Minato v Palmer Corporation Ltd - [1995] IRCA 315

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1891 of 1995

B E T W E E N:

Muininder SANDHU
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LIMITED and
GGODYEAR TYRES PTY LIMITED (t/as South Pacific Tyres)
Respondent

VI 1890 of 1995

B E T W E E N:

Paul JOGINDER
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LIMITED and
GOODYEAR TYRES PTY LIMITED (t/as South Pacific Tyres)
Respondent

Reasons for Decision
(delivered ex tempore - revised from the transcript)

7 July 1995 PARKINSON JR

This is the matter of Sandhu v Pacific Dunlop Tyres and Goodyear Tyres Pty Limited, number 1891 of 1995, and the matter of Joginder and Pacific Tyres Pty Limited and Goodyear Tyres Pty Limited, number 1890 of 1995. These are my reasons for judgment delivered ex tempore in relation to applications made by way of notice of motion by both applicants in those proceedings for leave to file applications pursuant to section 170EA of the Industrial Relations Act 1988 out of time.

The applicants' employment and each of them was terminated on 16 December 1994. On 6 March 1995 the applicants attended upon solicitors whereupon they learned of their legal entitlements pursuant to the Industrial Relations Act 1988. Some days prior to that attendance the applicants had become aware of a possibility of a legal entitlement as a result of a conversation with another ex-employee of the respondents.

I have decided to allow the applications for extension of time to commence proceedings, those applications being made pursuant to section 170EA(3) of the Act. I am satisfied on the material that there are relevant and significant matters in favour of the applications. These include the inability of the applicant Mr Joginder, to clearly understand English and the evidenced absence of any knowledge in either applicant as to their rights or entitlements either pursuant to this Act or any other legislation in respect of the termination of their employment. It is clear that at no point in time were any appeal or review rights advised to the applicants as part of the termination process which was adopted by the respondents.

The other factors of relevance to my decision include the fact that neither applicant apparently sat on their hands and did nothing to protest the termination of their employment. Whilst it is fair to say that the respondent was not informed of these complaints, the applicants were nevertheless in contact with the relevant union, which union was a party to the agreement with the respondents and the circumstances of the termination of the employment. The failure of the union, in circumstances where it and the respondent were intimately connected in the process, should not be held against the applicants. Further, I have had regard to the circumstances of the termination of employment not being a ‘one on one’ situation where each of the applicants would have had an actual opportunity to discuss their grievance as to the termination with a management employee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 315
Decision Date: 7 Jul 1995

CaseChat Overview and Summary

This case involved two applicants, Muininder Sandhu and Paul Joginder, who were seeking leave to file an application out of time in the Industrial Relations Court of Australia. Both applicants had their employment terminated by Pacific Dunlop Tyres Pty Limited and Goodyear Tyres Pty Limited (trading as South Pacific Tyres) on 16 December 1994. They subsequently sought legal advice and learned of their entitlements under the Industrial Relations Act 1988. The applicants sought leave to file their application out of time under section 170EA of the Act.

The legal issue before the court was whether the applicants should be granted an extension of time to commence proceedings. The court needed to consider factors such as the applicants' lack of knowledge of their rights, their inability to understand English, and whether the respondents would be prejudiced if the time extension was granted.

The court allowed the applications for an extension of time, finding that there were relevant and significant matters in favour of the applications. The court was satisfied that the applicants did not understand their rights or entitlements and were not informed of their appeal or review rights at the time of termination. The court also found that the applicants were not at fault for not raising their complaints with the respondents directly, as they had limited opportunities to do so. Additionally, the court noted that the substantive issue raised by the applicants was particular to their circumstances and would not lead to a floodgate of applications. The court concluded that the respondents would not be prejudiced by the extension of time and granted the applications.

The final orders of the court were that the applicants' notice of motion seeking leave to proceed out of time was granted, and the time was extended to 6 March 1995. The notice of motion of the respondent dated 26 May 1995 was dismissed, and there would be no order as to costs in these proceedings. The matters were listed for hearing and determination commencing on 12 July 1995, and the parties were expected to be ready to proceed on that date.

Orders