Richard William Dalgleish v Hedland College
[1995] IRCA 122
•22 February 1995
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA ) No. WI 386 of 1994
DISTRICT REGISTRY
BETWEEN RICHARD WILLIAM
DALGLEISH - Applicant
HEDLAND COLLEGE
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 22 February 1995
REASONS FOR JUDGMENT
Delivered Ex Tempore
By application brought under section 170EA of the Industrial Relations Act 1988 the applicant seeks:
(a) An order declaring the termination of his employment to have contravened Division 3 of part VIA of the Act; (b) An order requiring the respondent to reinstate the applicant in employment; and (c) An order that the respondent pay compensation to the applicant.
Such other order or orders as will put the applicant in the same position as nearly as can be done as if the employment had not been terminated.
An order permitting an extension of time to September 20, 1994, for lodgment of the substantive application.
The hearing before me today concerned only the question of an extension of time within which to file the substantive application. The applicant is unrepresented and the respondent was represented by a solicitor.
In an affidavit sworn by the applicant on 16 September 1994 he states that the nature of his employment with the respondent was finance Manager. He started work with the respondent on 26 October 1992 and received a letter of termination from Eric Formby, Acting Director of the respondent dated 3 August 1994. The grounds for the termination as stated in that letter include the following allegations:
(a)that the applicant continually questioned Mr Formby's authority;
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(b)that the applicant initiated an argument in public with his superior, the Acting Associate Director, Administration;
(c)that the applicant persistently refused to obey a lawful order from his superior officers to provide committee reports to the extent that he was given a written warning on 28 June 1994;
(d)that the applicant ignored council policy on communication and information;
(e)that the applicant prepared a draft document headed "Grievances" which represented a personal attack on, amongst others, Mr Formby, the Acting Associate Director of administration, and the previous director of the respondent; and
(f)that the applicant openly admitted that in 1992 to 1993 he actually ignored all monthly form 13 reporting procedures to Treasury.
The applicant has filed affidavits sworn 16 September 1994, 8 February 1995 and 21 February 1995 in support of his application for an extension of time. He also gave evidence today. The affidavits state that after receiving the written notice of termination dated 3 August 1994 the applicant suffered a period of extreme tiredness following the trauma and shock of the dismissal and related experiences. The applicant gave further evidence today in relation to the shock and tiredness which followed.
He lodged an appeal against the termination with the Hedland College Council on 5 August 1994. He attempted to telephone Mr John Watson, Acting Secretary to the council, on 15 August 1994, to inquire as to the outcome of the council meeting on 12 August 1994 in relation to the appeal but the call was not answered. He then rang Eric Formby to make the same inquiry. Mr Formby told the applicant that the appeal had been dismissed. The applicant requested written details of the council's findings. Written notification of the appeal outcome was received on 1 September 1994 but no details or reasons were provided. The applicant rang the Civil Service Association, of which he was not a member, on 15 August 1994 requesting their assistance. He was advised to put his request in writing which he did on 17 August 1994. Notification of the unfavourable outcome of that request was received on 15 September 1994. The applicant advised the respondent on 5 October 1994 that he was contesting the termination in this court and in the State Industrial Relations Commission.
The applicant was unaware of the availability of a recourse in the Industrial Relations Court of Australia until 3 September 1994 when he read an article in the newspaper. That article appeared on a Saturday. The following Monday he telephoned the court and he received documents relating to the court on 6 September 1994. By this stage, he had already filed an application to the Public Service Appeals Board, under the Industrial Relations Act 1979 of Western Australia. That application was filed on 19 August 1994 and was dismissed on 8 February 1994.
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The Board's main reason for dismissing the application was that the matter was the subject of the present proceedings in the Industrial Relations Court of Australia.
The applicant further states that he has had to suffer substantial dislocation of living arrangements caused by his necessary change of residence from South Hedland to Perth. There is some evidence that the applicant may have continued to reside in South Hedland but I am prepared, for the present application, to accept that his change of residence was reasonable in the circumstances. He has been living in temporary accommodation with most of his possessions in cartons in storage; as a consequence, he has experienced difficulty in meeting deadlines. The applicant also states that as he is unable to afford to engage legal counsel, he has had to make all inquiries and applications and conduct research himself.
The respondents affidavit, sworn by Mr Formby on 8 October 1994, states that the applicant did not have to suffer substantial dislocation of living arrangements as he was advised by letter on 7 August 1994 and by telephone on 15 August 1994 that should he lodge an appeal against his termination of employment with the Western Australian Industrial Relations Commission within 7 days of the notice of dismissal, then the Hedland College council policy would apply whereby he could retain his housing entitlement until that appeal had been heard. In effect, he was not required to vacate his house but left on his own accord. The applicant gave evidence today that the reason he decided to leave Hedland anyway included that it was going to be difficult to pursue the matter from South Hedland and Mr Formby was being as difficult as he could be. Although this evidence is contested, I am prepared to accept that the relocation was reasonable on the grounds that there were more facilities in Perth, there were more job opportunities in Perth than in Hedland and it was difficult financially for the applicant to remain in Hedland because of the cost of living.
