Gordon Joseph Denavi v John Stephens Catering Equipment Pty Ltd

[1995] IRCA 243

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1663 of  1995
VICTORIAN DISTRICT REGISTRY

B E T W E E N:
  GORDON JOSEPH DENAVI
  Applicant
  AND

JOHN STEPHENS CATERING EQUIPMENT PTY. LTD.
  Respondent

Reasons for judgment

6 June 1995  PARKINSON JR

This matter arises by way of applications by notice of motion filed by the respondent on 18 May, 1995 and by the applicant on 26 May, 1995. The respondent’s applications seeks that the application be dismissed as being outside of the time limit for filing prescribed by S170EA of the Industrial Relations Act 1988. (“the Act”) The respondent submits that the application was filed 154 days outside of the time provided for by S170EA(3) of the Act.

The applicant’s motion seeks leave to proceed out of time in so far as there is any finding by the court that the application was filed out of time. The applicant filed an affidavit in response to the affidavit material filed by the respondent in support of its motion. The applicant did not file any material in support of his notice of motion and to that extent the court would if it were necessary, be unable to decide on the merits of that application. However for reasons which will become apparent in this decision it is unnecessary to grant leave to the applicant to file additional material as I would otherwise have done. I deal therefore with the respondents notice of motion only in this decision.

In the absence of the matters raised by the applicant’s notice, the only issue which arises as a result of the respondent’s motion is whether there has been any failure by the applicant to comply with the time limits provided for in S170EA(1) of the Act. The respondent submits that the applicant was provided written notice of termination of employment on 13 September and then again on 19 September. The application pursuant to S170EA(1) was not filed by the applicant until 16 February 1995.

In the former it relies upon the contents of a document, which in setting out the payments made to the applicant on the day after the termination of the employment, designates an item as “termination pay”. The applicant says that this document was never received by him.  However I note that one of the documents exhibited to the applicant’s affidavit (Exhibit GD2) is in a similar form to that relied upon by the respondent, in that it contains the statement “termination pay”. I am satisfied that the applicant received a document of the nature described by the respondent on 13 September, 1994. The other document relied upon by the respondent is the group certificate of the applicant which was sent to applicant on about 19 September, 1994. The applicant in his affidavit in reply does not dispute that this latter document was sent or received.

The applicant submits that the documents relied upon by the respondent do not constitute written notice of the type contemplated by S170EA(1) of the Act. The applicant submits that if this latter point is correct the application was not filed outside of any time limits imposed by the Act.

The outcome of this proceeding depends upon the interpretation of the phrase “written notice of termination” in S170EA(3) of the Act. The respondent contention is that phrase encompasses the documents provided to the applicant and described earlier herein.

Counsel for the respondent referred to the reference to S170EA(3) in Liddell v Lembke (1994) 56 IR 447 and in particular the joint judgement of the Chief Justice and Justice Keely at page 450 as follows:

“The application may be brought on the employees behalf by a trade
union : See S170EA(2). The application must be brought within 14
             days of the employee’s receipt of any written notice of termination,
or such further period as the Court on application allows: See S170EA(3).
             Where there was no written notice, there is no time limit for an
             application.” 

He sought to rely upon the word “any” as used in the extract, as somehow representing a view of the court as to the nature of the notice in writing. It was put that this extract was authority for the proposition that “any” type of written reference to the termination of the employment and communicated to the employee, is sufficient to invoke the time limitations in S170EA(3).

It is appropriate to consider the context within which the Court in Liddell was considering S170EA(3). The extract is contained in a part of the decision of the majority where what is being undertaken is an overview of the features of the Commonwealth legislation in the context of an entirely different consideration of the operation of the Act, in that case the operation of S170EB. I do not accept that there was any statement of principle or interpretation intended by their Honours use of the word “any” in the extract relied upon by Mr Lindeman and I reject the notion implicit in the submissions for the respondent, that the “written notice of termination” referred to in S170EA(3) of the Act can be constituted in any form provided there is a reference in the document to the word “termination”.

