Sharma v State Rail Authority of NSW
[1996] IRCA 493
•01 October 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 5047 of 1995
NI 1277 of 1996
NI 1274 of 1996
NI 1273 of 1996
BETWEEN:
Sharon SHARMA
Applicant
Yongky SALIM
Applicant
Sam HAYDAR
Applicant
Shally PRASAD
Applicant
AND
STATE RAIL AUTHORITY OF NSW
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 1 OCTOBER 1996
CORRIGENDUM
Disregard decision number 493/96, and replace with attached document.
J A Liston
Legal Assistant to
Judicial Registrar Tomlinson
22 October 1996
DECISION NO:493/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Unfair dismissal - employees previously had brought proceedings before the Transport Appeals Board - ESTOPPEL - whether cause of action estoppel or issue estoppel - whether ADEQUATE ALTERNATE REMEDY - ONUS OF PROOF - whether employees accorded PROCEDURAL FAIRNESS
Industrial Relations Act 1988 (Cth) ss 170 EDA, 170 DC
Transport Administration Act 1988 (New South Wales) ss 56, 58
Transport Administration Act 1988 - Regulation (1995) cl 12, 13, 14, 15, 16
Transport Appeal Boards Act 1980 (NSW) ss 16, 23, 24
Pastras v Commonwealth (1961) 61 SR 305
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Eljazzar v BHP Iron Ore Pty Ltd [1996] 65 IR 40
Trawl Industries of Australia Pty Ltd (In liquidation) & Ors v Effem Foods Pty Ltd [1992] 36 FCR 406
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Nicholson v Heaven and Earth Galleries Pty Ltd [1994] 1 IR 199 at 209
The AWU-FIME Amalgamated Union v Queensland Alumina Limited, Moore J, Industrial Relations Court of Australia, 14 July 1994, (Unreported)
SHARMA & Ors -v- STATE RAIL AUTHORITY OF NSW
NI 5047 of 1995
Before: TOMLINSON JR
Place: SYDNEY
Date 1 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 5047 of 1995
NI 1277 of 1996
NI 1274 of 1996
NI 1273 of 1996
BETWEEN:
Sharon SHARMA
Applicant
Yongky SALIM
Applicant
Sam HAYDAR
Applicant
Shally PRASAD
Applicant
AND
STATE RAIL AUTHORITY OF NSW
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 1 OCTOBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
That the applications of Sharan Sharma, Yongky Salim, Sam Haydar and Shally Prasad be dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 5047 of 1995
NI 1277 of 1996
NI 1274 of 1996
NI 1273 of 1996
BETWEEN:
Sharon SHARMA
Applicant
Yongky SALIM
Applicant
Sam HAYDAR
Applicant
Shally PRASAD
Applicant
AND
STATE RAIL AUTHORITY OF NSW
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 1 OCTOBER 1996
REASONS FOR DECISION
These matters were listed for hearing for 3 days commencing Monday 30 September 1996. The 4 applicants were formerly employees of the NSW State Rail Authority and had been employed as Revenue Protection Officers. As such they were responsible for the collecting of unpaid train fares and for the accounting of same to their employer the respondent. Each of the 4 applicants was dismissed for misconduct on or about November or December 1995 for failing to account for fares so collected. Prior to commencing proceedings in this Court the 4 applicants had lodged appeals with the Transport Appeals Board seeking reinstatement in respect of the dismissals and subsequently and further sought a review of the Board’s decision through the appropriate channels. None of those proceedings succeeded and so proceedings were commenced in this Court.
By consent and upon the application to the Court Mr Reitano on behalf of the respondent stated it was agreed that the jurisdictional issue of estoppel should be dealt with as a preliminary matter. Tendered as exhibits were files relating to each of the applicants. Exhibit 1 was the file of the respondent relating to Mr Haydar, exhibit 2 was the file of the respondent relating to Ms Prasad and exhibit 3 was the file of the respondent relating to Mr Salim and Ms Sharma. The Court was advised that each of the files had been prepared and assembled in a similar fashion. Under the tab marked “Disciplinary Papers” each file contained the respective charges wherein it was alleged each of the applicants had collected cash fares from various passengers and then had failed to remit those specified fares to the respondent. Each charge had been signed by each applicant and that signature witnessed.
