Virma Ninon v Metropolitan Taxi Club Inc

[2018] FWC 1371

[2018] FWC 1371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Virma Ninon
v
Metropolitan Taxi Club Inc
(U2017/10565)

COMMISSIONER BISSETT MELBOURNE, 7 MARCH 2018

Application for an unfair dismissal remedy.

[1] On 14 February 2018 I heard an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) made by Ms Virma Ninon in relation to the termination of her employment with Metropolitan Taxi Club (MTC). The evidence of both parties was heard and completed on that day. At the conclusion of the hearing I reserved my decision pending the receipt of written submissions by the parties.

[2] Both Ms Ninon and MTC were granted permission to be represented by lawyers during the proceedings and all submissions on this matter were made by legal representatives.

[3] On 15 February 2018 my chambers received an email from MTC asking that the evidentiary case be re-opened so that it could cross-examine Ms Ninon in relation to matters associated with the commencement date of her employment with MTC and the resolution of conflict between some exhibits. MTC requested that I make a decision as to re-opening of the case “on the papers”. In response to a further follow up query MTC indicated that it relied on the “submissions previously made in support of the application to re-open the case” which I took as a reference to its email of 15 February 2018.

[4] As a result of this request I issued directions requiring Ms Ninon to file any submissions she wished to make by 23 February 2018 and MTC to file material in reply by 28 February 2018.

Submissions

Metropolitan Taxi Club

[5] MTC (through its legal representative) submits that it did not object to Ms Ninon providing documents on which she relied (and which were subsequently admitted into evidence) on the day prior to the hearing. The late provisions of these documents it says resulted in it not having an adequate opportunity to properly examine the documents nor obtain instructions.

[6] MTC submits that the conflict with respect to Ms Ninon’s commencement date with MTC is evident between exhibit Ninon 2 (PAYG payment summary for 2007/2008) and Ninon 9 (leave accrual from start date to termination attached to the letter of termination). The additional evidence of seven pages it seeks to adduce and cross-examine Ms Ninon on is a cheque for payment of superannuation by MTC for Ms Ninon dated 14 May 2008 which is annotated as being payment for the period “OCT 2007 to 30 APR 2008” and an employer application form for Ms Ninon dated 13 May 2008 which indicates Ms Ninon commenced with MTC on 25 October 2007.

[7] In reply to the submissions made for Ms Ninon, lawyers for MTC made a further submission on 1 March 2018 which said MTC wished to persist with its application and that it was entitled to properly present its case.

[8] Attached to MTC’s submission were copies of pay slips for Ms Ninon from 25 October 2007 to 25 June 2008 on which it also seeks to question Ms Ninon.

Ms Ninon

[9] Ms Ninon’s legal representative said that the superannuation payment cheque produced by MTC in support of its application to re-open the evidentiary case is no more than the periodic payment for the specified period of six months from the end of October 2007 to end of April 2008. Further, it is submitted that the remainder of the document is an application for superannuation updating her employer details and the date of “25/10/07” is not an accurate reflection of Ms Ninon’s starting date.

[10] Following the receipt of the further payslips provided by MTC on 1 March 2018, Ms Ninon’s representative raised questions as to the veracity of the document. The payslips produced by MTC on 1 March 2018 show Ms Ninon being paid an hourly rate of $31.4933 from 25 October 2007 however exhibit Ninon 8, a payslip for Ms Ninon for the period 22 June 2016 to 28 June 2017 shows that she was paid for that period at the rate of $29.4133 with her rate of pay increasing to $31.4933 after June 2007.

[11] Ms Ninon says that she would be prejudiced in responding to the application by MTC to re-open the evidentiary case as she does not have access to certifiable company financial records.

Relevant legal principles

[12] While it appears that case law around the admission of fresh evidence is generally dealt with in the Commission in relation to appeal matters, the principals applied in those circumstances are relevant to a decision at first instance where a party seeks to re-open an already closed evidentiary case.

[13] The exercise of the discretion to admit further evidence is in general guided by the principles set out in Akins v National Australia Bank 1(Atkins).In Akins, the Court held that:

Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 2

[14] I have considered the matter before me based on these principles.

[15] These principles are not discordant with those in Reid v Brett 3 referred to in Ms Ninon’s submissions.

