Industrial Relations Commission of New South Wales CITATION: Lau v Goodbar Nightclub [2006] NSWIRComm 1097 APPLICANT Johnson Lau PARTIES: RESPONDENT Goodbar Nightclub FILE NUMBER(S): 3683 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - ex-parte - applicant filed evidence but not respondent - no appearance by respondent at hearing - applicant's evidence considered and dismissal found - dismissal unfair - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 Outboard World Pty Ltd (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 HEARING DATES: 08/03/06 DATE OF JUDGMENT: 07/10/2006 APPLICANT Johnson Lau LEGAL REPRESENTATIVES: Appeared unrepresented RESPONDENT No appearance for or by the respondent DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 10 July 2006 Matter No IRC 3683 of 2005 Johnson Lau v Goodbar Nightclub Application by Johnson Lau re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1097 1 This is an application by Mr Johnson Lau ("the Applicant") for unfair dismissal against Goodbar Nightclub ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 5 August 2005. The Applicant appeared. There was no appearance by the Respondent. The Commission's file for this matter contains a file note of Commissioner Bishop, who had carriage of the matter during the conciliation process. The file note is dated 5 August 2005 and represents the Commissioner's notation of a telephone call with a "Natasha" at 2.00 p.m. The file note is reproduced below (excepting for reference to a mobile phone number): " Call to Natasha Informed her that I had been given her no by Steve the Manager of the nightclub and asked if she was in charge of administration. She said yes. She also said that they had received documents but did not know they had to appear in Court as applicant had not been dismissed and that the bar was suffering some losses and applicant was not getting regular shifts. Explained that their presence was needed as it was a conciliations/direction hearing as it was the first point where things could be sorted out and each side had a change to explain their side of the story. She said she would fill in Employer's Reply and send it in. I asked her for details where I could send new hearing notices, please see below: Natasha Laving Goodbar Nightclub 11a Oxford Street PADDINGTON 2021 She said a fax was not suitable as it was not turned on all the time at the night club. I also asked her about name of company and/or directors and she said to just send it to her care of the above address." 3 The significance of this notation is that: (a) the unfair dismissal application had been brought to the attention of the Respondent; and (b) Natasha (Ms Natasha Laving) was to be the point of contact for new hearing notices. Further, although Natasha Laving is recorded as stating that she would fill in the Employers Reply (to the unfair dismissal application), the file for this matter contains no such document. 4 The matter was set down for a Conciliation and Directions on 17 August 2005. The Applicant appeared, as did Ms Laving for the Respondent. The matter remained unresolved and was adjourned. 5 The matter came before Bishop C on 6 September 2005. The Applicant and Ms Laving appeared again. The matter remained unresolved and was set down for a Hearing. 6 The Commission issued correspondence, dated 1 December 2005, to the Applicant. The correspondence advises of the Applicant's non-compliance with the Directions issued by Commissioner Bishop. That is, the Applicant had not filed his witness statement. Accordingly, the Commissioner advised of the cancellation of the Hearing set down for 31 January 2006. The Applicant was also advised that the matter may be dismissed for Want of Prosecution, if the Applicant did not contact the Commission. 7 The Applicant responded to that correspondence and indicated he wanted to proceed with the matter. 8 By correspondence of 7 December 2005, the Commission advised the Applicant and Natasha Laving of new dates for the filing of witness statements. A Hearing date was yet to be set. 9 The Applicant filed his affidavit on 16 December 2005 - some seven days before the date specified by Commissioner Bishop. The Commission's file contains no material from the Respondent - either affidavits or Employers Reply. 10 The Industrial Registry issued correspondence to both the Applicant and Natasha Laving in the new year. The correspondence is "Appointment for Hearing" and is dated 12 January 2006. The correspondence advises that the matter is set down for a "Callover re Directions Compliance and to set dates of this application Before Deputy Industrial Registrar Musgrave." The date, time and location for this "Callover" is stipulated. The Applicant attended the 12 January Callover. The Applicant advised myself at the Hearing of 8 March, that the Respondent did not appear at the Callover. 11 The Industrial Registry issued correspondence dated 31 January 2006, being "Confirmation of Hearing". It specified the Hearing as being on 8 March 2006, at 10.00 a.m., at 47 Bridge Street, before a Commission Member. The correspondence was addressed in accordance with the instruction of Natasha Laving given to Commissioner Bishop. The Commission's file also contains an envelope with a sticker "Return to Sender" for the correspondence issued to the Respondent. 12 The Industrial Registry issued a further "Confirmation of Hearing", dated 10 February 2006. The address was again as that advised by Natasha Laving. Both of the above notices bore the same caution that if there was no attendance at the Hearing, "the proceedings may be heard and an order may be made in your absence." 13 The Commission's file contains an "Amended Confirmation Of Hearing (Re Change of Time)." This correspondence, dated 14 February 2006, advised that the Hearing would take place on the same day, but at 2.00 pm and not 10.00 am. 14 The Hearing took place on 8 March 2006 at 2.00 pm. The Applicant appeared, unrepresented. There was no appearance by the Respondent. CONSIDERATION 15 The only material for the Commission's consideration is the Affidavit filed by the Applicant and his oral evidence given in my Court on 8 March 2006. The Respondent did not file any evidence and did not appear in Court on the day of the Hearing. 