Mr Neil Hartley v Ken Chiswell (Mildura Airport Refuelling Aust Pty Ltd)
[2009] FWA 1262
•26 NOVEMBER 2009
[2009] FWA 1262 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
v
Ken Chiswell (Mildura Airport Refuelling Aust Pty Ltd)
(U2009/11812)
COMMISSIONER LEWIN | MELBOURNE, 26 NOVEMBER 2009 |
Alleged unfair termination of employment–extension of time.
[1] This decision concerns an application filed in the Australian Industrial Relations Commission by Mr Neil Hartley in relation to the termination of his employment by Mr Ken Chiswell (Mildura Airport Refuelling Aust Pty Ltd) on 11 May 2009. Mr Hartley outlined on his application that his employer was Mildura Airport Refuelling Aust Pty Ltd. However, Mr Chiswell’s representative filed notice with the Tribunal that Mildura Airport Refuelling Aust Pty Ltd is not a registered company, and has been deregistered since 18 February 2009. It appears from the information available that Mr Chiswell was the employer of Mr Hartley.
[2] The application was made under s.643(1)(a) of the Workplace Relations Act 1996 (the Act), on the ground that the termination of Mr Hartley’s employment was harsh, unjust or unreasonable.
[3] An application for relief in relation to the termination of employment, pursuant to s.643(1)(a), must be made within 21 days from the date on which the termination took place. 1 Mr Hartley’s employment was terminated on 11 May 2009, and he filed an application on 4 September 2009. The application is therefore 95 days out of time.
[4] The relevant provisions of the Act are set out below:
“643 Application to Commission to deal with termination under this Subdivision …
(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”
Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1998.
[5] The power to grant an extension of time for the lodgement of an application is discretionary, and should be exercised with caution. When considering whether or not to grant an extension of time, the Commission will have regard to the factors listed in two important cases on this point. The decision in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 listed the 6 matters that the Commission will consider as set out below:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."
[6] In addition to the matters referred to in the decisions of the Industrial Court of Australia in Brodie-Hanns, the Full Bench of the Australian Industrial Relations Commission developed guidelines for the application for an extension of time to lodge an application in relation to termination of employment in the case of Telstra-Network Technology Group v Kornicki (Kornicki) as follows 2:
“The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extend the time limit. We note that such a consideration necessarily involves the exercise of a general discretion. The following guidelines may assist in determining whether it would be unfair not to grant an application to extend time:
A. Primary consideration should be given to two factors:
- Is there an acceptable explanation for the delay? It would generally not be unfair to refuse to accept an application lodged out of time where no acceptable explanation for the delay exists: Alonzo v Harvey Norman-Fyshwick [Print P0319, 21 April 1997 per Ross VP, Watson DP and Gay C]. However, consistent with the view of Brooking J in Dix v Crimes Compensation Tribunal, while the existence of an acceptable explanation for the delay is relevant to the exercise of the discretion under s.170CE(8), it is not a condition precedent to the exercise of that discretion; and
- The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.
B. Depending on the circumstances of a particular case the provision of a ‘fair go all round’ may also allow regard to be had to the following considerations:
- Whether the applicant actively contested the decision to terminate his or her employment prior to lodging the application for relief; and
- Prejudice to the respondent caused by the delay in filing the application.
[7] At question 13 on the Form R27-Application for relief in relation to termination of employment, Mr Hartley filed the following reason for seeking an extension of time for filing of his application was that his application was:
“In the hands of the workplace ombudsman for underpayment of wages.”
[8] The Commission is not required to conduct a hearing to decide this matter. The relevant statutory provisions are set out below:
“647 Extension of time applications may be decided without a hearing
If:
(a) an employee whose employment has been terminated by an employer makes an application (the extension of time application) under subsection 643(14) requesting the Commission to allow an application to be lodged under subsection 643(1) after the period of 21 days after the termination took effect; and
(b) the proposed application under subsection 643(1) is an application:
(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground;
the Commission is not required to hold a hearing in relation to the extension of time application.
648 Matters that do not require a hearing
(1) The Commission must, in deciding whether or not to hold a hearing for the purposes of deciding:
(a) whether to make an order under subsection 645(5) or (6) or 646(1) or (2); or
(b) whether to grant an extension of time application within the meaning of section 647;
take into account the cost that would be caused to the business of the employer concerned by requiring the employer to attend a hearing.
