Vasilije Kirkovski and Allmen Industrial Services Pty Limited [2004] NSWIRComm 1019 (19 April 2004)

Last Updated: 21 May 2004

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Monday, 19 April, 2004

Matter No. IRC 7340 of 2003

IN THE MATTER of a claim for relief relating to the dismissal of Vasilije Kirkovski by Allmen Industrial Services Pty. Limited.

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D E C I S I O N

Mr Vasiliji Kirkovski has lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. In his Part 6 application Mr Kirkovski has indicated that he commenced employment with Allmen Industrial Services Pty Limited on Sunday, 12 January, 2003 and that he was dismissed by it on Sunday, 7 December, 2003. He has sought his reinstatement under S.89(1) or, alternatively, monetary compensation under S.89(5) - six months' wages - in lieu thereof. The matter was allocated to me and it was the subject of a preliminary hearing on Monday, 23 February, 2004 in the Commission's premises at 90 Crown Street, Wollongong.

Allmen assert that Mr Kirkovski has not been dismissed. He was engaged on a casual basis by it, trained at its expense in a range of jobs, has worked only two days for it - Wednesday, 5 November, 2003 and Wednesday, 3 December, 2003 - but remains on its availability list for other work which is not at present available to him. Allmen claims that it has in 216 casual labourers on its availability list. It has work for from 40 to 70 labourers daily but there is no guarantee of employment on a daily basis and its clients usually insist that specified employees be used to fill vacant positions. It can give no assurance that it will have any work for Mr Kirkovski.

In his Part 6 application Mr Kirkovski has sought the assistance of an interpreter but he failed to specify the language he speaks. I understand that he speaks Serbian. Mr Kirkovski was comfortable to proceed without an interpreter on Monday, 23 February, 2004. After issues associated with his Part 6 application were explained to him, he requested that I adjourn the proceedings for a mention on Monday, 19 April, 2004 (in Wollongong), essentially to determine if Allmen was able to provide him with employment in the meantime. I indicated that I was not prepared to leave his Part 6 application unresolved but would proceed to determine the matter if he continued to press his Part 6 application. There are, in fact, substantial jurisdictional issues associated with Mr Kirkovski's Part 6 application, however.

As far as his claim mounted under S.89(5) is concerned, since he was employed for only two days, his claim of six months' wages is out of the question. In terms of S.89(5) the amount of remuneration is restricted to "...an amount of remuneration of the applicant at the average rate received over the six months immediately before being dismissed...", ie in this case two days and not six months. That position was confirmed by the Full Bench of the Commission (Fisher J - President, Hungerford J and McKenna CC) in its unreported decision of Wednesday, 30 March, 1994 in Bateman v. Royal Alexandra Hospital for Children [Matter No. IRC 2865 of 1993 at pp.4 and 5]. Mr Kirkovski's claim is principally for his reinstatement, however. And that claim also presents some difficulties for him.

Mr Kirkovski is no doubt still employed by Allmen and remains on their books. It can hardly be argued otherwise but the employment which Mr Kirkovski has actually been offered on that contract of employment with Allmen has not lived up to his expectations. Any casual employee may still have something in the nature of an ongoing employment with a former employer to constitute a dismissal for the purposes of Part 6 when the employer gives an employee no work whilst retaining him on its books [ Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 at p.399]. But the casual nature of the employment is a relevant factor to take into account when assessing whether the dismissal was fair. As I indicated in my unreported decision of Thursday, 30 March, 2000 in Markowski v. Catalina Country Club [Matter No. IRC 1810 of 1999 at p.15], viz:

"...There can be no guarantee of permanent employment or a consistent number of hours each week for a casual employee, a factor for which there is compensation in the payment of a casual loading. Ryde-Eastwood Leagues Club v. Taylor is concerned with the severing of the contract of employment in a practical sense - the actual removal of a casual employee from an established casual roster even though that had never been spelt out in clear terms... It is the availability of the work which sets the pace in that respect and not the applicant’s requests. Put simply, the club is not obliged to give her work if none is available..."

The difficulty with Mr Kirkovski's claim is that on the strength of only two days of employment, it is not possible to establish any serious ongoing employment relationship with Allmen. The fact that over a twelve month period he has found only such limited periods of work early in his relationship with Allmen and nothing since that time is, in my opinion, tantamount to his dismissal. As far as Mr Kirkovski is concerned at least, he could be forgiven for forming the view that he had been dismissed.

But in any event, Reg.6 operates to exclude employees engaged on a casual basis for a short period of time, viz:

"...employees engaged on a casual basis for a short period except employees who:

(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and

(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer..."

What constitutes a "...short period..." in Reg.6 remains undefined. In Shop, Distributive and Allied Employees Association v. Librus Pty Limited (2001) 103 IR 390 the Full Bench of the Commission (Walton J - Vice President, Hungerford J, Patterson C) rejected the view that a casual employee with less than six months of employment would automatically be excluded from making an application under Part 6 by the operation of Reg.6. But, in any event, Mr Kirkovski's case - two days of employment with Allmen - must fall squarely under the exclusion provided by Reg.6 for casual engagements. It is inevitable that his claim must therefore fail - a position which I explained to him but which he professed not to understand.

