Charkawi v RailCorp [2011] NSWIRComm 1053

Industrial Relations Commission New South Wales Medium Neutral Citation: Charkawi v RailCorp [2011] NSWIRComm 1053 Hearing dates: 23 August 2011 Decision date: 17 October 2011 Jurisdiction: Industrial Relations Commission Before: Bishop C Decision: Costs associated with the hearing awarded as agreed or assessed Catchwords: COSTS: - unfair dismissal application - applicant represented by volunteer advocate - jurisdictional issues raised - s.90 - previous TAB decision dismissing appeal - previous application to Fair Work Australia dismissed as out of time - letters from respondent prior and post conciliation re jurisdictional issues - withdrawal invited - on notice re costs - application withdrawn during hearing - costs sought against applicant on frivolous and vexatious grounds HELD: - application untenable - no jurisdiction - unreasonable failure to withdraw - applicant ignored incontrovertible circumstances and relevant provisions of Act - no power to award costs against volunteer advocate - costs re hearing only awarded against applicant. Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Transport Administration (Staff) Regulation 2005 Workplace Relations Act 1996 (Cth) Cases Cited: Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149 Tapia v Emibarb Pty Ltd t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232 Category: Principal judgment Parties: Hassan Charkawi (Applicant) Rail Corporation of NSW (Respondent) Representation: Mr P Ginters (Respondent) Mr D Cunningham (Applicant) File Number(s): IRC 797 of 2011