Industrial Relations Commission of New South Wales CITATION: Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112 APPLICANT PARTIES: Craig Maguire RESPONDENT Plasdene Glass-Pak Pty Limited FILE NUMBER(S): 6133 of 2005 CORAM: Sams DP Termination of employment - unfair dismissal - practice and procedure - application for an adjournment of hearing date - Practice direction 17 - clear and compelling reasons for adjournment to be granted - attendence at trade fair of respondent's witnesses. CATCHWORDS: Held, test of what constitutes clear and compelling reasons for an adjournment not made out - consent of parties insufficient - second hearing date may be required - further proceedings matter for presiding member - application for adjournment refused. LEGISLATION CITED: Industrial Realtions Act 1996 Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55 Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39 CASES CITED: Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 Sen v Doors Plus Pty Ltd [2006] NSWIRComm 85 Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36 HEARING DATES: 30/03/2006 DATE OF JUDGMENT: 03/30/2006 APPLICANT LEGAL REPRESENTATIVES: Ms C Cavallaro, Solicitor McArdle Legal RESPONDENT Mr S Ingui, Solicitor Colin Biggers & Paisley Lawyers JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 30 March, 2006 Matter IRC05/6133 Craig Maguire and Plasdene Glass-Pak Pty Limited Application by Craig Maguire re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 112 1 This decision deals with an adjournment application referred to me on 28 March, 2006 as a Presidential member, pursuant to Par 13 of Practice Direction 17 which relevantly provides as follows: ... (b) 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. ... 2 It is necessary to give a short outline of the background of this matter. On 25 November 2005 Mr Craig Maguire ('the applicant') filed an application pursuant to Pt 6 Ch 2 of the Industrial Relations Act, 1996 ('the Act') seeking relief from alleged unfair dismissal. The applicant was employed by Plasdene Glass-Pak Pty Ltd ('the respondent') as Account Manager having commenced employment with the respondent on 28 February 2005. He was dismissed on 7 November 2005 for alleged poor performance. 3 Commissioner Macdonald chaired a conciliation conference with the parties on 19 December 2005. The conciliation proved unsuccessful and, at a report back on 10 February, 2006, the Commissioner issued the following directions in preparation for the arbitration of the claim on 12 April 2006: (i) The applicant is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 3 March 2006. (ii) The respondent is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 24 March 2006. (iii) The applicant is to file and serve any reply to the respondent's documents by 31 March 2006. 4 On 24 March 2006 the solicitors for the respondent wrote to the Industrial Registrar seeking a vacation of the hearing date on the basis that three of its four witnesses would be attending a conference in Melbourne on that day. It was also suggested that one day for the hearing was insufficient as there were six witnesses in total required to give evidence (the applicant and his wife in the applicant's case). 5 It is to be observed at this point that the respondent had not complied with the direction to file and serve its witness statements by 24 March 2006, but had done so on 28 March, 2006. 6 At the hearing of the matter today, 30 March 2006 Mr Ingui, Solicitor for the respondent, informed the Commission that three of the respondent's four witnesses would be attending a trade fair in Melbourne on 12 April and had only recently informed his office of this fact. Mr Ingui further put that one day was unlikely to be sufficient to conclude the matter and this was a further basis to adjourn the proceedings to another day or days. 7 Ms Cavallaro, Solicitor for the applicant did not oppose the adjournment application and submitted that it was possible one of the respondent's witnesses may not be required for cross examination. No issue was taken with the late filing of the respondent's witness statements as they were received unsigned by the applicant's solicitor on the due date. CONCLUSION 8 There have been a number of recent decisions of the Commission dealing with Practice Direction 17. As Staff, J said in Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83: 13 As has been observed in a number of recent decisions of this Commission, the purpose of Practice Direction 17 is to facilitate the resolution of unfair dismissal matters in a just, quick and cost-effective manner. Adjournments are dealt with in paragraph 13 of the Practice Direction which relevantly provides: … b) 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. … 14 Practice Direction 17 has been applied strictly by the Commission. See for example: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55. 15 Needless to say, the Practice Direction 17 applies equally to respondents as it does to applicants. See also Sen v Doors Plus Pty Ltd [2006] NSWIRComm 85. 9 It will be readily apparent from these decisions that no party seeking an adjournment of a hearing date under the Practice Direction has yet provided clear and compelling grounds for the application to succeed. Obviously, while the test of what constitutes clear and compelling grounds is a judgement to be exercised in the Commission's discretion, such applications must be rigorously tested against the ordinary meaning of that expression and always set against a background of ensuring the interests of justice are served. Thus, mere inconvenience or attendance at another appointment or commitment would unlikely fall within the test. 10 On the other hand, illness or incapacity of a witness or a member of a witnesses' family might well attract favourable and sympathetic consideration by the Commission. 11 Do the circumstances here qualify as clear and compelling grounds for the grant of an adjournment of the hearing date? In my assessment, they do not. 12 Firstly, it must be emphasised that the consent of all parties to an adjournment application is not, of itself, a sufficient (let alone compelling) basis to grant an application. Practice Direction 17 is designed to ensure a prompt and efficient case management process in the Commission's unfair dismissal jurisdiction. This process would be undermined if parties could simply agree to adjourn a matter and receive the Commission's imprimatur, particularly when it is unlikely to be listed shortly thereafter. 13 Secondly, whether a second day is necessary for the hearing to be completed is entirely a matter for the member presiding at the arbitration in consultation with the Deputy Registrar. It is not open to me, even if I knew the Commissioner's availability, to interfere, either with the Commissioner's duty to conduct the proceedings as the Commissioner sees fit in the exercise of his/her powers and functions or in the centralised listing system itself. 14 Thirdly, it is self evident that the applicant and his second witness will be giving their evidence first and as Mr Ingui contended, there are significant issues of fact requiring exploration in cross examination of the applicant. I note that at least one of the respondent's witnesses will be available on 12 April. Court time on 12 April would thus appear to be well and properly utilised. However, in light of these considerations, it may be appropriate for the parties to raise with Commissioner Macdonald the availability of a second day for hearing. 15 For the abovementioned reasons, the application to adjourn proceedings in this matter is refused. Peter J Sams, AM Deputy President 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.