Industrial Relations Commission of New South Wales CITATION : Jeffrey John Green and Lovatt Transport Pty Ltd [2002] NSWIRComm 189 APPLICANT: PARTIES : Jeffrey John Green RESPONDENT: Lovatt Transport Pty Ltd FILE NUMBER: 3163 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - conduct of proceedings - Industrial Relations Commission Rules - Rule 146 - failure to attend proceedings - want of prosecution - balance of justice - principles considered CATCHWORDS : Held, no explanation for non attendance - application not pursued with due diligence - inconvenience and cost for respondent - balance of justice favours respondent - Rule 146 - application dismissed for want of prosecution LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Hutchison and Karl Azzi Hairstylists [2002] NSWIRComm 133 Lin v Roseville Golf Club Limited [2002] NSWIRComm 81 HEARING DATES: 07/09/2002 DATE OF JUDGMENT: 07/19/2002 APPLICANT: No appearance LEGAL REPRESENTATIVES: RESPONDENT: Mr D Eager, New South Wales Road Transport Association Inc. JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 19 July 2002 Matter No IRC02/3163 JEFFREY JOHN GREEN AND LOVATT TRANSPORT PTY LTD Application by Jeffrey John Green re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 189 1 This mater was dismissed for want of prosecution pursuant to Rule 146 of the Industrial Relations Commission Rules on 19 July 2002. 2 I now publish my reasons. 3 The applicant Jeffrey John Green alleges that he was unfairly dismissed on 10 May 2002 by Lovatt Transport Pty Ltd ("the respondent"). On 4 June 2002, the applicant filed a claim pursuant to s84 of the Industrial Relations Act 1996 ("the Act"). 4 It is unnecessary for the purposes of this decision to detail the circumstance surrounding the applicant's dismissal. Suffice to note the employer's response to the application claimed the applicant could not perform his duties due to a medical condition; namely an addiction to illicit drugs. 5 It is further noted that the application was filed outside of the 21 day time limit set by s85(1) of the Act. The Proceedings 6 Directions and Conciliation proceedings were listed for 9 July 2002. Mr D Eager of the Road Transport Association represented the respondent with Mr Lovatt from the Company. The applicant did not appear, nor was he represented. 7 Mr Eager sought to have the matter dismissed, citing the general unreliability of the applicant as indicative of his non-attendance at the proceedings. 8 However, the Commission decided to direct that the applicant be informed by correspondence to his last known address, that unless he responded within 7 days as to whether he intended to proceed with his claim and the reason for his non-attendance, then he risked his claim being dismissed for want of prosecution. 9 Correspondence was sent to the applicant on the same day, 9 July. 10 As at 19 July 2002, the applicant had made no contact with the Commission. 11 Rule 146 of the Industrial Relations Commission Rules is as follows: 146 Where any party has done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution; or (b) fix a definite time for doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) make such further or other order as in the circumstances may seem just. 12 The principles to be applied by the Commission when considering whether to dismiss a matter for want of prosecution were discussed by me in Hutchison v Karl Azzi Hairstylists [2002] NSWIRComm 133 and Xiu Zhen Lin v Roseville Golf Club Limited [2002] NSWIRComm 81. I adopt the principles discussed in both those cases and do not quote from them. 13 I am satisfied that this is a matter which should be dismissed for want of prosecution. There is no doubt that the Registry personally advised the applicant, by telephone, of the listing of the matter on 9 July. There has been no explanation proffered by him as to the reason why he failed to attend. 14 Notwithstanding Mr Eager's submission on 9 July, that the application should be dismissed, the Commission offered the applicant a second opportunity to explain his non-attendance and attend a second conciliation. For a second time, the applicant failed to attend the proceedings and has offered no excuse or explanation. 15 This situation is plainly intolerable and cannot be allowed to continue. 16 The respondent has been put to inconvenience and costs in attending the Commission with no indication as to whether it has a case to answer. 17 In light of these circumstances, I am satisfied the balance of justice demands that this application should be dismissed. 18 Accordingly, pursuant to Rule 146 of the Industrial Relations Commission Rules, Matter 3576 of 2002 is hereby dismissed for want of prosecution. 19 The proceedings are concluded. The file will be marked accordingly and returned to the Registry. Peter Sams Deputy President 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.