Industrial Relations Commission of New South Wales CITATION: Michael James Marmion and Showgroup Enterprises Pty Limited [2005] NSWIRComm 1214 APPLICANT Michael James Marmion PARTIES: RESPONDENT Showgroup Ent. Pty. Ltd. (Avis) FILE NUMBER(S): 2198 of 2005 CORAM: Tabbaa C Unfair dismissal s.173 Application to apply to conciliation proceedings refusal to attend conciliation proceedings CATCHWORDS: failure to comply with filing schedule Application pursuant to Rule 146 for dismissal for want of prosecution Application granted LEGISLATION CITED: Industrial Relations Commission Rules 1996 HEARING DATES: 08/22/2005 DATE OF JUDGMENT: 12/05/2005 APPLICANT No Representation LEGAL REPRESENTATIVES: RESPONDENT Ms. J Kruk Avis Australia DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: TABBAA, C. 30 November, 2005 Matter No. IRC 2198 of 2005 MICHAEL JAMES MARMION and SHOWGROUP ENT. PTY. LIMITED (AVIS) Application by M.J. Marmion re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. ………………………………………………………………………………………………… D E C I S I O N The applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 02 May, 2005 alleging that the Respondent had unfairly dismissed him on 22 April, 2005. The applicant contended that he been employed from October 2000 until his dismissal as an Accounts Receivable Clerk. The file was allocated on the same day and was set down for conference and directions on 27 June, 2005 at which time the following appearances were entered: Mr. M. Marmion Applicant, on his own behalf, with Mr. M. Hooper (friend) Ms J. Kruk Human Resources Director, on behalf of the Respondent, with Ms K. Phillips (Human Resources Officer) and Mr. E. Karim (Group Finance Manager) The claim was unable to be resolved on that occasion. A filing schedule was agreed and directed in the following terms: The parties were to file and serve witness statements in affidavit form by the following dates: Applicant's witness statements were due by 4 pm: 18 July, 2005 Respondent's witness statements in reply were due by 4 pm: 08 August, 2005 The Applicant's statements in reply were due by 4 pm: 22 August, 2005 The Applicant was put on notice by the Respondent that it would be seeking costs against him as it considered the claim to be both frivolous and vexatious. The filing schedule was confirmed in writing to both parties on 28 June, 2005. On 14 July, 2005, just four days prior to his statements falling due for filing and serving, the Applicant wrote to the Commission advising that he wished to have another conciliation and directions hearing but presided over by another Member of the Commission. My Assistant advised the Applicant, during a telephone call on 21 July, 2005, that he was required to meet the filing schedule. He was also advised that the Commission, as presently constituted, was prepared to list the matter for further conference if he believed that a further conciliation attempts would be helpful. The Applicant advised that he wished to consider that response as he had intended to proceed with further conciliation before another Member of the Commission. On 28 July, 2005, a call was made to the Applicant to determine his intentions in relation to the claim as he had neither complied with the filing schedule nor advised of his response to the offer to set another conciliation and directions hearing. He responded to my Assistant that he had decided to withdraw the claim and undertook to confirm that intention in writing. On Friday, 05 August, 2005, a further call was made to the Applicant to determine when the Notice of Discontinuance would be filed. The Applicant confirmed his intention to discontinue the proceedings indicating that he had not had the time to do so but would find the time over the following weekend and fax it in by the following Monday. On 10 August, 2005, a facsimile transmission was received from the Applicant. It was further correspondence dated 05 August seeking, once again, to have the matter listed for conciliation before another Member of the Commission. On 11 August, 2005, a call was made to the Applicant during which he was advised that the matter had been listed for further conciliation and directions hearing on 16 August, 2005. The Applicant advised that he was to be interstate working and would not be returning to Sydney until the afternoon of Friday, 19 August, 2005. The matter was re-scheduled for conciliation and directions hearing at 11.30 am on 22 August, 2005. A message was left for the Applicant at 1.35 pm on 12 August, 2005 and written confirmation of the listing was posted to him on the same date. No appearance was entered by, or on behalf of, the Applicant on 22 August, 2005. However, at 9.41 am a facsimile transmission was received from him advising that he had been "laid low with the flu" and therefore unable to respond to the notice of hearing which he had received on 18 August. He confirmed, however, that he would not attend any future listings of the matter if presided over by the Commission as currently constituted. Attempts to contact the Applicant by telephone at 10.55, 11.00, 11.10 and 11.20 am had been unsuccessful. Messages had been left on his mobile voice, however, they remained unanswered while the proceedings were on foot. An application was made on behalf of the Respondent for the matter to be dismissed for want of prosecution. The proceedings were stood over for a period of seven days to allow the Respondent an opportunity to consult with its industry body. If it intended to follow that course, then it was to formally apply for the dismissal of the claim setting out its reasons. The Applicant telephoned my Assistant at approximately 2.20 pm that afternoon and explained that he had only just returned from work. He was advised of what had transpired at the proceedings earlier that morning. He was further advised that he would be provided with an opportunity to respond to the submissions made by the Respondent as to the dismissal of the claim. On 26 August, 2005, a facsimile transmission was received from the Respondent in which the Commission was advised that the Respondent was relying on the provisions of Rule 146 of the Industrial Relations Rules 1996 in support of its application for dismissal of the claim for failure by the Applicant to pursue the claim with due diligence. That contention was based on the following: 1. The Applicant's failure to comply with the directions issued by the Commission on 27 June, 2005; 2. The Applicant's indication that he intended to withdraw his claim on 05 August, 2005 and his subsequent failure to do so; and 3. The Applicant's failure to attend the Conciliation Conference on 22 August, 2005, providing the Commission with less than 1 hour's notice by way of facsimile that he was not going to attend. On 30 August, 2005, a telephone call was made to the Applicant during which he was advised by my Assistant that the above application had been received from the Respondent and that it would be forwarded to him to respond to by 13 September, 2005. Correspondence was forwarded to the Applicant by Express Post on 30 August, 2005 confirming that advice and attaching a copy of the Application from the Respondent. In a facsimile transmission received on 02 December, 2005, the Applicant sought advice on how to access a copy of the Act in order to refer to Rule 146. Owing to the Applicant's failure to respond to her telephone message of the same date, my Assistant responded by email on 05 September, 2005 providing him with the link to the information requested. No response was received from the Applicant until 12 September, 2005 when he forwarded, both by facsimile message and email, a message to the effect that the link did not work and that he had unsuccessfully searched the IRC website for the information he was seeking. He asked if he could obtain the information in any other way. On 12 October, 2005, a copy of Rule 146 was forwarded to the Applicant. He was provided with a further seven days in which to respond to the application for dismissal of his claim. As at 05 December, 2005, no response has been received from the Applicant. In addition, no further contact has been made by him as to the failure to make submissions in that regard. On the basis of all of the above chronology, Matter No. IRC 2198 of 2005 is concluded by dismissal of the claim for want of prosecution. I. Tabbaa 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.