16 The Applicant's Affidavit sets out the following: (a) He commenced employment with the Respondent on 20 January 2000. (b) His employment was terminated without his concurrence and prior knowledge on 20 June 2005. (c) He has set new (and still existing) records for making the most money per person per night and consistently generated more revenue than any other employee. (d) He was not provided any warning (verbal or written) from any authority that his termination was imminent. (e) When confronted about the termination of the Applicant, the manager said, " You don't fit in ." (f) Prior to the dismissal, the Applicant had been rostered to work the week of the termination. (g) Prior to his dismissal, the Applicant was aware that new staff had been employed. He said that new staff were put on post his dismissal. (h) The Applicant sought compensation for his dismissal, plus payment in lieu of notice and long service leave. 17 The Applicant also gave oral evidence from the witness box. His account of his dismissal was as follows: (a) One night when he was leaving the night club, the manager, Steve, said there was no shift for the Applicant the next week. This was despite the Applicant's name appearing on the work roster for the next week. The manager said he would telephone the Applicant. This did not happen. (b) The Applicant came back into work a week or so later. He saw a new female bartender was there with no experience. The Applicant started to train her. He was seen by another staff member and was told that his shifts for that week had been cancelled and he had been replaced by someone else. The Applicant questioned the manager who confirmed that the Applicant would have no mores shifts - " not ever, not here " (Tr 6 - line 5 to 8) The manager told the Applicant that he did not fit in. (c) The Applicant then telephoned the owner of the business. A couple of minutes later, the manager came up to the Applicant and said " You're not working anymore " (Tr 6 - line 31 to 33) (d) The Applicant made contact again with the owner a few days later but the owner said that the manager would be making the decisions on behalf of the venue. (e) The Applicant returned to the Goodbar Nightclub on Saturday, 9 July but was stopped at the door by security guards who said that the Applicant was banned. The Applicant waited there whilst security let the manager know that the Applicant was waiting outside. The manager came outside, looked at the Applicant, picked up his phone and walked back inside. 18 The Applicant also said on oath that he had been dismissed. Thus, his shifts no longer appeared on the roster; he had spoken to the manager and the owner on several occasions and was told he no longer had a job; and he was not allowed into the venue (the Respondent's nightclub). CONCLUSION 19 The Applicant filed an unfair dismissal application. The matter came before Bishop C for conciliation and before myself for arbitration. 20 During conciliation, a Ms Laving for the Respondent appeared on a couple of occasions. She provided the correct details for service of documents. The notice despatched by the Industrial Registry advising of the Hearing date and time, was addressed as advised by Ms Laving. 21 There was no appearance entered by the Respondent at the Hearing. 22 The Applicant had filed his witness statement on 16 December 2005. There was no witness statement(s) filed by the Respondent. 23 Given that the Respondent had not filed any material and had not appeared at the Hearing, then the Applicant's case against his former employer, went uncontested. 24 The Applicant's uncontested evidence was that he had been dismissed. The Commission has no reason, arising out of its consideration of the evidence, to find otherwise. (A statement by Ms Laving during conciliation before Bishop C that the Applicant had not been dismissed, does not form part of the Hearing proceeding and therefore cannot be considered by the Commission.) Accordingly, the Commission finds that the Applicant had been dismissed. 25 Having considered all of the evidence, the Commission finds that the dismissal of the Applicant was unjust: Outboard World Pty Ltd (t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. In coming to that conclusion, the Commission relies upon the uncontested evidence of the Applicant as to the manner of his dismissal (see paragraph 18 above). 26 The Applicant has sought compensation as his remedy. In assessing a claim for monetary compensation, the Commission must consider the provisions of s 89(6) - that is, whether an Applicant made a reasonable attempt to find alternative employment and the remuneration gained by an applicant who succeeded in obtaining alternative employment. The Applicant did advise the Commission that he had a second lot of employment running alongside his employment with the Respondent. He had been working four nights/week for the Respondent until recently when it became two nights per week. 27 In any event, s 89(6) is not to be taken as a simple, mathematical formula in the assessment of compensation and the Commission retains its discretion to order the appropriate quantum of compensation, for the circumstances under consideration: D and R Commercial Pty Ltd v Flood (2002) 113 IR 344. 28 The Commission also notes that reinstatement was not sought and the Commission has formed the view that reinstatement is impracticable. 29 In considering the quantum of compensation that is appropriate, the Commission has had regard to the following: · the manner of dismissal which was harsh; · the Applicant's length of service (five years approximately); and · the Applicant's unblemished record of employment. O R D E R S In this matter, for reasons outlined herein, I have determined that the dismissal was unjust and I hereby make the following orders: (a) The Commission orders the Respondent (Goodbar Nightclub) to pay to the Applicant (Johnson Lau) an amount of compensation of $ 4,000 gross. (b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald Commissioner 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.