Jennings v Salvation Army

Case [2003] FCA 1193

FEDERAL COURT OF AUSTRALIA

Jennings v Salvation Army [2003] FCA 1193

INDUSTRIAL LAW – termination of employment – application for extension of time – Workplace Relations Act 1996 (Cth) s170CP – principles relevant to exercise of discretion –relevance of consideration of merit of substantive proceeding based on material before the Court

Workplace Relations Act 1996 (Cth) ss 170CE, 170CF, 170CFA, 170CK, 170CP, 170CR
Workplace Relations Regulations, Reg 30C

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, followed

Roger Coyne v Ansett Transport Industries (Industrial Relations Court of Australia, unreported 24 September 1996, Decision No 449 of 1996, per Wilcox CJ, Ryan and Madgwick JJ), followed

Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 190 ALR 497; [2002] FCAFC 193, referred to

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, followed

Haining v Drake (1998) 87 FCR 248, applied

Duff v Freijah (1982) 62 FLR 280, followed

Wolcott v Davis (1984) 4 FCR 124, followed

Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd (Industrial Relations Court of Australia, unreported 9 May 1996, Decision No 201 of 1996 per Marshall J), followed

Lucic v Nolan (1982) 45 ALR 411, followed

TREVOR JOHN JENNINGS v SALVATION ARMY (VICTORIA) PROPERTY TRUST INCORPORATED
V425 OF 2003

MARSHALL J
24 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V425 OF 2003

BETWEEN:

TREVOR JOHN JENNINGS
APPLICANT

AND:

SALVATION ARMY (VICTORIA) PROPERTY TRUST INCORPORATED
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

24 OCTOBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s motion dated 22 July 2003 be dismissed.

2.The purported application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”), be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V425 OF 2003

BETWEEN:

TREVOR JOHN JENNINGS
APPLICANT

AND:

SALVATION ARMY (VICTORIA) PROPERTY TRUST INCORPORATED
RESPONDENT

JUDGE:

MARSHALL J

DATE:

24 OCTOBER 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The issue for determination in the motion before the Court is whether the applicant, Mr Jennings, should be allowed an extension of time to commence an application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of the termination of his employment by the respondent, Salvation Army (Victoria) Property Trust Incorporated (“the Salvation Army”).

    Background

  2. Mr Jennings’ employment with the Salvation Army was terminated with effect from 10 January 2003. On 20 January 2003 Mr Jennings filed in the Australian Industrial Relations Commission (“the Commission”) an application for relief in respect of the termination of his employment. The original application relied upon s170CE(1)(a) of the Act, claiming that the termination was harsh, unjust, or unreasonable. On 10 February 2003, solicitors acting for Mr Jennings applied, by facsimile transmission, to amend the application so as to allege a…

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Details
AGLC
Jennings v Salvation Army [2003] FCA 1193
Case
[2003] FCA 1193
Decision Date

CaseChat Overview and Summary

Jennings v Salvation Army was a case before the Court, involving Mr Jennings, the applicant, who sought an extension of time to commence an application under s170CP of the Workplace Relations Act 1996 (Cth) in respect of his employment termination by the Salvation Army. The central legal issue was whether the applicant should be granted an extension of time to commence the application, which was filed 10 weeks beyond the statutory deadline. The Court had to determine whether, in the interests of justice, it should exercise its discretion to allow the extension.

In examining the matter, the Court considered various criteria, including the reasons for the delay and the potential impact of any reinstatement order. The Court concluded that granting an extension would encourage dilatory behaviour and potentially have adverse consequences for the Salvation Army and a replacement employee. The Court's strong view on the merits of the application, based on the evidence and pleadings, led to the decision that it was not appropriate in the interests of justice to extend the time for making the application. The Court exercised its discretion to refuse the application for an extension of time, and dismissed the applicant's motion.

