Industrial Relations Commission of New South Wales CITATION : Garth v Newcastle City Spares Pty Limited [2003] NSWIRComm 352 APPLICANT PARTIES : Gregory John Garth RESPONDENT Newcastle City Spares Pty Limited FILE NUMBER: IRC 2416 of 2003 CORAM: Harrison DP CATCHWORDS : Application for costs - Unreasonable failure to agreet to settlement - costs awarded LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 10/10/2003 EXTEMPORE JUDGMENT DATE : 10/22/2003 APPLICANT Mr J Wormington of Counsel LEGAL REPRESENTATIVES: RESPONDENT No appearance JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 22 October 2003 Matter No IRC 2416 of 2003 GREGORY JOHN GARTH AND NEWCASTLE CITY SPARES PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2003] NSWIRComm 352 1 A decision issued in this matter on 8 August 2003 [2003] NSWIRComm 245 in which the termination of the applicant's employment was found to be harsh, unreasonable and unjust, founded upon retaliation for refusal to invest in the business. 2 At arbitration proceedings on 5 August 2003 the application was undefended. These circumstances are set out in para 3 of the decision in the following terms: 3 On Hearing Mr J Wormington of Counsel appeared on behalf of the applicant, Mr Gregory Garth. There was no appearance on behalf of the respondent, Newcastle City Spares Pty Ltd. Advice was received by telephone from Mr S Rayfield, solicitor of Rayfield Lawyers informing the Commission that he no longer represented the respondent, but had contacted the respondent on the morning of proceedings, 5 August 2003, who withdrew his instructions and advised him that there was no intention to appear, asserting that the business no longer existed. 3 Mr Wormington subsequently made application for an award of costs to the amount of $2,530.00 inclusive of GST. 4 The application for costs was heard on 10 October 2003 and again there was no appearance from the respondent. 5 Mr Wormington relied upon written submissions in the following terms: 1. It is submitted the Respondent's actions throughout were not genuine. The "Employers Reply to the Application For Relief" attempted to justify the dismissal on the basis of conduct and performance issues. The last three paragraphs even go so far as to suggest the Applicant was guilty of criminal conduct in the course of his employment. The Respondent attempted to have the matter adjourned pending a police investigation. On my instructions at no time has there been any involvement by the police. 2. The Respondent claimed the financial state of the Company left them in a position where there was no money with which to negotiate. In any event, the Respondent's Solicitor advised they were not interest in negotiation, because they were going to involve the police. On the basis of the above and the matters of fact raised in the employer's reply. The respondent refused to enter into settlement negotiations or make or consider an offer of compensation in any amount. The Respondent through their Solicitor indicated the proceedings were going to be vigorously defended. 6 Mr Wormington further submitted that it was unreasonable for the respondent to take the stand they did in conciliation, which he put inferred that there had never been an intention to defend the proceedings, and that the allegations of misconduct were fabricated. 7 Mr Wormington put that a refusal to enter into negotiations or conciliation in the circumstances of the matter constitute an unreasonable failure to agree to a settlement of the claim in the meaning of that term as set out in s181(2)(c) of the Industrial Relations Act 1996, 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, 8 The application for costs is made out. The circumstances of this matter allow for no other conclusion than an unreasonable failure to settle the matter at conciliation. Costs are awarded as sought pursuant to s181(2)(c) of the Act. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 22 October 2003 Matter No IRC 2416 of 2003 GREGORY JOHN GARTH AND NEWCASTLE CITY SPARES PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. ORDER Pursuant to section 181(2)(c) of the Industrial Relations Act 1996 Newcastle City Spares Pty Ltd is ordered to pay Mr Gregory John Garth the amount of $2,530 (two thousand five hundred and thirty dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison 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.