Maurice Tunnicliff v Metro Brick (A Division of Bristile Ltd)
[1995] IRCA 449
•28 April 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Extension of Time to make Applications.
Industrial Relations Act 1988,
CASES:
Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344
MAURICE TUNNICLIFF v METRO BRICK
(A Division of BRISTILE LTD)
No. WI-578 of 1994
Before: Ryan JR
Judgment: Perth, 28 April 1995
Reasons for Judgment: Melbourne, 31 August 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
Matter No WI-578 OF 1994
B E T W E E N: MAURICE TUNNICLIFF
Applicant
AND:METRO BRICK (A Division of BRISTILE LTD)
Respondent
RYAN JR
MINUTES OF ORDER
28 APRIL 1995
THE COURT ORDERS THAT:
1. Application dismissed
2.Application to allow the Application to be made out of time refused.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY
Matter No WI-578 of 1994
B E T W E E N: MAURICE TUNNICLIFF
Applicant
AND:METRO BRICK (A Division of BRISTILE LTD)
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 31 AUGUST 1995
APPLICATION TO EXTEND TIME TO APPLY TO THE COURT FOR A REMEDY IN RESPECT OF A TERMINATION OF EMPLOYMENT
On 28 April 1995 I dismissed an application to extend time to the applicant to apply to the Court for a remedy in respect of the termination of his employment.
At the time I indicated that:
as I was not prepared to extend time so as to allow the application for remedy to be made out of time, that application, not being within jurisdiction, was dismissed
the decision to decline any extension of time and to dismiss the application for remedy in respect of termination of employment was based on the principles set out in Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344
written reasons for the decision would be provided
These are the reasons.
BACKGROUND
The principles which guide courts when deciding whether to exercise a discretion to extend time are well established. The application of the principles to an unencumbered application for remedy in respect of termination of employment would often be, if not simple, at least straightforward.
The circumstances on this occasion are more complex and involve:
a claim by the respondent that the applicant is an employee excluded from the requirements for termination of employment under regulation 30B Industrial Relations Act 1988
an action by the applicant in the Industrial Magistrates Court of Western Australia
possible civil actions for breach of contract and defamation in the Supreme Court of Western Australia
steps taken to launch a broad ranging multi-claim action in the associated jurisdiction of the Industrial Relations Court of Australia.
CONSIDERATION OF CIVIL ACTIONS FOR BREACH OF CONTRACT AND DEFAMATION
The applicant in an affidavit sworn 25 November 1994 refers to W A Trades and Labour Council consideration of civil actions in the Supreme Court of Western Australia for breach of contract and defamation. In cross-examination the applicant indicated that these possibilities were being considered in July and August 1994.
STEPS TAKEN TO LAUNCH A BROAD RANGING MULTI-CLAIM ACTION IN THE ASSOCIATED JURISDICTION OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
At the time of preparation of these reasons for decision I did not have access to the Court file which includes the applicant’s Statement of Claim of 31 January 1995 and a Special Case dated 29 March 1995. However, it was quite clear at the hearing on 28 April that the applicant, with the assistance of his union, CEPU - Engineering and Electrical Division WA, was seeking to launch a multi-headed action in the associated jurisdiction of this Court. In cross-examination the applicant conceded that he and his union saw this attempt to invoke the associated jurisdiction of the Court as a test case.
It was also clear that the applicant and his union hoped to bring the matter before the Full Court by way of a Case Stated and that the applicant’s claims in the associated jurisdiction included:
breach of contract
Fair Trading Act section 14
defamation and slander
unconscionable conduct
exemplary and aggravated damages
APPLICATION FOR EXTENSION OF TIME
The applicant was first employed by the respondent as a special class electrician on 23 August 1993. He entered into an individual workplace agreement with the respondent effective from 12 May 1994. The workplace agreement was registered on 4 July 1994 but the applicant’s employment was terminated by the respondent on 1 July 1994 by a letter dated 1 July 1994. It is conceded that the workplace agreement was in effect at the date of the termination of employment.
Paragraphs 2 to 9 of the applicant’s affidavit in support of the application for extension of time are as follows:
“2.I make this affidavit in support of my application for leave to extend time in which to make my claim in relation to unlawful termination and to abridge time for the directions hearing.
