Joshua Cortes v WorkCover Authority of New South Wales [2008] NSWIRComm 20

Industrial Relations Commission of New South Wales

CITATION: Joshua Cortes v WorkCover Authority of New South Wales [2008] NSWIRComm 20

APPLICANT Joshua Cortes PARTIES: RESPONDENT WorkCover Authority of New South Wales

FILE NUMBER(S): IRC 1339 of 2007

CORAM: Sams DP

Termination of employment - unfair dismissal - jurisdictional issues - abandonment of employment - out of time application - whether sufficient reason established for Commission to accept out of time application - unrepresented litigant - applicant takes extended recreation leave - failure to secure promotion - applicant seeks extended sick leave for anxiety and depression - sick leave not approved - applicant hospitalised overseas - no contact with respondent - no forwarding contact details - medical certificate obtained in Spain for further six months sick leave - sick leave not approved - letters sent warning applicant to return to work - failure to do so considered abandonment of employment - letters reach applicant - applicant seeks reversal of decision and returns to Australia - applicant claims unfair dismissal - compensation sought. CATCHWORDS: Held; benefit of doubt to applicant - sufficient reason established - out of time application accepted - failure to contact respondent over many months - reason for conduct was failure to achieve promotion - applicant had obligation to contact respondent - respondent left with no alternative - applicant abandoned his employment, not dismissed - no jurisdiction to determine claim - application dismissed.

LEGISLATION CITED: Industrial Relations Act 1996

Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Arun Karki v Kingston Gardens Aged Care (unreported AIRC, PR938761, 2 October 2003) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 Little v Commissioner of Police (No. 2) (2002) 112 IR 212 New South Wales Independent Teachers Association v New England Girls School [1975] AR (NSW) 321 Zerafa and Fairfield City Council [2004] NSWIRComm 103