(2) If the Commission decides not to hold a hearing, the Commission must, before making a decision:
(a) invite the employee and the employer concerned to provide further information that relates to whether the order should be made or the extension of time granted; and
(b) take account of any such information.
(3) If, as a result of information provided as mentioned in subsection (2), the Commission considers that it would be desirable to hold a hearing, the Commission may do so.
(4) An invitation under paragraph (2)(a) must:
(a) be given by notice in writing to the employee and the employer concerned; and
(b) specify the time by which the information referred to in the invitation is to be provided.
[9] On 2 October 2009, my Associate wrote to Mr Hartley to inform him that he had not correctly identified the respondent, and that the Commission was required to determine whether it should extend the time for the lodgement of the application. The letter set out the abovementioned principles, and Mr Hartley was advised that the Commission was not required to hold a hearing to determine whether or not to extend the time, Mr Hartley was invited to provide information relating to whether the Commission should extend the time for lodgement of the application.
[10] On the same day, directions were issued to both parties. Mr Hartley was directed to file materials in relation to the extension of time hearing by 16 October 2009. Mr Chiswell was directed to file materials in relation to the extension of time and in response to Mr Hartley’s submissions by 23 October 2009.
[11] On 15 October 2009, Mr Hartley filed a request in chambers for an extension of time to comply with directions to enable him to obtain legal representation in this matter. The Commission issued amended directions on 15 October 2009, directing Mr Hartley to file materials in support of his application by 23 October 2009, and directing Mr Chiswell to file materials by 30 October 2009.
[12] Mr Hartley was unable to obtain legal representation. He filed submissions in relation to the identity of the employer on 21 October 2009. On 5 November 2009, my Associate wrote to Mr Hartley informing him that he was required to file submissions in writing on the grounds upon which he sought an extension of time for the filing of his application. Mr Hartley was directed to file submissions in relation to the extension of time of his application by 9 November 2009. In a telephone conversation on 9 November 2009, Mr Hartley advised that he would not be able to file submissions in relation to the extension of time. My Associate referred Mr Hartley to the letter of 2 October which outlined the issues he was required to address in relation to the issue of extension of time. Mr Hartley undertook to file his submissions by 13 November 2009.
[13] On 13 November, Mr Hartley filed submissions in relation to the issue of extension of time. He provided the following reason for requiring an extension:
“I have not been a taxpayer for thirty years and did not know that the Government only gives 21 days to lodge an application. I am only a labourer with minimum education and cannot afford to pay for legal representation (due to current circumstances) to interpret your directions. I have completed the For R27 to the best of my ability.”
[14] On 16 November, the representative of Mr Chiswell was directed to file submissions by 23 November 2009. The representatives of Mr Chiswell filed submissions on his behalf on 23 November 2009 to the effect that Mr Hartley had not addressed the criteria set out in the abovementioned principles regarding the reasons he should be granted an extension of time.
[15] Mr Hartley claims that he did not know that there was a time limit for lodging an application in the Commission. However, he does acknowledge that he knew he could make an application. In my view, the fact that Mr Hartley was not aware that there was a time limit in which he could make his application is not an acceptable reason for the extent of the delay in this matter. There is no evidence that Mr Hartley made enquiries about the statutory limitations in relation to the application he intended to make. It is not viable for the Commission to extend the time for the lodgement of an application solely because the applicant is unaware of the time statutory limit. To do so would completely undermine the statutory limitations set out in the Act.
[16] For the reasons set out above, I am not satisfied that there is a reasonable explanation for the delay in filing the application. I have considered the other principles referred to in the decisions cited above. On what is before me there is nothing relied on by Mr Hartley in relation to those considerations which would favour the granting of an extension of time in light of the extent of the delay in filing the application.
[17] Therefore I have decided that the application should not be accepted out of time. An order dismissing the application will issue.
COMMISSIONER
1 Section 643(14) and (15) of the Workplace Relations Act 1996.
2 Ross VP, Watson SDP and Gay C, 22 July 1997 [Print P3168].
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