Admitted as exhibit 4 was a folder entitled “Transport Appeals Board Transcript and Decision” that contained the transcript of the 3 day hearing that began on 7 February 1996 of the charges before the Transport Appeals Board together with the decision of that Board dated 9 February 1996. Mr Reitano advised the Court that the material led by the respondent, the SRA in the proceedings, before the Transport Appeals Board was listed on page 2 of the transcript of proceedings and was the same material that had been tendered in exhibits 1, 2 and 3. That material was identified as being:
* Exhibit # 1 Disciplinary papers in respect of the appeal of Mr Salim, tendered admitted without objection.
* Exhibit # 2 Disciplinary papers in respect of the appeal of Mr Haydar admitted without objection.
* Exhibit # 3 Disciplinary papers in respect of the appeal of Ms Prasad tendered, admitted without objection.
* Exhibit # 4 disciplinary papers in respect of the appeal of Ms Sharma tendered, admitted without objection.
* Exhibit # 5 Folder documents containing records of interview and various statements folder in respect of Mr Salim, tendered, admitted without objection.
* Exhibit # 6 Folder documents containing records of interview and various statements, folder in respect of Ms Prasad tendered, admitted without objection.
* Exhibit # 7 Folder documents containing records of interview and various statements, folder in respect of Ms Prasad tendered, admitted without objection.
* Exhibit # 8 Folder documents containing records of interview and various statements, folder in respect of Ms Sharma tendered, admitted without objection.
It was the contention of Mr Reitano that each of the applicants gave evidence to the Transport Appeals Board in their own cases and that in the judgment given by the Tribunal on 9 February 1996 each of the appellants is named individually. That judgment states inter alia:
“The Board has carefully considered all of the evidence and submissions of Mr Martin and Mr Reitano on behalf of the parties in these matters.
The four appellants, who are all employed by the SRA as Revenue Protection Assistants, have been charged with breaches of the SRA’s code of conduct in respect of the manner in which they dealt with monies paid by them by passengers who had completed their journeys without a ticket. Most seriously, it is alleged they failed to remit the monies they received to the SRA.
The evidence establishes, that following information they received, the SRA employed a number of private investigators to take part in an operation to check whether several suspected employees, including these four appellants, were properly carrying out their duties. The evidence from the private investigators, contained in the documents conducted in the SRA’s case and provided by oral testimony of the investigators called, satisfies the tribunal that at the times and places specified in the particulars of the charges, the investigators paid sums of money to the appellants and did not receive a receipt for such money. It is not really in dispute that the persons who received these monies on the dates mentioned were in fact the appellants who were on duty at the time.”
It was the submission of Mr Reitano that subsequent to the Board findings the appellants appealed back to the SRA. A slight exception was noted in the case of Ms Sharma. The Transport Administration Act 1988 (New South Wales) s 56 Pt 7 Div 1 deals with Staff of State Rail Authority and provides:
“The State Rail Authority may employee such staff as it requires
to exercise its functions.”
Regulations relating to staff is dealt with in s 58 and provides:
“58.(1) The regulations may make provision for or with respect to the employment of the staff of the State Rail Authority, including the conditions of employment and the discipline of any such staff.
(2) Any such regulations relating to the conditions of employment or the discipline of staff:
(a) **
(b) **
(c) may provide for appeals by members of staff in connection with their employment, including appeals to a Transport Appeal Board constituted under the Transport Appeal Boards Act 1980.”
Clause 12 of the Transport Administration Act 1988 -Regulation (1995 - No 526) sets out the punishments that the SRA may impose in disciplinary proceedings. Clause 13 provides for the suspension of an SRA office pending disciplinary proceedings and clause 14 deals with the position where SRA officers are convicted of serious criminal offences. Clause 15 covers disciplinary appeals to the Transport Appeal Board and regulation 16 provides:
“An SRA officer may appeal to a Transport Appeal Board against:
(a) a decision of the SRA to impose a punishment referred to in clause
12 (1) (b)-(e) in disciplinary proceedings against the officer; or
(b) a decision to temporarily suspend the officer under clause 13.”
