Industrial Relations Commission of New South Wales CITATION: Koschuetzke -v- Jack Katz [2009] NSWIRComm 1016 APPLICANT PARTIES: Rosetta Koschuetzke (nee Lo Presti) RESPONDENT Jack Katz FILE NUMBER(S): 2163 of 2008 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - redundancy established as proper substantive basis - procedural errors -no consultation with employee prior to oral advice of dismissal - dismissal held as harsh and unreasonable - compensation Ordered. LEGISLATION CITED: Industrial Relations Act [NSW] 1996 HEARING DATES: 30 and 31 March 2009 DATE OF JUDGMENT: 31 March 2009 EXTEMPORE JUDGMENT DATE : 31 March 2009 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT Ms R Mathur, barrister DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 31 March 2008 Matter No IRC 2163 of 2008 Koschuetzke (nee Lo Presti) -v- Jack Katz Application by R Koschuetzke re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. EXTEMPORE DECISION [2008] NSWIRComm 1016 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 17 November 2008, by Rosetta Koschuetzke (the applicant), and named the respondent employer as Jack Katz (the respondent). 2 Following unsuccessful conciliation conducted by Murphy C, the matter has proceeded to arbitration commencing on Monday 30 March and continuing today, 31 March 2009. 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. 3 The applicant had been employed as a Solicitor for just over 3 years. The respondent operates a Solicitor's practice in Chatswood. 4 On 10 October 2008, the applicant engaged the respondent in conversation regrading an apparent failure to pay superannuation entitlements. During the course of this conversation the respondent provided verbal advice to the applicant of her dismissal. 5 The reason for the applicant's dismissal was in consequence of the parlous financial position of the respondent's business. The significant financial difficulties faced by the respondent have been properly established by the evidence presented during Hearing. 6 However, despite the substantive basis for dismissal having been established, the procedure that the respondent adopted for implementation of the dismissal was inadequate. The respondent did not discuss the issue of the applicant's deteriorating employment security until she was told of her dismissal on 10 October. Consequently there was no opportunity for the applicant to offer any means by which the impact of lost employment may have been mitigated or even avoided. 7 The Commission finds that the dismissal of the applicant was harsh and unreasonable. The dismissal was harsh and unreasonable because it was implemented with grossly deficient process. 8 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. ORDERS As the Commission has Determined that the dismissal of the applicant was harsh and unreasonable, the following Orders are now made: 1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the respondent pay to the applicant an amount of compensation of $3,720.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the respondent to the applicant within twenty eight days from today, 31 March 2009. oooOOOooo 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.