Industrial Relations Commission of New South Wales CITATION: Robert Drobek and NCR Australia Pty Limited [2005] NSWIRComm 1156 APPLICANT Robert Drobek PARTIES: RESPONDENT NCR Australia Pty Limited FILE NUMBER(S): 4835 of 2004 CORAM: Murphy C CATCHWORDS: Costs sought following failure of applicant to appear for hearing when aware of listing - substantive case dismissed for Want of Prosecution, with costs reserved. Applicant's failure to provide phone number or proper reliable addresses taken into account. Applicant's belated claim of not having employer's property, basis of earlier agreed settlement, and belated claim for maximum compensation were matters deserving of costs order against applicant. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 08/04/2005; 08/26/2005 EXTEMPORE JUDGMENT DATE : 09/29/2005 APPLICANT Mr Robert Drobek - no appearance LEGAL REPRESENTATIVES: RESPONDENT Ms Streimer of Australian Industry Group DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Date of issue: 29th September, 2005. Matter No IRC 4835 of 2004 ROBERT DROBEK AND NCR AUSTRALIA PTY LIMITED Application by Robert Drobek re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1156 EX TEMPORE DECISION RE COSTS Exparte 1 This matter came to the Commission today for hearing of this matter when earlier listed for the purpose of hearing respondent's claim for costs and to give an opportunity for the applicant to attend this Commission. The substantive claim was previously listed on 4 August for hearing, when the matter was dismissed for Want of Prosecution pursuant to Rule 146. On that occasion there was no appearance by the applicant. The respondent's representative Ms Streimer appears here today as an Australian Industry Group officer on behalf of her clients, NCR Australia Pty Ltd, seeking costs against the applicant which was a question reserved on 4th August. 2 Mr Drobek was previously corresponded with, given his failure to attend on the day of hearing of the substantive matter on 8 July. The Commission is reminded by Ms Streimer that on that day her clients appeared with four witnesses and had overnight arranged for a witness in the United States to give evidence by telephone. The applicant's failure to appear that day has a history which has been outlined in some elaborate submissions given to the Commission here this morning both in writing and orally by Ms Streimer. I have marked the submissions of Ms Streimer MFI 1 and annexure 1, and have had the opportunity now to absorb all those issues raised by Ms Streimer. 3 Let me say for the record that I see no difficulty with those contentions made by Ms Streimer and it is upon the whole of her material which I have had the opportunity now to assess that I now make my decision. 4 I do not see the necessity to go through in minute form those comprehensive submissions of Ms Streimer but start by noting the number of times this matter was brought before the Commission. On 25 August, 2004 the Commission firstly had a comprehensive attempt at conciliation where the applicant raised issues supporting the Commission's intervention, but also where at least one serious issue was raised by the respondent which was dealt with at later stages. The applicant broadly speaking in his application, contended that he was being made redundant in circumstances where some opportunity was held out for him that there was a possibility of being re-employed at the take over of a section of the company. 5 The respondent contended, amongst other things, that the applicant had failed to attend work for an extended period of time and that was the subject of the claim for settlement which was finally agreed by the respondent to be met by the payment of some 30 working days sick leave, without prejudice. There was no supporting doctor's certificate for that extended period of absence, but that was to be the foundation of the settlement which was announced to the Commission on 6 September and indeed I'm taken to this morning by Ms Streimer to the day, 6 September where that settlement was recorded. I should at this stage quote from that transcript at page 3, line 13, where the Commission says; "Yes, I'm happy to say that the parties have reached a settlement on the basis the applicant to be paid his sick leave which is said to amount to some 30 days where he was ill before his dismissal. By that there will also be provided a statement of service but in return for that as consideration the respondent insists on the company property being returned, Mr Drobek, has agreed to all of those terms. Is that right, Mr Drobek". The applicant answers; "that is correct". 6 A strong part of Ms Streimer's submissions before the Commission today was that the applicant failed to raise the issue of the alleged non-possession of the company property until a much later stage, and that was on 25 February. That has also been provided to the Commission in the form of transcript marked, annexure 3 at page 10, during Ms Streimer's submissions in this matter, where at paragraph 26 the Commission observed halfway through that paragraph; "I'm stymied on this one, I don't know what you're talking about, you've got matters of company property which you didn't come forward and say, I don't have this, I don't have that, it's in the cupboard beside the right-hand side of the desk, a sensible person would have done that already". The applicant replies; "I have been advised that most of the stuff was in the cupboard and that's what they were told the first time at conciliation". Ms Streimer replies to the applicant at that point; "If that was the case, Commissioner, then we never would have pushed this matter some 10 months ago". To which the Commission replies; "Anyway, what I don't like to see is threats of going to hearing which puts pressure on one or the other side when the party that's making the threats is vulnerable. That's why the cost provisions are there to prevent this sort of skulduggery. When I say that sort of skulduggery that's what's happening here, I'm going to direct into conference, a directive of a private conference if you do nothing, you do nothing, you can tell me later if you want to go back on record". 