Hayden v Brond

[1996] IRCA 240

DECISION NO:  240/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - application for extension of time to lodge substantive application - explanation for delay -consideration of merits of claim - application dismissed.

INDUSTRIAL RELATIONS ACT 1988 Ss 170DE, 170EA.

Patricelli v L.J. Hooker Real Estate, IRCA No. 715 of 1995, RD Farrell JR, 16 November 1996, unreported.

Colleen Ann Dorothy HAYDEN -v-  Vicki Lee BROND  -  WI95/2615

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH
DATE:             15 APRIL 1996

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. WI 95/2615

BETWEEN:   Colleen Ann Dorothy HAYDEN
  -         Applicant

AND:  Vicki Lee BROND
  -         Respondent

MINUTE OF ORDERS

BEFORE:                R. D. FARRELL JR

PLACE:                   PERTH

DATE:  15 APRIL 1996

THE COURT ORDERS THAT:

1.         The application for an extension of time to file the substantive application is      refused.

2.         The substantive application is dismissed.         

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI2615 of 1995

BETWEEN:

Colleen Ann Dorothy HAYDEN
Applicant

AND:

Vicki Lee BROND
Respondent

REASONS FOR JUDGMENT DELIVERED EX TEMPORE
Revised from Draft Transcript

15 April 1996  R. D. FARRELL JR

1. This is an application brought pursuant to section 170EA of the Industrial Relations Act 1988 in relation to the dismissal of the applicant, Ms Hayden, by the respondent, Mrs Brond.

1. Mrs Brond had a contract with the “Sunday Times” newspaper to organise delivery of newspapers to designated areas on Saturday nights, and to return unsold newspapers and an agreed proportion of the proceeds to the “Sunday Times”. Mrs Brond engaged Ms Hayden, together with a number of other people, to sell the “Sunday Times” newspaper on Saturday nights at specific locations in the suburb of Morley. Mrs Brond paid Ms Hayden a commission for each paper sold, and required her to leave the remaining money, with any unsold newspapers, for Mrs Brond to collect.

1. Ms Hayden claims that her employment was terminated in breach of section 170DE of the Act in that it was not for a valid reason, or that in all the circumstances of the case it was harsh, unjust or unreasonable. However, Mrs Brond has raised two jurisdictional issues with which the court must first deal.

1. The first issue relates to the time of the filing of the application. Mrs Brond says that the application was filed out of time and that leave to extend the time for filing of the application should not be granted. Having heard evidence from both Ms Hayden and Mrs Brond, I propose to decide that matter now.

1. Mrs Brond also foreshadowed that she will argue that Ms Hayden was not an employee for the purposes of the Act, but rather was a subcontractor. I heard no evidence on that point and advised the parties that I would deal with that matter if it were necessary following the decision as to the extension of time.

Principles Governing Extension of Time

1. Section 170EA requires that an application must be lodged within 14 days after the employee receives written notice of the termination. Mrs Brond tendered a copy of a letter dated 14 August 1995. Ms Hayden accepts that she was given that letter on 14 August 1995, but says that she did not open the letter until a date much closer to the date upon which she filed her application. The application was filed on 29 December 1995. I am satisfied that the content of the letter is such that it is a written notice of the termination.

1. I am also satisfied from her evidence that Ms Hayden understood at the time she was given the document that her employment was being terminated and I do not consider that the fact that she may not have opened the letter, when it was given to her in those circumstances, affects the position in terms of whether or not she received written notice of termination. I am satisfied that she received written notice of termination, whether or not she chose at the time to read it. That being the case, time ran from

August 1995.

1. There was, therefore, a delay of almost 4 months before the application was brought in this court.

1. Section 170EA also provides that an application may be filed within such further period as is allowed on an application made during or after those 14 days. Accordingly, the court can, in its discretion, give Ms Hayden an extension of time within which to file her application so that the application can then be dealt with. That is a discretion vested in the court and the principles according to which the court exercises that discretion are well established. I have discussed these principles in Patricelli v L.J. Hooker Real Estate (IRCA No 715 of 1995, RD Farrell JR, 16 November 1995, Unreported).