It was the contention of Mr Reitano that this clause brings into play the Transport Appeals Board Act of 1980. Ss 5 to 12 inclusive, dealing with the constitution of the Transport Appeals Board. S 13 and following in Pt III deals with appeals, and time for hearing. S 16 provides;
“16. (1) At the hearing of an appeal by a Board, the employer’s
case shall be presented first.”
S 17 deals with evidence, and s 18 with discovery of documents, attendance of witnesses. S 20 provides for the parties to be represented, and it is noted that at the Board hearing the applicants were represented. S 23 provides as follows:
"23. (1) A Board may confirm or modify any decision appealed against
or make any such order as it thinks fit.
(2) Except as provided in section 24, a decision of a Board shall
be final and conclusive.”
S 24 provides for the appeal path from that decision to be back to the SRA. Sub-section 2 provides that the Commissioner for Motor Transport may hear, confirm, modify or otherwise determine an appeal made to it or him under the section. Sub-section (3) states:
“24. (3) A decision of an Authority of the Commissioner of Motor
Transport made under subsection (2) shall be final and conclusive.”
The essence of the submission of Mr Reitano on behalf of the respondent that the sole basis of the dismissals remained the same - that that basis for dismissal was in fact a valid reason for termination and to that end the same evidence would be relied upon in the proceedings before this Court. The valid reason for the dismissals arose from the same factual matrices. The applicants were similarly seeking the same remedy - reinstatement, as they sought before the Board. On that basis the respondent submitted the applicants were estopped from bringing proceedings in the Industrial Relations Court - first on the basis that they were Cause of Action Estopped and in the alternative the doctrine Issue Estoppel prevented them from proceeding. Mr Reitano submitted that the juridical bases for the submissions were the same - that there has to be an end to litigation and secondly that no-one should be harassed twice for the same cause.
Mr Reitano relied on “Cross of Evidence” Chapter 3 para [3.2] that provides:
“The principles underlying estoppel by record are interest rei publicae ut sit finis litium (it is for the common good that there should be an end to litigation), and Nemo debet bis vexari pro eadem causa (no one should be harassed twice for the same cause). The practical consequence is that, generally speaking, the order of a court of competent jurisdiction is conclusive...”
Section [3.5] deals with the effect of judgments on parties in civil cases and points out that with issue estoppel there must be a final judgment before a competent tribunal between the same parties litigating in the same capacity or their privies. Cross goes on to state that the essential characteristic of a final judgment is that it determines finally the dispute between the parties and that an interlocutory proceeding will not suffice.
Mr Reitano submitted the tribunal must be a competent tribunal and cited Pastras v Commonwealth (1961) 61 SR 305, where Lush J considered the proceedings before the Commonwealth Commissioner for Employees Compensation and stated:
“The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal should not be able to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity of presenting evidence and argument, it seems to me that there is not room for the operation of this principle.”
Mr Reitano submitted, the Board in question before the court in the case involving the SRA was entirely similar with the tribunal in the case of Pastras when the nature of the relative Tribunals was considered Cross at [3.7] further provides:
“Gibbs J in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353) emphasised that the court should not be distracted by too fine an examination of the status of the tribunal in question, of the extent to which it exercises judicial functions, or of whether its status is judicial or administrative:
‘The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived by Statute or from the submission of the parties, and it has only temporary authority to decide a matter ad hoc.”
Mr Reitano referred to Cross and stated with the doctrine of estoppel in relation to both res judicata and issue estoppel there must be identity of parties and secondly there must be identity of issues. Identity of parties, Mr Reitano submitted, has been considered in this Court by Madgwick J in Eljazzar v BHP Iron Ore Pty Ltd [1996] 65 IR 40. In Eljazzar’s case the title was “The Australian Workers Union West Australian Branch Industrial Union of Workers v BHP Iron Ore Pty Ltd” and at p 42 his Honour stated that he had no doubt that Mr Eljazzar was “a party” to the proceedings. Mr Reitano submitted that with the case of the SRA before the Court the evidence was overwhelmingly the other way: the proceedings to hand were in the individual names of the applicants and that it was important to note that Madgwick J found the doctrine of res judicata relevant to this jurisdiction.