7 So the next thing that happened according to the file was that I received a report by telephone in chambers that the matter could not be settled and the matter was listed for hearing on 8 July. 8 In the meantime there was correspondence between the Commission and the applicant. There was lengthy correspondence, too numerous I think, to bother to put into this statement here. If I could just summarise some of the correspondence. 9 It was the failure of the applicant then to advise the Commission and the respondent that he did not have the property, which Ms Streimer says is the fundamental weakness in the applicant's failure to sign the deed provided to him, which clearly required the return of company property. That property was listed again in the annexures given to me in the Streimer statement and perhaps more importantly was contained in a deed provided to the applicant for his signature and when the applicant on 27 October 2004 wrote to my assistant he complained about various clauses of the deed and very curiously, as pointed out by Ms Streimer in her submissions here today, although the list of property was announced and identified in clause 3 of that draft deed, the applicant did not in that correspondence to the Commission point out that he did not have the property - I should be more specific about this; the applicant complains about clause 1 - issues of taxation, problems he had with the tax office, Ms Streimer deals with those in her submissions here today; he believed that clause 2 should be deleted, going on to claim that all so-called outstanding moneys ought to be paid to him, holidays, superannuation. He goes on to talk about over deduction of taxation, which again Ms Streimer has dealt with. He complains about holiday pay being used to cover the period of sick leave. He further claims there are two months outstanding in superannuation. As to clause 3 he merely says it should be deleted, which I should hasten to add is the crucial clause containing the listing of the alleged missing property, that was all the applicant says about this property. He claims that this point was agreed in conciliation, well, quite clearly it was not agreed on 6 September where it outlined the condition in consideration for the payment of the contentious sick leave that the applicant would return all property. So his reference there, and I do not think I need to go onto this letter, the other clauses, he rejects too, cl 4, cl 9, cl 10 and cl 11 and cl 12. That inadequate reference to clause 3 to me was a fairly significant matter. 10 There are other issues that I should highlight in the submissions of Ms Streimer which I have adopted. 11 Ms Streimer has pointed out warnings given by the Commissioner in respect of costs on more than one occasion to the applicant, she particularly alerted the Commission to the transcript of 25 February where this issue of costs was raised and I have already quoted from that at page 10 of those proceedings. 12 Ms Streimer emphasised an important issue relied upon by the respondent, and whilst I do not allude to matters discussed in private conference, it was apparent that the respondent contended very strongly that the applicant was dismissed for reasons (repeated here this morning) primarily because of his failure to properly disclose his dealings with a company without disclosing the fact that he had a financial interest in a company by the name of RPI. In respect to the issues related to that company - the applicant it must be said was a long way from convincing the Commission that there was not a remaining very serious issue there. I raise that because whilst the Commission cannot make any decision in respect of that important issue, it was still important, inasmuch as it behoved the applicant to prosecute his case in a proper way because - if it was found that he had indulged in the sort of behaviour that the respondent contended he did, in respect of his ownership of RPI - he may have been subjected to the cost provisions of this legislation for unreasonable failure to agree to settle or for bringing a frivolous and vexatious application, in view of that poor behaviour - if proven. 13 The other issue raised by Ms Streimer is the failure of the applicant to follow directions, where he sought to rely upon the fact that he had provided an unreliable home address as an excuse for not receiving the respondent's witness statements, he sought a delay in the hearing at the time which was denied on the basis that it had taken him some 12 days to alert the Commission to the fact that he allegedly had not received copies and at no stage sought to alert the respondent that he did not receive those copies. In any event, the applicant had sufficient time to submit his reply in time for the hearing. 14 There are some very suspicious circumstances in respect of the two addresses that the Commission was required to operate with for the applicant and likewise the respondent. There was a Dunlop Street North Parramatta address and when the applicant at some stage advised the Commission of a new address of the box 20, post office, Menai, matters were always sent after that date to both addresses. The respondent in this matter who is the applicant in these cost proceedings here today also points out that, at some expense, a summons of production was attempted to be served upon the applicant and that failed despite a search, which revealed that the applicant did not appear to reside in New South Wales and was not on the electoral rolls. 15 Claiming that he had no telephone - which is curious for somebody who owns a company in this day and age, a young person particularly - only really put the onus back on the applicant to ensure that there was some other contacts and proper contacts in this matter. Also, I believe Mr Drobek cannot rely upon the change of address and as I say there was some suspicion where firstly, there is "no return to sender" envelopes in this file for matters sent and where there were some inconsistencies with the applicant's contentions in that department. I don't rely upon that to a great extent but it was another aggravating matter in these proceedings. 