Christine Klempel and the Textile Clothing & Footwear Union of Australia v Nolan Baner Pty Ltd

[1995] IRCA 421

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application by an employee for a remedy - application dismissed because of applicant’s non-appearance - refusal of JUDICIAL REGISTRAR to reinstate application - review of JUDICIAL REGISTRAR - order of JUDICIAL REGISTRAR set aside.

Industrial Relations Act 1988 s 170EA

Presland v Sievwright The White Glove Mover VI 1996R of 1994, Gray J, 29 May 1995, unreported.

No. VI 1721R of 1995

CHRISTINE KLEMPEL and
THE TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA v NOLAN BANER PTY LTD

Marshall J
Melbourne
28 August 1995

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  

OF AUSTRALIA  )  

)  No. VI 1721R of 1995.  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  CHRISTINE KLEMPEL and
  THE TEXTILE CLOTHING & FOOTWEAR
  UNION OF AUSTRALIA

Applicant

AND:  NOLAN BANER PTY LTD

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:      28 August 1995

ORDER

THE COURT ORDERS THAT:

1.The order of Judicial Registrar Ryan made on 6 June 1995 refusing to reinstate the matter is set aside.

2.            The matter is reinstated.

3.Each party is to provide a list of discoverable documents on or before 11 September 1995 with mutual inspection to occur on or before 25 September 1995.

4.The matter is to be fixed for hearing as soon as practicable, before a Judicial Registrar, after 25 September 1995.

NOTE:It is estimated that the matter will take two hearing days.

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

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  

OF AUSTRALIA  )  

)  No. VI 1721R of 1995.  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  CHRISTINE KLEMPEL and
  THE TEXTILE CLOTHING & FOOTWEAR
  UNION OF AUSTRALIA

Applicant

AND:  NOLAN BANER PTY LTD

Respondent

JUDGE:     Marshall J

PLACE:      Melbourne

DATE:        28 August 1995

EX TEMPORE REASONS FOR JUDGMENT
AND REVISED FROM TRANSCRIPT

On 23 February 1995, the first named applicant, Ms Klempel, applied pursuant to s170EA of the Industrial Relations Act 1988 for a remedy in respect to the termination of her employment by the respondent. On 2 March 1995, the District Registrar of the Victoria District Registry referred the matter to the Australian Industrial Relations Commission (“the Commission”) for conciliation. On 5 April 1995, Vice President McIntyre confirmed that the Commission had been unable to settle the matter by conciliation.

On 1 May 1995, the Listing Co-ordinator of the Court in Melbourne wrote to the secondnamed applicant, The Textile Clothing and Footwear Union of Australia (“TCFUA”) advising that the matter had been set down for a directions hearing on 16 May 1995.  Between 1 May 1995 and 11 May 1995, Ms Ozturk (who was responsible for the carriage of the matter on behalf of the applicants) was absent from TCFUA’s Victorian Branch office.  She attended a meeting at the National Council of TCFUA from the beginning of May until her return to Melbourne on 12 May 1995.  She admits that the letter from the Listing Co-ordinator was received but says it was misplaced in TCFUA’s Victorian Branch office.

Consequently, when the matter came on for hearing before Judicial Registrar Ryan on 16 May 1995, no one appeared for the applicants at the scheduled directions hearing.  The Judicial Registrar struck the matter out, reserving to the applicants the right to have it reinstated.  No attempt was made by the Court to telephone Ms Ozturk to find out why no one had appeared for the applicants.  Such action may have obviated the need for this review.

Ms Ozturk subsequently discovered that the directions hearing had occurred on 16 May 1995 and that no one had appeared for the applicants.  She then telephoned the Registry and was advised to write to the Listing Co-ordinator seeking a new directions hearing.  She wrote to the Court on 26 May 1995 seeking a relisting of the matter.  The matter was relisted for directions on 6 June 1995 before Judicial Registrar Ryan.

On 6 June 1995, Ms Ozturk appeared for the applicants and Ms Long appeared for the respondent.  The transcript of those proceedings was exhibited to an affidavit of Ms Ozturk which was evidence in the review.  It appears from the transcript of those proceedings, at page 3 thereof, that Ms Ozturk was not given an adequate opportunity to develop her submissions as to why the matter should be reinstated.

Ms Ozturk attempted to explain that she was in the Commission on the day in question, i.e. 16 May 1995, and that if she had known about the directions hearing she would have requested an adjournment of it or the Commission matter.  It seems that the Judicial Registrar did not quite follow the point she was making.   He asked her the following question:-

“Yes, but somebody would have appeared to make the request surely.  Are you suggesting that you would have simply chosen not to attend on one of them?”

She was frustrated in her attempt to answer the question by the inappropriate intervention of the advocate for the respondent.  Finally, Ms Ozturk explained that: “the personnel that was left at the office were administrative staff.  The officials ... were all away at National Council.”.

The Judicial Registrar appears not to have realised the significance of that submission: i.e. that the union office was not in its normal state at the relevant time and he simply said “Right.  I am not prepared to reinstate this matter.”.

On 22 June 1995, the applicants issued a Notice of Motion seeking a review of the order of the Judicial Registrar and of his refusal to reinstate the matter.

In my view a serious injustice has occurred.  Ms Klempel has been denied access to the Court in circumstances where, I believe, the Court should have made inquiries initially with the representative recorded on the application as being involved in the matter.  Secondly, union offices, in times where no elected officials or employed industrial staff are available, often have administrative staff being overwhelmed with work of both administrative and industrial kinds.  In such circumstances it may not be uncommon for the odd piece of correspondence to go missing.

In the context of the abovementioned facts, the dismissal of the application for non-attendance and more particularly the failure to reinstate it after striking it out, was far too harsh.  The just hearing of this matter has been inappropriately delayed.

Similar views in comparable circumstances were expressed by Gray J in Presland v Sievwright The White Glove Mover VI 1996R of 1994, 29 May 1995, as yet unreported.

I therefore order as follows:

1.The order of Judicial Registrar Ryan made on 6 June 1995 refusing to reinstate the matter is set aside.

2.            The matter is reinstated.

3.Each party is to provide a list of discoverable documents on or before 11 September 1995 with mutual inspection to occur on or before 25 September 1995.

4.The matter is to be fixed for hearing as soon as practicable, before a Judicial Registrar, after 25 September 1995.

NOTE:It is estimated that the matter will take two hearing days.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:  28 August 1995  

Counsel for the Applicant:  Mr W Friend  

Solicitor for the Applicant:               Slater and Gordon              

Counsel for the Respondent:           no appearance  

Solicitor for the Respondent:           -------------------

Date of hearing:  28 August 1995  

Date of judgment:  28 August 1995