Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042

Industrial Relations Commission New South Wales Medium Neutral Citation: Charmaine Beatrice McIntosh and Secretary, Department of Education [2017] NSWIRComm 1042 Hearing dates: 16 June 2017 Date of orders: 28 July 2017 Decision date: 28 July 2017 Jurisdiction: Industrial Relations Commission Before: Seymour C Decision: Application Dismissed Catchwords: UNFAIR DISMISSAL – failure by applicant to comply with directions – failure by applicant to attend directions hearing – application dismissed

STRIKE OUT APPLICATION – lack of due dispatch – case management - balancing of prejudice to be suffered by applicant and respondent – loss of ability to pursue claim – 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 Kabir v Department of Family and Community Services [2016] NSWIRC 1009 Category: Principal judgment Parties: Charmaine Beatrice McIntosh (Applicant) Secretary, Department of Education (Respondent) Representation: Applicant did not appear C Miles (Respondent) File Number(s): 2017/115809

Judgment 1. Ms Beatrice filed an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') on 18 April 2017. The respondent filed a Reply to the application on 5 May 2017.

Background 1. Conciliation of the matter was conducted by me on 16 May 2017, which was unsuccessful. The applicant participated in the conciliation by way of teleconference via a mobile phone number provided to the Registry. At the conclusion of the teleconference I made standard directions for the filing of evidence, including a direction that the applicant file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 6 June 2017. The directions were emailed to the applicant's nominated email address on 16 May 2017. A request was included in that email for the parties to provide the Registry with an estimate of the number of days for hearing and their availability for hearing. 2. On 30 May 2017, the Registry emailed the parties seeking an estimation of the hearing length and availability of the parties. As no response was received, a further email making the same request was sent to the parties on 8 June 2017. The respondent through its representative Mr Miles responded by email the same day. Mr Miles indicated that as the applicant had not filed and served her evidence by 6 June 2017 as required by the directions, the respondent's position was that it was inappropriate to set hearing dates at that time. The respondent requested that 'the matter be listed for further directions in the nature of a compliance check' given the non-compliance with the directions by the applicant. All of these emails were sent to the applicant's nominated email address. 3. The matter was listed for further directions on 16 June 2017. A Notice of Listing was emailed to the applicant on 13 June 2017, to her nominated email address. My Associate also telephoned the applicant on 14 June 2017 to advise her of the listing and confirm she could again participate by teleconference on her previously advised mobile phone number. An email was sent by my Associate to the applicant on 14 June 2017 to her nominated email address, confirming that the Applicant was required to have filed and served her evidence by 6 June 2017 and that no evidence had been received. The email further stated as follows: In the teleconference with you this Friday, the Commissioner will be seeking information from you as to when you intend to file your statements (and any other documents), so that a revised timetable can be set and dates for the hearing allocated. 1. The Registrar contacted the applicant by telephone on 15 June 2017 to confirm the operation of the applicant's nominated mobile phone number. 2. On 16 June 2017, Mr Miles appeared on behalf of the respondent. I attempted to call the applicant from the courtroom three times at 10.00am, 10.02am and 10.06am, with no response and the phone going through to the applicant's voicemail. 3. The respondent then made an oral application to dismiss the proceedings under Rule 12.7 of the Uniform Civil Procedure Rules 2005 ('Rule 12.7'). Mr Miles submitted that the respondent's position was the same as it was at conciliation, namely, that the proceedings are futile, if not vexatious. As a result of certain criminal charges laid against her the applicant did not hold a working with children check clearance at the time of her dismissal. Accordingly the respondent submitted it would be unlawful for her to work in a government school and unlawful for the respondent to employ her to work in a government school. Mr Miles further submitted that as the applicant had not complied with the first step in the litigation of filing her evidence, and failed to attend the directions hearing, the proceedings ought be dismissed. 4. I declined to determine the application at that time. I directed the respondent to write to the applicant to seek to ascertain her intentions in relation to the proceedings. The respondent was to provide the Commission with a copy of its letter to the applicant and any response provided by the applicant. If there was no such response within five business days the respondent was to advise the Registry and I would determine the respondent's application in chambers. 5. The respondent wrote to the applicant on 20 June 2017 ('the respondent's letter') noting the applicant's non-compliance with the timetable and failure to attend the directions hearing on 16 June 2017 via teleconference. The respondent's letter set out the matters directed by the Commission and advised that if the applicant did not respond within 5 business days, the Commission would determine the matter (including dismiss it under Rule 12.7) in chambers without further notice. The respondent's letter was sent by email on 20 June 2017 to the applicant's nominated email address. The respondent's letter stated that a copy was also sent via post to her residential address. 6. The respondent wrote to the Registry on 18 July 2017 providing a copy of the respondent's letter and confirming that no response had been received from the applicant. 7. Accordingly, due notice has been given to the applicant of the respondent's application to have the proceedings dismissed under Rule 12.7 and I have dealt with the matter ex parte.