Bogusia Sonia Kopec v Australian Securities Commission
[1996] IRCA 31
•9 Feb 1996
DECISION NO: 31/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2443 of 1995
B E T W E E N:
Bogusia Sonia KOPEC
Applicant
A N D
AUSTRALIAN SECURITIES COMMISSION
Respondent
REASONS FOR DECISION
(Delivered ex tempore )
9 February 1996 PARKINSON JR
This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the Australian Securities Commission on a temporary contract pursuant to the Public Service Act 1922. The period of her employment was stated to be between 3 November 1993 and 29 April 1994. This term was not completed. The employment was terminated with effect from 11 March 1994.
The applicant wrote to the respondent by way of her solicitors on 18 March 1994 seeking that the decision to terminate the employment be reviewed. The respondent replied by letter dated 23 March 1994 that the position had been reviewed and remained unchanged.
The applicant took no steps in relation to making an application to this court until filing her application pursuant to s170EA on 11 April 1995. The application was filed some 13 months after the date of the termination of the employment.
The applicant’s affidavit material explained the reason for the delay in filing the application as being because she was waiting to establish whether further temporary employment would be offered to her in the next peak season. The evidence is, however, that the peak season is effective from November in each year. I am not satisfied that the reason given for the delay is sufficient to negate the prejudice to the respondent in having to meet a claim for reinstatement and compensation which was well over 12 months old when filed. I am not satisfied that there are circumstances which would warrant an extension of time for filing of proceedings pursuant to s170EA (3).
Leave to file out of time is refused.
Further, I am satisfied that the respondent has established that there is no jurisdiction in this court to hear the claim filed pursuant to s170EA. This is because the termination of the applicant’s employment in fact and in effect took place prior to the effective date for the operation of Division 3 Part VIA of the Industrial Relations Act 1988. Those provisions came into operation on and from 30 March 1994. This court has considered the operative date of these provisions in a number of decisions to which counsel for the respondent referred in his submissions. These include Siagian v Sanel Pty Ltd (1994) 1 IRCR 1, APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106 and Keller v QBE Group Ltd ( unreported, Gray J, No 248/95, 2 June 1995). In Siagian his Honour Chief Justice Wilcox said, at 20 :
If the approach I favour is correct , the present applicant obtains no assistance from the circumstance that he did not accept the respondent’s repudiation of contract (if that is what it was) until 31 March. If the dismissal constituted an immediate termination of the employer-employee relationship, it does not matter that it was not immediately accepted.
In this case there is no question that the employment terminated on the date of the letter from the respondent advising of that fact.
The approach of Gray J in APESMA does nothing to assist the applicant in this matter. In that case his Honour said, at 116 :
The legislative intention is to permit applications under s170EA of the IR Act if an employer has done some act terminating or purporting to terminate the employment, irrespective of whether the act is effective to bring about the termination without some further act on behalf of the employee.
And his Honour further stated, at 118:
any act of an employer bringing to an end or purporting to bring to an end a contract of employment, which occurred prior to 30 March 1994, is not a “termination” for the purposes of s170EA of the IR Act.
I am satisfied that the termination of employment occurred prior to the operative date of Division 3 Part VIA of the Industrial Relations Act.
The application is beyond the jurisdiction of the court and is dismissed.
The respondent makes application for costs. Pursuant to s347 of the Industrial Relations Act there is a limitation upon the awarding of costs to circumstances where the proceedings have been initiated vexatiously or without reasonable cause. I am satisfied that costs ought be ordered, as the proceeding was instituted without reasonable cause.
This is in view of the circumstances of this application and the fact that I am satisfied that there was no reasonable prospect of success and that the applicant knew or ought to have known this fact. The conduct of the respondent in providing the unrepresented applicant with the relevant decisions of the court in an attempt to reduce or limit its ongoing costs in the matter further suggests that the application for costs ought be granted.
Having regard to the length of the proceedings this day, as being half of one day, together with the correspondence sent immediately prior to this proceeding, I set costs at $500.00.
Order of the court will be:
That the application made pursuant to s170EA of the Industrial
Relations Act 1988 be dismissed.
That the applicant pay to the respondent its costs set at $500.00.
Time for payment is 120 days from the date of order.
I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore.
Associate:
Dated: 9 February 1996
APPEARANCES
Applicant in person
Solicitor appearing for the respondent: Mr B Faigan
Date of hearing : 9 February 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2443 of 1995
B E T W E E N:
Bogusia Sonia KOPEC
Applicant
A N D
AUSTRALIAN SECURITIES COMMISSION
Respondent
MINUTES OF ORDERS
THE COURT ORDERS THAT :
That the application made pursuant to s170EA of the Industrial
Relations Act 1988 be dismissed.
That the applicant pay to the respondent its costs set at $500.00.
Time for payment is 120 days from the date of order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether termination effected before commencement of Div 3 of Pt VIA on 30 March 1994 - TIME LIMITATION - whether leave to file out of time should be granted - COSTS - whether applicant knew or ought to have known that there was no reasonable prospect of success
Industrial Relations Act 1988, ss 170EA, 170EA(3), 347
Siagian v Sanel Pty Ltd (1994) 1 IRCR 1
APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106
Keller v QBE Group Ltd unreported, Gray J, No 248/95, 2 June 1995.
BOGUSIA SONIA KOPEC v AUSTRALIAN SECURITIES
COMMISSION
VI 2443 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 9 FEBRUARY 1996
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