Industrial Relations Commission of New South Wales CITATION: Darren Jeffery Clark and CBD Prestige Architectural Metal Fabrication Pty Ltd t/as CBD Prestige MetalworksDarren Jeffery Clark and CBD Prestige Architectural Metal Fabrication Pty Ltd t/as CBD Prestige MetalworksDarren Jeffery Clark and CBD Prestige Architectural Metal Fabrication Pty Ltd t/as CBD Prestige Metalworks [2005] NSWIRComm 1188 APPLICANT Darren Jeffery Clark PARTIES: RESPONDENT CBD Prestige Architectural Metal Fabrication Pty Ltd FILE NUMBER(S): 3643 of 2005 CORAM: Tabbaa C HEARING DATES: 08/03/2005 DATE OF JUDGMENT: 10/12/2005 APPLICANT Darren Jeffrey Clark LEGAL REPRESENTATIVES: RESPONDENT Mr I Mitchell Webster O'Halloran Associates, Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA, C. 12 October, 2005 Matter No IRC 3643 of 2005 DARREN JEFFERY CLARK and CBD PRESTIGE ARCHITECTURAL METAL FABRICATION PTY. LIMITED trading as CBD PRESTIGE METALWORKS Application by D.J. Clark re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. INTERLOCUTORY DECISION 2005 NSWIRComm 3643 1 The Applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 13 July, 2005 alleging that the Respondent had unfairly dismissed him on 19 June, 2005. The Applicant contended that he been employed from 28 February, 2004 until his dismissal as a Draftsman/Estimator/Planner/ Supervisor. 2 The file was allocated on the same day and was set down for conference and directions at 10.30 am on 03 August, 2005 at which time no appearance was entered by, or on behalf of, the Applicant. 3 Mr. I. Mitchell, Solicitor, was in attendance on behalf of the Respondent accompanied by Ms K. Chen, the Company Secretary. 4 The proceedings did not commence until 12.15 pm in order to give the Applicant an opportunity to attend the proceedings. Upon his failure to do so, the following chronology was put on the record. 5 My assistant attempted to contact the Applicant at his home as it was the only telephone contact he had provided on his application. She tried at 10.35 am, 10.38 am and 10.41 am. A recorded response was received to the effect that the number had either been disconnected or was unavailable. The Applicant had provided a residential address at Cronulla. 6 My assistant spoke to the Respondent's representatives and obtained a mobile telephone contact for the Applicant. She called that number at 10.41 am and was able to speak to the Applicant. 7 Initially, he explained that he thought that the listing was for 08 August, 2005 and that the date on the "Appointment for Conciliation & Directions" form looked like an "8" and not a "3". The equivalent notice on the Commission's file listed the matter quite clearly as being on "3" August. 8 He was requested to attend the proceedings, to which he replied that he was in the middle of moving and all his relevant paperwork were in storage. He advised that he was approximately one hour away by train. 9 As the Respondent had indicated its annoyance over the non-attendance of the Applicant and its intention to seek costs from the Applicant, and upon ascertaining that the Respondent would wait for a further hour, the Applicant was advised that the proceedings were adjourned for a further hour to allow him an opportunity to attend. 10 The Applicant advised my assistant that he could not attend. On that occasion, he advised that he was working, he was "in the middle of a job" and could not just drop everything. He suggested that he would discontinue the matter but, when pressed to state his clear intention, refused to confirm his intentions one way or the other. 11 My assistant, on instructions, sought further clarification from the Applicant as to his intentions. He was asked whether he wished to take advantage of the opportunity given to him to adjourn for an hour to allow him to attend the proceedings. If not, did he intend to pursue the claim or discontinue the proceedings? He was put on notice that the Respondent had already indicated an intention to seek costs against him. The Applicant responded that he would not be discontinuing the claim. When pressed as to whether he would attend the proceedings, he had replied "unbelievable, this is my father you know..." and had used expletives over the telephone. My assistant pointed out that it was 10.50 am and the proceedings would re-commence at 11.50 am. 12 When the Applicant did not arrive by 11.50 am, my Assistant put another call to him on his mobile number. The Applicant responded stating that he was still in Sylvania. He was given another 15 minutes to attend. 13 At 12.14 pm and again at 12.23 pm, my assistant called the Applicant's mobile telephone number. She received no response and it eventually rang out after 2-3 minutes. The proceedings were not commenced for a further 5 minutes. 14 Mr. Mitchell confirmed that the Respondent firm belonged to the Applicant's father. The Respondent submitted that the claim should be dismissed with costs. 15 The Commission issued directions that the Respondent file a formal application by Friday, 12 August, 2005 seeking dismissal of the claim and provide grounds for such application. The Applicant would be given until Friday, 26 August, 2005 to respond to that submission. 