Clement v NSW Dept. of Education & Communities [2012] NSWIRComm 1011

Industrial Relations Commission New South Wales Medium Neutral Citation: Clement v NSW Dept. of Education & Communities [2012] NSWIRComm 1011 Hearing dates: 17 May 2012 Decision date: 21 May 2012 Before: Ritchie C Decision: Catchwords: Claim for unfair dismissal.- conduct of proceedings-Industrial Relations Rules-rule 146-failure to proceed at hearing-want of prosecution balance of justice. History of applicant failing to attend proceedings-failure to file on time -on hearing date failure to be ready to proceed-application not persued with due diligence-inconvenience and cost for the respondent-balance of justice favours the respondent-Rule 146-application dismissed for want of prosecution. Legislation Cited: Industrial Relations Act, 1996 Industrial Relations Rules Cases Cited: Calvert v Stollznow (unreported,1 April 1980, Supreme Court procedure, Vol 2 ,pp8528-8545. Stollznow v Calvert (1980) 2NSWLR 749. Category: Principal judgment Parties: Ms M Clement (the applicant): NSW Department of Education & Communities ( the respondent) Representation: Applicant was self represented. Mr S Benson for the respondent Ms M Buchanan for the respondent File Number(s): IRC 1549 of 2012

DECISION 1Ms Marina Clement filed a claim for unfair dismissal pursuant to section 84 of the Industrial relations Act, 1996 on 28 September 2011. She was terminated from the NSW Department of Education & Communities on 6 September 2011. Notwithstanding that the application was filed outside the twenty one day time limit, I note that the respondent did not object to the matter proceeding. 2This matter was first listed for a conciliation on 18 October 2011 but did not proceed at the request of the applicant's union the PSA. It was next listed for conciliation on 3 November 2011 but did not proceed due to the illness of the applicant. It was next listed on 15 November 2011 but did not proceed due to the non appearance of the applicant. On 9 December 2011 the matter was again listed but the applicant failed to appear. At that point the PSA filed a notice of ceasing to act. The matter was next listed for 18 January 2012 when the applicant sought an adjournment so that she could obtain legal representation. The matter was next listed for 3 February 2012 when the applicant failed to appear. The matter was then relisted on 28 February 2012 when the applicant failed to appear. 3On 19 March 2012 a timetable for the filing and serving of evidentiary material was provided to the parties, with an estimate of two days for the Hearing. The applicant was to file her evidence by 10 April 2012. Nothing was filed by the applicant. 4The matter came before Staff J on 19 April 2012, in accordance with Practice Direction 17. The applicant advised Staff J that the PSA was holding the medical evidence that she was going to file and that she thought that they would be carrying out the filing of the documents. Staff J brought to the applicant's attention that the PSA had ceased to act for her from 8 December 2011 and that she was aware of that fact. 5Staff J then made directions requiring the applicant to file and serve her evidence by 20 April 2012, the respondent by 11 May 2012 and the applicant in reply by 15 May 2012. The Hearing dates of 17 and 18 May 2012 would remain. 6Staff J in proceedings brought to the applicant's attention the following: "Ms Clement, in circumstances where an applicant is not pursuing their case with due diligence, that is properly , seriously , this Commission has the power to strike out the application. That application is not being made at the present time by Mr Bennett but I have perused the file and it is , as Mr Bennett has observed-this is the eight or ninth directions hearing of this matter." and " There are only so many occasions that the Commission will give you some indulgence, some leeway, before it forms the view that you are not serious about pursuing this application." The applicant responded that she was very serious. 7After being given the new directions, the applicant stated on transcript that she was very clear. 8The applicant was advised that the Hearing would proceed on 17 and 18 May 2012 commencing at 10.am. The applicant advised Staff J that : "Yes, the relevant directions are clear to me. Thank you."