Linda McInnes v Avago Employment Programme Inc

[1996] IRCA 3

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - extension of time.

INDUSTRIAL RELATIONS ACT 1988, ss.170EA

LINDA McINNES -V- AVAGO EMPLOYMENT PROGRAMME INC

No. SA95/1480

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  11/1/96

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

No. SA 95/1480

B E T W E E N:

LINDA McINNES

Applicant

AND

AVAGO EMPLOYMENT PROGRAMME INC

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  11 JANUARY 1996

THE COURT ORDERS THAT:

1. 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. SA 95/1480

B E T W E E N:

LINDA McINNES

Applicant

AND

AVAGO EMPLOYMENT PROGRAMME INC

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  11 JANUARY 1996

REASONS FOR JUDGMENT

This is an Application for an extension of time in which to bring proceedings for unlawful termination pursuant to Section 170EA of the Industrial Relations Act.

The Applicant’s employment was terminated on 15 December 1994.  She was informed that her position was redundant.  She was suffering stress at the time and was subsequently successful in obtaining workers compensation payments for that stress.

Following the termination of her employment she sought assistance from her Union and was then referred to a solicitor.  It appears that both the Union and the solicitor only concerned themselves with her claim for workers compensation.  Proceedings in this jurisdiction were not filed until 21 September 1995.  On the previous day the Applicant had attended a conciliation conference at the State Industrial Commission at which the Respondent’s representative had advised her that her claim was barred in that jurisdiction.  She had issued her proceedings in that jurisdiction approximately one month before, after having been told by her then solicitor, Mr Wilson that he was not pursuing any claim on her behalf in relation to the termination of her employment. 

The Applicant’s counsel submitted that the Respondent was aware that she disputed its decision to terminate her employment because she had pursued a claim for workers compensation.  I do not accept that argument.  Contesting a decision relating to workers compensation does not necessarily correlate with contesting a decision to terminate an Applicant’s employment. 

There was no direct evidence before me as to why neither the Union or her solicitor pursued a claim for unlawful termination.  In  my view the absence of any reasonable explanation as to why the claim was not pursued and given the very lengthy delay before any proceedings were issued are factors which outweigh any other matters raised by the Applicant in support of her Application.

I therefore dismiss the Application.

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

DATE OF HEARING  :          20 December 1995     

FOR THE APPLICANT       :          Mr Lieshke

FOR THE RESPONDENT    :          Mr Godfrey