Kozelj v Kellogg (Aust) Pty Limited
[1996] IRCA 327
•26 July 1996
DECISION NO: 326/96
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5069 of 1995
B E T W E E N :
STEPHEN BOYD
Applicant
AND
HOSOKAWA MICRON PTY LTD
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 16 July 1996
EX-TEMPORE REASONS FOR JUDGMENT
By way of a Notice of Motion filed 18 June 1996 the applicant seeks an extension of time until 2 October 1995 to issue his application under s170EA of the Industrial Relations Act (“the Act”). I do not allow the extension of time and my reasons follow.
The principles for consideration of the granting of an extension of time have been considered in numerous authorities and I will not repeat them. They are neatly summarised in the recent decision Brodie-Hanns v MTV Publishing Limited (Marshall J, 31 October 1995, unreported).
I should indicate the matters that are neutral in a consideration of the issue. The first is the merits of the case. The parties did not descend to the merits on the extension of time application and this issue is, therefore, a neutral indicia. The issue of prejudice to the respondent is also essentially a neutral indicia, although the long period of delay in this case does favour the respondent, particularly given the comments of Northrop J in Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237, where he indicates that Division 3 of Part VIA of the Act is to provide a speedy resolution of unlawful dismissal cases.
The two key issues here are the explanation for the delay, and the actions the applicant has taken to contest the dismissal. It is clear from the decision Transport Workers Union of Australia v National Dairies Ltd (No.2) (1994) 57 IR 186 that the court has to be positively satisfied that it is proper to extend the time and this requires the applicant to give the court an acceptable explanation for the delay.
Here the only real explanation given by the applicant for the delay was that the matter was left in the hands of the Australian Manufacturing Workers Union (“the union”), which, until I granted leave to withdraw, was the second applicant in these proceedings.
While the authorities are ambivalent as to whether or not delays or negligence of solicitors will necessarily be visited on the client in these types of applications, in Coyne v Ansett Transport Industries (Operations) Pty Ltd (Marshall J, 9 May 1996, unreported) Marshall J said:
“The fact that one receives incorrect legal advice as to the availability of a remedy from one's union representative is not a reasonable explanation for the delay in filing an application.”
Here the applicant called in the union immediately after his dismissal on 22 August 1994. The union then arranged a meeting with the respondent at the premises of the Victorian Employers’ Chamber of Commerce and Industry (“VECCI”). That meeting took place on 16 September 1994. At that meeting, I am satisfied on the evidence of Mr Hobday, the Victorian Manager of the respondent, the applicant did contest his dismissal and Mr Brent, the union organiser on behalf of the applicant, sought reinstatement to his position. He was then requesting that the respondent should notify the union of the applicant's redundancy. In addition at that meeting Mr Brent, on behalf of the applicant, raised a number of other issues relating to relocation expenses, underpayment of wages and overtime. The matter was left that the respondent would revert to VECCI which would then revert to Mr Brent with a response to the matters raised.
In fact the respondent only reverted to VECCI in October 1994 on the question of overtime owing. It conceded that there was some $400 or $500 owing. There was then desultory contact between Mr Brent, on behalf of the applicant, and VECCI, and the respondent, in relation to the matter until February 1995, when Mr Hobday advised Mr Brent that the respondent was prepared to make an offer of $2000 in full settlement of all the claims made by the applicant.
On 10 March 1995, Mr Brent advised Mr Hobday that that offer was unacceptable and “more money” was sought. That was the last contact between the union and the respondent or VECCI until 2 October 1995 when the applicant and the union issued these proceedings. It is fair to conclude, therefore, that the applicant did contest this dismissal up until the time that Mr Brent, on his behalf, rejected the offer of $2000 that was made by Mr Hobday in full and final settlement of the claims made by Mr Brent on behalf of the applicant.
The fact that no other proceedings or actions were taken by Mr Brent on behalf of the applicant from 10 March 1995 until these proceedings were issued on 2 October 1995, distinguishes this case from other cases on extensions of time where there has been active disputation of the dismissal. In no sense could it be said, as far as the respondent was concerned, that after 10 March the applicant or his union did actively contest the dismissal. The applicant's explanation for his failure to take any action in relation to the matter from 10 March was that he continued to contact Mr Brent every fortnight or every month seeking advice as to progress but the calls were not returned.
