Mizyed v News Limited
[1997] IRCA 42
•11 February 1997
DECISION NO:42/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION FOR EXTENSION OF TIME - Applicant had, on his form of application to the Australian Industrial Relations Commission, applied for an EXTENSION OF TIME - This application had not been addressed by the Commission - The parties not having consented to arbitration, the matter was referred to the Court - DECLARATION that there is no “application” before the Court within the meaning of s.170ED(2) of the Workplace Relations Act, 1996 - Trial dates vacated.
Workplace Relations Act, 1996 ss: 170EA(3), 170ED(1), 170ED(2)
Nelson -v- Scholle Industries (1995) 64 IR 9
Carrasco -v- Kleenmaid Pty Limited, IRCA, Moore J, 15 November 1996, unreported.
MIZYED -v- NEWS LIMITED
NI 2069 of 1996
Before: PATCH JR
Place: SYDNEY
Date/s of hearing: 11 FEBRUARY 1997
Date of judgment: 11 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2069 of 1996
BETWEEN:
SOUHAIL MIZYED
Applicant
AND
NEWS LIMITED
Respondent
MINUTES OF ORDERS
11 February 1997 PATCH JR
THE COURT:
Declares that the applicant’s application for relief in respect of the termination of his employment by the respondent on 19 January, 1996 is not, because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to s.170EA(3)(b) of the Industrial Relations Act, 1988, an application to the Court duly lodged within the meaning of s. 170ED(2) of the Act.
Vacates the dates fixed for the hearing of the said application.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2069 of 1996
BETWEEN:
SOUHAIL MIZYED
Applicant
AND
NEWS LIMITED
Respondent
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
11 February 1997 PATCH JR
In this matter the respondent employer seeks a declaration that the applicant's application for relief in respect of the termination of his employment by the respondent on 19 January 1996 is not, because of the absence of a valid order of the Australian Industrial Relations Commission (“the Commission”) pursuant to section 170EA(3)(b) of the Industrial Relations Act 1988, an application to the Court duly lodged within the meaning of section 170ED(2) of that Act, and a consequential order vacating the dates fixed for the hearing of the application.
The applicant filed his application for relief in respect of termination of employment with the Commission on 10 September 1996.
The application stated that the last date that the applicant worked was on 20 January 1996. Next to the question, "Were you given a written notice of termination?" on that application form the applicant ticked the box next to the word "no."
Underneath the heading, "Extension of time" the following words appear on the form:
This section to be completed if the application is made more than 14 days after receipt of written notice of termination. My reason/s for seeking an extension of time to lodge this application is/are: (or attached)
Following those words the applicant has printed the words "unaware of rights."
It is therefore readily apparent that, despite having asserted that he did not receive a written notice of termination, the applicant, on the face of his original application to the Commission, was applying for an extension of time. On 19 September 1996, a Deputy President of the Commission issued a certificate in accordance with subsection 170ED(1) of what was then the Industrial Relations Act 1988.
The learned Deputy President certified that the Commission had been unable to settle the matter by conciliation within a reasonable period, and that the parties in the matter, having been invited to elect to have the matter dealt with by consent arbitration, had not so elected.
There is no reference in the certificate to any application for an extension of time. It was not in dispute before the Court that the Commission had not dealt with the application for an extension of time.
Section 170EA of what is now the Workplace Relations Act 1996, and what was in September 1996 the Industrial Relations Act 1988, deals with applications to the Commission for conciliation. Section 170EA(3) reads as follows:
An application under subsection (i) or (ii) must be lodged:
(a)within 14 days after the employee receives written notice of the termination;
or
(b)within such further period as the Commission allows on an application made during or after those 14 days.
Where there is no written notice of termination, there is no time limit for the application.
WAS THERE WRITTEN NOTICE OF TERMINATION?
The respondent (the applicant on the notice of motion) relies on an affidavit of Peter Anthony Styles. Mr Styles is the group employee relations manager for the respondent.
Annexure A to that affidavit is a letter dated 8 February 1996. That letter is addressed to the applicant, has the heading “To Whom It May Concern”, and reads as follows:
Souhail Mizyed was employed at MATP Print Centre from 22/12/94 to 20/1/96, and his employment was terminated by the company.
Regards,
Gary Hulbert,
Press Room, Admin Manager - MATP.
In my opinion, even though that letter was dated some 19 days after the termination of the applicant's employment, it was "written notice of the termination" within the meaning of Section 170EA(3) of the Act. See the decision of von Doussa J in Nelson -v- Scholle Industries (1995) 64 IR 9, at 11.
It follows that it was necessary for the applicant to apply for an extension of time under Section 170EA(3) of the Act. The applicant did that in his application.
However, on the material available to the Court, it seems that the Commission did not deal with that application.
Only the Commission has the power to extend the time for the filing of an application under section 170EA(3). See Carrasco -v- Kleenmaid Pty Limited, Industrial Relations Court of Australia, Moore J, 15 November 1996, unreported.
It follows from what his Honour said in Carrasco that there is in these proceedings no application before the Court within the meaning of the word "application" as it is used in Section 170ED of the Act. There may be, or there may not be, a course of action that the applicant can take to overcome the problem. However, be that as it may, that is not a matter for the Court.
As there is no application before the Court, there is no justiciable controversy for the Court to resolve. The appropriate orders therefore are those as sought by the respondent employer. Those orders would have the effect of ending the proceedings before the Court, and the court file should then be closed in the normal way.
ORDERS
The Court declares that the applicant's application for relief in respect of the termination of his employment by the respondent on 19 January 1996 is not, because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to Section 170EA(3)(b) of the Industrial Relations Act 1988, an application to the Court duly lodged within the meaning of Section 170ED(2) of that Act, and the Court orders that the dates fixed for the hearing of the application be vacated.
I certify that this and the preceding 4 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Debra Scott
Dated: 27 February 1997
APPEARANCES
Counsel appearing for the applicant: Mr S Galitsky Counsel appearing for the respondent: Mr R Goot Date of hearing: 11 February 1997
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