Michael Ravi Kumar v Victorian WorkCover Authority
[1995] IRCA 13
•18 January 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - Restructuring procedures provided by Enterprise Agreement - Retrenchments with targeted separation package - Application lodged six months out of time - Extension of time refused.
Industrial Relations Act 1988, s170CA, s170DB, s170DC, s170DE and s170EA.
TWU -v- National Dairies, 22 August 1994, Industrial Relations Court decision 20/94
Hunter Valley Developments Pty Ltd -v- Cohen (1984) 3 FCR 344
MICHAEL RAVI KUMAR -v- VICTORIAN WORKCOVER AUTHORITY
NO. VI 2248 of 1994
Before: RYAN JR
Place: MELBOURNE
Date: 18 JANUARY 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2248 of 1994
BETWEEN:
MICHAEL RAVI KUMAR
Applicant
AND
VICTORIAN WORKCOVER AUTHORITY
Respondent
COURT:RYAN JR
PLACE:MELBOURNE
DATE:18 JANUARY 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
This application to be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2248 of 1994
BETWEEN:
MICHAEL RAVI KUMAR
Applicant
AND
VICTORIAN WORKCOVER AUTHORITY
Respondent
COURT:RYAN JR
PLACE:MELBOURNE
DATE:18 JANUARY 1995
JUDGMENT (EX TEMPORE)
The Restructure
In late 1993, the Respondent, the Victorian Workcover Authority, underwent extensive restructuring. The Victorian Workcover Authority Enterprise Agreement 1993 provided for the restructuring.
The Agreement includes restructuring procedures agreed with the Finance Sector Union (FSU). Certain functions were designated transitional activities with an end date by which time each activity was to be completed. Staff involved in transitional activities were given an opportunity to apply for positions advertised in the Authority and to appeal against appointments to advertised vacancies for which they had applied. Such staff were also given the opportunity to appeal against any position to which a staff member had been nominated under a “fast track process” open for the appointment of permanent employees following the restructure.
Staff were requested to remain at work during the restructure and were advised that if they were not successful in obtaining an appointment in the reorganised Authority that a voluntary departure package (VDP) or a targeted separation package (TSP) would then be available with the TSP only available for unsuccessful employees who did not accept a VDP.
The Retrenchments
On 26 April 1994, an officer of the Respondent known as the “Director, Scheme Regulation” wrote to the Applicant and advised him that a project in the Authority, known as the “common law project” had a finite life and following a review of staffing requirements it had been decided to reduce the staffing level. The Applicant was also advised that as a result his services would no longer be required and that unless he decided to accept a VDP he would be given a TSP on 6 May 1994. It is clear that the Applicant had unsuccessfully applied for appointment to certain administrative positions and I will refer to that later.
The letter dated 26 April enclosed a Departure Kit containing details of package entitlement and information designed to assist in the finalisation of superannuation payments. A modified outplacement program run by Morgan and Banks was offered to the Applicant and he was advised to seek professional financial counselling with the Authority meeting up to $150.00 of the costs of such counselling. According to the Applicant’s evidence the letter was personally delivered to him on or about 29 April 1994.
The Applicant was retrenched from his employment with the Respondent on 6 May 1994 and paid a TSP.
The Application
Six months later, on 15 November, the Applicant claimed unlawful termination of employment and sought reinstatement.
On 21 November the Respondent’s solicitors filed a notice of appearance and on 24 November the District Registrar made an order in chambers referring the matter for conciliation by the Australian Industrial Relations Commission.
Notice of Motion
On 7 December 1994 the Respondent filed a notice of motion seeking that the application be struck out for want of jurisdiction. The notice of motion was listed for directions on 19 December. Ms Anthony appeared for the Respondent. There was no appearance by the Applicant. The notice of motion was adjourned to 17 January 1995. On 17 January Mr Ruskin appeared for the Respondent and Ms Frederico for the Applicant.
By affidavit sworn 7 December 1994, Stephen Bourke, Manager, Personnel and Industrial Relations, Victorian Workcover Authority claims that the Applicant had ample knowledge prior to and since the retrenchment of 6 May 1994 to obtain professional advice and that the application seeking remedy for purported unlawful termination was not filed within the fourteen day period required by Section 170EA(3) but rather some six and a half months after the Applicant had received written notice of termination.
The substance of the motion seems to be that the application has not been effectively made because it was not made within fourteen days of the written notice of termination. The written notice of intended termination was made on 26 April 1994 and is Exhibit “SB2” to Mr Bourke’s affidavit of 7 December 1994.
Unless the Court allows a further period, indeed unless the Court allows a further six month period to 15 November 1994, the application undoubtedly lacks jurisdiction.
The question is should the Court extend time and extended it by more than six months to bring this application within jurisdiction?
Request For Extension Of Time
The Applicant in his application in paragraph 21 asks the Court to extend time. His exacts words are:
“Extention (sic) of time in which to apply is sought due to mental state”.
Request For Adjournment
Ms Frederico in opposing the motion to strike out the application for want of jurisdiction as an application substantially out of time pointed out that the Applicant only consulted a solicitor about two weeks ago (presumably early January). She sought an adjournment of the motion so that the Applicant might file an affidavit.
I was not prepared to adjourn the proceedings for that purpose.
