therefore, I am not prepared to exercise my discretion to allow Mr Kahl’s evidence to be led in the case.

Email from Reverend Doecke to Reverend Winderlich

[23] The applicant seeks that Reverend Winderlich be required to give evidence about an alleged email he received from Reverend Doecke. There is no indication regarding when the email was sent to Reverend Winderlich and the exact nature of its contents.

[24] I accept the respondent’s view that this aspect of the application is in the nature of a “fishing expedition”. In addition, I have not been persuaded that this evidence “could have a material bearing on the case”. 16 Accordingly, I am not inclined to exercise my discretion to re-open the case to allow this evidence to be led.

Further evidence sought to be led

[25] In the applicant’s submissions in reply, two additional pieces of evidence were sought to be led, over and above the matters contained in the applicant’s initial submissions of 3February 2010. The new matters go to a letter written by Reverend Doecke to the Teachers Registration Board of the Northern Territory (the Board) and the advertising of a position of Music Teacher at the College. The respondent has not requested an opportunity to respond to these additional two items nor has the respondent been asked if they wished to, based on the need to expedite the decision regarding the re-opening application.

Letter to the Teacher Registration Board of Northern Territory

[26] The applicant seeks that the letter of 10 March 2010, written by Reverend Doecke to the Board, be admitted as fresh evidence as it ascribes different reasons for the applicant’s dismissal to those given to the applicant.

[27] The context in which the letter was written appears to be that the Board was seeking clarification of the reasons for the applicant’s dismissal. The letter goes into the background and events over the preceding two years which culminated in the termination of Ms Mora’s employment.

[28] I am not satisfied that the case should be re-opened to allow the letter to be tendered as evidence. It was written approximately five months after the applicant’s dismissal and was written for a different purpose than the applicant’s unfair dismissal case.

Position advertisement

[29] It was the applicant’s contention that the College advertised for a position which is alleged to be almost identical to the one the applicant held prior to the change in the reporting relationship. The basis on which it was argued that this be admitted as new evidence was that it went to the applicant’s preferred remedy of reinstatement.

[30] When considering reinstatement as a possible remedy, except in cases of redundancy, it is not necessarily germane to this consideration as to whether or not there is an existing vacancy. Therefore, I am not prepared to exercise my discretion to re-open the case.

[31] Accordingly, I am not prepared to exercise my discretion to grant Ms Modra’s application to re-open her case with respect to any of the material set out in her application. In reaching this conclusion, I have borne in mind particularly, one of the applicable principles in such matters – that the discretion to re-open a matter must be exercised sparingly having regard to the public interest in maintaining the finality of litigation. Given the particular nature of the substantive matter, I am of the view that this principle is most apt with respect to Ms Modra’s application to re-open her case.

COMMISSIONER

 1   Applicant’s submissions, dated 3 February 2010 at paragraph 1 and Submissions in reply, dated 17 March 2010 at paragraphs 4 - 10

 2   Applicant’s submissions in reply, dated 17 March 2010 at paragraphs 11-13

 3   Applicant’s submissions, dated 3 February 2010 at paragraph 2 and Submissions in reply, dated 17 March 2010 at paragraphs 15 - 16

 4   Applicant’s submissions, dated 3 February 2010 at paragraph 3 and Submissions in reply, dated 17 March 2010 at paragraphs 17 - 18

 5   Applicant’s submissions, dated 3 February 2010 at paragraph 4 and Submissions in reply, dated 17 March 2010 at paragraphs 19 - 21

 6   Applicant’s submissions in reply, dated 17 March 2010 at paragraphs 22 - 25

 7   Applicant’s submissions in reply, dated 17 March 2010 at paragraphs 26 - 27

 8   Respondent’s submissions dated 1 March 2010 at paragraphs 3 - 4

 9   Ibid at paragraph 4

 10   Ibid at paragraph 5.1

 11   Ibid at paragraph 5.2

 12   Ibid at paragraph 5.3

 13   Ibid at paragraph 5.4

 14   Ibid at paragraph 6

 15   Ibid at paragraph 7

 16   Applicant’s submissions, dated 3 February 2010 at paragraph 4 and Submissions in reply, dated 17 March 2010 at Paragraph 20

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