In my view the purpose of the requirement that written notice be given prior
to the time limits provided for coming into operation, is to ensure that an objective mechanism exists by reference to which the operation of time limitations on proceedings may commence. The Convention Concerning Termination of Employment at the Initiative of the Employer at Schedule 10 of the Act provides in Article 8 paragraph 3 as follows:

“  A worker may be deemed to have waived his right to appeal
              against the termination of his employment if he has not
              exercised that right within a reasonable period of time after
              termination”.

Recommendation No 166 which is Schedule 11 to the Act provides at paragraph 12 :

“ The employer should notify a worker in writing of a
              decision to terminate his employment ”.

There have been many instances of judicial consideration of the meaning of the expression “notice” and to a lesser extent “written notice”.  To a large measure the expression has been interpreted as not relying upon any actual state of knowledge in the person who is to receive the information provided, but rather that the fact that the subject matter of the notice, in this case the termination of the employment, has been brought clearly to his attention. See in this regard B& J Engineering Pty Ltd (in liq) v Daroczy and Anor. (1984) 57 ALR 241 and Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 3 All ER 7 at 12.

I am not convinced that such an approach to interpreting the Industrial Relations Act 1988 is entirely appropriate, however in this case in any event it could not be said that the subject matter of the document provided to the applicant was that of the termination of the employment of the applicant at the initiative of the employer, or that the document constituted anything other than a summary of amounts paid by the respondent to the applicant.

The Act contains at S170DB provisions in relation to the period of notice required to be given to employees in certain circumstances. To a large measure this section is concerned with the manner in which the amount of notice is calculated and the circumstances where notice is not required to be given. Regard is had to the reasons for the termination for the purposes of the calculation of the period of the notice entitlement, an example of this being the provision for no notice in circumstances of serious misconduct.

It is clear that to effect a termination lawfully under this Act, notice of the type prescribed by S170EB must be accorded to the employee. It would be unusual outcome if the “written notice” prescribed by S170EA(3) was satisfied by a document which contains no reference to the very matters prescribed by S170DB.

The use of the word “written” and “notice” in my view require that the fact of the decision made by the employer to terminate the employment, together with the basis upon which the termination is made, ie with or without notice, and the date of its effect, be clearly spelt out in any document which purports to be a written notice of termination for the purposes of S170EA(3) of the Act. The length of time, currently unexplained, which the applicant chose to allow to lapse prior to filing his application whilst relevant to the extent of a remedy if any, is not a relevant matter in determining the question before me in these proceedings.

In submissions counsel for the respondent relied upon substantial compliance with the requirement for written notice. It was submitted at paragraph 7 (c) of the written submissions:

“   The substance of any written notice of termination, it is   submitted, must be such as to; 

(a) make it clear to the employee that his/her employment has
  come to an end.

(b) the test of whether an employee would know that his/her
  employment was at an end, from any written notice, must be
  determined by an “objective” rather than a “subjective” test.
  This must be so if for no other reason than if an employee
  could not read, an employer could never satisfy the relevant
  written notice requirement”.

The latter point has merit and of course the example given would be a factor of relevance in any application to extend the time for filing. What counsel has failed to address in the first aspect of this submission is that there are many types of termination of employment, and the type with which Division 3 - Part VIA of the Act is concerned is termination of employment at the initiative of the employer. In my view the documents relied upon do not provide written notice of termination of this type. 

Having regard to all of the above matters, I am not satisfied that the applicant received written notice of the termination of his employment at the initiative of the employer and consequently the time limitations provided for in S170EA(3) do not apply in respect of his application. The notice of motion filed by the respondent on 18 May, 1995 is dismissed.

The order of the court shall be:

1. That the Notice of Motion filed by the respondent on 18 May, 1995
              be dismissed.

2. That the application VI 1663 of 1995 be placed in the list of matters
              ready to proceed to hearing and listed for hearing accordingly.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:
Dated:           6 June 1995

Solicitors for the applicant:  Weyman & Jamieson
Counsel for the applicant:  Mr G McDermott

Solicitors for the respondent:  J.M. Smith & Emmerton
Counsel for the respondent:  Mr A Lindeman

Date of hearing:  30 May 1995
Date of judgment:   6 June 1995