Eventually in July he ascertained that Mr Brent had in fact retired from the union. He then contacted another organiser, Mr Ormsby, and had a meeting with him. Mr Ormsby took no immediate action in relation to the matter until he was able to get in contact with Mr Brent. This took a period of about two months. Mr Brent gave evidence that the office of his former employer, the union, knew where he was over that period. Mr Brent gave evidence that he was not familiar with the need for applications under Part VIA of the Act to be issued within two weeks. He did not give any evidence as to why he took no action to inquire about it from other people within the union. Mr Ormsby gave evidence of a general familiarity with Part VIA of the Act but said he had not been involved in any proceedings under the Act at that stage. He gave no explanation as to why he took no action to expedite the application as far as the applicant was concerned.
Meanwhile, the applicant, not unreasonably, sought other advice, in particular from a friend of his who worked at the Equal Opportunity Commission. It took him some time to obtain the advice from that friend and finally in mid September he ascertained that there was a two week limitation period for claims for unlawful termination. This was about the same time that Mr Brent had returned from his holiday in Darwin and when the applicant had further contact with Mr Ormsby. It was finally on 2 October that the applicant had a heated meeting with Mr Ormsby at which he insisted that he issue the proceedings on his behalf and that was done.
I am not satisfied on the basis of this material that the applicant had given any reasonable explanation for this period of delay from 10 March until the proceedings were finally issued by Mr Ormsby on 2 October. I am satisfied that he should have taken other action shortly after 10 March to obtain legal or other advice in relation to the termination of his employment in August 1994. He was badly let down by both Mr Brent and Mr Ormsby but to some extent he let himself down. He indicated that in fact he did contact the court or the Australian Industrial Relations Commission at some stage in July but was deterred from pursuing the matter further because they advised him that they had no action number. I am surprised that he took no action after he was told by Mr Brent in March that he would have to take further action to advance the matter.
On the issue of an acceptable explanation for the delay in bringing the proceedings, I am not satisfied that the applicant has given an acceptable explanation for a period of delay that is longer than in any other application for an extension of time of which I am aware.
The next matter that must be considered is the question of other action taken by the applicant. As I have indicated, from 10 March 1995 the applicant took no other action to dispute the dismissal.
Another matter that must be considered is the question of fairness with others in like positions. I refer to Coyne (above), where Marshall J said:
“Should this application be granted it would, in my view, encourage dilatory behaviour in applicants in bringing applications under s170EA of the Act.”
That case involved a much shorter period of time than the period here.
Having regard to the failure to give an adequate explanation for the delay, the failure, after 10 March 1995, to contest the dismissal, considerations of fairness between the applicant and other persons in a like position, and the prima facie 14 day time limit in s170EA, I am satisfied that it is not proper to extend the period. I have no alternative but to dismiss the application under s170EA of the Act.
MINUTES OF ORDERS
THE COURT ORDERS:
Leave is granted to the second applicant the Australian Manufacturing Workers’ Union to withdraw as a party to the proceeding;
Paragraph 1 of the applicant’s Notice of Motion dated 18 June 1996 is refused.
The application under s170EA of the Act is dismissed.
The proceedings are adjourned for further directions before a Judge of the Court on the 29 July 1996.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 16 July 1996.
Solicitors for the Applicant: Hughes
Counsel for the Applicant: Ms Melinda Richards
Solicitors for the Respondent: Gary Katz & Associates
Counsel for the Respondent: Mr Gary Katz
Date of hearing: 16 July 1996
Date of judgment: 16 July 1996
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION OF EMPLOYMENT - TIME LIMITATION - Application to extend time - long period of delay - applicant relied on union to actively contest termination - dismissal initially contested but then long period where no action by union or employee - whether acceptable explanation
Industrial Relations Act 1988 s170EA
CASES:Brodie-Hanns v MTV Publishing Limited (Marshall J, 31 October 1995, unreported).
Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237
Transport Workers Union of Australia v National Dairies Ltd (No. 2) (1994) 57 IR 186
Coyne v Ansett Transport Industries (Operations) Pty Ltd (Marshall J, 9 May 1996, unreported)
STEPHEN BOYD -v- HOSOKAWA MICRON PTY LTD
No. VI 5069 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 16 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5069 of 1995
B E T W E E N :
STEPHEN BOYD
Applicant
AND
HOSOKAWA MICRON PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 16 July 1996
THE COURT ORDERS THAT:
Leave is granted to the second applicant the Australian Manufacturing Workers’ Union to withdraw as a party to the proceeding;
Paragraph 1 of the applicant’s Notice of Motion dated 18 June 1996 is refused.
The application under s170EA of the Act is dismissed.
The proceedings are adjourned for further directions before a Judge of the Court on the 29 July 1996.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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