Raymond John Watts v Woolworths (Vic) Limited

[1995] IRCA 164

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1299 of 1995

B E T W E E N :            

Raymond John Watts
Applicant

AND

Woolworths (Vic) Limited
Trading as Safeway
Respondent

Before:       Judicial Registrar Murphy
Place:         Melbourne
Date:           6 April 1995

REASONS FOR JUDGMENT
(EX-TEMPORE REVISED FROM DRAFT TRANSCRIPT)

Background

On 2 November 1994 the applicant was terminated from his position as a storeperson with the respondent, a position which he had held for some 18 years.  The termination took place after an interview at which a shop steward was present.  In that interview he was asked a number of questions about a pair of ladies shoes which he had taken from the premises of the respondent.  After he was terminated, he attended at the local police station and made a statement in relation to those shoes.

A couple of days later he contacted his usual shop steward of the union regarding the unfairness of his dismissal.  That shop steward confirmed that the union would look at it and attempt to redress the situation.  He gave evidence that he made a number of phone calls to the union subsequent to that.     In early December, he spoke to a Mr John Glover (“Glover”), the local organiser who advised him that he had not achieved any result with the respondent and that the respondent did not really want to discuss the matter with him.  Glover indicated that the matter would be taken up by the secretary of the union at a higher level within the respondent.

The applicant gave evidence that he made a number of phone calls to the union subsequently, but finally felt frustrated by the lack of response. On 18 January 1995 contacted Messrs Slater and Gordon, Solicitors, and arranged an appointment to see them about his termination. On 27 January he saw the solicitors and an application was lodged that day seeking relief under Part VIA of the Industrial Relations Act (“the Act”) and also an extension of time to lodge the application.

Notice of Motion

On 29 March 1995 the respondent filed a notice of motion in this Court to dismiss the application.  At the hearing of the notice of motion, the counsel for the applicant sought to move the Court under Order 19 that the applicant be granted an extension of time to make his application.  By agreement between the parties, the respondent's motion and the applicant's application were dealt with together. 

The principles to be applied in deciding whether an extension of time should be granted in this Court have been considered in Pam Coker-Godson v National Dairies Limited  (Industrial Relations Court of Australia, Keely J, 22 August 1994.)  Those principles were also applied in the recent case of Kumar v Victorian WorkCover Authority (Industrial Relations Court of Australia, Ryan JR, 18 January 1995).

In Coker-Godson, Keely J applied a number of principles set out in the decision of Wilcox J, as he then was, in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344. It is appropriate to apply those principles to this case. Those principles state, in effect, that each case must be determined on its merits having regard to all the circumstances.

Application of Principles for Extension of Time

The first matter which must be considered is that there is an onus on the applicant to satisfy the court that the discretion should be exercised in his favour.  The 14-day period provided in the legislation cannot be ignored and I agree with counsel for the respondent that the shortness of that period is a relevant consideration in determining whether an extension of time should be granted in any particular circumstance. 

Another matter which must be considered is the applicant's explanation for the delay.  Here, the applicant's explanation, both in his affidavit and his evidence, was essentially that he was let down by his union.  He states that he was advised by the shop steward that he would look into the dismissal and attempt to redress the situation.  He made a number of phone calls to the union but they were not returned.  Finally, he was able to speak to Glover in early December, who advised him that the secretary of the union was taking the matter up with the respondent.  The applicant heard nothing and finally contacted his present solicitors on 18 January 1995.

No evidence was provided to the Court by the applicant to indicate what actions the union had in fact taken following various phone calls to the union and the personal approaches to both the shop steward and the organiser, Glover. The only material relevant to this is an affidavit from the respondent which deposes that on two occasions the respondent, through its personnel officer, advised the union that the applicant could make a claim under the Act.

The applicant gave evidence of his knowledge of the Industrial Relations Commission as the forum where unions could make applications for remedies on behalf of dismissed employees. He gave evidence that he knew nothing of the Industrial Relations Court or of the time limit applicable to actions under Part VIA of the Act. He did say that he had been a shop steward at one stage but that he had not kept himself abreast with various circulars forwarded to workplaces by his union. The explanation for the delay given by the applicant is not satisfactory in the absence of any explanation for the lack of action by the union. He retained the union in the matter of his dismissal.

The union had its own right to make an application on his behalf under section 170EA(2) of the Act. It failed to do so and he has failed to provide an explanation as to why it did not do so. I draw an inference against the applicant for his failure to bring forward that material.

