Izeta Tanovic v H J Heinz Co Australia Ltd

[1997] FCA 1086

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - reinstatement of APPLICATION - exercise of discretion - intent of parties in making consent order - whether application brought in a timely manner - possible prejudice to respondent -

Workplace Relations Act 1996 (Cth) s170EA

IZETA TANOVIC & APESMA v H J HEINZ COMPANY AUSTRALIA LTD 
VI  2305  of  1996

Before:  PARKINSON JR
Place:   MELBOURNE
Date of Hearing:      8 OCTOBER 1997
Date of Judgment:    13 OCTOBER 1997

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 2305 of 1996

BETWEEN:

IZETA TANOVIC
First Applicant

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS OF AUSTRALIA
Second Applicant

AND:

H J HEINZ COMPANY AUSTRALIA LTD
Respondent

JUDGE:

PARKINSON JR

DATE OF ORDER:

13 OCTOBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The applicant’s Notice of Motion filed on 11 September, 1997 be dismissed. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

 VI 2305 of 1996

BETWEEN:

IZETA TANOVIC
First Applicant

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS OF AUSTRALIA
Second Applicant

AND:

H J HEINZ COMPANY AUSTRALIA LTD
Respondent

JUDGE:	PARKINSON JR
DATE:	13 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is my decision on an application made to reinstate proceedings brought pursuant to Section 170EA of the Workplace Relations Act 1996 (Cth). (‘the Act’)  The application was originally listed for trial on 24 and 25 February, 1997.  On 21 February, 1997 consent orders were filed by the parties in the following terms:

1. The matter be struck out with right of reinstatement.”

On 11 September, 1997 the applicant filed a Notice of Motion seeking that the proceeding be reinstated. 

Whilst the terms of the consent orders were that the proceedings be struck out with a right of reinstatement, I am not satisfied that the orders reserved a right to the applicant to reinstate the proceedings, in the absence of sound reasons for exercising the discretion.  Nor am I satisfied that the consent orders, as filed, precluded the exercise by the Court of the discretion as to whether the proceedings ought be reinstated. 

It is apparent from the submissions that both parties were of differing understanding of the intent and purport of the consent orders.  It is apparent that at least one reason for the order striking out the proceeding was a view, in at least one of the parties, that a desired adjournment would not be granted.  However, no steps were taken in accordance with the proper procedures for such an application to be heard and determined by the Court, and no such application was ever made.  It was not correct to state that an adjournment had been refused by the Court and that in such circumstances the applicant felt that the only alternative was to strike out the proceedings whilst reserving a reinstatement right. 

It was submitted by the applicant’s representative that the circumstances of the consent orders also included the fact that at the time of the trial the applicant had obtained alternative employment and, being on a probationary period, did not wish to jeopardise that employment by absenting herself for the proceedings. That may have been a significant matter to put before the Court in an adjournment application.  However, it does not of itself provide sufficient basis for an order for reinstatement.  It was further submitted that the understanding of the applicant was also that she would be able to reinstate the proceedings at a time which was suitable to her in the future.  In the absence of affidavit material to this effect, it is uncertain exactly what factors were relevant to the decision to seek reinstatement.  However, it appears that having obtained secure alternative employment, the applicant now desires to re-invigorate these proceedings. 

The respondent contests the accuracy of the applicant’s account of the reason for, and expectations arising from, the consent orders. The affidavit material filed on behalf of the applicant does not inform the Court of the detail of the circumstances upon which the applicant relies. In  particular, there is no reference in the affidavit material to the probationary period or to the basis upon which the consent orders were said by the applicant to have been filed. 

The respondent’s counsel, again from the bar table, informed the Court that it was the understanding of the respondent that, in entering the consent orders, the proceeding would not be pursued in the event that the applicant successfully completed her probationary period in the new employment and was appointed to a position with the new employer. 

The filing of consent orders seeking that the proceeding be struck out is not a substitute for such a process, that is an application for an adjournment.  Further, the reservation of a right to reinstate the proceedings is not a reservation unlimited by the exercise of the discretion of the Court.  The discretion as to whether to reinstate will be exercised having regard to the factual circumstances which founded the consent orders, together with matters such as the timeliness of the application and the possible prejudice to the respondent, although this latter matter is not of significant weight. 

I am not satisfied on the material before me that there was an understanding between the parties as to the proceedings being reinstated.  Firstly, I am not satisfied that the original and stated purpose of the consent orders, that is, as an alternative to the proper procedure for seeking to adjourn proceedings, is a sound basis upon which to rely in support of an application to reinstate a proceeding.  Secondly, it is apparent that there is confusion and disagreement between the parties as to the original agreement and understanding as to the consent orders.  There is insufficient affidavit material to satisfy me that there was ever an understanding of the type pressed by the applicant, as to the circumstances in which the proceedings would be reinstated.  Finally, even were the grounds relied upon by the applicant accepted by the Court as sufficient, and they are not, the probationary period in question completed in  May 1997, at the latest.  The application for reinstatement was not filed until 11 September, 1997.  A significant, and in my view unacceptable, period of time has elapsed such that an order for reinstatement would be highly prejudicial to the respondent.  The timeliness of the application, having regard to the circumstances which resulted in the application being made, is a matter of significance, and in this case I am not satisfied that the application to reinstate the proceeding has been brought in a timely manner. 

The application made by Notice of Motion, filed on behalf of the applicant, 11 September 1997, is dismissed. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Parkinson

Associate       :         

Dated            :         13 October 1997

Counsel for the Applicant:	Mr. G. Considine
Applicant’s representative:	Association of Professional Engineers Scientists and Managers of Australia
Counsel for the Respondent:	Mr. C. Gardner
Solicitor for the Respondent:	Freehill Hollindale & Page
Date of Hearing:	8 OCTOBER 1997
Date of Judgment:	13 OCTOBER 1997