Schneider and Vehicle Assembly Australia Pty Limited [2005] NSWIRComm 1109

Industrial Relations Commission of New South Wales

CITATION: Schneider and Vehicle Assembly Australia Pty Limited [2005] NSWIRComm 1109

APPLICANT: Lisa Maree Schneider PARTIES: RESPONDENT: Vehicle Assembly Australia Pty Limited

FILE NUMBER(S): 34 of 2005

CORAM: Murphy C

CATCHWORDS: Exparte Hearing - Unfair Dismissal - applicant performing administrative/driving duties dismissed for refusal to work without lunch break following abuse by employer when making unreasonable demands as to banking duties performed during normal lunch break - summary dismissal unwarranted and unfair - based on acceptance of applicant's evidence in absence of respondent who declined to attend Commission beyond first conference and despite being on notice to provide witness statements and liklihood of exparte hearing.

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 07/20/2005 EXTEMPORE JUDGMENT DATE : 07/07/2005

APPLICANT: Lisa Maree Schneider LEGAL REPRESENTATIVES: RESPONDENT: No appearance

DECISION: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MURPHY C

7th July, 2005.

Matter No IRC 34 of 2005

Lisa Maree Schneider and Vehicle Assembly Australia Pty Limited.

Application by L Schneider re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

EX TEMPORE DECISION

[2005] NSWIRComm 1109

1 This matter is now the subject of an ex tempore decision by me after exparte hearing of this matter on 20 June 2005. 2 The matter was required to be heard ex parte today because of the absence of the respondent, Mr Nahi Gazal. The application was the subject of conciliation on 28 January, at which point the respondent was represented by Mr Darren Hawes, who informed the Commission that he was the Financial Controller of the company. As to that conciliation phase, the matter did not settle at that conference, (where there was some representation by the respondent), nor on the second occasion on 28th February, 2005, when the respondent failed to appear. 3 Prior to proceeding with the hearing today, I also placed on record the efforts by the Commission to have the respondent comply with the directions as to witness statements. Sufficient to say at this point that the file is replete with a record of attempts by my assistant over a two and a half month period to have Mr Gazal provide his witness statements, including several pieces of correspondence written to the respondent. Some of that correspondence conveys to him, that unless he attends here today, the matter would proceed ex parte. The last of that correspondence, 14 June, states in the final paragraph: "Again if you fail to co-operate the hearing will proceed ex parte, especially as the file shows that you failed to attend the further conference on 28 February 2005".