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. The applicant failed to comply with the directions of the Commission for preparation of the case. She was given the benefit of the doubt in that she is unrepresented and may not have completely understood the what the directions required of her. The evidence, however, compels a conclusion that the failure to comply with directions is a further act of wilful arrogance which punctuated her brief, but unhappy period of employment with the respondent. The applicant's own evidence is riddled with internal contradictions, such as: she never hit upon other agents signs, then conceded that had occurred accidentally on one occasion, then conceded that it may have occurred accidentally in telephone canvassing; and that she had been instructed not to approach clients browsing the window, a direction with which she claimed to have complied, however then subsequently conceded she would make a point of greeting people browsing the window as she was going in and out of the front door. The employer is entitled to give direction as to policy and procedure and is entitled to civil compliance therewith. The applicant's evidence compels me to the conclusion that she refused to take lawful and reasonable directions from the employer, insisting that procedures and sales practices be of her own device, regardless of company policy. There is no need to examine complaints concerning interpersonal relations within the office, however the applicant's evidence does not assist her in the face of those allegations. The application for relief is dismissed. 9 Mr Derham made application for costs in the matter pursuant to s181(2)(c) of the Industrial Relations Act 1996 ('the Act') which states: (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or 10 I find on the evidence before me that an order of costs against the applicant is warranted, the proceedings brought being more vexatious than frivolous, meeting the requirements of s181(2)(c) of the Act. 11 Costs are awarded to the respondent as agreed or as assessed by the Industrial Registrar. 12 Matter No IRC 2238 of 2002 is so concluded. oo0oo - 1 - 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.