Kabir v Department of Family and Community Services [2016] NSWIRComm 1009

Industrial Relations Commission New South Wales Medium Neutral Citation: Kabir v Department of Family and Community Services [2016] NSWIRComm 1009 Hearing dates: 17 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – lack of due dispatch – medical certificates do not cover lengthy periods of inaction – no explanation for lengthy period in which case not prosecuted – prospects in substantive case poor – application dismissed STRIKE OUT APPLICATION – lack of due dispatch – tests – balancing exercise – balancing of prejudice to be suffered by applicant and respondent – loss of ability to pursue claim – loss of witness memory – use of resources – prejudice to the respondent outweighs prejudice to the applicant – substantive application dismissed Legislation Cited: Industrial Relations Act 1996 s.84 Civil Procedure Act 2005 s.56 Uniform Civil Procedure Rules 2005 r 12.7 Cases Cited: Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Category: Principal judgment Parties: Farhan Kabir (Applicant) Department of Family and Community Services (Respondent) Representation: Counsel: M Moir (Respondent) File Number(s): IRC 414 of 2014; 16/20875

Judgment 1. The Public Service Association of NSW ('the PSA') filed an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') on behalf of its member Mr Farhan Kabir on 29 May 2014. Since that date the Commission and the Respondent have invested significant resources in attempting to deal with the application, but although arbitration of the matter has commenced, the proceedings remain unresolved nearly two years after they were initiated. 2. The matter was twice set down for arbitration, each time for three days. On the first occasion the matter was adjourned at the end of the first day at the request of solicitors then acting for Mr Kabir, instructed by the PSA. On the second occasion, dates set down in May 2015 for arbitration did not proceed at all, on the basis that Mr Kabir wrote to the Commission saying that he was suffering, as he said, from a medical condition and also was unable to find a solicitor. 3. The PSA, and solicitors instructed by the PSA, ceased to act for Mr Kabir in February 2015, that is, between the first incomplete arbitration hearing and the second listed arbitration hearing. Mr Kabir took carriage of the matter from the time that the PSA withdrew. 4. Since then, although the matter has been before the Commission on a number of occasions, Mr Kabir has at no time appeared before the Commission, in circumstances which are set out in the summary of the evidence I set out below.