16 Correspondence was forwarded to the Applicant, at his new residential address, on 03 August, 2005 advising of the directions issued earlier that day in relation to his claim. 17 At the Commission's direction, a copy of the transcript was forwarded to the parties on 08 August, 2005 to assist them in the preparation of their submissions. SUBMISSION ON BEHALF OF THE RESPONDENT 18 The Respondent sought that the claim be dismissed on two bases: Firstly, the Respondent denied that the Applicant had been dismissed from his employment. Even if the Applicant had been dismissed, the claim had been filed 3 days out of time. Secondly, the claim lacked merit and had no, or little, prospect of success. Out-of-Time Claim 19 The Respondent argued that the Applicant had not provided an acceptable explanation for the delay. It was pointed out that there were no continuing acts of the Applicant between the time of the alleged dismissal and the filing of the application that could be described as mitigating circumstances. The Respondent referred the Commission to the contents of the Statement it had provided in its Employer's Reply to the Application. That Statement set out the alleged continuing acts of the Applicant between the alleged dismissal and the filing of his claim. 20 For his part, the Applicant did not provide any explanation in his submission for the late filing of the claim. In his original application, he had explained his reasons as follows: I had filled out this application on time, through due to the fact that I am dealing with my father, and there seemed to be a breakthrough in negotiations, I held off filing this, because as you can image it pretty much (sic) the end of our relationship. Dismissal/Abandonment of Employment 21 The Respondent also relied on its original Statement as to the details of the alleged continuous requests it had made for the Applicant to attend the office and his failure to do so. 22 In its Statement, the Respondent submitted that the Applicant had applied for, and was engaged initially, as a subcontractor from 18 February, 2004 until 20 October, 2004 when he commenced as a full-time employee. 23 The Respondent contended that there had been an on-going problem about getting the Applicant to work his full-time hours of 9 am - 5 pm Monday to Friday. It was contended that he had provided a number of excuses such as not having any transport , having to take care of his new born baby, or having to drop his other children to school, take them to sports meetings, and so on. It was pointed out that the office was located approximately two minutes from Martin Place train station. 24 The Respondent contended that the Applicant's absences disrupted the administration of the office in that much time was spent in staff attempting to contact the Applicant. He hardly ever answered his telephone, which was also devoid of a message facility. For a period of time the staff resorted to contacting the Applicant by SMS and when that failed, resorted to contacting him via Emails. It was recalled that at least on one occasion, someone drove out to his home in Cronulla to find out why he was not contactable. Complaints were also received from clients whose efforts to contact the Applicant had been futile. 25 It was submitted that the Applicant had been made aware "on numerous occasions", and in the presence of witnesses, that working from home and not being contactable was not acceptable as it not only placed a great deal of stress on the company and its administration, it also meant that the Applicant did not have the benefit of quick access to the Managing Director if a problem arose that required his expertise. 26 It was further submitted that the Applicant had been verbally warned, on numerous occasions and once again in the presence of witnesses, that he had to sort out his domestic situation and change his approach to work. 27 It was contended that during the period 09 June - 17 June, 2005, the Respondent had contacted the Applicant by telephone and SMS messages to attend the office to discuss some urgent issues that included the following: * A VIP meeting; * A complaint from a client about a job undertaken by the Applicant; * The unauthorised use of company letterheads for personal use; * The overall unsatisfactory working situation created by the Applicant. 28 The Applicant had neither responded to the Managing Director's messages nor attended the office nor provided an explanation for his inaction. It was noted that the Applicant had not collected his pay for week ending 14 June, 2005. The Respondent was therefore left in limbo, not aware of what work was being undertaken on behalf of the firm. 29 As a result, on 17 June, 2005, an email was sent to the Applicant instructing him to suspend all work for the Respondent until he had met with the Managing Director. The aim was to obtain some reaction from the Applicant. 