Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055

Industrial Relations Commission New South Wales Medium Neutral Citation: Musicka v Health Secretary in respect of NSW Ambulance [2022] NSWIRComm 1055 Hearing dates: 7 July 2022 Date of orders: 7 July 2022 Decision date: 07 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – application that proceedings be dismissed – failure of applicant to comply with directions – want of due despatch Legislation Cited: Civil Procedure Act 2005 ss 56, 61 Industrial Relations Act 1996 ss 3, 84, 162 Uniform Civil Procedure Rules r 12.7 Cases Cited: Ghosh v Ninemsn Pty Limited [2015] NSWCA 334 Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 Rous v Department of Education and Communities [2018] NSWIRComm 1017 Texts Cited: Nil Category: Procedural rulings Parties: Travis Musicka (Applicant) Health Secretary (Respondent) Representation: C Wilkinson, Sparke Helmore (Applicant) File Number(s): 2022/00073082 Publication restriction: No

EX TEMPORE decision 1. On 8 March 2022 Travis Musicka filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996. 2. On 6 April 2022 I conducted a conciliation conference. When it became clear that the matter was unlikely to be resolved through conciliation, I made directions in anticipation of the matter proceeding to arbitration. Those directions required that Mr Musicka file and serve the evidence and submissions on which he intended to rely by 4pm on 4 May 2022. No evidence and submissions were received from Mr Musicka by that date. 3. The matter was listed for call-over before the Industrial Registrar on 25 May 2022. There was no appearance by Mr Musicka or the Health Secretary at that call-over. Later on 25 May 2022 the Registry sent an email to the parties seeking information as to the status of the proceedings. Several attempts were subsequently made by the Registry to make contact with Mr Musicka. 4. On 1 June 2022 the Registry received an email from Mr Musicka which stated: "I followed the directions followed by the irc for this call over on the 25/05/2022 09:30am I was place in the virtual waiting room and was waiting forv20min to be admitted into the Meeting. This did not occur. I have not filed further material to the ambulance service as will be relying on previously submitted material that the service received justifying keeping my job. The service never responded to that evidence. So I will be relying on that." (Reproduced verbatim) 1. I listed the matter for mention on 3 June 2022. Mr Musicka did not appear, although I acknowledge that subsequent enquiries revealed that there may have been some confusion in respect of the mention and Mr Musicka may not have been provided with the details to dial into that mention. In any event, I listed the matter for further mention on 20 June 2022. 2. Later on 3 June 2022, I arranged for the Registry to send an email to Mr Musicka which included the following: "This matter was listed for directions at 9.00am today. You did not appear. We have received your email below. Whatever information you may previously have provided to NSW Ambulance is not evidence before this Commission. If you wish to explain your version of events and provide documents for the Commission to consider, you must do so in a statement. Similarly, if you want to have others make statements to the Commission in support of your case, those must also be put in writing. You are also required to set out in writing why you say that your dismissal was harsh, unreasonable or unjust. Finally, all of these documents must be filed with the Registry of the Commission and an exact copy be served on (that is, provided to) the representative for NSW Ambulance. All of these requirements were contained in the directions made by Commissioner Sloan on 6 April 2022. You are required to comply with those directions. A failure to do so may result in your application being dismissed. This matter has been listed for further directions by telephone at 9.00am on 20 June 2022. The Commissioner expects that you will have filed and served your evidence and submissions before that date." 1. Mr Musicka did not appear at the mention on 20 June 2022 and did not file any evidence or submissions. 2. Later on 20 June 2022 I arranged for the Registry to send a further email to Mr Musicka which included the following: "This matter was listed for mention by telephone at 9.00am this morning. That mention was foreshadowed in our email to you of 3 June 2022 (below), and confirmed in a notice of listing sent to you shortly after we sent the email. You did not dial in. We would be grateful if you would explain why you failed to take part in the mention, and confirm your intentions in relation to this matter. The respondent has foreshadowed making an application for these proceedings to be dismissed if there is no movement in the matter. If you fail to provide a satisfactory response to this message by 4.00pm on 22 June 2022, Commissioner Sloan will list the matter to hear the respondent's motion." 1. The Commission received no response from Mr Musicka. 2. I have confirmed with the Registry that details of today's listing were sent to Mr Musicka via the email address which is in his unfair dismissal application and from which the Registry has received communication from him. 3. Today the Health Secretary has made an application that the proceedings be dismissed. Ms Wilkinson, who appeared for the Health Secretary, made the application pursuant to r 12.7 of the Uniform Civil Procedure Rules ("UCPR") and s 61(3) of the Civil Procedure Act 2005. She also drew my attention to s 162 of the Industrial Relations Act, although I do not consider that that provision is particularly germane to the application. 4. In considering the application, I have particular regard to the overriding purpose of the Civil Procedure Act set out in s 56. I will not reproduce the entirety of that provision but note simply that s 56(1) provides that the overriding purpose of the Act and of rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It is relevant to observe that one of the objects of the Industrial Relations Act, as set out in s 3(g), is to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality. 5. Rule 12.7 of the UCPR was considered in Ghosh v Ninemsn Pty Limited [2015] NSWCA 334 by McFarlan JA, with whom Leeming JA and Adamson JA concurred, at [40]-[43]. I will not reproduce those passages. 6. The rule and the requirements of the Civil Procedure Act were also considered by Commissioner Newall in Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 at [13]-[15], which passages were cited with approval by Chief Commissioner Kite in Rous v Department of Education and Communities [2018] NSWIRComm 1017 at [28]. Once again, I will not reproduce those passages. 7. Suffice it to say I have had regard to the observations in Ghosh and Kabir in considering the respondent's application. 8. Rule 12.7 of the UCPR empowers the Commission to dismiss proceedings if the plaintiff, or in this case an applicant, does not prosecute the proceedings with due despatch. I am satisfied in the circumstances that the proceedings ought to be dismissed pursuant to that rule. While it is not strictly necessary to do so, I observe that grounds also exist for the matter to be dismissed pursuant to s 61(3) of the Civil Procedure Act. 9. For these reasons, I order that the proceedings be dismissed. Damian Sloan Commissioner