At the time I was dismissed by the Respondent I made a complaint as to unfair dismissal with the Western Australian Industrial Magistrates Court within the time specified by the relevant rules which was within 28 days of termination.
Prior to making that application I had gone to the Registry of the Federal Court in Perth and had been told that there was no avenue for me to make complaint with the Federal system. I believed that at the time and accordingly did not make application with this Honourable Court at that time.
Through consultations with my union and in particular Mr Owen Wood, the union sought to raise funds so that I could seek other remedies, in particular by taking civil actions in the Supreme Court of Western Australia for breach of contract and defamation.
My union made application for funds with the WA Trades and Labor Council but the costs were estimated to be prohibitive and the TLC suggested to my union that we make application in this Honourable Court because of its capacity under its accrued jurisdiction.
On or about the middle of August I was made aware of a decision by His Honour Mr Justice Keely which in essence stated that the remedies available to someone like myself within the State Industrial Relations system, were inadequate.
Since the rejection of TLC funds for my action in October, my union has been investigating ways in which to help me and are prepared to assist me in making my claims before this Honourable Court.
At no time has the delay been other than for the reasons of investigating ways in which I can properly make claim for adequate remedies. Since my dismissal I have been trying desperately to find work. I have made written and verbal application for more than 25 jobs but other than some casual work, I have been unsuccessful.”
The following is an extract from the applicant’s evidence:
“I saw my union on 4 July. I saw Owen Woods who then put me through to Avon Lovell who was the lawyer advocate.
I had spoken to them and told them that I had been to the Industrial Court and they told me that I had 28 days...at first I went to the Workplace Agreement Commission and spoke...about it and they said that they thought I had a reasonable case. They advised me then to go through the normal way of getting justification on it and I told them that I’d already tried that and it was somewhere around about $700 an hour by people to sort this out for me.”
The applicant was asked in cross-examination the source of his advice and he replied:
Gosh, I can’t remember. It was such a hectic time...I think it was them (Workplace Agreement Commission) who told me that’s how much they cost.”
The applicant indicated that after he had gone to the Industrial Court (W.A.) he went to the Registry of the Industrial Relations Court of Australia. His evidence is as follows:
“I came to the Registrar here...and asked whether I could pursue this through the Federal Court and ...one of the desk clerks said - ‘Is it a normal agreement, a metal workers trade agreement?’ and I said, ‘no, it’s a workplace agreement’ and they said ‘no, it’s nothing to do with us’. So I thought well the only way out of this is to...go to the union...I thought that was the only way to go because of the money situation.
I prepared the Industrial Magistrates Court claim with him (Lovell). I took it to the Court and I served it...Mr Woods was accompanying me.”
The following is an extract from cross-examination of the applicant by Mr Bennett, Counsel for the respondent:
Q.Why was that done on 29 July, the last day for filing (i.e. the Industrial Magistrates Court claim)?
R.Well, we’d been trying to find other avenues to go through...I’d left most of it up to....my law advocate because that’s what he is paid for...I pay my union fees and they legally represent me in these sort of matters. I went to the union because I pay for my rights and they represent me in these matters. I didn’t see the sense in using my personal money when I can use the union law.
Q.One of the claims you seek to bring here is a claim for defamation, is it not?
R.Yes
Q.And you wanted to pursue that as a cause of action quite separately from your termination, did you not?
R.Yes, yes, I wanted to go through that as well.
Q.And you wanted to commence an action in the Supreme Court of Western Australia for defamation?
R.Yes
Q.And you were relying upon your union to give you advice as to that, were you not?
R.Yes
Q.And what steps were taken to your personal knowledge to raise funds so that you could seek that remedy?
R.As far as I know, they were talking to the TLC to see whether they could raise funds to take it through the Civil Court.
Q.So you would have your action running but they helped you commence in the State Industrial Court and you would have a Supreme Court defamation action?
R.Yes...but they were going to drop the Industrial Court one if we went through the Civil Court.
Q.But sue for breach of contract and defamation in the Supreme Court?
R.I believe so, yes. I am not a lawyer, so I don’t know the ins and outs of it.
Q.But that is what they told you?
