John Neale Nelson v Scholle Industries

[1995] IRCA 476

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment

INDUSTRIAL RELATIONS ACT 1988, ss. 170EE,170EA(3)

JOHN NEALE NELSON -V- SCHOLLE INDUSTRIES

No. SA 1234 of 1995

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  12 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SA 1234 of 1995

B E T W E E N:

JOHN NEALE NELSON

Applicant

AND

SCHOLLE INDUSTRIES

Respondent

MINUTES OF ORDER

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  12 SEPTEMBER 1995

THE COURT ORDERS THAT:

The Application is dismissed.

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

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SA 1234 of 1995

B E T W E E N:

JOHN NEALE NELSON

Applicant

AND

SCHOLLE INDUSTRIES

Respondent

BEFORE:                  JUDICIAL REGISTRAR FARRELL
PLACE:  ADELAIDE
DATE:  12 SEPTEMBER 1995

REASONS FOR JUDGMENT - DELIVERED EX-TEMPORE -
REVISED FROM TRANSCRIPT

This is an Application pursuant to S.170EA.  The Applicant claims that his employment was terminated unlawfully by the Respondent.The matter came on before me today to determine two preliminary issues.  Firstly, did the Applicant receive written notice of the termination of his employment and if he did should the Applicant be given leave to extend the time in which to commence his claim.

The Applicant’s employment was terminated on 25 November 1994.  On that day he was given a written notice of termination of his employment by Mr T Evans.  His name and address appeared at the top of one page of the notice and it contained the reasons for the termination of his employment and the date.  The Applicant signed the notice and handed it back to Mr Evans.  In my view that notice was sufficient to invoke the time limitation contained in Section 170EA(3) of the Act. 

In addition within a few days the Applicant received a separation certificate from the Respondent, clearly bearing his name and address and marked to show that his employment had been terminated for unsatisfactory work performance.

The Applicant gave evidence that shortly after the termination of his employment he was evicted from the house in which he was living, had difficulty obtaining Social Security benefits and needed to sell his car because its condition had deteriorated.  He made some enquires of government agencies to find out if he had been underpaid on the termination of his employment.  He eventually commenced proceedings in the Industrial Commission of South Australia on 22 March 1995. Those proceedings were served  on the Respondent on 27 March 1995.  He commenced the proceedings which are before me today on 20 June 1995, some seven months after the termination of his employment.

The delay in commencing his action was substantial and must weigh heavily against the Applicant.  I am not satisfied that he has an acceptable explanation for the delay given the length of the delay.

Although the Respondent was notified that the Applicant was contesting the termination of his employment on 27 March 1995, when it received a copy of the proceedings which the Applicant had commenced in the State Commission, it had no knowledge of the Applicant contesting its decision until that date.

Evidence was given by the Respondent’s Production Supervisor Mrs Howlett that the Applicant has been replaced by an employee  who had been a  casual employee of the respondent.  If the Applicant was reinstated that employee would be returned to being a casual  employee if no other position could be found.

An employer who replaces another employee when proceedings are brought within the time limitation contained in the Act, does so at its own risk.  However given that some four months had elapsed before the Respondent was made aware of any claim by the Applicant it seems to me that the Respondent may suffer significant prejudice which weighs against the Applicant’s Application.

In addition Mrs Howlett gave evidence that budgetary constraints which have been set some time after the termination of  the applicant’s employment will be affected by any award of compensation to the Applicant.

Whilst on the evidence before me the Applicant’s substantive claim may be meritorious.  On balance I am no convinced that the application for extension of time should be granted in this matter.  The Application is dismissed.

I certify that this and the preceding page is a true copy of the reasons for my judgment.

DATE OF HEARING  :          12 September 1995

FOR THE APPLICANT         :          Mr E Reinboth

FOR HE RESPONDENT       :          Ms S Shaw