Practice Note No.17


First Issue Date:
21 December 2005
Re-Issue Date:
1 February 2010


INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
 

PRACTICE NOTE No. 17
Re-issued pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005
 

Applications pursuant to section 84 (Unfair Dismissals) Industrial Relations Act 1996


1. This Practice Note replaces Practice Direction No.11.

2. The purpose of this Practice Note is to facilitate the resolution of unfair dismissal matters before the Industrial Relations Commission of New South Wales by ensuring that such proceedings are conducted before the Commission in an efficient and expeditious manner and that practitioners and others who appear before the Commission do all they can to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission.

3. This Practice Note has effect from the date of re-issue.

4. Allocation of Listing Date

Upon filing of an application under section 84 of the Industrial Relations Act1996 the Registrar shall cause, either at the time of filing or within a period of not more than seven days, a date to be fixed for the matter to be conciliated by a Member of the Commission. The standard or usual time from filing to the first listing for Conciliation and Directions shall be a period of 21 days.
    5. Conciliation

    (a) Practitioners, industrial agents and others who appear before the Commission should do all they can to facilitate the fair and prompt disposal of matters before the Commission. Ways in which this should occur include:
      • ready identification of the issues in dispute
      • ensuring readiness for the conciliation hearing
      • using their best endeavours to resolve the issues in dispute
      (b) Ordinarily there should be only one conciliation, however, a Member may permit a further conciliation conference.

      (c) If an applicant fails to appear at a conciliation conference, and has not provided a clear and compelling reason for non-attendance, this may result in the matter being dismissed, particularly if there is no appearance on two occasions.


      6. Preliminary Issues

      (a) If a preliminary issue, for example, a jurisdictional challenge is raised at the conciliation conference the Member shall determine whether the matter shall be heard as a threshold issue or be dealt with after conciliation. If the Member determines that the issue should be heard before conciliation then the matter shall be referred to the Registrar for allocation to a Member for hearing after appropriate directions are made and the Member has established the time required to hear the issue. In cases where the Member conducts a conciliation and the conciliation fails the Member shall then forward the matter to the Industrial Registrar for allocation to a Member for hearing. Directions will be made by the Member which may be a modified form of the usual directions if the matter is to be set down to hear a threshold issue.

      (b) The Registrar will subsequently advise the parties of a call over before the Industrial Registrar and date or dates for hearing and the Court location for the hearing of the matter.
        7. Directions for Arbitration

        (a) When a conciliation before a member of the Commission is unsuccessful, the usual directions in paragraph 10 of this Practice Note shall operate unless, after application by a party to the proceedings, the Commission considers that the "usual directions" should be modified or alternative directions made.
          (b) The Member of the Commission shall also ascertain a reasonable estimate of the number of days required for arbitration, specify in the Member's opinion the number of days required for hearing and make any other appropriate directions having regard to paragraphs 10 and 11 of this Practice Note. The Member shall, forthwith, refer the parties to the List Office of the Registry for the purpose of obtaining a hearing date(s) in accordance with the Member's opinion of the number of days required for hearing and directions which are made.
            (c) On fixing a date for hearing the List Office shall also allocate a date for a compliance call-over of the matter and provide notice to the parties of the date, time and place of such call-over in addition to information on the hearing date(s) allocated.
              (d) The compliance check call-over will be administrative in nature in respect of matters in which the applicant has complied with directions. That is, neither the applicant nor the respondent will be required to attend the call-over if directions have been complied with by the parties. In such an event the Registrar will note compliance with the directions by the applicant, confirm the hearing date and cause a notice to be forwarded to the parties advising as to:
                (i) confirmation of hearing date.
                (ii) a further warning to the respondent of the consequences of its failure to comply with directions. [Note: the consequence for the respondent is, in accordance with the Usual Direction under paragraph 10(vi), that it will not, without leave of the Commission, be able to rely on written statements filed and served later than the time specified in the Usual Directions at the time the matter is set down for arbitration]

              (e) In respect of matters where there has been non-compliancewith directions the parties will be required to attend the call-over.If at the date of the compliance check call-over there remains non-compliance,the Registrar may remit the matter to a Presidential Member for consideration. The Presidential Member may:
                (i) vacate the hearing date.

                (ii) make such further directions in the matter as necessary including any direction that further default by the applicant will result in the matter being dismissed; and

                (iii) remit the parties and the file to the List Officefor action.

