Robert Giarrusso and Transport Union Workers of Australia and Ampol Petroleum (Vic) Pty Ltd

[1994] IRCA 127

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination.

PRACTICE AND PROCEDURE - Adjournment - Application for - Solicitors retained a few days before trial - Representation of employee by union at two directions hearings and conciliation conference - Request for additional time to complete discovery and examine discovered documents - Discovery confined to documents on which parties rely - Preparation time requested - Adjournment opposed - Trial listed with four weeks notice - Details of application and response known from the two directions hearings and the conciliation conference - Unlawful termination claims to be determined quickly - Delays and elaborate preparation associated with major commercial litigation not acceptable - Adjournment refused

Industrial Relations Act 1988, Section 170EA.

Mahnken and Saunders Logging Pty Ltd Case No. TI-109/1994 (unreported).

ROBERT GIARRUSSO AND TRANSPORT UNION WORKERS OF AUSTRALIA
AND AMPOL PETROLEUM (VIC) PTY LTD

No. VI-1126/1994

Before: Ryan JR

Date  29 November 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 1126/1994

B E T W E E N:  ROBERT GIARRUSSO AND TRANSPORT UNION WORKERS OF AUSTRALIA

Applicant

AND:    
  AMPOL PETROLEUM (VIC) PTY LTD
  Respondent

COURT:               J.A. RYAN, Judicial Registrar

PLACE: MELBOURNE

DATE:                   29 NOVEMBER 1994

REASONS FOR JUDGMENT - EX TEMPORE

APPLICATION FOR ADJOURNMENT OF TRIAL

The Court has before it a notice of motion filed yesterday.  The applicants in an action for remedy for unlawful termination of employment seek the following orders

(1)that the hearing of the proceeding, scheduled for 10:15 a.m. on 30 November, 1994, be adjourned.

(2)that the respondent provide the applicant with a list of discoverable documents on or before 6 December 1994.

(3)that the time before which this notice of motion is to be served has been abridged by the Court to one day.

(4)that the matter be fixed for hearing on the next available hearing date (and I take that to be a request for the next available hearing date after 6 December 1994).

Ms. Richards appears for the applicants.  Mr. Mueller appears for the respondent and opposed any adjournment of the hearing.

The history of the matter is as follows:

Robert Giarrusso appears to have been employed by Ampol Petroleum as a driver for seven and a half years from 18 January 1987.

On 11 July 1994, Ampol’s Operations Manager for Victoria and Tasmania signed a letter addressed to Mr. Giarrusso.  The letter

(1)referred to information received on 30 June 1994 suggesting that Giarrusso had at his home a number of Ampol products.

(2)alleged repeated and substantial diversions by Giarrusso whilst driving a company delivery vehicle on company time.

(3)confirmed that Giarrusso had been stood aside on pay during an inquiry during which it was claimed his explanations had been sought and received for identified matters which the company considers serious misconduct.

The matters which were treated by the company as constituting serious misconduct and identified in the letter of 11 July were

(a)unauthorised property of Ampol (Solvent 143) allegedly at Giarrusso’s home.

(b)unauthorised and repeated stops by Giarrusso to complete “personal business” while “on company business and on company time”.  The author of the letter advised that employment “is terminated immediately” i.e. on 11 July 1994.  The letter contains the following statement:

“In reaching a decision I have also taken into account your unsatisfactory record of service”.

On 19 July, 8 days after termination, the Transport Workers Union of Australia, as agent of Robert Giarrusso, lodged an application and supporting affidavit seeking the usual remedies for unlawful termination of employment.

Giarrusso is the first named applicant.  The union is the second named applicant.  Ampol Petroleum (Vic) Pty Ltd is the respondent.

The application when lodged was made returnable for directions on 19 August.  There is no affidavit of the service of the original application on file but Blake Dawson Waldron entered an appearance for the respondent on 18 August and at the directions hearing on 19 August Registrar Morris referred the matter to the Australian Industrial Relations Commission for conciliation and adjourned the directions hearing to 17 October.  The applicants and the respondent were represented at the directions hearing on 19 August.

On 16 September Commissioner Harrison certified that the Commission had been unable to settle the matter by conciliation.

Both applicants and the respondent were also represented at the second directions hearing on 17 October when the Court ordered

(1)the respondent provide to the applicant a list of documents on any surveillance of the applicant upon which it intends to rely at the trial.

(2)the respondent also provide computer printouts of vehicle usage by the applicant relating to the conduct upon which the respondent has relied in termination of the applicant’s employment.(i.e. the first named applicant).

