Azar and Ritchie [2005] NSWIRComm 1160

Industrial Relations Commission of New South Wales

CITATION: Azar and Ritchie [2005] NSWIRComm 1160

APPLICANT: Nayla Azar PARTIES: RESPONDENT Dr James Ritchie

FILE NUMBER(S): 7505 of 2003

CORAM: Patterson C

Unfair Dismissal - medical secretary - allegations of "serial" sexual harassment/abuse - denial. CATCHWORDS: Held: Allegations unsupported by the evidence - serious and wilful misconduct justifying summary dismissal. Application for relief instituted without reasonable cause - vexatious and mischievous - dismissed. Costs order made against applicant.

Industrial Relations Act 1996 LEGISLATION CITED: Crimes Act s.100A

HEARING DATES: 06/17/2004; 06/18/2004; 08/25/2004; 11/16/2004; 11/21/2004

DATE OF JUDGMENT: 10/04/2005

APPLICANT Applicant appeared in person

LEGAL REPRESENTATIVES: RESPONDENT Tress Cox Layers A Gee T Unsworth

DECISION: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PATTERSON C

4 October, 2005.

Matter No IRC 7505 of 2003

Nayla Azar and Dr James Ritchie

Application by Nayla Azar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

SUPPLEMENTARY DECISION

re Costs

[1160] NSWIRComm 2005

1 On 4 August, 2005 I published my findings and reasons in respect to the merits of the applicant's claim for relief. [1124] NSW IR Comm2005 2 Having considered all the evidence, and the demeanour of the witnesses, I determined the respondent as having had no other choice - given her serious and wilful misconduct - but to terminate the applicant's services [184][185]. 3 For the reasons stated, I determined Ms Azar's dismissal as one which clearly did not attract the intervention of this Commission, it not being "harsh, unreasonable or unjust" and dismissed the application accordingly [187]. 4 In respect to legal costs I stated the following: "In consideration of the cross-application for legal costs I decline to award in favour of the applicant since her claim is not, in any way, supported by the respondent's alleged failure to attempt reasonable settlement of the matter in accordance with the requirements of the Act . [188] Conversely, I find that Ms Azar's application for relief was instituted without reasonable cause - and her pursuit of it to have been vexatious and frivolous. Ordinarily, such a finding would properly lead to an Order being made against the applicant in respect to the respondent's costs. [189] However, given her questionable psychological and emotional state, I perceive that Dr Ritchie would personally regret her being caused further distress by my issuing an Order to that effect and sincerely doubt that he would pursue it to satisfaction. [190] I therefore propose to adjourn this part of the proceedings for 14 days to allow the respondent to reconsider his application as to costs. Should I receive no response in that time the respondent's original application for costs shall lapse and the matter shall be concluded with no such Order being made. [191]" 5 Since publication of that Decision I have received correspondence from the respondent's solicitors still seeking that I make an order for costs against the applicant who continues to seek costs against the respondent. 6 Accordingly, and for reasons contained within the original Decision, I so order the applicant to pay the respondent's legal costs in a sum to be agreed or assessed. This order is to be acted upon within fourteen days from today's date.