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 of the respondent at the time of the termination.

It was difficult for them to raise any issues arising out of the termination of their employment at that point of time other than with the union, which was what they did.  It would be in my view perhaps unreasonable of the court to take the failure to advise the respondents of the complaint into account against the applicants in circumstances where it is possible that they would not have had any real opportunity to raise those matters with the respondent directly. 

Finally, the substantive issue raised by the applicants in relation to the termination of their employment is one which is particular to their circumstances and is not of a type which I am satisfied could invite a floodgate of applications to the court. Whilst the applications were filed some five months out of time this legislation is beneficial legislation and, notwithstanding the time limits provided for, the absence of prejudice to a respondent is, in my view, a significant factor in the exercise of the discretion pursuant to section 170EA(3) of the Act. I am not satisfied that the respondent suffers prejudice as a result of any extension of time in this matter and I therefore order that an extension of time be granted in the proceedings.

The orders of the court will be:

1. the applicants’ notice of motion seeking leave to proceed out of time pursuant to section 170EA(3) of the Industrial Relations Act is granted. Time is extended to 6 March 1995.

1. the notice of motion of the respondent dated 26 May 1995 is dismissed.

There will be no order as to cost in these proceedings. 

These matters are listed for hearing and determination commencing on Wednesday, 12 July 1995.  The parties will be expected to be ready to proceed on that date.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore.

Associate:
Dated:  7 July 1995

Solicitors for the applicant:  Patrick Robinson & Co
Counsel appearing for the applicant:             Mr P Bingham

Solicitors for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:          Mr M McDonald

Date of hearing:  7 July 1995