Johnston v Raine & Horne Wyong [2002] NSWIRComm 190

Industrial Relations Commission of New South Wales

CITATION : Johnston v Raine & Horne Wyong [2002] NSWIRComm 190 APPLICANT PARTIES : Ms Linda Johnston RESPONDENT Raine & Horne Wyong FILE NUMBER: IRC 2238 of 2002 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - refusal to comply with employer's policies and procedures - wilful disobedience - application without merit - application for relief refused Held - application vexatious - award of costs to respondent LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 07/30/2002; 08/06/2002 EXTEMPORE JUDGMENT DATE : 08/06/2002

APPLICANT Ms Linda Johnston LEGAL REPRESENTATIVES: RESPONDENT Mr R Derham, solicitor Ross Derham & Associates

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 6 August 2002

Matter No IRC 2238 of 2002

LINDA JOHNSTON AND rAINE & HORNE WYONG Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 190 1 This matter was subject to arbitration proceedings on 30 July 2002 consequent upon earlier proceedings which determined that the matter could not be settled by agreement between the parties and which gave rise to directions for the filing and serving of statements of evidence. 2 Directions were issued on 21 May 2002 requiring that: · the applicant file and serve statements of evidence to be relied upon by close of business on Friday, 21 June 2002. · the respondent file and serve statements of evidence to be relied upon by close of business on Friday, 19 July 2002. · the applicant file and serve material in reply by close of business on Friday, 26 July 2002. 3 On hearing, Ms L Johnston, the applicant, appeared on her own behalf. Mr R Derham, Solicitor of Ross Derham & Associates, appeared on behalf of Raine & Horne Wyong, the respondent employer, with Mr R Bourke. 4 Ms Johnston, did not comply with the directions issued and there was accordingly no material filed by the respondent. The matter proceeded over objection from Mr Derham. 5 The applicant gave sworn evidence and was subject to cross examination by Mr Derham. The applicant also brought evidence from Mr R Karaka, formerly employed by the respondent as a Sales Agent; and Ms S Tams, formerly employed by the respondent as a Receptionist. 6 In the event, proceedings were unable to conclude on 30 July 2002 and the matter adjourned for further hearing on 6 August 2002. 7 The applicant was employed as a real estate salesperson by the respondent for a period of four months from 4 December 2001 to 3 April 2002. The application in this matter was filed on 19 April 2002. 8 At the outset of proceedings on 6 August 2002, the following decision was issued ex tempore: HIS HONOUR: I do not require further cross examination of the applicant. I have considered her evidence in chief, cross examination to date, and that of her other witnesses, which reveals the present application to be totally without merit.