(3)the proceeding be fixed for hearing on 30 November 1994 at 10:15 a.m.  The order notes that the trial is estimated as requiring three days.

The Court’s listings coordinator confirmed the hearing date of 30 November in letters of 20 October.

Exhibit DS1 to the affidavit in support of the notice of motion indicates that the respondent’s solicitors provided a list of documents to the applicants by letter dated 22 November.  The affidavit itself indicates that the applicants’ solicitors, Holding Redlich, only received instructions on Wednesday 23 November and that on receiving instructions a barrister was retained to represent the applicants. The Court notes that, while solicitors may have only been instructed on 23 November and a barrister retained then or soon thereafter, an experienced union has been acting for both applicants from the outset and both applicants were represented by the union at both directions hearings.  The Court also assumes that the union and the first named applicant were represented or appeared at the conciliation conference.

The Court notes and accepts Ms. Richard’s submission that it is the interests of the first named applicant, the former employee, Mr. Giarrusso, which the Court must be particularly careful to protect.  The Court must, of course, consider the interest of both applicants and the respondent but accepts that the interest of the first named applicant should not be prejudiced by the late retention of solicitors by the second named applicant.

Having said that, the Court looks at the grounds for adjournment which, in descending order of importance are

(1)discovery and access to documents said to be crucial to the applicants’ case.

(2)availability of a psychologist to give expert evidence on an issue relating to compensation.

(3)unavailability of the barrister initially briefed by the applicants or, it is said, unavailability of appropriately experienced alternative counsel.

The details are set out in the affidavit in support of the notice of motion and in the accompanying exhibits.

The third ground is given least weight by the applicants.  It is rejected immediately.  Counsel took a brief and then became unavailable.  There are other fish in the sea even at this late stage.

This morning considerable steps were taken to narrow the additional documents still sought by the applicants.  I believe such of those documents as were identified in exhibit DS1 and which are still sought, namely documents in categories 1,4,5,7 and 9, and on which the respondent proposes to rely, will be provided and most or all will be provided by close of business today.  Even if one or more of these documents has not been located and provided by that time, or may not be provided by that time, that does not lead the Court to the conclusion that this matter should be adjourned.  Furthermore, the Court does not accept that the refusal of an adjournment on that basis will prejudice either applicant.  If time is required in the running to examine relevant documents an application can be made to the presiding judicial registrar.

Similarly, the Court does not accept that the very late notice of possible relevant evidence from a psychologist and the question as to the availability of the psychologist justify an adjournment.  The relevance of such evidence and any steps necessary to call it can still be pursued now and during the trial.

Finally, I turn again as I have before to the comments of the Chief Justice and his most senior judge, Northrop J.  They have both indicated that in this very busy jurisdiction of unlawful terminations under Division 3 of Part VI the earliest dates reasonably available should be set rather than allow parties and their representatives to choose later dates (and, I would add, defer hearing dates once set).

While it is necessary to take account of the position of parties and, to some extent, their wishes, prior to fixing trial dates, (and in considering requests for adjournments), if it appears cases can be heard without unfairness (as distinct to mere inconvenience) earlier rather than later dates must be chosen, (and whenever appropriate retained), in the public interest and in the interest of justice.

Parliament clearly intended (by its emphasis on reinstatement) that unlawful termination claims should be determined quickly.  The delays and elaborate preparation accepted in major commercial litigation is not acceptable in these cases.

This position was clearly enunciated  by Northrop J. in Hobart on 30 August 1994 in Mahnken and Saunders Logging Pty Ltd Case No. TI-109/1994 (unreported).  I will not, as has been my wont, quote from that case at length but I will quote (and para phrase) the following

“It should be obvious to the parties what the issues are between them and it is only in the rarest of cases that the Court will give directions as to any further interlocutory steps such as pleadings and further affidavits (and I would add adjournments of listed hearings).  Normally arrangements will be made to have a date fixed for hearing (and retained) as early as possible”.

It follows from what I have said that the motion is dismissed and in particular the application for adjournment for trial scheduled to begin tomorrow at 10:15 a.m. is refused.

ORDER

Motion dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date    :              29 November 1994
Appearances:
Solicitor for the Applicant                 :              Melinda Richards of Holding Redlich
Solicitor for the Respondent             :              Bryan Mueller of Blake Dawson Waldron
Date of Hearing  :              29 November 1994

Judgment  :              29 November 1994.