Shewan v Secretary, Department of Education [2018] NSWIRComm 1068

Industrial Relations Commission New South Wales Medium Neutral Citation: Shewan v Secretary, Department of Education [2018] NSWIRComm 1068 Hearing dates: 12 October 2018 Decision date: 12 October 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application of John Shewan is dismissed Catchwords: UNFAIR DISMISSAL – repeated noncompliance with Commission's directions – applicant not seeking reinstatement or re-employment – applicant not in receipt of remuneration during six month period before dismissal – application a futility – application dismissed Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Mr John Shewan (Applicant)

Secretary, Department of Education (Respondent) Representation: Mr John Shewan (Applicant)

Mr Christopher Miles, Department of Education, (Respondent) File Number(s): 2018/00104650

EX TEMPORE DECISION 1. This is an unfair dismissal application by John Shewan, a former permanent part-time Industrial Arts Teacher who was employed at Singleton High School. According to the applicant's unfair dismissal application, the date of his dismissal was 5 March 2018 but his last day worked was 10 March 2014. 2. The application was filed in the Office of the Industrial Registrar on 26 March 2018. Conciliation was unsuccessful and the matter was programmed for hearing. 3. On 22 June 2018, directions were made, the first of which was that the applicant was to file and serve witness statements and an outline of submissions by close of business on 13 July 2018. That direction was not complied with by the applicant. 4. On 19 July 2018, further directions were made, over the opposition of the respondent, which included as the first direction that the applicant was to file and serve evidence and submissions by close of business on 27 July 2018. That direction was not complied with by the applicant. 5. On 10 August 2018, further directions were made which included as the first direction that the applicant was to file and serve evidence and submissions by 4pm on 20 August 2018. That direction was not complied with by the applicant. 6. On 21 September 2018, I made another set of directions in this matter which included as the first direction that the applicant was to file and serve witness statements and an outline of submissions by close of business on 5 October 2018. Included as part of that direction was a "guillotine order" in that, if that direction was not complied with, the application would be dismissed for want of prosecution. That direction was not complied with by the applicant, although a number of folders of documents were received in the registry on 9 October 2018 and a document entitled Statement of Claim, signed by the applicant, was filed in the registry on 11 October 2018. 7. Had the persistent failure of the applicant to comply with the various directions that have been made in this matter, including the guillotine direction made by me on 21 September 2018, been the only matter before me in support of the respondent's application that the applicant's unfair dismissal application be dismissed, I may have been reluctantly minded to grant some further indulgence to the applicant, a self-represented litigant, on the basis of the matters that he has outlined this morning, including his disability which he says has affected his capacity to comply with the various directions that have been made over a period of time in this matter. 8. However, in addition to the noncompliance with the Commission's directions, the respondent also submits that this application is a futility in that the applicant, on a previous occasion, has indicated that he is not seeking reinstatement or reemployment but rather compensation. 9. Subsection 89(5) of the Industrial Relations Act 1996 is in these terms: If the Commission considers that it would be impracticable to make an order for reinstatement or reemployment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. 1. I have received into evidence a statement of Christopher Miles, Principal Legal Officer (Employment) of the Department of Education, which has been marked as exhibit 1 in the proceedings. In that document, Mr Miles has stated that the applicant had not attended for work during either the 2016 school year nor the 2017 school year. The Department's records show that the applicant was on unauthorised leave from 26 May 2017 until the end of the 2017 year. The applicant does not dispute that he was not in receipt of any remuneration from the respondent for the six month period prior to the date of his dismissal, which he has nominated as 5 March 2018. That being so, if this matter were to proceed on the basis that it is a claim for compensation, the Commission would be unable to award any compensation, even if the applicant was able to demonstrate that he, in fact, had been dismissed and that dismissal was unfair. 2. On the basis of noncompliance with the multiple directions that have been made by the Commission over a period of time, and on the basis that I have formed the view that the application, if it were to proceed, would, in effect, be a futility, I order that the unfair dismissal application of John Shewan be dismissed. John Murphy Commissioner