Kym Growden v Harris Scarfe Ltd

[1995] IRCA 427

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - Time - Application for Extension of Time

INDUSTRIAL RELATIONS ACT 1988, ss.170EA

Hunter Valley Developments Pty Ltd -V- Cohen (1984) 58 ALR 305
Coker-Godson -V- National Dairies Limited IRCA VI262/94 (22 August 1994) unreported
Ulowski -V- Miller (1968) SASR 277

KYM GROWDEN -v- HARRIS SCARFE LTD

No.  SI 95/1113

JUDICIAL REGISTRAR        :          L FARRELL
PLACE  :          ADELAIDE
DATE  :          10 AUGUST 1995

INDUSTRIAL RELATIONS COURT             )          
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No. SI 95/1113

B E T W E E N:

KYM GROWDEN

Applicant

- and -

HARRIS SCARFE LTD

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           10 AUGUST 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 DISTRICT  REGISTRY          )

No. SI 95/1113

B E T W E E N:

KYM GROWDEN

Applicant

- and -

HARRIS SCARFE LTD

Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :10 AUGUST 1995

REASONS FOR JUDGMENT

This is an Application to extend the time in which an Application pursuant to Section 170EA of the Industrial Relations Act can be filed in this Court.

The Applicant’s employment was terminated on 17 January 1995.  He filed an Application pursuant to Section 105 of the Industrial and Employee Relations Act 1994 (SA) “the State Act”on 17 or 18 January 1995.  The Applicant then instructed solicitors on the 8 February 1995.  A conciliation conference was arranged before Deputy President Stevens of  the State Industrial Commission and he made recommendations as required pursuant to the State Act.  The matter was listed for hearing in June however on 31 May 1995 the Applicant sought to stay those proceedings and pursue a claim in this jurisdiction.

The Applicant had filed  proceedings in the Industrial Relations Court of Australia on  20 April 1995. 

In considering the factors to be taken into account in determining this matter I have had
reference to the principles set out in the following cases:-

Hunter Valley Developments Pty Ltd -V- Cohen (1984) 58 ALR 305
Coker-Godson -V- National Dairies Limited IRCA VI262/94 (22 August 1994) unreported
Ulowski -V- Miller (1968) SASR 277

The Applicant received written notice of the termination of his employment on 17 January 1995.  He should therefore have commenced his proceedings on or before 1 February 1995.  He in fact commenced his proceedings some eleven weeks outside of that time limitation. 

In a jurisdiction where the time in which to bring proceedings is limited to fourteen days, a delay of eleven weeks is significant and must weigh against the Applicant.  The reason for delay as expressed by counsel for the Applicant was the uncertainty as to whether the Applicant could pursue a remedy in the Federal jurisdiction following the decision of Von Doussa J in Fryar -V- Systems Services in October 1994.  Whilst the uncertainty of the law may explain some of the delay I am not satisfied that the reasons put forward by the Applicant for the delay are an acceptable explanation given the length of the delay.

In relation to prejudice to the Respondent the Respondent’s counsel’s argument concerned the issue of costs.  Without detailing the argument in my view, the costs incurred do not arise out of delay but rather out of proceedings being issued in two jurisdictions.

With regard to the merits of the substantive claim the Applicant’s counsel argue that this was no technical claim.  He said that the termination of the Applicant’s employment involved serious deficiencies as to process and substance.  There was no further elucidation of the Applicant’s claim.  In determining this matter I have not had regard to the matters raised by the Respondent which he said went to the issue of the merits of the substantive claim.  I do not regard those factors as relevant in considering the merits of a claim in this jurisdiction. 

Those matters were that the Applicant has been employed, although at a lower rate since February 1995 and that he has also submitted a workers compensation claim. 

The Applicant will not suffer the same prejudice as an Applicant who has lost all remedy as a consequence of his delay.  The Applicant will still have rights to pursue a remedy under the State Act. 

In considering the fairness as between the Applicant and other persons in a like position it is important to note that the expeditious resolution of these claims is a paramount consideration.

I also consider that if I were to allow this Application it may pave the way for other applicants who, having chosen to issue proceedings in the State Industrial Commission, and not liking the way the cards have fallen following conciliation and recommendation in the State Commission, to then pursue a remedy in this jurisdiction.  Such doubling up of process must ultimately be to the detriment of applicants generally. 

For these reasons I decline to extend the time in which proceedings can be commenced in this jurisdiction.  The Application is dismissed.

I certify that this and the preceding two pages are a true copy of the reasons for my judgment.

DATE OF HEARING             :          3 August 1995

FOR THE APPLICANT          :          Mr Rau

FOR THE RESPONDENT      :          Mr Fitzpatrick