Frank v Australian Capital Territory

[1996] IRCA 502

DECISION NO:502/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - EXTENSION OF TIME FOR FILING APPLICATION - APPLICATION REFUSED

Industrial Relations Act 1988, Ss 170EA
Public Sector Management Act (ACT)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Turner v K.& J. Trucks Pty Limited unreported, Beazley J, 10 August 1995

IRIS ELIZABETH FRANK-V-THE AUSTRALIAN CAPITAL TERRITORY

No. AI 1400  of 1995

CORAM:      LINKENBAGH JR
PLACE:        CANBERRA
DATE:          18 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY  No.   AI 1400 of 1995

IRIS ELIZABETH FRANK
Applicant

THE AUSTRALIAN CAPITAL TERRITORY
Respondent

Coram:          Judicial Registrar Linkenbagh
Place:             Canberra
Date:              18 October 1996

REASONS FOR JUDGMENT

This is an application pursuant to the provisions of the Industrial Relations Act, 1988 in which the applicant seeks a remedy arising out of the circumstances of the termination of her employment with the respondent The applicant was employed at various times in varying capacities as a teacher in Government Schools in the Australian Capital territory between 28 February 1984 and 29 January 1995. In April 1994 she was a full-time employee engaged as a supernumerary at Copland College. It is not necessary for the purposes of this hearing to examine the history of the status of the applicant.

This hearing is limited to the issue of whether the time for filing of the application should be extended, pursuant to the provisions of section 170 EA (3) of the Act, as those provisions read at the date when written notice of the termination of the employment was given, that date being 23 December 1994.  The time limit was 14 days from 23 December 1994 and the application was filed on 20 December 1995.

The parties agreed that the documents which constitute written notice of the termination of the employment are those annexed to the affidavit of Ms Mitchell as D and E.

D is typed on the letterhead of the A.C.T. Human Rights office and reads

CONCILIATION AGREEMENT

This agreement has been drawn up to formally document the undertakings of both parties, Ms Iris Frank and the ACT Department of Education and Training (hereafter DET), in settlement of alleged discrimination under the ACT Discrimination Act, 1991.

Without prejudice, it was agreed between the parties that:

1. Ms Frank will accept a ‘New Start’ re-training package, whereby DET will provide a        single $10,000 ex gratia payment to Ms frank in support of her pursuit of a new career;

1. Ms Frank will resign from DET with effect from close of business 29 January 1994;

1. Ms Frank will receive from DET all the usual final monetary entitlements;

1. DET agrees not to pursue its request that Ms Frank’s compensation claims do not proceed;

1. The parties agree to keep the terms of this Agreement confidential; and

1. The parties to this Agreement agree to take no further action regarding this matter under   the ACT discrimination Act 1991 or other discrimination legislation.

Iris Frank  For the Department of Education and Training

(signed)  (signed)
23.12.94  23.12.94

E is on plain paper and reads:

To whom it may concern,
ACT Department of education and Training

I, Iris Frank tender my resignation from the ACT Department of Education and Training to take effect from the close of business 29 January 1995.  I will not be resuming duty in the 1995 school year.

I note that a 1995 group certificate will be issued from the Department, and I will advise any change in my postal address.

(signed)
Iris Frank
23.12.94

There is a handwritten notation “Accepted  Megan Dawes  23.12 94  A/Director TS

The agreement embodied in the documents was a negotiated settlement of proceedings commenced by the applicant in the A.C.T. Human Rights Office.  The respondent paid the $10,000 referred to in the documents on 11 January 1995.  It also paid other monies due to the applicant and in fact overpaid her by $1188.24 because of an error in the calculation of salary.  The court notes that the applicant does not deny that she received that overpayment and that she has not complied with requests which were first made on 21 February 1995 that she repay it  The respondent has foreshadowed that it proposes to take action to recover that sum.

The applicant has filed an affidavit setting out the detailed history of her employment with the respondent and her perception of the causes of what she described in her submissions as unreasonable and discriminatory conduct, misuse of probation, victimisation, harassment, threats and strategies to silence her and force her to resign.  She also gave oral evidence and was cross-examined.  The respondent relied on affidavit evidence of Mr Foster and Ms Mitchell and the applicant cross-examined both of those witnesses.

The tests to be applied by a court in determining whether to allow an extension of time are well known and were summarised by Justice Beazley in Turner-v-K. and J. Trucks Pty Limited unreported Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The respondent argues that the application to extend the time for filing of the section 170 EA application should not be granted because judgment No 360/95, relying on the decision of Justice Wilcox in the Federal Court decision of the applicant has failed to satisfy the tests. It is to be noted that the legislation provides for filing within 14 days, which is a very short limitation period, and there is substance in the argument that the longer the delay, the more convincing the explanation should be, although each case must be determined on its own facts.