Mr Ruskin opposed any adjournment on the basis that the Respondent wanted and was entitled to have the motion determined speedily and the Applicant had been on notice since service of the motion by prepaid post on 7 December, had failed to attend on 19 December and was given written notice of the proceedings adjourned to 17 January and was given such written notice in late December both by the Respondent’s solicitors and by the District Registry of the Court. I have also taken account f the Respondent’s request that the motion be determined prior to the conciliation conference scheduled for 19 January 1994.
Having observed the Applicant and noted his evidence I conclude that he cannot recall whether he personally accepted service of the notice of motion before 12 December or received it from his uncle on returning to Australia in late December having been in Fiji from 12 December 1994.
The Applicant’s Evidence
Ms Frederico was given leave to call the Applicant.
The Applicant gave somewhat confused evidence to the effect that he was too ill with a sore back and stress and was too confused to understand his rights or lodge an application seeking remedy for what is now claimed to be unlawful termination of employment on 6 May 1994.
In fact, the Applicant’s evidence is that it was when he was an inpatient at the Footscray Psychiatric Hospital that he lodged his application on 15 November 1994 and that it was a social worker at the Hospital that suggested that he might have a claim for remedy for unlawful termination of employment because of a worker claim for compensation lodged by him on 6 December 1993 (Exhibit B).
Worker Compensation Claim
It is clear that the application under s.170EA was faxed to the Court on 15 November 1994 from Footscray Psychiatric Hospital but I cannot see that the worker’s claim for compensation is relevant to these proceedings. There is evidence from the Applicant and in Exhibit C of advice to the Applicant on 4 February 1994 that the licensed insurer had advised the Respondent, and the Respondent’s Personnel Officer, Catherine Carter, had advised the Applicant, that the worker’s compensation claim could be validated by submission of a workcover certificate or a medial account of treatment. There is no evidence that the worker’s compensation claim has been pursued and indeed, Exhibit 1, a letter of 13 January 1995 from Preventive Health Pty Ltd Accident Centre Clinic to the Applicant’s solicitor suggests that the worker’s compensation claim has not been pursued, at least not yet.
Be that as it may, the only relevance of the unpursued worker’s compensation claim of 6 December 1993 (Exhibit B) seems to be that advice of it by the Applicant to a social worker at Footscray Psychiatric Centre led to corresponding advise from the social worker to the Applicant to lodge a claim for remedy for unlawful termination.
Relevance Of Evidence Of Applicant’s Health
The Applicant’s solicitor was retained in early January at the latest. In the last fortnight steps could have been taken to provide some independent evidence of the claim that from 6 May 1994 to 15 November 1994 the Applicant was so unwell as to be unable to pursue a claim for purported unlawful termination of employment. No such evidence was produced but even if it had been produced and even if I was to assume that the Applicant was so unwell and confused as to be in real difficulty in terms of formulating a decision to lodge a claim for unlawful termination of employment, it would not follow that a claim made six months late should be brought within jurisdiction by extension of time.
Principles For Extension Of Time
Each case must be considered on its merits.
I have considered the principles relating to the grant of an extension of time. In particular I have considered those principles as expounded by Keely J in TWU -v- National Dairies, 22 August 1994, Industrial Relations Court decision 20/94 at pages 4 to 7 and Wilcox J (as he then was) in Hunter Valley Developments Pty Ltd -v- Cohen (1984) 3 FCR 344 at 348 and 349.
While I accept Keely J’s rider that it may well be easier for an Applicant, under subsection 3 of s.170EA to persuade this Court to allow an extension of time then it is for an Applicant under s.11 of the Judicial Review Act to persuade the Federal Court to extend time, the principles distilled by Wilcox J in Hunter Valley provide a substantial guide in this case.
Firstly, the time limits in s.170EA(3) are not to be ignored. Some reasonable explanation for delay and in this case a long delay must be forthcoming.
Secondly, as in all cases, I must consider what is fair and equitable in the circumstances.
Thirdly, I need to take account in considering the question whether an acceptable explanation for delay has been furnished whether the Applicant by non-curial means continued to make the Respondent aware that he contested his lack of success in obtaining positions in the restructured Authority. In that respect, I accept that the Applicant received late advice of his unsuccessful applications for certain positions and that his opportunity for formal appeal may have been curtailed (see Exhibit A). However, there is no evidence that he ever made the Respondent aware of his intention to contest retrenchment.
Fourthly, I have taken account of likely prejudice to the Respondent in defending these proceedings as a possible factor militating against the grant of extension of time but I cannot see great prejudice to the Respondent.
Fifthly, and importantly, I have noted mere absence of prejudice is not enough to justify extension of time. I have taken account of the fact that the Respondent has restructured and restructured substantially an in accordance with an Enterprise Agreement.
Finally, I have taken account of the merits of the substantial application in considering whether an extension of time should be granted. In that respect, I have considered the merits of the application to the extent that is possible from the documentation filed and the submissions made and the evidence given on 17 January 1995.
Having applied these principles, I am not in this case prepared to extend time as requested pursuant to s.170EA(3)(b). I doubt this is an application which would have been likely to succeed if the Applicant had complied with s.170EA(3)(a).
Order
No extension of time having been granted the application lacks jurisdiction and is dismissed.
I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate:
Dated:
Solicitors for the Applicant:
Counsel for the Applicant:Vincent Verduci and Associates
Ms S. M. FredericoSolicitor for the Respondent:
Mr Nicholas Ruskin of Phillips Fox.
Date of hearing:
17 January 1995
Date of Judgment:
18 January 1995
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