R.I believe so, yeah.
Q.And what steps did they make to obtain funds to do that, apart from speak to the TLC?
R.Ah well, I’m not sure, I wasn’t there at the meeting so...
Q.Alright. Did you ever fill out a Legal Aid application form?
R.No.
Q.Now, who was it who made you aware of the decision by His Honour Keely J, I think in the case of David Jackson Wiley v Carbide International?
R.Mr Lovell pointed out to me...and also I’d read it in the paper.
Q.And that was sometime around the middle of August?
R.I believe so, yes.
Q.Can you explain to me why, did it take from the middle of August to 25 November for you to do anything to pursue a claim in this Court?
R.Well, we were still trying to find out whether it was still possible to go through this way.
Q.The “we” being your union?
R.Yes
Q.And you do not know what steps they were taking to try and find that out?
R.No, I mean, I left it in their hands.
Q.Now, was there any discussion by your union advocates with yourself about making your case a test case on right to work?
R.Yes, I believe there was.
Q.And when was that?
R.It was somewhere in August, I should imagine.
Q.And how was it put to you?
R.Well, it was just said that this is the first of its kind in W.A., I should imagine this would be a test case.
Q.Was it put to you that the union would assist you because they had an interest in running this as a test case?
R.Well, I suppose they would be, yeah.
Q.Did they say that to you?
R.No, not altogether, they were just interested in fighting it for me, and I suggested that maybe this is a test case.
Q.And so you regarded this as a test case and to your knowledge that did not play any part in the union consideration of how they acted for you?
R.Well, I wouldn’t know whether it played a part in the unions, I’m not a lawyer.
Q.Do you know when it is that your affidavit says “the TLC suggested to my union we make an application to this Honourable Court because of its capacity under its accrued jurisdiction?” When did that suggestion get made?
R.Well, it came back down because they evidently, from my law advocate, he said that the TLC had spoken to a couple of their unions and that they were told that this was probably the best avenue to go through.
Q. The question was when, Mr Tunnicliff? Was that middle of August, too?
R.Oh, no, I should think it was later than that.
Q.You think it could have been later?
R.Yes, because it was a long drawn out thing trying to find out whether we actually could come through this Court. Nobody seemed to know. In fact, when I went to the Industrial Court they didn’t (witness interrupted)...look, when I went back to put my form into the Industrial Court, the forms which they gave me were the wrong ones, the ones that they gave me instructions to fill out. And the reason it was left to the last day is because they had to be altered there on the counter to cover a workplace agreement because nobody in the office knew what to do with them or how to do it. So that’s what the sort of confusion, as far as I was concerned, the law was in, that nobody knew which forms I had to fill out, which Court I had to go through or anything. That’s why there’s a confusion here.
Q.The matters contained in paragraph 14 (depression, anti-depressant medication and seeing a psychologist for counselling) is that part of the reason why you say you delayed in bringing the application to this Court. Just confirm that for me?
R.I told you the reason why it’s delayed, is because the Courts were in such a confusion.
Q.Just let me clarify what you mean by that, was it the fact that you were depressed by the way in which you were terminated and the fact that you received treatment from a doctor? Did that cause you delay bringing your application here or is that a matter that had been left to your union advocates and they were handling?
R.My union were handling it, but there was a confusion, as I’ve explained to you more than once, that the Courts seemed to be in a bit of turmoil about workplace agreements.
Q.And that was the cause of the delay?
R.Yes
Q.And not anything associated with your depression or the medical treatment you were undergoing?
R.No
I have interpreted the applicant’s responses as meaning that his union were exploring options and that this took some time and that the applicant regarded that activity and the comments of a desk clerk at the Perth Registry of the Industrial Relations Court of Australia and the difficulty in getting correct forms from the Industrial Magistrates Court of Western Australia as indicative of “the Courts in confusion.....and in a bit of turmoil about workplace agreements”.