1. In summary there are three matters which need to be considered:

   ·       Whether the application is likely to succeed on the merits;

   ·       Whether Mrs Brond has been prejudiced by the delay in filing the

   application; and

   ·       Whether there is a satisfactory explanation for the delay in the filing of the       application.

Explanation for Delay

1. Dealing with those matters in reverse order, Ms Hayden gave lengthy evidence as to the circumstances leading up to her filing the application.

1. Ms Hayden believed at the time she was dismissed that her dismissal was unfair. Ms Hayden was aware from her general following of the media, whether it be reading the newspapers or watching the television, that if one were unfairly dismissed there was something that could be done about it. However, Ms Hayden did not do anything immediately to act upon this knowledge on account, she says, of her feeling ill at the time and feeling unable to act on the matter. She has tendered numerous medical certificates which indicate that she was unfit for work at times during the period between her dismissal and her filing of the claim in late December. She describes her illness as chronic laryngitis.

1. I note that Ms Hayden was, on her evidence, sufficiently fit to work for at least part of that time selling newspapers on some mornings, and working as a traffic attendant at other times. She explained that for the purposes of those jobs it was not so important that she be able to speak easily. I am, on balance, not sufficiently satisfied that enough was done by Ms Hayden to file the application within time.

1. I note, however, that Ms Hayden was not aware of exactly where she needed to go to file the application. She eventually looked through the telephone book and had a number of wrong ports of call at the Industrial Relations Commission and other places before eventually she found the Registry of this Court. It follows, I think, that she would not have necessarily been aware that there was a limitation period, and therefore was unaware of the need to act urgently. Therefore, while I have some misgivings about the adequacy of the explanation for delay in commencing that process, I am not prepared to deny leave on that ground alone. I therefore need to consider whether there was any prejudice to Mrs Brond.

Prejudice to the Respondent

1. Mrs Brond raised two matters which might be regarded as prejudice resulting in the lateness in bringing the claim.

1. The first was the proposition that, had the claim been brought within 14 days, there would have been a greater capacity to reinstate Ms Hayden as part of the settlement of the matter. This would have meant that Ms Hayden's loss would have been less and Mrs Brond’s potential liability for compensation correspondingly reduced. I discussed a similar scenario in my decision in Patricelli v LJ Hooker Real Estate.

1. However, given that Mrs Brond's evidence was that she would only have reinstated Ms Hayden if required to do so by the Sunday Times (which had the potential to exercise considerable influence on the way Mrs Brond ran her business), I do not put great weight on any prejudice flowing from the loss of that opportunity.

1. The second matter to which Mrs Brond referred in passing was the fact that the events had all happened a considerable time ago and that her recollection of the matters in issue was, therefore, worse than it otherwise would have been.

1. That is, I think, a real prejudice to Mrs Brond which she otherwise would not have suffered, but in the circumstances of this case I do not think it has played too great a part.

1. In summary, I am satisfied that there is some prejudice to Mrs Brond, but I do not see it as being overwhelming prejudice. It is therefore necessary to consider the merits of Ms Hayden’s claim.

The Merits of the Claim

1. Because both parties represented themselves, and parties were the sole witnesses for their case, I allowed the hearing in this matter to be conducted in an unusual way. I thought it appropriate that it not be required that the usual practices of cross-examination and evidence by the witnesses in turn be adhered to. The matter proceeded with both parties being sworn and giving their evidence under oath from the bar table in turn and, broadly speaking, in response to questions that I directed to them. The parties chose not to directly question each other. Having questioned both of the parties at some length, and I hope to their satisfaction, I feel I have sufficient evidence to make a ruling on the merits for the purpose of the application for extension of time.

1. There were two matters relied upon by Mrs Brond as a valid reason for dismissal. In considering this issue, I will proceed as if I had found that there was an employment relationship, though I have not yet reached a final view on that issue.

1. The first matter, which was relied upon directly, was the allegation that Ms Hayden had encroached in the selling of papers outside her area into the areas that had been allocated to other paper sellers. Ms Hayden conceded that on the night in question she sold two papers in the Morley Galleria Shopping Centre (“the Galleria”) which she also concedes was not an area in which she was meant to be selling papers.

