Fatat Sukkar and P and M Quality Smallgoods
[1995] IRCA 704
•16 November 1995
In the Industrial Relations
Court of Australia
New South Wales District Registry Matter No: NI 95/3469
Between: Fatat Sukkar
Applicant
And: P & M Quality Smallgoods
Respondent
Coram: Tomlinson JR
Place: Sydney
Date: 16 November 1995
Reasons for decision delivered Ex-Tempore revised from Transcript
This is an application brought by way of notice of motion to obtain leave of the court to allow an applicant to bring proceedings out of time.
It is not contested that Mrs Sukkar received written notice of the termination of her employment towards the end of June 1994. The application is dated and filed in August of 1995. The Industrial Relations Act provides an application for relief is to be lodged within 14 days of the receipt of written notice of the termination.
In support of the application the court heard evidence from the solicitor of the applicant, Mr John Harkin, whose affidavit in support of the notice of motion was read onto the record. That affidavit revealed the applicant commenced employment on 1 May 1989 and paragraphs 1 and 2 outline various deeds of victimisation, discrimination and harassment allegedly sustained by the applicant during the course of her employment.
That affidavit reveals that prior to the termination of the applicant, Mrs Sukkar had in fact instructed the deponent’s firm, Messrs Ternes and Salier in connection with proceedings regarding the allegations of victimisation and harassment. Copies of that firm’s correspondence relating to their instructions received are annexed to the affidavit of Mr Harkin. Nothing it seems was done in connection with regard to instituting proceedings for compensation for unlawful termination.
At the outset of the matters before the court today counsel on behalf of the applicant indicated that reinstatement is no longer sought, only compensation.
Germane to this application is paragraph 3 of the affidavit of Mr Harkin. It seems that a Ms Linda Chater, a former personnel manager with the respondent, who was employed with the respondent during the course of the applicant’s employment, contacted the applicant and indicated that the respondent, in the form of the manager, Mr John Hunt, had stated to Ms Chater that he wished to sack the applicant and to that end had arranged for goods the property of the company to be placed in the handbag of the applicant prior to her leaving work just before she was terminated.
Mr Newall, on behalf of the respondent, objected to the evidence of Mr Harkin on the basis that Ms Chater would have been a better person to give evidence in that regard and that as such relating the evidence of Ms Chater by Mr Harkin fell into the category of hearsay. The court exercised its discretion and allowed the material in question to be placed before it noting that exhibit 2 was a letter from Chep, the current employer of Ms Chater, and that reliance was placed on her attendance at work.
Mr Harkins considered the applicant was not dismissed for what I call the “salami in the bag incident”, and advised he had only had the conduct of the case since September 1994 and that he was not in a position to describe the belief of the applicant that she would have had concerning her rights at the time she was dismissed.
The court heard that the applicant was a middle aged woman of ethnic origin who, although she spoke and understood English, might indeed require interpreting assistance should the matter go to hearing. It is accordingly my opinion that the applicant may not have been in a position of strength to instruct solicitors properly at the time of the termination and that the bargaining position of the parties would not have been equal at that time.
On behalf of the respondent the court heard evidence from Mr John Hunt, the general manager of the respondent company. Mr Hunt confirmed he had been with the respondent some 10 years and that he knew the applicant. He further confirmed Ms Chater had been the personnel officer who during the course of her employment had the power to hire and fire and had in fact been present at the termination of the applicant.
Mr Hunt said for a considerable period of time he had had a personal and intimate relationship with Ms Chater but that he had ended that relationship early in 1995. Since that time, the court heard evidence, that both the witness and his family had been the subject of harassing telephone calls now being investigated by the police. Further it was the belief of Mr Hunt that Ms Chater had contacted someone with the request that that person cause Mr Hunt physical harm. Tendered to the court in support of the case of the respondent were exhibits F and G.
Exhibit G was an employment position stated allegedly signed by Ms Linda Chater outlining various unsatisfactory features of the employment of the applicant. Mr Hunt stated an incident involving a trolley was investigated and that he found this to be just a slight brushing incident and nothing more. Mr Hunt gave evidence of a conversation between an Italian woman and the applicant whereby it was indicated that the applicant may receive $500,000 as a result of these proceedings and that Ms Chater was helping her with these proceedings.