The Court's decision was based on an "overall judgment" that the application should be dismissed. Consequently, the Court ordered that the applicant's motion dated 22 July 2003 be dismissed and the purported application under s170CP of the Workplace Relations Act 1996 (Cth) be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

Orders

Orders of the court

1. The applicant’s motion dated 22 July 2003 be dismissed.

2. The purported application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”), be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

Background

Background to the litigation

The issue for determination in the motion before the Court is whether the applicant, Mr Jennings, should be allowed an extension of time to commence an application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of the termination of his employment by the respondent, Salvation Army (Victoria) Property Trust Incorporated (“the Salvation Army”).Background Mr Jennings’ employment with the Salvation Army was terminated with effect from 10 January 2003. On 20 January 2003 Mr Jennings filed in the Australian Industrial Relations Commission (“the Commission”) an application for relief in respect of the termination of his employment. The original application relied upon s170CE(1)(a) of the Act, claiming that the termination was harsh, unjust, or unreasonable. On 10 February 2003, solicitors acting for Mr Jennings applied, by facsimile transmission, to amend the application so as to allege a contravention of s170CK of the Act. The Commission attempted to settle the matter in dispute in the application in a conciliation conference held on 24 February 2003. On 4 March 2003, the Commission issued a certificate under s170CF(2) of the Act, in which it stated that all reasonable attempts to settle the matter by conciliation were not, and were not likely to be, successful. That view was expressed with respect to both grounds relied upon in the amended application. Pursuant to s170CFA(3) and (6) of the Act, Mr Jennings’ solicitors lodged a notice of election to bring proceedings in this Court for an order under s170CR. The relevant form used for that purpose (Form R25) ended with the following note:“In the event that an applicant elects to bring court proceedings, the lodgment of this Notice of Election Form in the Industrial Registry will not have the effect of commencing any such court proceedings. Consequently, in addition to the lodgment of this Form in the Industrial Registry (and the giving of a copy to the employer), it is incumbent upon the applicant to also commence such proceedings before an appropriate court.” Due to either oversight or ignorance of the law or both (a topic to which I will later return), Mr Jennings solicitors did not commence proceedings in this Court until the application in this proceeding was filed on 30 May 2003. It appears from the applicant’s material that the solicitors for Mr Jennings contended that the proceeding was filed on 27 May 2003 and requested an extension of time until that date. The document lodged and filed in court has the court stamp of 30 May 2003. The application was purportedly filed pursuant to s170CP, but did not contain any request for an extension of the time within which to bring the proceeding under s170CP(6). That sub-section provides:“The application must be made within 14 days after the lodgment of an election under s170CFA(6), or within such period as a court allows on an application made during or after those 14 days.” In accordance with s170CP(6) the application should have been filed with the Court on or about 19 March 2003. It was filed some 10 weeks out of time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J
The consideration as to fairness between the applicant and others in a like position provides little assistance in this case. However, to the extent that it may be relevant it tends to support the refusal of an extension of time. As discussed by the primary judge in Roger Coyne at p.11, at first instance and approved on appeal, the granting of an extension in the circumstances would encourage dilatory behaviour. It is also important to bear in mind, with all of the qualifications expressed earlier in my reasons, that any reinstatement order which may occur as a result of a successful application may have adverse consequences, not only on the Salvation Army but potentially on the replacement employee engaged on 17 March 2003.Conclusion Having regard to all the criteria examined above and especially having regard to the Court’s strong view on the merits of the application, based on the evidence and pleadings as they are now, the Court is of the view that it should exercise its discretion, in the words of Wilcox and Marshall JJ in Haining, as a matter of “overall judgment” by refusing the application. My “overall judgment” is that on the material before the Court on the motion, it is not appropriate in the interests of justice to extend the time within which an application may be made to the Court. The motion for an extension of time should be dismissed.Orders The Court will order that:3. The applicant’s motion dated 22 July 2003 be dismissed.4.The purported application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”), be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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