Peter Thomas Bata and Real Estate Network Pty Ltd (formerly EJ Doherty Real Estate Pty Ltd

[1995] IRCA 241

IN THE INDUSTRIAL RELATION COURT
OF AUSTRALIA  VI 1518 of 1995
VICTORIA DISTRICT REGISTRY

B E T W E E N :

PETER THOMAS BATA
Applicant

A N D

REAL ESTATE NETWORK PTY LTD
(formerly EJ DOHERTY REAL ESTATE PTY LTD)

Respondent

Reasons for Judgment - delivered ex tempore

26 May 1995  PARKINSON JR

This application seeks leave pursuant to S170EA(3)(b) to proceed with an application which is outside of the 14 day time for filing prescribed by S170EA(3)(a) of the Industrial Relations Act 1988.

In this matter it is relevant to recount the circumstances of the termination of the employment. I am satisfied that the termination arose during the course of negotiations in relation to a dispute between the parties as to the terms and conditions of the applicant’s employment. Exhibit B3 is a letter from the respondent to the applicant notifying him of the termination and the reasons for it, those reasons being the failure of the applicant to accept the terms and conditions presented by the respondent.

Prima facie it appears that the termination of the applicant’s employment was as a result of his refusal to agree to terms and conditions of employment which he felt were not those originally agreed between the parties. In my view this establishes that there is in this application a reasonable prospect of success on the substantive claim. Were this matter the only factor to consider, or a principal factor in determining the question of leave, I am in no doubt that having regard to the circumstances of this termination of employment I would have granted leave. 

However, there are other matters in this application which are of relevance in determining whether leave should be granted. They include the length of time which expired between the date of the termination of the employment and the date of the filing of the application, together with the reasons advanced by the applicant for the failure to file proceedings within time or within a reasonable time. 

The employment was terminated on 11th August, 1994.  The application was filed in the court on 9th February, 1995.  A significant period of time has elapsed and I am not satisfied that there are factors of sufficient weight which in this circumstance would warrant an extension of time. 

This is for the following reasons:

The applicant was, both prior to the termination of the employment and subsequently, in receipt of advice from his association representative as to his rights and entitlements. The applicant is an articulate and forthright person, who I have no doubt is in a position to adequately ascertain his rights and entitlements regarding his employment and its termination.  I have considered the evidence of Mr Jenkins of the association and I am satisfied that the matters of concern to the applicant and sought to be pursued by him at the time of the termination of the employment, went to the outstanding commission entitlements of the applicant and not to the issue of  a  remedy for his termination.

There is no evidence that the validity of the termination was ever under discussion between the parties, including the respondent at any time. There is no material before me which would suggest that the respondent was on notice or ought to have been on notice to such a claim.  Nor at least until December, 1994, is there any correspondence from the applicant to the respondent which would suggest that the termination of the employment is likely to be reviewed in proceedings of any type. 

No proceedings were issued nor contemplated pursuant to any entitlement which may have existed in the Victorian Employee Relations Commission, notwithstanding that there is material in Mr Jenkins file which suggests in the applicant and his advisers a familiarity with the system of industrial regulation in the State of Victoria. I am of the view that it is likely both the applicant and Mr Jenkins were aware of or ought reasonably to have been aware that such proceedings would have been available. In this regard see Exhibit B4 and the letter from the applicant to the respondent dated 28 July, 1995.

The initiating of such proceedings and notice in this regard to the respondent may well have been a relevant factor in determining that the applicant had expressed and persisted with an intention to pursue the merits of the termination and that the respondent was on notice to this fact.  

Whilst there is no evidence that the applicant was not properly advised by Mr Jenkins in relation to those matters upon which he sought advice, mere failure by an adviser to inform an applicant fully as to their entitlements is not always sufficient basis for leave out of time. Hunter Developments v Cohen (1984) 3 FCR 344 and Coker-Godson v National Dairies (1994) 57 IR 186 and Dedman v British Building and Engineering Appliances Limited [1973] IRLR 379.  In this matter having regard to the length of time and the other factors above, any failure would not in my view be sufficient.  This is particularly so having regard to the fact that proceedings were issued on behalf of the applicant by his solicitors in December, 1995 in respect of commissions he alleged the respondent owed and also in respect of outstanding payment in lieu of notice.  There was clearly during the period between 11 August and 15 December, 1994 extensive consideration of the issues of concern to the applicant arising out of the termination of his employment. 

The issue of  reviewing the termination itself does not appear to have been raised at any point until the applicant read a newspaper article in relation to an employee obtaining compensation for an unlawful termination of her employment in January or February, 1995.  The respondent was never on notice that the applicant contested the lawfulness of the termination in any jurisdiction or by any other means.

Whilst a clear discretion exists in relation to the extension of time sought, respondents to proceedings pursuant to S170EA of the Act are entitled to expect that some limitations will exist in relation to the exercise of that discretion.

For these reasons I dismiss the application for leave to proceed out of time.

The order of the court shall be:

That the application for leave to proceed out of time be dismissed and the application is dismissed.

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

Associate:
Dated:    26 May 1995

Counsel appearing for the applicant:  Mr G Devries

Counsel appearing for the respondent:  Mr I McEachern

Date of hearing:  26 May 1995
Date of judgment:  26 May 1995