Industrial Relations Commission of New South Wales CITATION : Lenard and Jay and Kay Safety Glass Pty Ltd [2003] NSWIRComm 305 APPLICANT: PARTIES : Peter Raymond Lenard RESPONDENT: Jay and Kay Safety Glass Pty Ltd FILE NUMBER: 106 of 2003 CORAM: Sams DP CATCHWORDS : Interlocutory decision - whether application out of time - conduct of proceedings - date of applicant's dismissal - ex parte hearing - Commission's Rules - uncontested evidence - wording of dismissal letter - actual dismissal - application within 21 day time limit - application competently before the Commission - further programming. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/08/2003 DATE OF JUDGMENT: 09/25/2003 APPLICANT: Peter Raymond Lenard LEGAL REPRESENTATIVES: RESPONDENT: No appearance JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 September 2003 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 INTERLOCUTORY DECISION [2003] NSWIRComm 305 1 Peter Raymond Lenard (the 'applicant') filed a claim of alleged unfair dismissal on 9 January 2003 under Pt 6 ch 2 of the Industrial Relations Act 1996 (the 'Act'). The applicant had been employed by Jay and Kay Safety Glass Pty Ltd (the 'respondent') since 9 March 2002 as Works Manager on a salary of $1000 per week. The applicant had previously worked for the respondent in 1999-2000. The respondent company is owned by Mr Iosif Validakis. The applicant is Mr Validakis' ex wife's nephew. 2 The applicant claimed he was dismissed by Mr Validakis on 20 December 2002. The reasons for the applicant's dismissal were expressed in a letter from the respondent dated the day before. It is unnecessary, for the purposes of this decision, to refer to, or comment on the reasons for dismissal. However, as will be seen later, the words used in the letter are relevant for a determination of when the applicant was actually dismissed. Conduct of proceedings 3 It must be stated from the outset, that the processing of this application has not been without some difficulties. This observation was no better illustrated than by the respondent's failure to attend the hearing on 8 September 2003. He offered no explanation or excuse and has made no contact with the Commission since that time. 4 To further demonstrate my concerns about this matter, I now record the proceedings leading up to the hearing on 8 September. The application was listed for conciliation and directions on 6 February 2003. Both parties appeared unrepresented. Private conferences with the parties failed to produce a settlement of the claim. Accordingly, the Commission made a finding of unsuccessful conciliation and set the matter for interlocutory hearing on 16 April. The respondent claimed that the application was eighteen days out of time. On the first date for hearing, the applicant advised by phone that he was unable to attend the hearing due to illness. As no party made any follow up contact with the Commission, a directions hearing was listed for 22 May. However, on this occasion Mr Validakis was too ill to attend. The matter was adjourned to 30 May 2003. At that time the respondent was represented by a solicitor, Mr P Saab. Directions were issued and a new date for hearing was set for 8 September 2003. 5 The applicant and Mr Validakis both filed one page affidavits. On the day of the hearing there was no appearance for the respondent and no phone contact from either Mr Saab or Mr Validakis. The Commission immediately adjourned the hearing in order to contact the respondent and/or his solicitor. Mr Saab advised my Associate that he had ceased to act for the respondent - although he had not filed the relevant notice, or even bothered to inform the Commission he was not appearing. Mr Saab subsequently filed a notice of ceasing to act on 9 September. Mr Validakis could not be contacted. 6 In light of these circumstances, the Commission resumed the proceedings and heard the interlocutory matter ex parte. Rules of the Commission 7 The Commission's power to hear a matter in the absence of a party or parties is expressly provided for in the Commission's Rules - specifically Rule 83(a): 83. A tribunal in addition to its power 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 had been summoned or given notice to appear. 8 As I earlier mentioned, the respondent was legally represented during conciliation proceedings on 30 May when directions were issued and the hearing set. Mr Validakis was also present. Both he and Mr Saab were well aware that the matter was to proceed by way of interlocutory hearing on 8 September. 9 It is obviously undesirable and unsatisfactory to proceed to arbitration in the absence of the respondent or a representative of the respondent. However, the Commission's Rules plainly contemplate the circumstances before me in this case. I am satisfied that the respondent was well aware of the hearing and failed to attend without any explanation. Moreover, I am troubled by the applicant's submission that Mr Validakis had sought to encourage him to abandon the hearing on the very morning it took place. The Commission believes the applicant is entitled to have this interlocutory application determined ex parte, according to the evidence properly adduced in the proceedings. The Evidence 10 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. 11 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. CONCLUSIONS 12 The question to be determined in this case is not whether the Commission's discretion should be exercised pursuant to s85(3) of the Act, to allow the applicant's unfair dismissal application to be considered outside the 21 day time period prescribed by s85(1) of the Act. Rather, the issue in dispute between the parties concerns what date the applicant was actually dismissed. Accepting the respondent's claim, 2 December 2002, obviously puts the application outside the 21 day time limit. Conversely, accepting the applicant's evidence puts his application within the time limit, and therefore within the Commission's jurisdiction. 13 The applicant's evidence (such as it was) did not address the requirement in s85(3) to establish a "sufficient reason" for a late application to be accepted by the Commission. It follows that if the Commission was to find against the applicant's primary contention, I would be obliged to hear him further on the requirements of s85(3) of the Act. However, as will shortly be seen, that course will not be necessary. 14 The only evidence before the Commission was that provided by the applicant by way of an affidavit and short oral evidence. That evidence was not contested in a formal way. The respondent's one page affidavit was not able to be tested and was not admitted into the evidence. The Commission is minded to accept the applicant's uncontested evidence. I see no good reason why I shouldn't do so. As a result, I accept that the applicant was not told he was dismissed, or aware he was dismissed, until he received the 19 December 2002 letter. Notwithstanding this finding, it is my view, that the terms of the letter itself implicitly corroborated the applicant's evidence. 15 The letter used the expressions "your employment with this company is terminated and your services are terminated" (my emphasis). The use of the two emphasised words "is" and "are" strongly suggest that the letter of dismissal was drafted in the present tense. 16 Put another way, if the applicant had been dismissed at some earlier time, the letter could have easily and expressly said so. It might have used past tense expressions such as "your employment was terminated" or "your services were terminated." Viewed in this way, it is my opinion, that the letter itself was the instrument which dismissed the applicant as of the 19 December 2002. 17 Accordingly, I am convinced that the applicant was not actually dismissed until he received the letter from the respondent on 20 December 2002. Therefore, his application for alleged unfair dismissal is not caught by s85(3) of the Act. Having so found, the applicant's application, pursuant to Pt 6 ch 2 of the Act, is competently before the Commission and will be programmed for further hearing as to its merits. 18 The matter will be listed for further directions at 10am, Friday 10 October 2003. 19 However, in the meantime, I strongly recommend that the parties engage in further settlement negotiations in order to reach a conclusion of this matter. Should the matter be resolved the Commission must be advised, in writing, by the applicant. Obviously, in these circumstances, further proceedings would not be necessary. 20 Unless otherwise advised, these proceedings are adjourned as indicated above. Peter J Sams 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.