Grant Andrew Bailey v GHE Pty Ltd

[1995] IRCA 545

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY

TI95/1109

BETWEEN:

GRANT ANDREW BAILEY
Applicant

AND

G.H.E. PTY LTD
Respondent

Before:       Judicial Registrar Parkinson
Place:         Hobart
Date:          29 September 1995

REASONS FOR JUDGMENT

This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as an electrical counter staff member at its wholesale and retail distribution outlet in Hobart. The applicant was employed in February 1994 and his employment terminated on 5 February 1995. The application was filed on 31 May 1995 and was therefore outside of the time limit of 14 days provided for in S170EA(3). An application was made for leave to proceed out of time.

A notice of motion was filed by the respondent on 15 September 1995 and listed for the date of the hearing of the matter. That notice sought that the application be dismissed for being out of time. The respondent also sought that the application for leave be heard as a preliminary matter. The applicant opposed the separate hearing of the issue. As this matter has been listed for trial for some time, and the matters for consideration in the application involve a consideration of many of the matters to be called in evidence in the substantive proceedings, I decided it was convenient for the matter to proceed in its entirety.  There was also in issue in the proceedings the question of whether the termination of the employment was at the initiative of the employer.  I determined to continue to hear and determine all matters including the substantive application together.

It is convenient to deal first with the application for leave to proceed out of time. The applicant’s employment was terminated by letter on 3 February 1995. The applicant filed his application in the court on 31 May 1995. The application is a significant period of time outside the period provided for in S170EA(3) of the Act.

The applicant’s evidence as to the reasons for filing out of time was that he understood that his employment was being terminated because of the downturn in work and need to either increase sales or reduce staff. This, he said, was his understanding on the day of the termination, supported by the reasons contained in the documentation provided by the respondent, and he accepted that this was the case.  His evidence was that he altered his view only on 26 May 1995 when he returned to the workplace to purchase goods and observed and was told of another employee engaged in his place to perform his duties. The evidence was that the applicant had returned to the workplace on some three occasions prior to that of the 26 May 1995, but that he had not known of the other employee’s engagement until that date.

The respondent says that having regard to the circumstances of the termination, the applicant was well aware of the reason for the termination of the employment. The respondent submits further that the applicant’s employment was in fact terminated as a result of a need to reduce the number of staff.  The submission was that the employee identified by the applicant as having replaced him was  a person of different skills and knowledge levels to that of the applicant and that in fact there were a further four staff reductions in the electrical technical area after that of the applicant.  

I am not satisfied on balance that the additional employee was not more skilled or more technically knowledgeable than the applicant such that his job could be described as different to that of the applicant.  I am not on the evidence in the proceedings satisfied that the reason for the termination of the employment was other than that which was known to the applicant at the time of the termination of the employment. 

Further the respondent submits that the real reason for the bringing of the application out of time was the fact that the respondent discontinued an
arrangement with the applicant whereby he was allowed to continue to purchase stock at cost price plus sales tax. Such allegation was denied by the applicant and I am not satisfied that this is sustainable other than by inference from coincidence of the events. It would be a serious inference to draw.

It appears to me on the evidence in this case that the reason for the termination was as stated on the documentation provided by the employer in the letter of termination and the separation certificate to the Department of Social Security. I am satisfied that this was the case, and for that reason am not satisfied that there was any matter of consequence or substance not already in the knowledge of the applicant at the time of the termination which subsequently gave sufficient basis for leave to proceed out of time to be granted. 

The applicant’s evidence was that he was aware of the entitlement to bring proceedings relating to the termination of his employment. The evidence is that there was no complaint as to the termination of the employment, or indication to the respondent at the time of the termination or at any time after the termination of the employment, until the lodging of this application. 
I have had regard to the considerations set out in the decision of Keely J in  Coker-Godson v National Dairies Ltd (1995) 57 IR 186 wherein his Honour adopted the approach taken in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 to applications for leave to proceed outside of
statutory time limitations.  It is unnecessary to restate in this decision those criteria as they were expounded and relied upon by both counsel in this case. However it is appropriate to indicate that I have specifically had regard to the principles that there need be an acceptable explanation for the delay and the failure of the applicant to previously contest the finality of the decision to terminate his employment, together with those matters relating to my findings on the evidence as to the reasons for the termination, the state of the documentation and the knowledge of the applicant in this regard, I have decided that there is insufficient basis for an extension of time to be granted in this matter.
I refuse leave to file the application out of time. As a result of this decision it is not necessary for me to proceed to decide any other aspect of the proceeding.

This application is dismissed.

I certify that this and the preceding 4 pages
are a true copy of the reasons for decision
of Judicial Registrar Parkinson.

Associate:
Date of Judgment: 29 September 1995
Place of Judgment: