Zerafa and Fairfield City Council [2004] NSWIRComm 103

Industrial Relations Commission of New South Wales

CITATION : Zerafa and Fairfield City Council [2004] NSWIRComm 103 APPLICANT PARTIES : Sam Zerafa RESPONDENT Fairfield City Council FILE NUMBER: 5096 of 2003 CORAM: Sams DP Termination of employment - resignation of Council employee - application filed outside 21 day time limit - whether sufficient reason for delay - s85(3) of the Act - reason for, and length of delay - Union representation - applicant sought alternative representation - subpoenaed witnesses - disputed evidence - whether claim pursued with due diligence - hardship to employee or employer - conduct of employer - role of agent - prospects of success - whether applicant had a reasonable prospect of success - exercise of discretion. CATCHWORDS : Held, applicant's evidence unreliable and inconsistent - evidence of Union witnesses preferred - applicant told he did not have a good case - applicant advised to obtain alternative representation - claim not pursued with due diligence - significant delay - explanation for delay not accepted - no sufficient reason for delay - no hardship to employee - hardship for employer - resignation of applicant - second jurisdictional hurdle unlikely to be overcome - no reasonable prospects of success with merits of the case - criticism of agent - discretion declined to be exercised - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act (Cth) 1996 Bonaccorso v General Forest Tree Surgeons [2003] NSWIRComm 70 Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (unreported, Industrial Relations Court of Australia, Marshall, J VI1725R of 1995, 31 October 1995) Clark v Ringwood Private Hospital (1997) 74 IR 413 Coghlan v Donald and Donald Advertising (unreported, Connor C, IRC01/6028, 15 July 2002) Green v Mayne Nickless t/as Armaguard (IRC2945 of 1997, 11 February 1998) Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 CASES CITED : Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Kornicki v Telstra Network Technology Group (unreported AIRC, Print P3168, 22 July 1997) Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Mihajlovski and I R Cootes Pty Ltd (unreported, Lawler VP, AIRC U2002/1721) Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 Schwager v Church Stores [1999] NSWIRComm 485