Bastien v A.B.B Installation Contract Labour Pty Ltd - [1997] IRCA 158

DECISION NO:158/97

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application under section 170EA lodged out of time - no order made extending time - whether justiciable application before the Court

Workplace Relations Act 1996 ss 170EA(3)(a), 170EA(b), 170ED, 170ED(2)

Carrasco v Kleenmaid Pty Limited (unreported, Industrial Relations Court of Australia, Moore J, 15 November 1996)
Edwards v Commonwealth Bank of Australia (unreported, Industrial Relations Court of Australia, Moore J, 21 March 1997)
Nelson v Scholle Industries (1996) 64 IR 9

ROBERT DOMINIC BASTIEN - v - A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD

No. VI 1188 of 1997

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              13 May 1997

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1188 of 1997

B E T W E E N :

ROBERT DOMINIC BASTIEN
Applicant

A N D

A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane 13 May 1997

THE COURT DECLARES THAT:

Because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to section 170EA(3)(b) of the Workplace Relations Act 1996, the application to the Court is not duly lodged within the meaning of section 170ED(2) of the Act.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1188 of 1997

B E T W E E N :

ROBERT DOMINIC BASTIEN
Applicant

A N D

A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              13 May 1997

REASONS FOR JUDGMENT

The abovementioned proceeding was fixed for hearing before the Court on 13 May 1997 having previously been the subject of a directions hearing and telephone mention. On the return date the applicant appeared in person accompanied by a Court appointed interpreter and the respondent was represented by Mr Parry of counsel.

The applicant seeks compensation alleging that on 12 September 1996 his employment with the respondent from 10 September 1996 was unlawfully terminated. The application made by the applicant and filed with the Australian Industrial Relations Commission (the Commission) on 4 December 1996 has attached to it a letter to the Commission from the applicant. In the section of the application where an applicant may seek an extension of time for lodging an application before the Commission, the applicant appears to have indicated by underlining the phrase “(or attached)” that he sought an extension of time to lodge the application with his reasons for doing so attached to the application document. The letter attached to the document does indicate a number of factual matters relevant to determining both whether pursuant to section 170EA(3)(a) of the Workplace Relations Act 1996 (the Act) there was written notice of termination and whether there was a reason or reasons for any delay in filing the application.

On the return date Mr Parry initially made application to amend the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] IRCA 158
Decision Date: 13 May 1997

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Bastien took action against A.B.B Installation Contract Labour Pty Ltd, primarily concerning the termination of his employment. The dispute centred around the timeliness of a section 170EA application, which is intended to seek relief related to unfair dismissal. Bastien filed his application outside the statutory time limit, necessitating a determination by the Court on whether it had jurisdiction to hear the application despite the delay.

The legal issues before the Court were twofold: first, whether the Court could entertain an application that was lodged beyond the prescribed time; and second, if such an application could be deemed justiciable. The Court was required to examine the statutory provisions and relevant legal precedents to decide if there were circumstances that warranted extending the time limit for the application, or if the application was, in fact, justiciable under the law.

In its reasoning, the Court noted that section 170EA of the Fair Work Act 2009 sets out a strict time limit for lodging an application for unfair dismissal. The Court held that without a valid reason to extend the time, the application was not justiciable. The Court emphasised that the strict compliance with statutory time limits is crucial in maintaining the integrity of the legal process. Consequently, the Court dismissed the application, affirming that the statutory period for lodging such an application could not be extended in the absence of exceptional circumstances.

No orders were made in favour of the applicant. The Court's decision underscored the importance of adherence to statutory time frames in employment-related matters and reinforced the principle that the Court lacks jurisdiction to hear applications that do not comply with these requirements.

Orders