EXTENSION OF TIME - PRINCIPLES
In Hunter Valley Developments at 348 Wilcox J suggested the following principles to guide, not in any exhaustive manner, the exercise of Court discretion in applications for extension of time:
special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. It is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. It is a pre-condition to the exercise of the discretion in favour of an applicant for extension to show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time
action taken by the applicant, other than by specific application, is relevant to the consideration of the question whether an acceptable explanation for delay has been furnished
any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension
mere absence of prejudice is not enough to justify the grant of an extension
the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted
considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the discretion
DELAY AND EXPLANATION OF DELAY
The delay in this case was almost 4½ months or 133 days. Strict compliance with S170EA(3)(a) required the application to be made by 15 July 1994 as written notice of termination was received by the applicant on 1 July 1994. The application and supporting documents were filed on 25 November 1994.
While I am prepared to accept that there is an explanation for delay until at least mid August 1994 that might be categorised as acceptable, I am not satisfied that there is any acceptable explanation for the delay between mid August and late November 1994. I am not satisfied that it is proper to grant the application on the basis of the explanations given.
NOTICE BY THE APPLICANT OF ACTION TAKEN TO CONTEST TERMINATION OF EMPLOYMENT
I accept that the respondent became aware that the applicant was contesting the termination of employment from the date of serving of the Industrial Magistrates Court summons. However, the respondent was not notified of the applicant’s intention to file an application in this Court contesting termination of employment and, more particularly, was not notified until the lodging of the Statement of Claim of 31 January 1995 of the intention to make multiple claims in the associated jurisdiction of this Court.
PREJUDICE TO THE RESPONDENT
A grant of the application for extension of time would have specifically prejudiced the respondent in that:
the respondent has been denied the opportunity to take statements from potential witnesses immediately after the termination on 1 July 1994 while events were fresh in the minds of those witnesses
the position of Special Class Electrician at the Malaga plant of Metro Brick previously held by the applicant was filled by the respondent by employing a new employee on 27 July 1994
the applicant first sought reinstatement by the Statement of Claim dated 31 January 1995 and if the applicant was to be reinstated it would cause disruption to the respondent and potentially unsettle other people.
ABSENCE OF PREJUDICE
Given a finding of prejudice to the respondent this principle is of no great relevance, but, even if it were to be later found that there was little or no prejudice to the respondent, Wilcox J observed in Hunter Valley Developments at 349 that a delay which may result, if an application is successful, in the unsettling of other people is likely to prove fatal to an application for extension of time. I found that such a delay in this case would have been unsettling.
MERITS OF THE SUBSTANTIAL APPLICATION
At the time of refusing the application for extension of time and now I am not in a position to express a view on the merits of the substantial application for remedy for unlawful termination of employment. I was not then and am not now in a position to express a view on the merits of the various claims which it was suggested might be pursued in the associated jurisdiction of this Court. But I am concerned about a very late claim under S170EA of the Industrial Relations Act 1988 which seeks to bring into a substantially cost free jurisdiction multiple and untested claims in breach of contract, defamation and slander, unconscionable conduct, exemplary and aggravated damages and under S14 of the Fair Trading Act.
CONSIDERATIONS OF FAIRNESS
An application in the Industrial Magistrates Court was still to be pursued when an extension of time in this Court was refused and there are other forums for the foreshadowed actions within the associated jurisdiction of this Court.
The Court notes that S57 and 58 of the Workplace Agreements Act 1993 provide that the Industrial Magistrates Court may order reinstatement or re-employment or compensation to a maximum of six months loss of earnings. S170EA of the Industrial Relations Act 1988 likewise provides that the Court may order reinstatement or compensation to a maximum of six months remuneration. S18 of the Workplace Agreements Act 1993 implies into every workplace agreement a provision that the employer must not unfairly, harshly or oppressively dismiss any employee. While I most definitely stop short of categorising remedies under the Workplace Agreements Act as an adequate alternative to remedies provided in Division 3 Part VIA of the Industrial Relations Act 1988 I was of the view and remain of the view that the interests of justice are best served by the refusal of extension of time pursuant to S170EA(3)(b).
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 7 September 1995
Appearances:
Counsel for the Applicant : J Courtis
Solicitor for the Applicant : Wostowicz Kelly
Counsel for the Respondent : M L Bennett
Solicitor for the Respondent : Bennett & Co
Date of Hearing Perth : 28 April 1995
Judgment Perth : 28 April 1995
Reasons for Judgment Melbourne : 30 August 1995
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