Nelson v Scholle Industries - [1995] IRCA 588

INDUSTRIAL LAW - UNLAWFUL TERMINATION - review - application to extend time to apply for a remedy - whether applicant received written notice of termination - what constitutes written notice - principles to be applied - no adequate explanation for a delay of several months

Matter No. 1234R of 1995
JOHN NEALE NELSON v SCHOLLE INDUSTRIES

VON DOUSSA J
ADELAIDE
17 OCTOBER 1995

IN THE INDUSTRIAL RELATIONS)
COURT OF AUSTRALIA        )
SOUTH AUSTRALIA           )
DISTRICT REGISTRY         ) No. 1234R of 1995

BETWEEN:
JOHN NEALE NELSON
Applicant

AND:
SCHOLLE INDUSTRIES
Respondent

MINUTES OF ORDER

BEFORE: VON DOUSSA J

PLACE : ADELAIDE

DATE : 17 OCTOBER 1995

THE COURT ORDERS THAT:

The application for an extension of time be dismissed.
The application for a remedy under Part VIA Division 3 of the Industrial Relations Act 1988 be dismissed.

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        )
SOUTH AUSTRALIA           )
DISTRICT REGISTRY         ) No. 1234R of 1995

BETWEEN:
JOHN NEALE NELSON
Applicant

AND:
SCHOLLE INDUSTRIES
Respondent

EX TEMPORE REASONS FOR JUDGMENT

Coram: von Doussa J
Place: Adelaide
Date : 17 October 1995

The applicant seeks review under s.377 of the Industrial Relations Act 1988 ("the Act") of a decision by a Judicial Registrar made on 12 September 1995. This review has been argued on the transcript of evidence received by the Judicial Registrar and on the documentary evidence that was tendered before her. No further evidence has been adduced. Although there is no new evidence the matter nevertheless remains a review and not an appeal in the strict sense. It is necessary for this Court to form its own view on the merits of the matter based on the information that was before the Judicial Registrar.

The application before the Judicial Registrar was for an extension of time within which to bring proceedings pursuant to s.170EA of the Act in respect of an alleged unlawful termination. The applicant had been employed as a factory hand by the respondent from 13 May 1993 to 29 November 1994. On 29 November 1994 his employment was terminated as he had exceeded the permissible number of points awarded for non attendance at work under the respondent's Attendance Policy. Proceedings had been brought in this Court, including the application for an extension of time, on 20 June 1995.

The limitation period provided in s.170EA(3) requires that an application be made (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Court allows on an application made during or after those 14 days.

Notwithstanding the application for an extension of time, before the Judicial Registrar the applicant argued that he had not received written notice of termination and that the time limit prescribed by paragraph 170EA(3)(a) had not commenced to run. In the alternative, in the event that the Court determined that there had been written notice received by the applicant,…

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 588
Decision Date: 17 Oct 1995

CaseChat Overview and Summary

In the Industrial Relations Court of Australia, John Neale Nelson, the applicant, sought review of a decision made by a Judicial Registrar, which dismissed his application for an extension of time to bring proceedings for alleged unlawful termination of employment. Scholle Industries, the respondent, had terminated the applicant's employment on 29 November 1994 under its Attendance Policy due to the accumulation of excessive points for non-attendance at work. The applicant filed proceedings in the Industrial Relations Court of South Australia on 20 June 1995, including the application for an extension of time, arguing that he had not received written notice of termination or that the time limit had not commenced to run. Alternatively, he sought an extension of time in the Court's discretion.

The legal issues the court needed to decide were whether the applicant had received written notice of termination and whether the court should extend the time limit in its discretion. The court had to examine the requirements for valid written notice and the principles to be applied when deciding whether to extend the time limit.

The court found that the applicant had received written notice of termination in two documents. The first document was a single sheet of paper produced at the time of termination, which clearly stated the termination of employment and the date of termination. The applicant signed the document, and it was returned to the supervisor, who then conveyed a copy to the pay officer. The second document was an Employment Separation Certificate, which included the applicant's details, the date of termination, and the reason for termination. The court concluded that both documents constituted written notice of termination.

The court also held that the application for an extension of time should be dismissed. The court considered the length of the delay, the explanation for the delay, and the degree of prejudice to both parties. The applicant had delayed several months before taking action to challenge the termination, and no satisfactory explanation was provided for the delay. The respondent had already reorganized its workforce and promoted a casual employee to a full-time position to fill the applicant's role, and a new budget had been set. The court found that granting an extension of time would prejudice the respondent and other employees and that the applicant's claim had some prospect of success. Therefore, the application for an extension of time should be dismissed, and so too should the application for substantive relief.

The court dismissed the application for an extension of time and the application for a remedy under Part VIA Division 3 of the Industrial Relations Act 1988.

Orders