Emma Szlezynger v Montefiore Homes for the Aged
[1995] IRCA 258
•16 June 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2774 of 1994
B E T W E E N :
EMMA SZLEZYNGER
Applicant
AND
MONTEFIORE HOMES FOR THE AGED
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 16 June 1995
REASONS FOR JUDGMENT
Background
On 23 August 1994 the applicant was terminated from her position as Personal Care Attendant with the respondent, a position she had held with the respondent since 1982 when she first came to Australia from the Philippines.
The termination took place after an interview on 18 August 1994 which was attended by the Personal Services Manager, Ms Paterson, the hostel supervisor, Ms Dicarlantonio, and Ms Chic who acted as a witness for the applicant at the respondent’s request. In that interview, the applicant was asked a number of questions about accepting five dollars for performing laundry tasks for residents of the hostel. The applicant denied the allegation.
In a previous meeting on 11 August 1994, the same allegation was raised and the applicant had denied it. It was at this first meeting that the applicant was suspended pending an investigation.
On 23 August 1994, the applicant received a letter of termination. It was after receiving this letter that she went to the Hospital Services Union, joined the union and, upon joining the union, a meeting was organised with Ms Williams of the union, Ms Paterson of the respondent and the applicant. This meeting occurred on 30 August 1994. The evidence is that Ms William stated at this meeting that an application would be filed for unfair dismissal and Ms Paterson’s evidence is that she expected an application would be filed.
The applicant gave evidence that she made a number of calls to the union “I rang all the time”. When she rang the union, the applicant gave evidence that offers of employment were made by the respondent through the union. These offers included working in the kitchen at the hostel and working at the Ashwood hostel. The respondent denied making any offers.
The applicant said she became dissatisfied with the union and she approached a solicitor in Dandenong. She told the solicitor that the union had filed an application and the solicitor referred her to Mr Kotsifas who gave evidence that he first saw the applicant on 12 December 1994. Mr Kotsifas gave evidence that the applicant had said at the interview with him:
“She didn’t want the union to act any more in relation to an
an application that had been made by the union to the court. I
thought that strange that she hadn’t heard anything from the
court or the union and I was told by the court there was no
application filed.”
On 14 December 1994, an application was lodged seeking relief under Part IVA of the Industrial Relations Act (“the Act”).
Application for extension of time
There has been no Notice of Motion filed. The respondent objects to jurisdiction on the basis of the application being filed three months and one week out of the time prescribed by the Act. The Act does not set out any criteria by reference to which the Court’s decision to extend time for an application under s170 EA(3) is to be exercised.
The principles to be applied in deciding whether an extension of time should be granted in this Court have been considered by Keely J in Transport Workers’ Union of Australia v National Dairies Ltd and by Ryan JR in Kumar v Victorian Workcover Authority.
Keely J in the TWU case referred to the principles set out by Wilcox J as he then was in Hunter Valley Developments Pty Ltd v Cohen 1984
3 FCR 344 when considering an extension of time. Although the Hunter Valley Case was concerned with the Administrative Decisions (Judicial Review) Act 1977, the principles are appropriate to be used as a guide and not an exhaustive list of rules in the exercise of this Court’s discretion.
It is the prima facie presumption that proceedings commenced out of time will not be entertained. In order to rebut the presumption, the applicant must show an “acceptable explanation for the delay” and that it is “fair and equitable in the circumstances” to extend time.
The applicant gave evidence which was supported by the witnesses for the respondent that she vehemently denied the allegations and would fight the dismissal. She attended the union after she received the letter of termination of employment dated 23 August 1994 and a meeting was convened on 30 August 1994 with the union representative, Miss Williams, in attendance. It was clear to all parties at the meeting on 30 August 1994 that the applicant maintained her denial of the allegations and the union organizer informed Ms Paterson that an application for unfair dismissal would be filed. From 30 August 1994, the applicant understood the union to have the matter in hand, the respondent anticipated an application and the applicant made regular contact with the union to enquire about the conduct of the proceedings. It is clear from the evidence that the applicant believed at all times an application had been filed and she was eager for it to proceed.
It was in November 1994 when she became disgruntled with the slow progress of the union and made enquiries firstly of the solicitor in Dandenong and later, by referral, to Mr Kotsifas. It was only on 12 December 1994, when on instructions from his client, Mr Kotsifas rang the Court and was advised there was no application on foot. The application was subsequently filed on 14 December 1994 in the circumstances as set out. I accept that there has been given an acceptable explanation for the delay. The applicant has not rested on her rights.
It was put by Mr Rahilly for the respondent that the delay prejudiced the respondent in as much as the memory of one of the witnesses, that is Ms Dicarlantonio, was faded. I accept that this is a concern for the respondent. However, Ms Dicarlantonio was not the principal witness for the respondent nor was her “faded” memory detrimental to the respondent’s case. She proved a reliable and honest witness.
Although the mere absence of prejudice is not enough to justify the grant of an extension, I find that the concerns of the respondent in that the memory of Ms Dicarlantonio is faded is not a material factor militating against extending time.
