Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (on behalf of Shauna Lorelle Borg) and Merrylands Bowling, Sporting and Recreation Club Limited [2002] NSWIRComm 291

Industrial Relations Commission of New South Wales

CITATION : Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (on behalf of Shauna Lorelle Borg) and Merrylands Bowling, Sporting and Recreation Club Limited [2002] NSWIRComm 291 APPLICANT: PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch on behalf of Shauna Lorelle Borg RESPONDENT: Merrylands Bowling, Sporting and Recreation Club Limited FILE NUMBER: 409 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - summary dismissal for serious and wilful misconduct - fraudulent activity - police investigation - merits of dismissal - application filed outside 21 day time limit - whether sufficient reason for delay - s85(3) of the Act - exercise of discretion considered with merits of claim - reason for and length of delay - hardship to the employer or employee - conduct of employer - relevant principles CATCHWORDS : Held, Application not decided on merits - reasons for delay in filing application rejected - delay significant - unnecessary to await police investigation - applicant and union well aware or reasons for dismissal - unnecessary to rely on letter of dismissal or separation certificate - hardship for employee not excessive - no hardship for employer - criticised conduct of employer not decisive - discretion refused - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Howard v New South Wales Fire Brigades [2000] IRComm 105 Schwager v Church Stores [1999] NSWIRComm 485 Maity v Express Publications Pty Ltd [2001] NWIRComm 169 Kent Gorrell v Uwatec Pty Ltd (unreported, Sams DP, Matter IRC1700 of 1999, 5 July 1999) Green v Mayne Nickless Ltd t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998) Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Brisbane South Regional Health Authority v Taylor (1996) CASES CITED : 186 CLR 541 Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Thomas v Repco Auto Tech (unreported, Tabbaa C, IRC3900 of 1998, 23 March 1999) Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported, Harrison DP, IRC829 of 1999, 17 March 1999) Herrera and Creative Packaging Services Pty Ltd (unreported, Sams DP, IRC2108 of 1999, 11 November 1999) Weisser and Spur Group Pty Limited [2002] NSWIRComm 15 Covington v Katies Fashions (Australia) Pty Limited (unreported, Connor C, IRC1818 of 1995, 27 October 1995) Four Sons Pty Limited v Sakchai Limsiropothong (2000) 98 IR 1 Humphries and Cootamundra Ex Services and Citizens Memorial Club Limited [2002] NSWIRComm 225 HEARING DATES: 08/26/2002; 08/27/2002 DATE OF JUDGMENT: 11/01/2002