Danko Andonovski and Pacific Dunlop Tyres and Goodyear Tyres

[1995] IRCA 50

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1989 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

DANKO ANDONOVSKI
Applicant

A N D

PACIFIC DUNLOP TYRES AND GOODYEAR
TYRES PTY LTD
(TRADING AS “SOUTH PACIFIC TYRES”)
Respondent

Reasons for Judgment - (Delivered ex tempore)

20 February 1995  PARKINSON JR

This is my decision in relation to the application by Mr Andonovski for leave to file out of time, an application pursuant to S170EA of the Industrial Relations Act 1988 (“the Act”).

The applicant’s employment was terminated on 16 September 1994. On 10 October 1994  the applicant attended upon solicitors whereupon he learnt of his entitlements pursuant to the Industrial Relations Act 1988. I am satisfied that on this day he instructed his solicitors to proceed to institute proceedings pursuant to S170EA (1) of the Act. On that day he swore the affidavit which is Exhibit DA1 in these proceedings. For reasons which have not been explained to the court, the application was not filed until 25 October 1994.

The evidence is that the applicant’s employment was terminated along with 66 other persons on 16 September 1994.  The proceedings involve issues as to the validity of that redundancy process and the application of selection criteria for redundancy.  There are currently what I will for ease of description call “related proceedings” before this court, these being applications filed by other persons whose employment was terminated as a result of the redundancy process on 16 September 1994.

Evidence was given by  Mr Mandroulias, Mr Edwards and Mr Curelusa which established that there had been no discussions between any of them and the applicant as to his rights or entitlements under the present legislation prior to 10 October 1994.  There is no evidence before me which would establish any basis upon which the applicant would have or ought to have known of the existence of such a remedy prior to 10 October 1994.  I am satisfied that he had no such knowledge until that day.

In most circumstances the fact that there were a number of other applicants in a similar or like position would be of no relevance in determining the issue in relation to the present applicant. However in this matter it is apparent that the issue of the fairness or otherwise of the broad process adopted by the respondent arises. This is a question which arises in relation to all of the related matters before the court, including those applicants who are within time.  Therefore at least in general terms those matters are to be dealt with by the respondent in any event.  In my view therefore no prejudice to the respondent arises in terms of its defence or preparation of its defence in these proceedings.

I am not satisfied that the respondent’s argument that allowing the applicant leave to extend would or could result in the floodgates opening and numerous other applicants filing, is one which ought result in this applicant being refused an opportunity to be heard on the substantive merits of his case. Each application for leave is required to be considered having regard to the individual merits of such application.

I am satisfied that the applicant in this matter has provided the court with a fair and reasonable explanation of the delay in filing, both in view of the circumstances of the termination and by reference to his English language difficulty.   Having regard to the decision of  Keely J in Coker-Godson v National Dairies Ltd, an unreported decision of his Honour in this court on 22 August 1994, and in particular the matters extracted at pages 5 and 6 of that decision, I am satisfied that the applicant ought be granted leave to file out of time. 

I grant leave to the applicant in matter VI 1989 of 1994 to file out of time and I extend the time for filing to 25 October 1994.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for judgment
of Judicial Registrar Parkinson.

Associate:
Dated:  20 February 1995

Solicitors for the applicant:  Patrick Robinson & Co
Counsel appearing for the applicant:                  Mr J Brett

Solicitor for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:               Mr I McDonald

Date of hearing:  20 February 1995
Date of judgment:  20 February 1995