Industrial Relations Commission of New South Wales CITATION: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36 APPLICANT George Zammit PARTIES: RESPONDENT KTS Logistics Pty Ltd FILE NUMBER(S): IRC 4164 of 2005 CORAM: Staff J Practice and procedure - Unfair dismissal application - Failure by applicant to comply with directions - Application for strike out - Case management - Practice Direction 17 - Guillotine order CATCHWORDS: Unfair dismissal - Failure by applicant to comply with directions - Application for strike out - Case management - Practice Direction 17 - Guillotine order LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/02/2006 EXTEMPORE JUDGMENT DATE: 02/07/2006 APPLICANT No appearance LEGAL REPRESENTATIVES: RESPONDENT Solicitor: Mr C Jurd Sid Hawach & Co JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: STAFF J 7 February 2006 Matter No IRC 4164 of 2005 GEORGE ZAMMIT v KTS LOGISTICS PTY LTD Application by George Zammit pursuant to s 84 of the Industrial Relations Act 1996 re unfair dismissal EX TEMPORE DECISION [2006] NSWIRComm 36 1 On 9 January 2006, Practice Direction 17 of the Industrial Relations Commission of New South Wales came into force. 2 The purpose of this Practice Direction is to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission do all they can to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. 3 The objective is not only a reflection of the need for an efficient case management of proceedings, but that the primary remedy in unfair dismissal matters is reinstatement or reemployment, which remedies may be affected by delay. 4 When a conciliation before a Member of the Commission is unsuccessful, the usual directions found in paragraph 10 of Practice Direction 17 operate unless, after an application by a party to the proceedings, such directions are modified. 5 Where there has been non-compliance with directions made, the parties are required to attend a compliance check callover before the Registrar who may, if at the date of callover there remains non-compliance, remit the matter to a presidential member for consideration. 6 The Registrar has remitted this matter under this procedure. 7 The history of this matter is that on 10 August 2005, George Zammit ("the applicant"), filed an application pursuant to s 84 of the Industrial Relations Act 1996, seeking relief from unfair dismissal. 8 On 25 August 2005, a reply to the application was filed by KTS Logistics Pty Ltd ("the respondent"). 9 On 30 August 2005, Commissioner Macdonald chaired a conciliation of the parties. The applicant appeared for himself and Mr C Jurd solicitor, appeared for the respondent. 10 The transcript of the proceedings of 30 August 2005 reveals that the applicant contended that he suffered a back injury at work and was unable to carry out further lifting work. The respondent contends that the applicant abandoned his employment which led to his termination moneys being deposited into his bank account. 11 The original conciliation was reached with some alacrity consistent with the new procedure which was introduced to expedite conciliations. However, even though there was a process for the parties to consider their respective positions after the first conciliation, there is no information on the file to explain the delay of a further two months for a report back. A further conciliation took place on 4 October 2005. 12 At the report back on 4 October 2005, the Commission was advised that no settlement had been reached. The Commissioner made the following orders: The applicant to file and serve its (sic) witness statement and any other evidentiary material upon which it (sic) shall rely by 8 November (2005), respondent to file and serve its witness statements plus any other evidentiary material upon which it shall rely by 29 November, applicant in reply by 13 December. 13 As the applicant was in default of that direction, the matter came before the Registrar on 31 January 2006. On that day, there was no appearance by the applicant and the matter was stood over until today. It would have been available for the Registrar to forward the matter to the Commission on 31 January 2006 and I would have given serious consideration of dealing with the matter ex parte providing due notice had been given. However, the matter was stood over and the applicant had the benefit of that additional time and has still not filed any material, nor has there been an appearance. 14 Mr Jurd, who appeared for the respondent, advised the Commission that on 30 January 2006 the solicitors that had been retained by the applicant informed him that they had ceased to act. Mr Jurd's application was that the matter be struck out. I decided to proceed ex parte and deal with the application by Mr Jurd. 15 I gave serious consideration to striking this matter out. Whilst ultimately decisions of this kind will be determined by the dictates of justice, it seems to me that this notion is compatible with the structure of the Practice Direction given the scheme of the Industrial Relations Act 1996, insofar as it relates to unfair dismissals. 16 In considering the application made by the respondent, I am mindful that, what I might describe as a new regime in respect of the resolution of unfair dismissal matters has been recently put in place. 17 I should make it clear that I am prepared to give some latitude today, as there is a new regime in place, of which Mr Zammit is getting the benefit. If a similar matter was to come before me in a month's time, the matter may well be struck out, or the applicant required to run his/her case on no evidence. 18 I have decided to make guillotine orders in this matter, rather than striking the matter out because the new practice direction has not been the subject of judicial guidance and because I have some concern about the notice of the further callover before the Registrar. 19 In the circumstances, I make an order that the applicant file and serve any material upon which he wishes to rely within 14 days of today's date that being, on or before 4.00 pm on Tuesday 21 February 2006. In the event that the applicant fails to strictly comply with this order, the matter is struck out. I direct that the Registrar serve this order upon the applicant by no later than 5.00 pm on 13 February 2006. 20 The respondent shall file any material within 21 days after receipt of the applicant's material. The applicant shall file any further material in reply within seven days of receipt of the respondent's material. 21 This decision will act as a clear publication of the significant terms of the case management system the Commission has introduced in respect of unfair dismissals and it will, within the limits of justice, be strictly applied. 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.