The merits of the application are also relevant. The applicant is accused of accepting money from the residents of the hostel in return for which she would perform laundry tasks. She denied the allegations vigorously on three occasions, 11 August, 18 August and 30 August. Ms Dicarlantonio was present at the first two meetings and described the applicant’s denial as both “vehement” and “blanket”. The applicant was immediately suspended pending an investigation. Given the seriousness of the allegations I consider the respondent’s conduct in suspending the applicant appropriate in the circumstances.
The applicant was not informed as to who made the complaint, nor was she given any particulars about the complaint. She was asked to explain the circumstances of the allegations and all she could do was to deny it.
Given the applicant’s continued and vigorous denial of the allegations and taking into account her length of service with the respondent, I am satisfied that the merits of the case are such as to be a decisive factor in the question of an extension of time.
I accept Mr Rahilly’s submission that it is against public interest to grant an extension where the delay is of such length. However, each case turns on its own facts and, for the reasons stated above, I find that the delay, although lengthy, should not be the only determinative factor in excluding the application. I regard it as appropriate to grant an extension of time, the justice of the case in my view requires it. I order time for making an application be extended pursuant to s170 EA(3b).
Section 170 DC
Turning now to the substantive application, I find that the respondent was in breach of the Act in failing to undertake a proper investigation. At no stage was the applicant in a position to fully answer the allegations made of her because these were not detailed to her. I accept that the respondent in an attempt to protect the privacy of its residents has not disclosed the residents’ names but, having said that, the allegations of exploitation and dishonesty are of such a serious nature as to shift the balance especially given the length of service of the applicant.
The respondent could have conducted the investigation in a way which would ensure both the privacy of the residents and accord fairness to the applicant. The respondent could have obtained an undertaking from the applicant not to approach the residents in relation to the allegations.
I accept the submissions of Ms Young that all that the applicant could do was to make a blanket denial. There was no more she could do.
The applicant’s first language is not English and, when she sought to have her husband present, permission was refused. The applicant should have been given a further opportunity to bring to the meetings someone of her choosing. I neither accept nor reject the evidence of Ms Paterson in relation to the applicant’s husband’s demeanour but, if he was not considered a suitable attendant at the meeting, then the respondent should have given the applicant a further opportunity to obtain somebody else to attend and to support her.
Section 170 DE
The respondent has not discharged its burden of proving it had a valid reason for terminating the employment of the applicant.
Accordingly, I find that the termination of employment was not for valid reason and it was harsh, unjust and unreasonable having regard to the employee’s conduct.
Remedy
Given the size of the respondent’s operation, I find that it is not impracticable for the applicant to be reinstated.
I order that the applicant be reinstated by the respondent to the position in which she was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those on which she was employed immediately prior to the termination.
In relation to the compensation to be paid by the respondent to the applicant, I order that the respondent pay to the applicant the sum of $7,122.64 which represents 23 weeks at $11.06 per hour for a 28 hour week. Although I have found that the applicant has not rested on her rights, if the Court were to order the respondent to pay forty weeks’ remuneration, that being forty weeks from the date of the letter of termination to the present, it would effectively be penalising the respondent for the delay over which it had no control. I am assisted by Ms Young’s submission that, from the time of the filing of the application, there has been 23 weeks and, on that basis, I propose to make that order so as not to penalise the respondent for any delay.
I further order that the period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant by the respondent.
I further order the time of payment is 21 days from the date of this order.
I thank Mr Rahilly and Ms Young for their persuasive and articulate submissions.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Time for making an application be extended pursuant to s170EA(3)(b).
The applicant be reinstated by the respondent to the position in which she was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those on which she was employed immediately prior to the termination..
The respondent pay to the applicant the sum of $7,122.64.
The period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant by the respondent.
The time of payment is 21 days from the date of this order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 16 June 1995
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Ms M. Young
Solicitor for the Respondent: Mr Michael P. Rahilly
Date of hearing: 23 May 1995
Date of judgment: 16 June 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - EXTENSION OF TIME - Complaint of unlawful termination - Conduct and Performance
Industrial Relations Act 1988 s170 DC, s170 DE, s170 EA, s170 EE
CASES:
Transport Workers Union of Australia v National Dairy Ltd No. 20 of 1994. Decision of Mr Justice Keely
Kumar v Victorian Workcover Authority, Ryan JR, 18/1/95
Hunter Valley Developments Pty Ltd v Cohen, 1984 3 FCR 344. Decision of Wilcox J
Emma Szlezynger v Montefiore Homes For The Aged
No. VI 2774 of 1994
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 16 June 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2774 of 1994
B E T W E E N
EMMA SZLEZYNGER
Applicant
A N D
MONTEFIORE HOMES FOR THE AGED
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 16 June 1995
THE COURT ORDERS THAT:
Time for making an application be extended pursuant to s170EA(3)(b).
The applicant be reinstated by the respondent to the position in which she was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those on which she was employed immediately prior to the termination..
The respondent pay to the applicant the sum of $7,122.64.
The period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant by the respondent.
The time of payment is 21 days from the date of this order.
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