Vasilije (Victor) Kirkovski and City Casuals and another [2004] NSWIRComm 34 (1 March 2004)

Last Updated: 11 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Vasilije (Victor) Kirkovski and City Casuals and another [2004] NSWIRComm 34

FILE NUMBER(S): 6461

HEARING DATE(S): 20/02/2004

DECISION DATE: 01/03/2004

PARTIES:

APPLICANT:

Mr V Kirkovski

RESPONDENTS:

City Casuals

Abacus Imports Pty Ltd

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT:

No appearance of the applicant

FIRST RESPONDENT:

Mr K Guymer of City Casuals Pty Ltd

SECOND RESPONDENT:

No appearance for second respondent

CASES CITED: Attorney General v Wentworth (1998) 14 NSWLR 48

General Steel Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125

Hutchison and Karl Azzi Hairstylists [2002] NSWIRComm 133

Peter Payam Far and Brian Manning Dodd & Stephen John Dodd t/as Rishworth Dodd & Co, Solicitors [2002] NSWIRComm 181

Xiu Zhen Lin and Roseville Golf Club Limited [2002] NSWIRComm 81

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

1 March 2004

Matter No IRC03/6461

Vasilije (Victor) Kirkovski and City Casuals and another

Application by Vasilije (Victor) Kirkovski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2004] NSWIRComm 34

1 On 20 February 2004, the Commission dismissed this matter. I now publish my reasons.

2 On 11 November 2003, Mr Victor Kirkovski ('the applicant') filed an application pursuant to s84 of the Industrial Relations Act 1996 ('the Act') seeking relief in respect to his alleged unfair dismissal on 23 October 2003 by City Casuals Pty Ltd ('the first respondent'). The applicant also named a second employer, Abacus Imports Pty Ltd ('the second respondent').

3 The first respondent is an employment agency, which offers casual work in a range of occupations to various host employers. The applicant was referred to the second respondent where he worked for four days as a store person from 20 October 2003.

4 Notwithstanding the apparent jurisdictional difficulties with the applicant's claim, the Commission chaired private conferences with the parties on 28 November 2003. Mr K Guymer, appearing for the first respondent, denied that he ever employed the applicant. However, he agreed to offer what work might be available to the applicant in accordance with the company's usual arrangements with host employers and consistent with the applicant's skills and experience.

5 The applicant appeared satisfied with this outcome and the Commission adjourned the matter on the basis that the file would be closed and concluded unless either party contacted the Commission within 21 days. However, on the twenty first day, the applicant wrote to the Commission seeking that his matter be relisted.

6 Accordingly, the Commission re listed the matter for 3.00pm on 11 February 2004. Late on 10 February the applicant phoned my Associate and claimed to be sick. He sought an adjournment of five weeks. Strangely, however, at around 4.00pm on 11 February, the applicant arrived at the Commission inquiring about his case. He was informed that it would be re listed at a later date as he had earlier requested.

7 In the following week, the Commission became aware of a decision of Cambridge, C of 16 January 2004, which involved an unfair dismissal claim lodged by the applicant and against another employer Adecco - Matter IRC03/2878. The Commissioner dismissed the applicant's claim on two grounds - want of prosecution and that the applicant was a vexatious litigant.

8 This decision was most enlightening. Cambridge, C had experienced the same curious request for an adjournment on the grounds of illness. Yet the same day he had attended the Commission and inquired about his case. The Commissioner observed that the applicant has had twelve separate unfair dismissal claims since July 1997. Indeed, upon further inquiries, the applicant was found to have had five recent unfair dismissal claims; at least three of which are running concurrently. I note that, at no time, did the applicant make the Commission aware of his other claims.

9 On any view of it, the application before me raises serious concerns as to the applicant's bona fides. Amazingly, the first respondent in these proceedings was completely unaware of this situation. Presumably, the other unfair dismissal claims were made against various host employers when the jobs they had contracted for came to an end.

10 In view of this extraordinary history, I was not prepared to wait a further five weeks for this matter to be re listed and instructed my Associate to inform the parties, in writing, that the matter was re-listed for 3.00pm on 20 February 2004.

11 On that occasion, the applicant did not attend and was not represented. As at the date of this decision, the Commission has received no explanation for his non-attendance. Mr Guymer appeared again for the first respondent. I proceeded to deal with the matter ex parte.

CONSIDERATION

12 I should say, from the outset, that I regard the applicant's behaviour and attitude to these proceedings as appalling, inexplicable 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 any merit. I agree entirely with the Commissioner's observations and conclusions. They accord completely with my experience with this applicant.

13 I do not intend to have the valuable time and resources of this Commission (let alone that of the employer), wasted by a 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.

14 I would dismiss this application on two grounds. Firstly, for want of prosecution pursuant to Rule 146 of the Commission's Rules, in that he has failed to pursue his case with due diligence. See Xiu Zhen Lin and Roseville Golf Club Limited [2002] NSWIRComm 81, Hutchison and Karl Azzi Hairstylists [2002] NSWIRComm 133 and Peter Payam Far and Brian Manning Dodd & Stephen John Dodd t/as Rishworth Dodd & Co, Solicitors [2002] NSWIRComm 181.

15 Secondly, pursuant to s162(2)(h) of the Act, I would dismiss the proceedings as vexatious. For a definition of vexatious, I would rely on Attorney General v Wentworth (1998) 14 NSWLR 48 and General Steel Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125.

16 The proceedings are thereby concluded.

Peter J. Sams AM

Deputy President

LAST UPDATED: 04/03/2004