A letter from the respondent's solicitor advised this court that the respondent did not propose to file a notice of motion for the purposes of the determination of whether an extension of time is granted to the applicant. The respondent's solicitor acknowledges that no prejudice has been suffered by the respondent other than the usual potential effects of the reorganisation of human resources as a result of reinstatement, if reinstatement is ordered. Under section 170EA, subsection (3) of the Industrial Relations Act 1988:
An application must be made (a) within 14 days after the employee receives written notice of termination or, (b) within such further period as the court allows on an application made during or after those 14 days.
The applicant received written notice of the termination on 3 August 1994. The applicant has submitted that the time limit should not run until notification of the council's rejection of his appeal on the ground that a stay of execution is automatic if an internal tribunal hears an appeal. If it is taken that the written notice of termination was received on 3 August 1994, the applicant should have filed an application by 17 August 1994. The application was not filed until 16 September 1994, almost a month after the time required.
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In the case of the Transport Workers Union v National Dairies Limited (VI no. 53 of 1994 unreported) and Pam Coker-Godson -v- National Dairies Limited, (VI no. 262 of 1994 unreported), Keely J referred to the principles relating to the grant of an extension of time distilled by Wilcox J in Hunter Valley Developments Propriety Limited -v- Cohen (1984) 3 FCR 344. In that case, Wilcox J, referring to section 11 of the Administrative Decisions (Judicial Review) Act 1977 said - at page 348 to 349:
1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days it not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).
2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see (Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
5. The merits of the substantial application are properly be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.
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Keely J stated in the National Dairies case that:
The wording of section 170EA(3) is such that it may well be easier for an applicant under that subsection to persuade this court to allow a further period than is it for an applicant under section 11 of the Judicial Review Act to persuade the Federal Court.
In this matter, I have considered the arguments of both the applicant and the respondent and consider it is proper for me to exercise my discretion in favour of the applicant and allow an extension of time. I have considered the principles set out by Wilcox J and have taken into account that although the applicant is obviously an intelligent and resourceful person, he is unrepresented and was not aware of his rights to take action under Section 170EA until early September.
Further, the applicant has taken action, as outlined above, to put the respondent on notice that the termination was challenged. The respondent admits that it will not suffer any material prejudice as a result of the delay other than the general kind of prejudice involved in the reorganisation of human resources. Although it appears that another person has been appointed to the applicant's former position, this person was put on notice that the applicant was seeking reinstatement. In any event, there are remedies other than reinstatement available to this court under this Act if the applicant is ultimately successful.
Public considerations do not intrude to the extent that it would lead me to exercise my discretion against allowing an extension of time on that ground alone. The delay of one month outside the prescribed time limit it not unreasonable given the actions of the applicant in appealing first to the council and then to the Public Service Appeal Board. The applicant would be severely prejudiced by a refusal to extend time, particularly as the Public Service Appeal Board rejected his application to it on the ground that the termination was the subject of proceedings before this Court. As to the merits, there are clearly justiciable issues between the parties.
On balance, I am satisfied that it is fair and proper to allow an extension of time. My order is that the period within which the applicant's application for a remedy in respect of the term of his employment is to be made be extended until 16 September 1994. There will be no order as to costs.
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I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate:
Date:
Applicant appeared in person.
Counsel for Respondent: Ms J Pritchard
Solicitor for Respondent: Crown Solicitor
Date of Hearing: 22 February 1995
Date of Judgment: 22 February 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 386 of 1994
BETWEEN DALGLEISH
- Applicant
HEDLAND COLLEGE
- RespondentMINUTE OF ORDER
JUDICIAL REGISTRAR: BOON JR
PLACE: PERTH
DATE: 22 February 1995
THE COURT ORDERS THAT:
The period within which the applicant's application for a remedy in respect of the term of his employment is to be made be extended until 16 September 1994.
There be no order as to costs.
NOTE: Settlement and entry of orders is dealt with by Order 36
of the Industrial Relations Court Rules.
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - application for extension of time - application filed almost a month after required time - extension of time granted.
INDUSTRIAL RELATIONS ACT 1988 S170 EA (3)
Transport Workers Union v National Dairies Ltd, VI no 53 of 1994, unreported decision, Keely J.
Pam Coker-Godson v National Dairies Ltd, VI no. 262 of 1994, unreported decision, Keely J.
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
RICHARD WILLIAM DALGLEISH v HEDLAND COLLEGE - WI 386 of 1994
Judicial Registrar: BOON JR
Place: Perth
Date: 22 February 1995
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