With regard to the requirement of identity of issues Mr Reitano relied on the judgment of Gummow J (as he was then) in Trawl Industries of Australia Pty Ltd (In liquidation) & Ors v Effem Foods Pty Ltd [1992] 36 FCR 406, a case where proceedings were first instituted in the Supreme Court and then subsequently brought in the Federal Court. At Point 6 his Honour held:
“ The respondent made out a cause of action estoppel against Trawl because:
(i) regard should be had to substance rather than form; and, as a matter of substance, Trawl sought to attack the respondent again on a corresponding cause of action;
(ii) the same evidence would be led by Trawl in both actions; and
(iii) there was a single factual matrix.”
In reaching his decision, at p 409 his Honour states:
“The evidence before me, tendered without objection, included the pleadings and transcript of the trial before Cole J, the reasons for judgment of Cole J and the Court of Appeal, and a number of witness’ statements tendered at the trial.”
Further, at p 412 in dealing with Res Judicata, his Honour states:
“To make out estoppel per rem judicatam of “cause of action estoppel”, it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is identity of parties and of subject matter or “cause of action”: see Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 909- 910, per Lord Reid."
At p 418 his Honour stated that
“It is said that for the (cause of action) estoppel to operate, the cause of action in each proceeding must be the same...the phrase “cause of action” is used imprecisely and in several senses. These include:
(i) the series of facts which the plaintiff must allege and prove to
substantiate a right to judgment;
(ii) the legal right which has been infringed;
(iii) the substance of the action as distinct from its form.”
Gummow J then deals with the pleadings in Trawl case where at p.422 it is stated:
“What emerges from this review of the matter in broad terms is that in the present proceeding Trawl seeks to recover a loss measured in the same way and in the same quantum as it did on the trade practices claim it propounded in the Supreme Court proceedings.”
In summary Mr Reitano submitted on the bases of the above authorities that the respondent the SRA was entitled to rely on cause of action estoppel as all necessary elements had been made out - ie there had been a previous final finding of a competent Court - that the cause of action was similar and that there was identity of parties. Further on behalf of the respondent it was submitted that the parties by their own actions in pursuing the Transport Appeals Board to the finality that they had had precluded themselves from the option of an adequate alternative remedy.
Mr Wallace on behalf of the four applicants resisted the application to dismiss for two reasons. First, s 16 of the Transport Appeal Boards Act, 1980, provides, as indicated earlier, that at the hearing of an appeal by a Board, the employer’s case shall be presented first. The Industrial Relations Act provides that the onus is on an employer to show that there existed a valid reason for the termination and the Transport Appeal Boards Act may not allow for the employer to discharge its mandatory burden. I agree with the submission of Mr Reitano in reply that the onus of proof is not relieved by alteration of which party presents its case first. In support of that finding I cite the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, where his Honour stated:
"When this matter was heard, I had not published my reasons for judgment in Johns v Gunns Ltd, 18 May 1995. In those reasons, I expressed the opinion that in cases where these issues arose particularly where, as here, the employment and termination were not in issue, because of the effect of s 170EDA of the Act, the employer should commence by presenting its case to establish a valid reason or valid reasons for the termination. After the issues had been identified in the present case, the Court suggested that the respondent should call its evidence first. the parties were ready to do this so the Court adopted the customary procedure, I shall refer to this matter later, but it would be helpful if in all cases under section 170 EA of the Act, the Court, either at the directions hearing after the commission conference or when the matter comes on for hearing, should direct the parties to identify the issues raised and determine which party should begin. This should be the party who has the immediate evidentiarly onus of proof. The Court should ignore issues which appear to be not genuine In the absence of appropriate Rules of Court on this matter, the general adoption of this procedure should result in the more efficient and speedy resolution of the application before the Court and would relieve the applicant from leading evidence in the attempt to prove the reasons of an employer for terminating the employment, those reasons being solely within the knowledge of the employer.”
