Industrial Relations Commission of New South Wales CITATION: Montes v. Mixing Pot Restaurant [2008] NSWIRComm 1045 APPLICANT Emmanuel Montes PARTIES: RESPONDENT Mixing Pot Restaurant FILE NUMBER(S): IRC 358 of 2008 CORAM: Connor C CATCHWORDS: termination of employment - restaurant industry - failure to prosecute claim - involvement with unresolved civil proceedings alleged - questions of jurisdiction - matter dismissed for want of prosecution - position of applicant reserved for subsequent arbitration LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 CASES CITED: State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 28/05/2008 EXTEMPORE JUDGMENT DATE : 28 May 2008 APPLICANT no appearance RESPONDENT LEGAL REPRESENTATIVES: Pranav Bhatt Restaurant and Catering Industry Association of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 28 May, 2008 Matter No IRC 358 of 2008 Emmanuel Montes and the Mixing Pot Restaurant Application under S.84 of the Industrial Relations Act, 1996 DECISION [2008] NSWIRComm 1045 1 Mr Emmanuel Montes was employed as a waiter at the Mixing Pot Restaurant. His services were terminated on Saturday, 1 March, 2008 after five months of employment and he subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. In his Part 6 application he has claimed that the termination of his services was unfair and he has sought monetary compensation over it. The matter was allocated to me by Registry staff and set down by them for a conciliation/directions hearing on Wednesday, 9 April, 2008 and mentions on Thursday, 24 April, 2008 (which was vacated at the request of Mr Montes) and Wednesday, 7 May, 2008 (which was also vacated at the request of Mr Montes). 2 I set the matter down for a further mention on Wednesday, 28 May, 2008. Mr Bhatt, representing the Mixing Pot Restaurant and the Restaurant and Catering Industry Association of New South Wales in the proceedings, wrote to Mr Montes on Wednesday, 7 May, 2008 in the following terms: "...We note that this is the second request you have made to vacate the...matter. If you seek to persist with your original claim without variations, and settlement is not reached, we will seek to have the Commissioner strike out the matter immediately..." Mr Montes nevertheless forwarded a letter to me by e-mail on Tuesday, 27 May, 2008 seeking a further adjournment of the matter and he did not subsequently appear in the proceedings on Wednesday, 28 May, 2008. 3 Mr Montes gave as his reason for seeking the further adjournment ongoing litigation in the State Supreme Court in which he is the plaintiff (on behalf of the incumbent board of directors of the Spanish Club). A hearing of that matter is scheduled in the Supreme Court for Thursday, 29 May, 2008. Mr Montes has, in fact, claimed that his dismissal flowed out of "...Spanish Club politics...", a claim refuted by Mr Bhatt. He has written in his e-mail letter to me that his involvement in the Supreme Court proceedings prevented him from pursuing his Part 6 application at this time and he adds: "...I would also have you note the main actors in the current ongoing litigation are the same as identified in my lodgement before the IRC for unfair and undue dismissal, thereby putting paid to...the false claim (of the owner of the Mixing Pot Restaurant) that my dismissal from the place of employment had nothing to do with 'Spanish Club politics'. I entreat the IRC to allow this further application for adjournment and to keep the matter open in the public interest..." 4 Mr Montes may be entitled to feel concern over his dismissal, but I fail to see how his dismissal, even if it is associated with "Spanish Club politics", (which is disputed by Mr Bhatt, in any case), reaches the level of the public interest. The concept of the public interest has wide implication, no doubt covering a variety of matters but, in my opinion, it generally denotes some general concern involving the rights of the community, or a class or section of it. An isolated and individual Part 6 application does not ordinarily fall into that class. 5 Nor do I understand how any proceedings in the Supreme Court on Thursday, 29 May, 2008 should in any way present difficulties to Mr Montes in appearing before me in a brief mention of his Part 6 application a day earlier - Wednesday, 28 May, 2008 - essentially for programming for arbitration in the customary manner. This is the third adjournment of proceedings at his request. I am informed by Mr Bhatt that Mr Montes had made no contact with him or the Mixing Pot Restaurant with a view to settling his claim since the initial preliminary proceedings on Wednesday, 9 April, 2008. 6 This immediately raises in issue whether or not Mr Montes has acted with due diligence with his Part 6 application. Rule 146 is in the following terms: "Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution; or (b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed; or (c) make such further or other order as in the circumstances may seem just..." 7 Furthermore, Mr Montes' employer was, in fact, a joint venture partnership made up of two corporations - Samgame Pty Limited and Hasar Pty Limited (as trustee for the Simon Aoukar Family Trust) which Mr Bhatt claims - no doubt accurately - are trading corporations for the purposes of S.51(xx) of the Commonwealth Constitution and, as such, outside the jurisdictional of the State Commission by virtue of S.16 of the 2005 Federal Workplace Relations Amendment (Work Choices) Act. 8 As I explained to Mr Montes in the proceedings on Wednesday, 9 April, 2008, Work Choices excludes employees of employers who are trading corporations within the meaning of S.51(xx) of the Commonwealth Constitution from Part 6 (and employers with fewer than 100 employees are also excluded from the Federal unfair dismissal regime). That changed industrial climate flowing from Work Choices has been confirmed by the majority of the High Court (Gleeson CJ, Gummow, Haynes, Heydon and Crennan JJ with Kirby and Callinan JJ dissenting) in State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1. It remains the current position. 9 In those circumstances, I see no good purpose being served by preserving this matter any longer. I believe that it is open to me to dismiss Mr Montes' Part 6 application. I do so not because of the foreshadowed jurisdictional ground raised by Mr Bhatt (which would, in any event, be ultimately likely to prove fatal to his claim) but because of the fact that Mr Montes has failed to prosecute his claim. That is Mr Bhatt's submission before me and what he had already informed Mr Montes in his letter of Wednesday, 7 May, 2008 was his intention. 10 However, to protect Mr Montes' position, I propose to reserve to him the right to seek the re-listing of his Part 6 application in the light of the outcome of the Supreme Court proceedings to which he has referred in his correspondence to me (and which he has claimed prevents him from proceeding constructively at this time). That would permit him, in due course, to argue the jurisdictional issue flowing from Work Choices if he choses to do so. But I have to say that in view of the difficulties I see with his Part 6 application on jurisdictional grounds, I would urge him to seek legal advice before he proceeds further with his Part 6 application. 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.