Industrial Relations Commission of New South Wales CITATION: Williams v. Corrimal RSL Memorial Club Limited [2006] NSWIRComm 1029 APPLICANT Paul Williams PARTIES: RESPONDENT Corrimal RSL Memorial Club Liomited FILE NUMBER(S): IRC 5479 of 2005 CORAM: Connor C CATCHWORDS: termination of employment - failure of applicant to comply with directions - application to dismiss matter - case management - Practice Direction No.17 - directions vacated LEGISLATION CITED: Industrial Relations Act 1996 Gu v. Nature's Care Manufacture Pty Limited [2006] NSWIR Comm 39 CASES CITED: Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Zammit v. KTS Logistics Pty Limited [2006] NSWIR Comm 36 HEARING DATES: 16/02/2006 DATE OF JUDGMENT: 02/16/2006 EXTEMPORE JUDGMENT DATE : 02/16/2006 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Michelle O'Neill Registered Clubs Association of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 16 February, 2006 Matter No IRC 5479 of 2005 Paul Gregory Williams and Corrimal RSL Memorial Club Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION ON NOTICE OF MOTION [2006] NSWIRComm 1029 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr P G Williams lodged an application concerning the termination of his services as a casual bingo caller with Corrimal RSL Memorial Club Limited. Mr Williams was dismissed on Thursday, 11 August, 2005 after seven years of employment for alleged sexual misconduct. He has sought his reinstatement in employment with the club in his Part 6 application. He lodged his Part 6 application on Wednesday, 26 October, 2005, ie substantially outside the 21 day time limit prescribed by S.85(1) - 55 days. Mr Williams claimed that he had lodged an earlier Part 6 application - apparently within the 21 day time limit - but there is no record of that Part 6 application in the Registry office. 2 The matter was allocated to McKenna C who scheduled it for a preliminary hearing on Wednesday, 9 November, 2005 in the Commission's premises at 90 Crown Street, Wollongong. That date was vacated and the preliminary hearing took place on Wednesday, 30 November, 2005 (also in Wollongong). A further mention of the matter took place on Wednesday, 7 December, 2006. Conciliation failed to settle Mr Williams' claim and McKenna C programmed it for arbitration. Mr Williams was to file and serve his evidentiary material by Wednesday, 28 December, 2005 and the evidentiary material in response from the club was to be filed and served by Wednesday, 18 January, 2005. Further material from Mr Williams in reply was to be provided by Wednesday, 25 January, 2006. 3 Mr Williams did not comply with the direction made by McKenna C. On Monday, 9 January, 2006 Ms O'Neill, representing the club and the Registered Clubs Association of New South Wales in the proceedings, wrote to McKenna C pointing out that, having particular regard the late filing of Mr Williams' Part 6 application and his failure to comply with the directions of McKenna C for the filing of his evidentiary material, his claim should be dismissed for want of prosecution on his part under Rule 146. It was at that time that Practice Direction No.17 intruded and the new procedure required under it applied to Mr Williams' Part 6 application. As a consequence, the matter was stood out of the list by McKenna C and referred to the Registry staff. A notice of motion was lodged by Ms O'Neill on Thursday, 16 February, 2006 to reinforce the application she made in the earlier letter. The notice of motion was subsequently referred to me and set down by Registry staff to determine on Thursday, 16 February, 2006. 4 No hearing date over the substantive issue has been set down to date. It is Ms O'Neill's understanding that the hearing in the first instance concerns only the threshold issue of the out-of-time Part 6 application. Mr Williams appears to be uncertain over that position. In her letter Ms O'Neill described the issue of Mr Williams' late lodgement of his Part 6 application as a "...jurisdictional matter...". Since members of the Commission under S.85(3) may permit an out-of-time Part 6 application to go forward to hearing, the fact that a claim is made out-of-time is a matter for the discretion of the member of the Commission and not a matter going to jurisdiction. Nevertheless, the prima facie position is that the 21 day time limit should be followed: it is a clear instruction of the legislature that the time limit should be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. Otherwise the time limit in S.85(1) would be meaningless. 5 Mr Williams subsequently filed a written statement with the Registry - but it does not appear to me to address the argument concerning the out-of-time claim at all. Moreover, Ms O'Neill claimed in the proceedings before me on Thursday, 16 February, 2006 that she had never been given a copy of that material and that appears to have been the case. As Ms O'Neill argued in the proceedings, the obligation on Mr Williams flowing from McKenna C's directions was to not only file the evidentiary material with the Commission but to file and serve the evidentiary material on the club as well. The Registry stamp recording the date of filing of that material is illegible as it has been stamped across printing which obliterates it but I have concluded that the file was actually lodged on Wednesday, 18 January, 2006. 