Mr Kirkovski's understanding of the nature of his claim is very much in issue in these proceedings. Indeed, it appears that Mr Kirkovski is a very experienced Part 6 applicant. For instance, I am aware of an unreported decision of Cambridge C on Friday, 16 January, 2004 in Kirkovski v. Adecco Group [Matter No.IRC 2878 of 2003] involving him. Mr Kirkovski's Part 6 application on that occasion bore similarities with the claim before me. Mr Kirkovski's Part 6 application was dismissed for want of prosecution in accordance with Rule 146 when he failed to appear at the time allocated for a hearing. Cambridge C noted (at p.5) that Mr Kirkovski:

"...has some considerable experience in proceedings before the Commission. The records of the Industrial Registry indicate that since July, 1997 the applicant has made twelve separate unfair dismissal claims. At least one of the applicant's other claims was also dismissed for want of prosecution. It would therefore seem that the applicant would have some familiarity with the practices and procedures relevant to the diligent pursuit of the matter..."

In dismissing Mr Kirkovski's Part 6 application, Cambridge C pointed out (at p.5) that he had two reasons for having dismissed Mr Kirkovski's Part 6 application, viz:

"...Firstly, the matter is dismissed for want of prosecution and, secondly, the matter is dismissed as further proceedings would be frivolous and/or vexatious and therefore provide significant potential for the application to be required to pay the respondent's costs..."

Costs may be ordered in Part 6 proceedings by virtue of S.181(2)(c) where, in the opinion of the member of the Commission hearing the matter the claim is frivolous or vexatious. I am led to believe that Mr Kirkovski has appealed that decision.

I am also aware of similar proceedings involving Mr Kirkovski which came before Sams DP. In his unreported decision of Monday, 1 March, 2004 in Kirkovski v. City Casuals [Matter No.IRC 6461 of 2003] the Deputy President commented (at p.3) that:

"...on any view of it, the application before me raises serious concerns as to the applicant's bona fides... I should say, from the outset, that I regard the applicant's behaviour and attitude to these proceedings as appalling and intolerable. One might speculate that his objective is to see how much money he can extract from an unsuspecting employer during settlement negotiations. Prima facie, the applicant's claim here (like that before Cambridge C) is both outside the Commission's jurisdiction and devoid of merit..."

When Mr Kirkovski failed to appear in the proceedings convened before the Deputy President, his Part 6 application was dismissed for want of prosecution and because Mr Kirkovski's claim was considered by him to have been vexatious. The Deputy President stated (at p.3) that:

"...I do not intend to have the valuable time and resources of this Commission (let alone that of the employer) wasted by the litigant who pursues bogus claims for some vexatious collateral purpose. It cannot, and will not, be tolerated. The applicant should consider himself fortunate that he has not yet (to my knowledge) faced a claim for costs..."

I also understand that Mr Kirkovski has lodged an appeal against the Deputy President's decision as well.

That takes me back to the Part 6 application before me. Whilst Mr Kirkovski had indicated to me in the proceedings on Monday, 23 February, 2004 that he was comfortable to proceed without an interpreter (and he had informed Cambridge C that he did not need an interpreter for any proceedings), on Wednesday, 13 April, 2004 he contacted my assistant and asked for an interpreter to be provided to him for the proceedings on Monday, 19 April, 2004. He was informed that it may be difficult to arrange an interpreter at such short notice. He then requested an adjournment of the proceedings. In other words, he was following his customary course of delaying the resolution of the matter. An interpreter was, in fact, arranged for him in the proceedings on Monday, 19 April, 2004. My assistant contacted his son to inform him that was the position and he did appear in the proceedings, being assisted by the interpreter.

I am satisfied that Mr Kirkovski is bent on charting a course of simply making a nuisance of himself and causing unnecessary cost in time and resources to the Commission and, more importantly, the range of totally innocent employers who are unfortunate enough to fall victim to his chicanery. It is open to any reasonable interpretation of the circumstances with which I have been made familiar that Mr Kirkovski is simply attempting by his various actions (of which his Part 6 application against Allmen before me is but one example) to cause as much inconvenience as possible to those with whom he seeks employment. The Commission will not stand by and assist him in that course of action.

Mr Harper, representing Allmen in the proceedings on Monday, 19 April, 2004 sought that I dismiss Mr Kirkovski's Part 6 application. I see no good purpose being served by it remaining open for further inconvenience to Allmen and I propose to accede to Mr Harper's request. Mr Kirkovski's claim in these proceedings is so clearly lacking any merit as to make that course of action the only proper course for me to adopt in everybody's interests. I also propose to bring this decision to the attention of the Registrar for him to explore the prospect of Mr Kirkovski being declared a frivolous and vexatious litigant for the purpose of any future Part 6 proceedings he may chose to take.

P J CONNOR

Commissioner