Mr Waisale Ranacika v Ingham Enterprises Pty Ltd
[2009] FWA 869
•11 NOVEMBER 2009
Note: An appeal pursuant to s.604 (C2009/11160) was lodged against this decision.
[2009] FWA 869 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
v
Ingham Enterprises Pty Ltd
(U2009/12807)
COMMISSIONER LEWIN | MELBOURNE, 11 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 Waisale Ranacika in relation to the termination of his employment with Ingham Enterprises Pty Ltd on 13 February 2009.
[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 Ranacika’s employment was harsh, unjust or unreasonable.
[3] An application for relief in relation to a 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 Ranacika’s employment was terminated on 13 February 2009, he filed the application on 9 October 2009. The application is therefore 210 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 for the applications made under s.643, 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 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 Ranacika filed the following reason for seeking and extension of time for filing:
“My reason for seeking extension of time is because I did not know there is a law for this sort of unfair dismissal. And I don’t speak very good English, and needed a friend to help me with this form.”
[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 13 October 2009, my Associate wrote to Mr Ranicka to inform him 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 Ranacika was advised that the Commission was not required to hold a hearing to determine whether or not to extend the time Mr Ranacika was invited to provide information relating to whether the Commission should extend the time for lodgement of the application.
[10] On the same day, Correspondence was sent to Mr Walker of Inghams inviting the provision of further information relating to whether the time for lodgement of the application should be extended.
[11] On 19October 2009, Mr Ranacika filed in the Commission documentation stating that he did not know about the Commission and that he was very stressed at the time of the termination of his employment. On 11 November 2009, the respondent filed material in response to the applicant’s submissions.
[12] In my view, the fact that the Mr Ranacika was unaware that he could lodge a claim with the Commission is not an acceptable reason for the extent of the delay in this matter. Some effort to contest the termination and to ascertain one’s rights in that time should be evidenced. Moreover, in my view, the existence of the Australian Industrial Relations Commission and the right of dismissed employees to make an application to the Commission for relief is notorious public knowledge in light of extensive discussion within the community during several Federal Parliamentary elections. Even allowing that Mr Ranacika does not speak English fluently, there is little evidence of adequate efforts during the 210 days of the delay to contest the dismissal or seek advice. Mr Ranacika seems to have discovered his rights inadvertently.
[13] It is also a notorious fact that employees who are dismissed usually suffer some degree of stress as a result of that event. There is no evidence provided which can support a finding that Mr Ranacika was mentally incapacitated to the extent that he was unable to make enquiries in relation to his legal rights as to the termination of his employment for 210 days.
[14] The other principles set out in above have not been addressed by the applicant and in my view do not therefore require any consideration.
[15] 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 upon by Mr Ranacika 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.
[16] Therefore, I have decided that the application should not be accepted out of time. An order dismissing the application will issue.
1 S.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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