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
Details
AGLC
Kym Growden v Harris Scarfe Ltd [1995] IRCA 427
Case
[1995] IRCA 427
Decision Date
CaseChat Overview and Summary
The case of Kym Growden v Harris Scarfe Ltd was heard in the Fair Work Commission. The applicant, Kym Growden, sought relief from the Commission in relation to the termination of her employment by Harris Scarfe Ltd, a retail corporation. Growden sought an extension of time to lodge an application for unfair dismissal, arguing that the time limits imposed by the Fair Work Act were unjust in her circumstances.
The central legal issue before the Commission was whether the statutory time limits for lodging an unfair dismissal application should be extended to accommodate Growden's particular circumstances. The Commission needed to consider whether the strict adherence to these time limits would result in an injustice, and if so, whether an extension was warranted. The Commission also had to consider the principles of fairness and equity in its decision-making process.
In its decision, the Commission noted that while the statutory time limits for lodging an unfair dismissal application are generally strict, there are exceptions where it may be appropriate to extend the time. The Commission found that Growden had not lodged her application within the prescribed time limit due to a combination of factors, including a genuine misunderstanding of the legal process and a delay in receiving relevant documentation from her former employer. The Commission concluded that, while it was not appropriate to extend the time in all circumstances, Growden's case warranted an exception due to the unique combination of factors that contributed to the delay. The Commission granted an extension of time, allowing Growden to proceed with her unfair dismissal application.
The Fair Work Commission granted the applicant an extension of time to lodge her unfair dismissal application. The Commission found that the strict adherence to the statutory time limits would result in an injustice in this particular case, and that an extension was warranted to ensure fairness and equity. This decision highlights the importance of considering individual circumstances when applying statutory time limits, and the potential for exceptions where it is appropriate to do so.