Industrial Relations Commission of New South Wales CITATION: Canosa v Penrith Nepean United Soccer Club [2007] NSWIRComm 1060 APPLICANT PARTIES: Claudio Marcelo Canosa RESPONDENT Penrith Nepean United Soccer Club FILE NUMBER(S): 423 of 2007 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - employer failure to properly attend to defence of claim - extempore decision - dismissal held as harsh, unreasonable and unjust - compensation Ordered. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] HEARING DATES: 17/09/07, 25/09/07 DATE OF JUDGMENT: 25 September 2007 EXTEMPORE JUDGMENT DATE : 25 September 2007 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT Mr Bruce Smith DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 25 September 2007 Matter No IRC 423 of 2007 Claudio Marcelo Canosa v Penrith Nepean United Soccer Club Application by C M Canosa re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. EXTEMPORE DECISION [2007] NSWIRComm 1060 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 12 April 2007, by Claudio Marcelo Canosa (the applicant), and named the respondent employer as Penrith Nepean United Soccer Club also referred to as Penrith Nepean United Football Club (the employer). 2 Following unsuccessful conciliation conducted before Connor C the matter has proceeded to arbitration today, 25 September 2007. 3 The matter was initially fixed for Hearing on 17 September 2007. On the morning of 17 September the Commission received facsimile correspondence from a Mr Bruce Smith, the President of the employer. This correspondence advised of the inability of Mr Smith or anyone else from the employer, to attend the proceedings. Consequently the Hearing was rescheduled to today. The Commission requested that the employer provide proof of the apparent "medical emergency" that precluded Mr Smith from attending the Hearing set for 17 September. 4 At Hearing the applicant represented himself and he attested to the veracity of a statement that he had filed and served in accordance with earlier Directions made by Connor C. The employer was represented by Mr Bruce Smith, the President of the respondent club. Mr Smith cross-examined the applicant. 5 Regrettably the employer has not properly attended to the defence of the claim. The applicant provided proof of service of his evidentiary material (Exhibit 2), and unfortunately, despite the delay in the Hearing of the matter, the employer has failed to file any evidentiary or other material as required by the Directions made by Connor C. 6 The Commission now issues this extempore Decision in accordance with internal protocols established in conjunction with Practice Direction number 17. The Commission reserves determination in respect to any subsequent issue and publication of considered reasons for judgement which may be made at a later date. 7 The applicant was employed as a Senior Sports Coach for a period of approximately 20 months. The applicant was dismissed by way of telephone advice on or about 2 April 2007. The applicant's dismissal appeared to relate to a change of membership of the employer's management committee and dissatisfaction on the part of some of the committee members with the applicant's performance and conduct as Senior Coach. 8 The employer has failed to properly attend to the defence of the claim. The lack of evidence against the applicant's claim provides strong basis for the claim's success. 9 The Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. The dismissal was harsh, unreasonable and unjust because it was without properly established basis and implemented with deficient process. The applicant was not provided with proper opportunity to make out a defence or offer explanation. 10 Consequently the Commission is prepared to find in favour of the applicant. Reinstatement or re-employment of the applicant would be impractical. Therefore the Commission is prepared to provide for Relief by way of monetary compensation. The amount of compensation has been determined having regard for sections 89(5) and 89(6) of the Act. 11 It is noted that that upon payment of the amount as stipulated in the Orders below, the applicant has undertaken to apply to discontinue related proceedings before the Chief Industrial Magistrate in Case no: 113603/07. 12 As the Commission has Determined that the dismissal of the applicant was harsh, unreasonable and unjust, the following Orders are now made: ORDERS 1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the employer pay to the applicant an amount of compensation of $6,670.00. This amount is a net figure and appropriate taxation treatment is a matter for the employer. 2. The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant on or before 12 October 2007. By the Commission: I W CAMBRIDGE 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.