The next issue to be considered is that of prejudice to the respondent.  The applicant's counsel argued that there would be no prejudice by an order to grant an extension of time, in view of the size of the respondent, in the event of the successful application for an order for reinstatement.  In any event it was argued reinstatement was not the only remedy available to the Court.  

On the other hand, the respondent's material indicated that the position held by the applicant had been filled. This action was taken in view of the failure of the applicant to take any proceedings under the Act within time. I accept that the respondent has shown some prejudice here given the action taken by it and the uncontradicted evidence that the applicant's organiser, Glover, was advised on two occasions that the applicant would need to make an application under the Act to advance his grievance against the respondent.

It follows that not only has there been some prejudice, the applicant has not shown that over the period of the delay he has made it clear to the respondent that he contested its decision to terminate him.  The fact that the respondent did make arrangements to fill the position in circumstances where the applicant, as far as the respondent was concerned, was not contesting the dismissal, means that to grant an extension of time, in the event of a successful application, would result in the unsettling of those arrangements which had been made by the respondent. 

The merits of the application are also relevant.  Here, the applicant admitted knowledge of the respondent's policy that goods were not to be taken from the premises.  He also admitted knowledge of its policy that in the event of theft of goods, the respondent dismissed  the employee.  In both the police interview and his version of the termination interview, as given in Court,  he did admit that what he did in relation to the ladies shoes could be construed as theft.  He further admitted in evidence the goods were labelled "To Myer" but that he believed that the manager who gave them to him had sorted out ownership of the goods.

Having regard to his own admission in relation to the labelling, and his admission in the police interview that what he had done was theft, I have serious doubts as to the merits of his argument that he had an entitlement to take the shoes as given to him by the manager.  Thus, despite his long record, I am not satisfied that the merits of his case are such as to be a decisive factor in the question of an extension of time. 

It was further argued by the counsel for the applicant that it was just and equitable that an extension of time be granted. I do not accept that the discretion is as wide as to allow the court to make a decision other than one based on the purposes of the Act.

It is clear that the Act is designed to provide a remedy to dismissed employees. This remedy is to be availed of within 14 days unless an extension of time is granted. This involves the matter being referred to the Industrial Relations Commission for conciliation, but I accept the submission of counsel for the respondent that the thrust of the structure of the Act is that the matter should be dealt with expeditiously.

This leads me to consider the authority referred to me by counsel for the respondent, Dedman v British Building and Engineering Appliances Limited [1973] IRLR 379.  There the Court of Appeal held that under the United Kingdom legislation an extension of time should not be granted where the delay was caused by the fault of the advisers.

While the application of United Kingdom decisions to Act should be considered with some care I am satisfied that the principle applies.  Where an applicant has placed the matter of his or her termination in the hands of his or her union, and that union has failed without a satisfactory explanation to act within the relevant time, then this, of itself, does not justify an extension of time. 

For all these reasons I am not prepared to extend the time to allow the applicant to bring his application under section 170EA(3) and I propose to allow the respondent's motion and to dismiss the application.

Minutes of Order:

THE COURT ORDERS:

1.That the respondent’s notice of motion filed 29 March 1995 is allowed.  The application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:            
Dated:  

Solicitors for the Applicant:      Slater & Gordon
Counsel for the Applicant:        Ms G. Hubble

Solicitors for the Respondent:   Clayton Utz
Counsel for the Respondent:     Mr P. Harris

Date of hearing:  6 April 1995
Date of judgment:  6 April 1995

C A T C H W O R D S

INDUSTRIAL LAW -     Termination of employment - procedure -   extension of time - relevance of
  failure of union to act within time - failure to
  explain  failure to act - appliction for
  extension refused.

Industrial Relations Act 1988 s.170 EA

CASES:Dedman v British Building and Enginnering Appliances Limited [1973] IRLR 379

Hunter Valley Developments Pty Lmited v Cohen (1984)

3 FCR 344

Pam Coker-Godson v National Dairies Limited

(Industrial Relations Court of Australia, Keely J, 22 August 1994)

Kumar v Victorian WorkCover Authority (Industrial Relations Court of Australia, Ryan JR, 18 January 1995)

Raymond John Watts -v- Woolworths (Vic) Limited

No. VI 1299 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  6 April 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1299 of 1995

B E T W E E N :

Raymond John Watts
         Applicant

AND

Woolworths (Vic) Limited
Trading as Safeway
Respondent

MINUTES OF ORDERS

6 April 1995

Judicial Registrar Murphy       

THE COURT ORDERS:

1.      That  the respondent’s notice of motion filed 29 March 1995 is allowed.  The application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.