16 The important thing is that the applicant definitely was aware of 8 July hearing date. There was no doubt that that date as shown by the fact that he sought to have a postponement and whilst there may be some possibility that he did not receive the Commission's rejection of his overtures to have the hearing postponed, there is no doubt that he was aware that that was the date. It was up to the applicant to check through. It is unbelievable that he thought that by simply asking for a postponement it would be granted. I don't accept that it would be reasonable by any standard for the applicant to simply not turn up on the basis of a simple request to postpone. After all, why did he not contact the Commission to get the new date and has not been in touch since. 17 There were of course occasions when my assistant spoke to the applicant by telephone when he rang in and I do not rely upon the fact in respect of what advice might have been given over the telephone, but it at least goes to show that the applicant was quite used to writing to the Commission on a number of occasions here, and also to telephoning my assistant, but on no occasion did he venture a telephone number or a proper address or to clarify the request for adjournment. 18 The failure of the applicant to provide his rebuttal statements right to this date indicates to me that he was aware that the hearing was on 8 July and that no permission was given to alter that date. It is also important that such statements in reply can be said to be the acid test for applicants in this tribunal, to actually address the counter allegations of the respondent in replying in their witness statements, and if they do not - it is an indication of not pursuing the case with due diligence to say the least. 19 The attempts by the respondent to settle this matter as outlined by Ms Streimer here this morning can be fairly described as fulfilling its obligations in respect of this legislation to negotiate in good faith. More precisely the obligations which are espoused in section 181 and quite clearly show the scheme of that section as being is to encourage proper negotiations for settlement. 20 I accept Ms Streimer's submissions to me and the transcript evidence on my file showing that the applicant extremely tardy advising the Commission of the alleged non-possession of the respondent's property. I particularly rely upon his letter which I have already read out, where he objects to the draft deed and does not take the opportunity to advise that he does not have the property. 21 The cost provisions are outlined in s 181 subs 2 at para (b) and (c); Section 181 (2). (b); "the Commission may award costs against the party in proceedings who in the opinion of the Commission instituted proceedings without reasonable cause" In subs (c); "the Commission may award costs against the party in the proceedings under part 6 of chapter 2, unfair dismissals, who in the opinion unreasonably failed to agree to a settlement of the claim or his application frivolous and vexatious" 22 My decision in this matter refers more to the unreasonable failure to agree to a settlement of the claim. 23 Without proper evidence it is very difficult for the Commission to make any assessment as to the precise merit of any claim under S.84 and whilst there are indications here of a frivolous, vexatious application and also bringing actions without reasonable cause, I rely primarily upon the first limb, at para (c) 181 subs 2, the unreasonable failure to agree to a settlement. 24 I believe that in the circumstances here where the applicant, having received several warnings from the Commission itself about costs, did not at the appropriate time properly advise the respondent of his contention that he did not have the property and led the respondent to believe that there could be a settlement on that basis, which was a condition which consistently applied to the respondent's terms settlement. 25 There are instances in respect to S.84 applications where a claim to this Commission would bring this legislation into disrepute and I have cause here this morning to view this as one such instance, when I am reminded of all of the issues raised by Mr Streimer. 26 This developed into a classic case of hide and seek. The applicant when it suited him hid behind inadequate addresses, finally he did not appear here at the crucial hearing day of 8 July. By the same token, very late in these proceedings when clarification of his claim was sought by Ms Streimer, he then wrote to the respondent seeking the maximum compensation. Again there's no comment in that letter about the property. It was a short letter, which I've already gone on the record to speak about earlier, it was dated 31 May and in that letter the applicant replies to; where the respondent in its letter of 23rd May 05 sought detail of the claim then sought: "please be advised I seek the maximum damages under the law from the Commission, yours sincerely". 27 So no mention about property, (the basis of the previous agreement a claim for maximum compensation) at that late stage, and in circumstances where the applicant's prospects of success were very questionable. I therefore believe that Ms Streimer is correct to claim costs in this matter. 28 Costs are awarded as agreed or as assessed in accordance with the provisions of the 1987 Legal Profession Act to be payable to the respondent, NCR Australia Pty Limited within 28 days of this decision. 29 Those costs should be restricted for the preparation of the hearing of 8 July, which did not go ahead because of the applicant's failure to attend and not cover the three conciliation conferences. 30 Those costs then should also cover the claim made here today. J P MURPHY Commissioner oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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