                (iv) such other directions and orders as may be appropriate.
                8. Fixtures in regional list

                When a matter is conciliated and the conciliation is unsuccessful, the usual directions in paragraph 10 of this Practice Notes shall operate unless, after application by a party to the proceedings, the Commission considers that the "usual directions" should be modified or alternative directions made.

                The Member shall also ascertain a reasonable estimate of the number of days required for arbitration, specify in the Member's opinion the number of days required for hearing and make any other appropriate directions having regard to paragraphs 10 and 11 of this Practice Note.

                The Member shall then adjourn the matter to a date to be fixed and remit the file to the relevant Registry officer for the purpose of case management..

                9. Further Conciliation

                The parties should attempt to resolve matters listed for arbitration prior to the time for compliance with Directions in order to minimise the costs to them. Even after compliance with Directions, further timely attempts by the parties to resolve matters are encouraged. To assist the parties in circumstances where such settlement attempts are positive but inconclusive a further conciliation conference may be requested with the consent of the other side as soon as possible but not less than 14 days prior to the arbitration. A party may make an application for a further conciliation conference by consent of the other party by writing to the Industrial Registrar and seeking the further conference within the time specified. Nothing in this Practice Note shall inhibit the Commission from undertaking further conciliation at the hearing of the matter.

                10. Usual directions

                For the purpose of this Practice Note "usual directions" shall mean directions in the following terms or to the following effect:-

                (i) all evidence shall be in the form of signed written statements.
                  (ii) the applicant shall file and serve signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness together with any other relevant documentation within 21 days.
                    (iii) the respondent shall file and serve signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness together with any other relevant documentation within 21 days of the date fixed for the filing and service of the applicant's documents.
                      (iv) the applicant shall file and serve any reply to the respondent's documents within 7 days of the date fixed for the filing and service of the respondent's documents.
                        (v) the parties shall include in or with their written witness statements all matters and documents upon which they rely or they allege are relevant to the proceedings.
                          (vi) without leave of the Commission, written statements and other documentation filed and served later than the time specified by the Commission in its directions may not be relied upon by the party.
                            (vii) Summonses for production of documents may be made returnable before the Industrial Registrar upon any date that the Registrar conducts a list. Where orders are sought other than for photocopy access for both parties or if a claim for privilege or the like is made, those matters will be referred by the Registrar to a Presidential Member to be dealt with on an interlocutory basis. Under these arrangements summonses will be returnable before the Registrar, not the Member.
                              11. Other directions

                              The Commission may make such other directions as it considers appropriate for the just resolution of the issues between the parties. Such other directions may include directions that:-

                              (i) parties shall file and serve at the same time as they file their written statements and other relevant documentation a short summary of their case.
                              (i) without leave of the Commission, a party cannot rely on any matter that is not contained within the documentation filed and served by that party.
                                (ii) proceedings shall be conducted on the written statements and other relevant documentation filed and served by a party except where reasonable notice is given to the other party that a witness is required for cross examination.
                                  (iii) in the absence of any period of reasonable notice being fixed by the Commission, cross-examination of a witness shall not be allowed unless at least 7 days prior to the hearing notice has been given to the opposing party that a witness is required for cross-examination.
                                    12. Directions

                                    Any directions made under paragraphs 6, 7, 8, 10 and 11 of this Practice Note mustbe complied with and will apply from the completion of the last conciliation conference unless:
                                        (i) an application is made after the completion of conciliation which will come before a Presidential Member;
                                        (ii) where applicable, the direction is varied during the course of the hearing of the matter;
                                        (iii) any application to vary directions after the conciliation conference must be made in writing and contain full supporting grounds (unless made during the course of the hearing of the matter).
                                    13. Adjournments

                                    (a) In accordance with the Commission's function to provide a forum for the resolution of Unfair Dismissal matters in a fair and prompt manner, as a general rule, an adjournment of the date that is allocated for Conciliation will not be granted unlessthere are clear and compelling reasons for the adjournment to occur. If such an application is made prior to the date for Conciliation, such application will be considered and determined by the Member who has been allocated the matter.

                                    (b) The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. It should be understood that adjournment applications will be granted only on clear and compelling grounds.

                                    (c) An application for an adjournment during the course of a Conciliation or an Arbitration hearing are a matter for the Member of the Commission hearing the matter in the proper exercise of their discretion. It should be clearly understood that such applications will be granted only on clear and compelling grounds.

                                    (d) In the event that a party fails to attend at an arbitration hearing, the arbitration may, in appropriate circumstances, be heard and determined in the absence of that party.

                                     
                                     
                                    Boland J, President
                                    1 February 2010