6 Accompanying that written statement is a letter from a solicitor who has apparently been assisting Mr Williams but has not to date represented him in the proceedings and it does not appear will do so in any arbitration. That solicitor has filed no notice to indicate that he is representing Mr Williams, in any event. The fault for the delay Mr Williams and his solicitor attach to the local post office which has apparently misplaced the statement the solicitor prepared on his behalf and mailed to him for his signature and return to him. The solicitor's account, mailed to the same address, did reach Mr Williams' residence, however. Consequently, the solicitor indicates in his letter to Mr Williams that he: "...make urgent enquiries at the Jamberoo Post Office as to why they were able to deliver one of the letters to you but not the other..." In any event, because the solicitor did not receive Mr Williams' signature on the written statement prepared on his behalf, it was not forwarded to the Registry in time. 7 In the circumstances, the responsibility to respond to the directions made by McKenna C are personal to Mr Williams. If the solicitor has filed the evidentiary material late, that is a matter which Mr Williams should take up with his solicitor. It does not excuse his delay in these proceedings. He has adopted a certain casual approach to his Part 6 application which does not sit comfortably within the restrictions now imposed by virtue of Practice Direction No.17 and does give some force to Ms O'Neill's application that I should dismiss Mr Williams' Part 6 application at this point. 8 But Clause 7(e) of Practice Direction No.17 sets out in considerable detail the procedure to be adopted when there has been non-compliance with directions in Part 6 proceedings, viz: "In respect of matters where there has been non-compliance with directions the parties will be required to attend the call-over. If at the date of the compliance check call-over there remains non-compliance, the Registrar may remit the matter to a Presidential Member for consideration. The Presidential Member may: (i) vacate the hearing date; (ii) make such further directions in the matter as necessary, including any direction that further default by the applicant will result in the matter being dismissed; and (iii) remit the parties and the file to the List Office for action; (iv) such other directions and orders as may be appropriate." 9 There are certain irregularities in the processing of this particular file. Firstly, the matter was not referred to a Presidential Member, as Clause 7(e) directs. This is a matter dealt with as part of regional commitments. The file was referred through Grayson DP to me presumably because the effect of Practice Direction No.17 on regional claims has not to date been finalised. I raised the issue with Registry staff when the matter was referred to me but it was decided by them that the file should remain with me. Secondly, the file records that no compliance call-over actually took place on this matter before the notice of motion was filed and heard by me - again, I suspect, because to date there appears to be no procedure developed to handle such matters in regions. In other words there was no compliance check. Nevertheless, the underlying policy behind Practice Direction No.17 clearly appears to be stricter case management of unfair dismissal claims and I believe that I am compelled to follow that course. 10 In the unreported ex tempore decision of Tuesday, 7 February, 2006 in Zammit v. KTS Logistics Pty Limited [Matter No.IRC 4164 of 2005], Staff J dealt with a notice of motion that a Part 6 application be struck out when the dismissed employee failed to comply with directions and also failed to appear at the call-over and, indeed, the hearing of the notice of motion itself. His Honour declined to strike out the Part 6 application, but he indicate (at p.3) that he gave serious consideration to doing so, commenting (at p.4) that: "...I should make it clear that I am prepared to give some latitude to-day, as there is a new regime in place, which Mr Zammit is getting the benefit ( sic ). 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..." In those circumstances, his Honour made guillotine orders, granting the applicant a further 14 days for the filing of his material on the clear understanding that his failure to comply with that direction would lead to the matter being struck out. His Honour concluded his ex tempore decision by commenting (at p.4) that: "...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..." 11 Further, in his unreported ex tempore decision of Monday, 13 February, 2006 in Gu v. Nature's Care Manufacture Pty Limited [Matter. No.IRC 5403 of 2005] Staff J declined to grant an adjournment application made on Thursday, 9 February, 2006 on behalf of an employer respondent who had been late in filing its evidentiary material. The hearing was scheduled for Wednesday, 15 February, 2006. One of the witnesses required for the employer's case was absent overseas. His Honour noted (at pp.2 and 3) the terms of Clause 13(b), viz: "The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. It should be understood that adjournment applications will be granted only on clear and compelling grounds." Staff J confirmed (at p.3) that: "...Practice Direction No.17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Absent clear and compelling grounds, applications for adjournment will be declined. I am of the firm view that the respondent has not acted in a way commensurate with its obligations and its own interests in seeking an adjournment of the proceedings in such close proximity to the hearing..." 12 Consistent with my understanding of the instructions contained in Clause 7(e), I propose to vacate all of the original directions by McKenna C. But insofar as Clause 7(e) appears to me to highlight the direction that a defaulting Part 6 applicant be given at least one chance before what Staff J describes as guillotine orders are made - ie a direction that "...further default...will result in the matter being dismissed..." - it suggests to me that the course that Clause 7(e) is advancing is to reject Ms O'Neill's application to strike out Mr Williams' Part 6 application at this point in time. Instead, I propose to accept the written statement provided by Mr Williams, albeit late and not strictly on the initial issue, ie the out-of-time Part 6 application. The club shall now respond by filing and serving to Mr Williams its evidentiary material by no later than Wednesday, 8 March, 2006 and any further evidentiary material in response shall be filed and served by Mr Williams no later than Wednesday, 15 March, 2006. 13 I propose to remit this file to Grayson DP for his attention and allocation to a member of the Commission for hearing in due course. P J CONNOR 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.