Industrial Relations Commission of New South Wales CITATION: Holt v Nathan Riffel and John Davis t.as N R & J D Haulage [2006] NSWIRComm 1059 APPLICANT Ian George Holt PARTIES: RESPONDENT Nathan Riffel and John Davis t/as N R & J D Haulage FILE NUMBER(S): 6589 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 03/04/06 DATE OF JUDGMENT: 04/03/2006 APPLICANT Appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT No appearance for or by the respondent DECISION: - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 3 April 2006 Matter No IRC 6589 of 2005 Ian George Holt and Nathan Riffel and John Davis t/as N R & J D Haulage Application by Ian George Holt re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1059 1 This is an application by Ian George Holt re unfair dismissal against Nathan Riffel and John Davis ("the respondents") trading as N R & J D Haulage pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr George was dismissed from the position of truck driver on 24 November 2005. 2 The application sets out the requirement of the applicant to work from midnight on 23 November 2005 through to 8pm on 24 November 2005 with only two and a half hours break for sleep. The application further shows that Mr Holt rang Mr Greg Hynds and said he could not do a country run that night because he was extremely tired and was falling asleep having dinner. Mr Hynds rang Mr Holt back at approximately 9pm to be sure that Mr Holt would not do the job. 3 At about 9.10pm Mr Nathan Riffel rang Mr Holt and it was during that conversation, when Mr Holt confirmed that he was too tired and felt that it was dangerous to continue driving, that Mr Riffel dismissed Mr Holt without notice. 4 There have been matters before the Commission in regard to the safety issues in a whole range of industries and the Commission always takes safety issues as very high priority. There is a particular cause of concern in the transport industry because of the danger of such practices to employees as well as to the public at large on the road. There is no doubt that the hours worked by Mr Holt on this day would have caused him to be fatigued and it was appropriate and sensible for him to avoid action that would be in his own words both "irresponsible" and possibly "illegal". 5 I am further concerned with the irresponsible action of the respondents in not attending at the Commission both on previous occasions and today when they have been advised to do so. Nor have they chosen to be represented here today. This is despite the fact that Mr Riffel was given both verbal (by telephone) and written advice that the matter was listed for hearing today. 6 The failure of a party to comply with directions issued by the Commission and/or the party's failure to attend at proceedings before the Commission has been considered in light of Practice Direction 17 which has as its purpose to facilitate the just, quick and cost-effective disposal of unfair dismissal proceedings before the Commission. with the received recent attention. (See: Sen v Doors Plus Pty Ltd [2206] NSWIRComm 85; Longin v Murphy's Lawyers Inc [2006] NSWIRComm 84; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36.) Accordingly, the hearing proceeded ex-parte and the respondents have no option but to accept the consequences. 7 The evidence is wholly uncontested. There was no reason to doubt the honesty of the applicant who gave evidence in the proceedings. I accept that he was given an instruction that was unreasonable, and which both Mr Hynds who issued the instruction originally and Mr Riffel who confirmed it, knew that it was unreasonable. For Mr Riffel to dismiss the applicant for refusing to obey an unreasonable direction was itself harsh and unjust. 8 Section 89 provides for remedies where a claim for unfair dismissal has been made out. I find that reinstatement or re-employment are impracticable in the present circumstances. Section 89(5) allows for payment of compensation as follows: (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. 9 Mr Holt was employed from 8 September to 24 November 2005, a period of 11 weeks. He gave evidence that he was not successful in finding further employment until recently, despite his efforts to do so. Since he remained unemployed for a period in excess of 11 weeks, I am satisfied that the compensation payable to him should be at the maximum level for which s 89 provides. 10 I find that the dismissal was both of Mr Holt was both harsh and unjust and I make the following orders. ORDERS I order: 1. The respondents, Nathan Riffel and John Davis, are jointly and severally responsible for the payment to the applicant, Ian George Holt, the sum of eleven weeks' wages at the rate of $1294 a week, being an amount of $14,234; 2. The amount set out in Order 1 is to be paid within twenty-one days of today's date, being 3 April 2006. **** 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.