Industrial Relations Commission of New South Wales CITATION : Lenard and Jay and Kay Safety Glass Pty Ltd No 2 [2004] NSWIRComm 177 APPLICANT: PARTIES : Peter Raymond Lenard RESPONDENT: Jay and Kay Safety Glass Pty Ltd FILE NUMBER: 106 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - earlier interlocutory proceedings - respondent's failure to attend or provide evidence - respondent's failure to provide any explanation for his conduct - Rules of the Commission. CATCHWORDS : Held, matter determined ex parte - respondent's conduct reprehensible - uncontested evidence accepted - dismissal harsh, unreasonable and unjust both substantively and procedurally - reinstatement impractical - compensation ordered - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules CASES CITED : Hellouli v Computer Express Group Pty Limited (unreported, Connor, C, IRC04/3343, 25 February 2004) Lenard and Jay and Kay Safety Glass [2003] NSWIRComm 305 HEARING DATES: 04/27/2004 DATE OF JUDGMENT: 06/25/2004 APPLICANT: Mr Peter Raymond Lenard LEGAL REPRESENTATIVES: RESPONDENT: No appearance JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 June 2004 Matter No IRC03/106 Peter Raymond Lenard and Jay and Kay Safety Glass Pty Ltd Application by Peter Raymond Lenard re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 177 1 On 25 September 2003, the Commission published an interlocutory decision in this matter ([2003] NSWIRComm 305). In that decision the Commission determined that the applicant, Mr Peter Raymond Lenard was dismissed by Jay and Kay Safety Glass Pty Ltd ('the respondent') on 20 December 2002. The Commission further concluded that the applicant's claim for alleged unfair dismissal was competantly before the Commission and would be determined on its merits. 2 The matter was listed for further directions on 10 October 2003. On that occasion the applicant appeared in person. There was no appearance by, or for the respondent. Directions were issued in preparation for the arbitration and the matter was listed for hearing on 24 February 2003. The respondent was advised in writing of the listing details. 3 No further evidentiary material was filed by either party and on the day of the hearing there was no appearance by, or for either party. My Associate wrote to both parties in the following terms: I refer to the recent listing of this matter for hearing (on 24 February 2004) at which there was no appearance of either party and no contact with the Commission. The Deputy President has re-listed the hearing on: TUESDAY, 27 APRIL 2004 at 10.00am (Court 6, Level 5, 50 Phillip Street, Sydney) His Honour notes that there has been no material filed and has asked me to advise that: 1. Should the applicant not be present or represented, the application will be dismissed for want of prosecution in accordance with the Rules of the Commission; and 2. Should the respondent not be present or represented the matter will be dealt with ex parte. 4 On 27 April 2004, the applicant appeared in person. Again there was no appearance by, or on behalf of the respondent and no explanation was provided for his non-appearance. 5 The applicant informed the Commission that his last contact with Mr Validakis, owner of the respondent company, was in the previous month. The applicant said that Mr Validakis had told him he was broke and had tried to persuade him not to pursue his application for unfair dismissal. It was the applicant's understanding that Mr Validakis' company was still in operation and was continuing to employ employees. 6 The applicant relied on his earlier affidavit evidence in the interlocutory proceedings. It is convenient that I refer to my summary of that evidence at par 10-11 of the earlier decision: The applicant's uncontested evidence was that in October 2002 Mr Validakis began renovation work on a new factory. The applicant was sent home by Mr Validakis on 2 December 2002. Mr Validakis had told him that his new office wasn't ready and he would be contacted when work became available. However, the applicant believed the real reason he was sent home was because Mr Validakis was annoyed that he had taken the previous weekend off. When he had not heard from Mr Validakis for some time, the applicant rang the office. However, he couldn't get through to Mr Validakis. The applicant then sought and secured casual work for another company on or about 12 December 2002. He worked there for about one and half weeks before the Christmas shutdown and returned to the same company as a full time employee three weeks later. The applicant received the dismissal letter on 20 December 2002. The applicant said that at no time prior to this had he been told he was dismissed. At no time had he been given warnings of poor performance or warned about his conduct. As a result of receiving the dismissal letter he filed the claim of unfair dismissal on 9 January 2003. 7 During the proceedings on 24 April, the Commission made the following observation: I note that there is no representative for Mr Validakis or Mr Validakis himself and there has been no advice from him to the Commission of the reason why he did not appear on the last occasion nor indeed why he does not appear today. In those circumstances I am satisfied that Mr Validakis has shown no interest in these proceedings and must in those circumstance suffer the consequences of any adverse decision that might be made against him or his company. 8 The applicant sought $5,000 compensation for unfair dismissal. The applicant secured alternative casual work on the 12 December 2002 and has worked continuously since 15 January 2003. 9 The Commission's power to hear a matter ex parte is expressly provided for in Rule 83(a) of the Commissions Rules: A tribunal, in addition to its powers generally under the Act, may in relation to any proceedings before it: (a) hear and determine the proceedings in the absence of a party who has been summoned or given notice to appear. 10 In Hellouli v Computer Express Group Pty Limited (unreported, Connor, C, IRC04/3343, 25 February 2004) the Commissioner said at p.4: That having been said, in any ex parte proceedings the issue is essentially one of natural justice. A respondent to any action is prima facie entitled to have a matter heard in his presence. He is entitled to dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give such other relevant evidence before the Court. If by some mischance or accident a party is shut out from the right to do so, any order made in his absence would be tainted by that fact. Common justice demands, so far as can be given effect to without injustice to the other party, that the litigant who is absent should be allowed to come to court [Grimshaw v. Dunbar (1953) 1 ALL ER 350 at p.355]. But equally an employer may not avoid its obligations under Part 6 by simply declining to continue its appearance in proceedings. 11 I am satisfied that all reasonable attempts have been made to advise the respondent of these proceedings. For reasons best known to himself, he has chosen not to attend and has offered no defence of the applicant's claim. In these circumstances I have no hesitation, pursuant to Rule 83(a) of the Commission's Rules, in determining these proceedings in the absence of the respondent. 12 That being said, the Commission is not a bit surprised with the attitude of Mr Validakis to these proceedings. His failure to appear in the more recent proceedings, his failure to offer any explanation for his non appearance and failure to comply with the Commission's directions was entirely consistent with his earlier conduct. His contempt and disregard for the Commission's processes is utterly reprehensible and intolerable. His apparent attempts to dissuade the applicant from perusing his legal rights, including making serious and unsubstantiated claims to threaten him to discontinue these proceedings, might well be regarded as contempt of the Commission. However, I take this matter no further. 13 In dealing with this matter ex parte and in the absence of any contrary evidence, I accept the applicant's evidence as to the circumstances of his dismissal. 14 I find that the applicant's dismissal on 20 December 2002 was 'harsh, unreasonable and unjust', both substantively and procedurally within the meaning of Pt 6 ch2 of the Act. 15 In view of the applicant's ongoing employment, the delay in finalising this matter and Mr Validakis' attitude to the applicant, I find that reinstatement or re-employment would be impractical. The applicant worked for the respondent for 9 months (although he had earlier worked for him in 1999/2000). He was paid $1,000 per week as the Works Manager. 16 In light of the particular circumstances of this case, I consider an appropriate amount of compensation to be $4,000. I so order. Orders 1. Pursuant to s89(5) and (6) of the Industrial Relations Act , 1996 the Commission orders that the respondent Jay and Kay Safety Glass Pty Limited shall pay to the applicant, Peter Raymond Lenard an amount of $4,000. 2. The amount so ordered shall be paid within 21 days. 3. These proceedings are concluded. Peter J Sams, AM 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.