Lewis v Gosford City Community and Information Service [2007] NSWIRComm 1021

Industrial Relations Commission of New South Wales

CITATION: Lewis v Gosford City Community and Information Service [2007] NSWIRComm 1021

APPLICANT Ian Edward Lewis PARTIES: RESPONDENT Gosford City Community and Information Service

FILE NUMBER(S): 61 of 2007

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - application accepted out of time - financial services counsellor - conduct and performance issues - failed to heed counselling - dismissal not harsh, unreasonable or unjust - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 24/04/07

DATE OF JUDGMENT: 17 May 2007

APPLICANT Mr Lewis appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr S Schmitke Employers First

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MCLEAY C

17 May 2007

Matter No IRC 61 of 2007

Ian Edward Lewis and Gosford City Community and Information Service

Application by Ian Edward Lewis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2007] NSWIRComm 1021

1 This is an application by Ian Edward Lewis ("the applicant") re unfair dismissal against Gosford City Community and Information Service ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 Mr Lewis was employed by the Gosford City Community and Information Service Limited as a part-time co-ordinator of the Gosford/Wyong Financial Counselling Service for a fixed term of three months commencing on 2 November 2005. He was at that time the only applicant for the position and the respondent wished to re-advertise, which they did later in the year. Again Mr Lewis was the only applicant for the position and was appointed Financial Counsellor on a permanent part-time basis, incorporating a three month probationary period. Throughout the applicant's employment the respondent was not satisfied with his conduct or performance and extended his initial probationary period. He was dismissed on 19 December 2006. Application made out of time 3 The Act requires people to make applications for unfair dismissal within 21 days of dismissal, but further provides the Commission with discretion to accept a late application if there is sufficient reason to do so. In this case the dismissal occurred just prior to the Christmas break and allowance must be made for the closure of offices due to public holidays. If three days are allowed, the application was filed seven days late. 4 I accept that as Mr Lewis says, he was shocked and felt that he had to challenge his dismissal, but thought that he had no rights. Certainly he had made a previous claim in or around 1998, but the law has changed substantially since that time and it is not surprising that based on media reports he came to that view. Therefore I accept that he didn't do anything immediately prior to going on holidays. 5 When he returned from holidays early Mr Lewis found the legal centre closed. He returned and acted expeditiously when the centre opened, gaining appointment on the next day, being called back with further advice the following day. The very next day he went first to the Anti-Discrimination Board and then the Industrial Relations Commission where he lodged his claim. 6 I am satisfied that Mr Lewis acted as soon as he possibly could given the circumstances and that if the legal centre had not been closed when he returned early from holidays, that his application would have been on time. Therefore the lateness was not due to any fault of his own and does not, as far as I know, disadvantage the respondent. I am satisfied to accept the application out of time as there is sufficient reason to do so.