30 On Saturday, 18 June, 2005, the mother of the Applicant's children made contact. The Managing Director had re-iterated that all that was required of the Applicant was that he attends a meeting with him. She had undertaken to advise the Applicant to call. 31 No contact was made by the Applicant until 04 July when an email was received from him asking for his "final termination pay" to be made up. He indicated that he had already made contact with the Department of Industrial Relations. It was noted that his pay for week ending 14 June had still not been picked up. The Applicant was paid up on 13 July, 2005 when he attended the Respondent's office. He had made no mention of his intention to pursue an unfair dismissal claim, which was filed on the same day. SUBMISSION ON BEHALF OF THE APPLICANT 32 The Applicant denied that any period of association had been served as a sub-contractor. The employment terms agreed between the parties in February 2004 included a 38-hour week and statutory entitlements. He was adamant that he had never submitted invoices. He had only submitted time sheets. 33 The 17 June email had clearly terminated his employment as it had also made arrangements for him to pick up his termination monies and to return the Respondent's property. In addition, by email dated 23 June, 2005, he had been instructed that unless he transferred his mobile telephone number to his personal account by 01 July, 2005, the number would be cancelled. 34 The Applicant denied the allegation that the mother of his children had telephoned his father on 18 June. He attached a report from Ms Shayne Laffan, which stated that approximately three weeks after the Applicant informed her of his dismissal, she had attempted to contact his father and had been unsuccessful as she was advised that he was asleep. She had called again a week later and spoken to Jeff Clark in relation to the collection of the Applicant's pay. Those were the only contacts she had with the Respondent. 35 His salary package included the provision of a car to be supplied when he got his licence back on 17 April, 2004. The car was used to transport tools, material and other employees to and from the site. He was given a Ford station Wagon that he used until August 2004. He was told that "the boys" needed it to get to and from the sites. Instead, he was given a small hire car for a period of four weeks while a replacement car was being sourced for him. The Applicant claimed that the constant reference by the Managing Director to the cost of that hire vehicle caused him to offer to surrender it and to obtain his own car provided he was paid its running expenses. He had obtained a loan and purchased a 1982 BMW in later September 2004. The Respondent paid for his petrol consumption and registration but had failed to pay for its maintenance. 36 That car was written off by an uninsured P-plater on 01 December, 2004. It had taken him approximately five months to repair it and get it to a roadworthy state. In the interim, he had remained without a car and experienced a great deal of inconvenience in trying to get to and from work without help from the Respondent. 37 As to the allegation that he had not picked up his pay for a fortnight from when it was due, the Applicant pointed out that his pay should have been forwarded to him on site. He claimed that he had worked from the home, the factory and on site during the last four weeks of his employment. He attached the emails he had sent from his home to the Respondent that, he claimed, contradicted the submission by the Respondent that no contact had been made by him during the relevant period. He had sent in his time sheet on Wednesday, 15 June, 2005 and photographs on Sunday, 19 June, 2005. He could not forward those emails he had sent from, and received at, the factory because he no longer had access to them. He recalled that the factory Internet access was faulty during the last two weeks of his employment and he had to send his emails from home. He contended that 50 percent of his working time had been spent at the factory during the last six weeks of his employment and provided names of persons he had made contact with during that time. 38 The Applicant then went on to set out the work he had allegedly undertaken on behalf of the Respondent during the last few days of his employment. 39 Finally, the Applicant attached statutory declarations from persons who, he contended, were eligible to attest to the work he had undertaken for the Respondent. DECISION 40 Having considered the submissions of both parties, I conclude that there is sufficient doubt raised by the Applicant as to the merits of his claim to warrant a further listing of the matter for conciliation and directions hearing. To dismiss the application without giving him such an opportunity would, in my view, amount to an injustice. 41 The claim by the Respondent for costs to be awarded against the Applicant, at this stage of the proceedings, is rejected. 42 If the matter cannot be resolved, then the issue relating to the out-of-time claim will have to be determined as a threshold issue. 43 The claim is hereby listed for conciliation and directions hearing at 9.30 am on Monday, 31 October, 2005. I. Tabbaa 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.