The applicant should provide an explanation for the delay.  Ms Frank told this court that she did not know about the law relating to constructive dismissal until about 9 December, 1995 when she read an article in a newspaper relating to a decision in a matter before this court.  She said that prompted her to make the enquires which led to her filing the application.  Against that, the respondent argues that the applicant was represented by Solicitors and her Union for some months before December 1994 and her Solicitors and that the Union were part of the negotiating process.  She therefore had the opportunity to be advised of her rights at the time.  The applicant did not challenge the evidence of Mr Foster that the Department first received notice that the applicant wished to accept the offer involving her resigning from Mr Lee from the Union.  The court notes also that the negotiations which led to the resignation took place in 1994, that the unfair dismissal legislation came into effect that year and that it received a great deal of attention from the media.

Action taken by the applicant in the meantime is also relevant.  In this case the applicant signed an agreement which provided for real consideration to pass to her and she signed a separate form of resignation.  She allowed the respondent to fulfil its obligations to make payments of money to her and has not extended the same courtesy to the respondent in relation to the overpayment of salary.  She confirmed the termination of her full-time employment by seeking from the Departmental Officer who signed the 23 December 1994 agreement on behalf of the Department casual teaching engagements for 1995.  The applicant’s conduct is inconsistent with her assertion before this court that she was ‘forced’ to resign.

The applicant sought payment of her superannuation entitlements on 2 January 1996, after the application to this court had been lodged, on a form headed “Resignation”.  That act confirms the nature of the termination and is inconsistent with any desire on the part of the applicant to have her employment continue.

Another facet of the conduct of the applicant is that she did not take advantage of the right to withdraw her resignation which is given by the Standards under the Public Sector Management Act.  In any event, the resignation was to be effective more than one month after the agreement and there was no action to review the decision within that time.

The respondent is exposed to real prejudice if this application is granted.  It has paid $10,000 to the applicant in good faith pursuant to the terms of the agreement.  The applicant if successful in this application would upset the basis of the agreement  There is no evidence that the applicant has offered to repay that sum or make it available to be taken into account in these proceedings.  The fate of the other matters covered by the agreement is equally uncertain.  If the agreement fails totally because the clause relating to the resignation fails, that being part of the consideration for the agreement, then the respondent faces a revival of the Discrimination proceedings.

The merits of the substantial application are a relevant consideration.  For reasons referred to above, and considering the evidence, this court is of the view that the application has little merit and is likely to fail.  The applicant’s assertion that she was forced, by strategies on the part of the Department designed to silence her and force her resignation, into signing the agreement is unconvincing when the facts are considered.  She asks the court to construe the circumstances as a constructive dismissal.  The agreement constituted settlement of long-standing issues between the parties and came at the end of a chain of negotiations, mediation conferences, correspondence and consultations during which she first raised the prospect of termination of the employer/employee relationship and the terms of such a termination were discussed with the applicant and her representatives on many occasions.  The evidence indicates that she entered into the agreement voluntarily and she has accepted benefits under the agreement.  It appears that she has changed her mind and wishes to resile from her own obligations under the agreement in retrospect.  However there is no basis on the evidence before this court on which the court could soundly base any decision which would have the effect of allowing her to do so.  There is therefore no evidence of termination of the employment at the initiative of the employer which is a prerequisite to success of an application under section 170 EA.

It is not necessary for this court to determine the issue before it on the basis of the relative credit of witnesses.  Nevertheless, the court has had the opportunity to assess the witnesses and is of the view that where there is any conflict in the evidence, it is more likely that the evidence of the applicant is unreliable.  Her perception of the facts is coloured by her belief that the Department has set out to harass her and discriminate against her because of her physical disability, being a problem with her hip.  The evidence indicates that the applicant has had the benefit of much attention from the Department and that it has been most considerate of the applicant and her demands over many years and her belief that she has not been treated reasonably is not supported by the evidence.

The application to extend the time for filing the application is refused.

I certify that this and the preceding 4 pages are a true copy of my Reasons for Judgment

Judicial Registrar Linkenbagh

Date:   18 October 1996

The Applicant appeared in person     

Solicitor for the Respondent:             Mr Philip Walker
  A.C.T. Government Solicitor

Dates of Hearing:  17 and 18 October 1996