Mr Wallace further argued that Div 3 of Pt VI of the Act sets out to give effect to Schedule 11 of the Termination of Employment Convention and that s 170DC clearly provides that if procedural fairness, or natural justice, is denied, an employee upon termination, then the termination becomes unfair and a remedy is due. To that end s170DE provides an employer must have a valid reason for termination. Mr Wallace submitted that the Transport Appeals Board Act nowhere refers to the requirement that the respondent must have valid reason for the termination and that ‘unfairness’ was not a relevant consideration. To that end the applicants relied on Nicholson v Heaven and Earth Gallery Pty Ltd [1994] 1 IR 199 at 209 to say that they must be given a “fair go” within the terms of s 170DC. Mr Wallace further relied upon the decision of Maidment J of the Industrial Commission of New South Wales being Notification under s 25A by the Federated Engine Drivers and Firemen’s Association of Australasia (NSW) of a dispute with Shell Refining Company re claim for reinstatement - Clyde Refinery where his Honour stated :
“In order to attract the intervention of the Commission it must
be shown, assuming the appropriateness of the Loty case test,
that the Company exercised its right of dismissal unfairly.
It is my intention to approach this matter on the basis of testing
not only whether the Company exercised its right of dismissal
unfairly but also whether, in refusing to accept Mr Cocking
back as an employee after his trial, the Company has actedunfairly.”
It is my conclusion that the respondent properly put regulations in place governing the manner in which fares were to be collected from passengers and that after due investigation the 4 applicants were found to have breached those regulations. There can be no doubt that a valid reason existed for termination and so I am unable to place weight on the argument that as the phrase “valid reason” did not appear in the legislation or regulation under which the applicants were dismissed does not mean this Court thereby acquires jurisdiction based on s 170DE. In the case of the 4 applicants the SRA did not exercise its rights unfairly and there had been no evidence that the SRA had a duty to consider reinstatement at the conclusion of any disciplinary proceedings.
Having considered the judgment of the Board and the material place before the Board it is clear that the applicants were not denied the opportunity to fairly deal with the allegations. Mr Wallace submitted that the allegations, being criminal in nature, should be placed at the high end of the standard of proof as laid down in Brigginshaw’s case. When determining whether an employer has discharged the burden of proof, it is necessary to look at the quality of the investigation and the evidence obtained as well as whether the applicant had the opportunity to deal with the allegations. In The AWU-FIME Amalgamated Union v Queensland Alumina Limited, Moore J, IRCA (QI 158 & QI 69 of 1994, )14 July 1995(Unreported) stated:
“There is nothing about the way in which QAL went about investigating their conduct and deciding to terminate their employment that might suggest a contravention of s170DC. I agree with the observations of Heerey J in Schaale v Hoechst Australia Ltd (1993) 47 IR at 249 at 253 that employers are not required to have the skills of police investigators or lawyers: see also the observations of Wilcox CJ in Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR at 243....The plain language of s170DC 9) refers to “the opportunity to defend himself or herself against the allegations made”. The allegation is as to conduct or performance. In the present case the relevant conduct was the fighting and both employees were given adequate opportunity to defend themselves against that allegation. No contravention of s 170 DC is established.”
The material before the Court in the forms of exhibits 1, 2, 3 and 4, tendered by consent, clearly establish that first the respondent carried out the appropriate investigations bearing in mind the matters were criminal in nature. Secondly it is clear that each of the applicants were afforded procedural fairness in that opportunity was provided so that the allegations could be dealt with.
I agree with the submissions on behalf of the respondent that the applicants are cause of action estopped from proceeding for a second time against the respondent for the reasons outlined above and that this Court lacks jurisdiction to entertain the applications. Having considered the matter it is appropriate that the four applications brought against the SRA be dismissed.
I certify that this and the preceding twelve (12) pages
are a true copy of the reasons for decision of
Judicial Registrar Tomlinson.
Associate:
Dated: 1 October 1996
APPEARANCES
Counsel appearing for the applicant: Mr J Wallace Solicitors for the Applicant: Taylor & Scott Counsel appearing for the respondent: Mr R Reitano Date of Hearing: 30 September 1996
Date of judgment: 1 October 1996
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