Mr Hunt also investigated allegations of body searching and found allegedly nothing untoward had occurred. On behalf of the applicant it was put to the court in final submissions that at the time of termination the applicant knew something was wrong but that she simply could not prove it. The evidence of Ms Chater would go to prove that something. It is my view that the evidence of Ms Chater is fresh evidence and is something that should be treated very seriously. The applicant submitted that the question of delay on behalf of the applicant fell within the framework of the cases of Turner v K and J Trucks and the case of Cole v Hunter Valley.
The applicant submitted not to be allowed to ventilate her rights would be a prejudice to her and that this court is the correct place for that to occur. The applicant contended that this was a case of special circumstance wherein the court should allow such late application. On behalf of the respondent it was submitted the applicant knew about the alleged victimisation before the termination and indeed, had instructed solicitors, but nothing had been done to date about that.
In conclusion I make the following points:
The evidence of Ms Chater is fresh evidence and should be properly investigated and tested once and for all;
It is conceded Ms Chater comes with question marks on the basis of the sworn evidence of Mr Hunt, in that her motives may simply be to do Mr Hunt harm and not to help the business of the court;
However, it is stated that if there was a relationship as outlined by Mr Hunt it is possible that the will of Ms Chater may well have been overborne at the time by management and because of emotional involvement she may have had she may not have always acted impartially and fairly towards the applicant, particularly in relation to various exhibits tendered to the court today,during the course of the employment of the applicant.
Accordingly it is the finding of this court that this is a case of special circumstance warranting an order that the application made by the applicant by way of notice of motion be allowed.
It is my experience that language difficulties often end up in legal difficulties resulting in a diminution of rights and in the present situation to be fair to the applicant there was no evidence that she fully understood at the time of her termination exactly what she could and could not do.
The fact that the union did not represent the applicant at the time is neither here nor there in my opinion as often workers choose not to have a union involved and this also occurs in closed shop situations like the one before the court today. The respondent in submission placed weight on the fact that the Meatworkers Union did not want to take the matter much further. I am unable to place much weight on that evidence and find the reasons that the union seemingly were not involved on behalf of the applicant are just not available at present, such material as is available dealt only with employment, not with the termination.
The respondent in submission relied upon the separation certificate as being a valid document and point to the legal sanctions that exist as to the creation of a false document. I am aware of those legal sanctions but I say it is not uncommon for incorrect statements to be made on those documents and innocent people are often the victims of employer carelessness. It is my belief that the current situation in the circumstances surrounding the creation of that document should be looked at.
The respondent said it would be prejudiced on the basis that people forget, that time will dull recollections. The respondent pointed to the fact that it would call some 13 witnesses. I am of the view the vital witnesses to this case will be the applicant, Mr Hunt and Miss Chater. Most other evidence is likely to be peripheral. Accordingly, I am not of the view that the people forget principle could prejudice the respondent. Nothing should fade from her memory in relation to the allegations of Miss Chater. It is true Miss Chater may not turn out to be the most reliable witness and who only has the basest of motives for coming forward, but I have to say it should be tested.
I was urged to consider the strength of the case of the unfair dismissal. That has been done. There was evidence before the court that the applicant started out as a good worker, then things seemingly went wrong and then for a variety of reasons she was terminated. The applicant, prior to her termination sought legal advice. Then fresh evidence came to light concerning her termination. Accordingly, on the evidence before the court today, the strength of the unfair dismissal case has not yet fully been ventilated and in my opinion, should be fully explored.
I allow the applicant, Mrs Fatat Sukkar, to bring these proceedings out of time. I further direct this matter be placed in the list for additional directions in order that a mutually convenient date for hearing be fixed. I make no order as to costs.
Minutes of Order
THE COURT ORDERS THAT:
That the application be granted.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relation Court Rules.
I certify that this and the preceeding five (5) pages are a true and correct record of the reasons for decision of Judicial Registrar Tomlinson delivered ex- tempore.
Associate:
Date: 25 January 1996
Appearances
Cousel for theApplicant: Mr R.Alkadamani
Instructed by: Messrs Ternes and Salier
Counsel for the Respondent: Mr P.Newall
Instructed by Messrs Hickson Lakeman & Holcombe
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