The evidence could not have been obtained with due diligence

[16] I have taken into account that MTC has been represented by lawyers throughout these proceedings, including in preparation of its evidence and submissions. This is not a small business, self-represented, where knowledge of evidentiary requirements might be limited.

[17] It seems to me that the existence or otherwise of the material now sought to be relied on by MTC was always within its control and always available to it. It was aware of the additional documents Ms Ninon intended to submit into evidence prior to the commencement of proceedings on 14 February 2018 although I do acknowledge it only received these documents the day before the hearing. However, MTC was aware that Ms Ninon claimed her commencement date with it was “on or about 9 August 2007” from September 2017 4 but at least from 11 January 2018.5 It was also aware that it claimed her employment commenced at a later date.

[18] MTC was always aware of Ms Ninon’s PAYG summary for the period 2007/2008, 6 it being a document created by, and within the control of, MTC.

[19] Whilst I accept that MTC might not have been aware of the use to which Ms Ninon would put her commencement date in the context of the case as a whole I am satisfied that the information could have been obtained with due diligence.

[20] This weighs slightly against the grant of the application to re-open.

The evidence, if accepted, has a high probability of effecting the result

[21] The information sought to be adduced by MTC appears to go to two things. Firstly it raises questions as to the credibility of the evidence given by Ms Ninon but also, if there is a finding of misconduct, the extent of that misconduct.

[22] I am not convinced the evidence MTC seeks to introduce through a re-opening of the case has a high probability of affecting the outcome of the application before the Commission although it may well have some bearing on the outcome. I consider this a neutral consideration.

The evidence must be credible

[23] There is a question as to the reliability of the pay slips that the Respondent seeks to put to and cross-examine Ms Ninon on (filed by MTC on 1 March 2018). The payslips are clearly not copies of the original pay slips provided to Ms Ninon when the payments were made but have been re-printed recently.

[24] The payslips are for the weeks ending 31 October 2007 through to 25 June 2008. A summary sheet indicates that the earnings for the covered by these payslips totals $25,199.20 with an amount of $4,495.00 deducted in taxation. This amount accords with the information provided on the PAYG summary. 7 To this extent the payslips support MTC’s contention that Ms Ninon commenced employment on 25 October 2007 as it says and not August 2007 as she says.

[25] The payslips for the period 25 October 2007 to 25 June 2008 do show that the hourly rate of pay for Ms Ninon for this period was $31.4933. Whilst this does raise a question as to credibility of the payslips, as was shown in the payslips relied on by Ms Ninon, it is apparently not unusual for there to be a difference between the “hourly rate” shown and the “calc. rate” used to determine actual pay. 8 This not uncommon error in payslips printed out of the MTC’s payroll system mitigates the claims of unreliability of the information contained therein.

[26] Further, I am satisfied that the material with respect to the superannuation payment is credible.

[27] This weighs in favour of the grant of the application to re-open the case.

Conclusion

[28] I accept that the more compelling material that supports a re-opening of the case was filed by MTC outside the directions I issued to deal with this matter. However, Ms Ninon’s representative responded to this and that response along with its more detailed submissions on the matter have been considered by me in reaching my decision.

[29] The matter before me is an application for relief from unfair dismissal. Whilst the Applicant’s commencement date will be a relevant matter to determine in the context of the determination of the extent to which she incorrectly paid annual leave and long service leave to herself, that is not the totally of the matters to be decided by the Commission. Ms Ninon was dismissed from her employment with MTC because of her dishonest conduct in overpaying herself annual leave and long service leave. The Commission must find if that misconduct did, in fact, occur.

[30] There is, however, contested evidence to be decided. Ms Ninon’s evidence is crucial in this regard.

[31] In making my decision I have had regard to the cost and general prejudice to Ms Ninon in having a decision on her application further delayed. However, this must be balanced against the principal of a fair go all round.

[32] For these reasons I have decided to grant the application to re-open the case.

COMMISSIONER

<PR600954>

 1 (1994) 34 NSWLR 155.

 2   Ibid at p.160.

 3 [2005] VSC 18.

 4   Form F2, unfair dismissal application.

 5   Exhibit Ninon 1, paragraph 1.

 6   Exhibit Ninon2.

 7   Exhibit Ninon2.

 8   See for example exhibits Ninon4-7.

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