1. There had been changes in the allocation of areas in which papers should be sold. I accept that Ms Hayden was unhappy about those changes. Ultimately, however, this Court deals with terminations of employment. It generally does not deal with other decisions made in the course of employment with which employees might not agree. Now, there might be circumstances in which an employer might force an employee to do something so unfair that it would amount to what is called constructive dismissal. That effectively means that the employer is forcing an employee to resign.

1. I am not satisfied that the changing of Ms Hayden's area was so extreme a change in her employment conditions that it could amount to a constructive dismissal. It was, at most, a decision made by an employer with which the employee was not happy and disagreed. It was, however, a direction given by Mrs Brond to Ms Hayden. It was a direction it is clear Ms Hayden understood and it was a direction she had an obligation to comply with.

1. Mrs Brond gave evidence that she had verbally told Ms Hayden that the areas within which Ms Hayden could sell papers had been changed. Ms Hayden complained about that verbal direction, indirectly through the Sunday Times. As a result of that complaint, Mrs Brond then formally and in writing told and directed Ms Hayden that she was to sell the papers from certain specified areas and not in certain other specified areas. This written direction was exhibit B1. I questioned Ms Hayden about what she understood the writing to mean and her evidence was that she understood what the writing meant. She disputed the fairness of it but she agreed she understood what it meant.

1. Given that it was not so extreme a direction as to amount to constructive dismissal, in my view there was an obligation on Ms Hayden to comply with that direction. It is clear on Ms Hayden’s evidence that she did not comply with that direction on the night in question and that that was the reason for her dismissal. In those circumstances, I am satisfied that there was a valid reason for dismissal related to Ms Hayden's conduct; that is, in the selling of the two papers.

1. I now turn to consider whether Mrs Brond’s decision to rely on Ms Hayden’s failure to comply with the direction to dismiss Ms Hayden was harsh, unjust or unreasonable in all the circumstances.

1. It might be thought that the selling of a mere two papers outside of an authorised area would be insufficient basis for a dismissal, viewed in isolation. This is the aspect of the merits which has given me the most difficulty. However, the decision to dismiss must be viewed in its context. I accept that Ms Hayden refused to work on the first night on which the changes were made, and that she was either verbally dismissed or verbally told that she was to be dismissed as a result of that refusal. That dismissal was retracted in favour of the written direction, to which I have referred.

1. In those circumstances where, in a sense, Ms Hayden had already had one reprieve, it seems to me more reasonable to rely on a further contravention of the direction as a justification for dismissal.

1. I am fortified in that reasoning when the dismissal is also viewed in the context of the other complaints by Mrs Brond to Ms Hayden about additional papers being taken. I asked questions of Ms Hayden at some length on this point and finally, I am satisfied that Ms Hayden sometimes took or caused three papers to be taken home or given away when she was only entitled to take or give away two papers. I note that the issue of only taking two newspapers for personal use was a matter that was also dealt with in the written direction, though there is no evidence that further papers were taken after the written direction was given.

1. Again, Ms Hayden believes this restriction was unfair. She may well be right, but again it was a lawful direction and it was something with which she had to comply. In failing to comply on numerous occasions she has to some extent created a context in which the final decision to dismiss her based upon her selling two newspapers outside her area becomes more reasonable.

1. In summary, looking at the merits, I am not satisfied that the application would succeed and on balance I think it is more likely to fail than not. That being the case, when taken together with the fact that Mrs Brond has suffered some prejudice from the fact that the application has been delayed, together with the fact that I am not completely satisfied with the explanation for delay, my decision is to exercise the discretion so as not to grant leave to extend time in this case. The order that I will make is that leave for extension of time to file the application in the principal matter be refused.

1. That means that there will be no need to deal with the question of whether or not Ms Hayden was an employee or not and, strictly speaking, the merits would not be finally determined. However, having heard and considered all the evidence the Court would have heard on the merits I am satisfied that it is more likely than not that the claim would not have succeeded even had Ms Hayden cleared this hurdle.

   I certify that this and the preceding 6 pages
   are a true copy of the reasons for decision of
   Judicial Registrar R.D. Farrell.

   Associate:
   Dated:

   APPEARANCES

   The applicant appeared for herself.       

   The respondent appeared for herself.   

   Dates of Hearing:  15 April 1996