Rudken v Sealy of Australia
[1996] IRCA 438
•12 August 1996
DECISION NO: 438/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - ALTERNATIVE REMEDY
INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170ED(4)
Industrial Relations Act 1990 (Qld), s288, 295
BOYD LAWRENCE RUDKEN v SEALY OF AUSTRALIA
QI 96/1056
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 12 AUGUST 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 96/1056
QUEENSLAND DISTRICT REGISTRY
BETWEEN: BOYD LAWRENCE RUDKEN
Applicant
AND: SEALY OF AUSTRALIA
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 12 AUGUST 1996
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 96/1056
QUEENSLAND DISTRICT REGISTRY
BETWEEN: BOYD LAWRENCE RUDKEN
Applicant
AND: SEALY OF AUSTRALIA
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 12 AUGUST 1996
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from the transcript)
The Court has had an application for remedy in respect of an alleged unlawful termination of employment referred to it by the Australian Industrial Relations Commission.
The respondent submits that I ought to decline to consider or determine this application on the basis that I should be satisfied in terms of subsection 170ED(4) of the Industrial Relations Act 1988 (the Commonwealth Act), namely that the applicant is entitled to apply for an alternative remedy in respect of the termination of his employment under a law of a State that satisfies the requirements of Articles 4 to 11 of the Termination of Employment Convention (the Convention).
In submissions before me, it was common ground that the applicant is entitled to apply for a remedy in respect of the termination of his employment, to the Queensland Industrial Relations Commission, under the provisions of the Queensland Industrial Relations Act 1990 (the State Act). It was also common ground that the applicant will require an extension of time within which to make such an application.
Subsection 170ED(5) of the Commonwealth Act provides as follows:
Without, by implication, limiting the circumstances in which a law of the Commonwealth, a State or a Territory will be taken to satisfy the requirements of Articles 4 to 11 of the Termination of Employment Convention, such a law satisfies those requirements if:
(a)it expressly requires the body determining applications for remedy in respect of termination of employment to give effect to those Articles; and
(b)that body has sufficient jurisdiction and appropriate powers to so determine those applications.
The object of Division 5 of the State Act, dealing with dismissal from employment, is stated to be to give effect to, inter alia, the Convention - section 288(a).
I am satisfied that the State Act is a law of a State that satisfies the requirements of Articles 4 to 11 of the Convention, the Queensland Industrial Relations Commission having sufficient jurisdiction and appropriate powers to determine applications before it in terms of paragraph 170ED(5)(b) of the Commonwealth Act.
As for the question of the applicant's need to apply for an extension of time to the Queensland Industrial Relations Commission for the bringing of proceedings, it is necessary to have regard to paragraph 170ED(6)(b) of the Commonwealth Act which reads:
For the purposes of subsection (4), an employee does not cease to be entitled to apply for an alternative remedy under a law of the Commonwealth, a State or a Territory because the employee requires an extension of time within which to make such an application if the body to which the application is to be made:
(b)has a general discretion to grant extensions and is required, in the exercise of that discretion, to give effect to the Convention.
Two questions arise: does the Queensland Industrial Relations Commission have a general discretion to grant extensions of time and secondly, is it required in the exercise of that discretion to give effect to the Convention? Subsection 295(2) of the Queensland Act provides the Queensland Industrial Relations Commission with a general discretion to grant extensions of time. It states that an application must be made within 21 days after the dismissal, or within the further period the Commission allows on an application made during or after the 21 days. Subsection 295(2) appears in Division 5 of the State Act.
As for the second limb, it seems to me that when regard is had to section 288 of the State Act, the Commission is required in the exercise of that discretion to give effect to the Convention.
What the drafter of paragraph 170ED(6)(b) of the Commonwealth Act had in mind in referring to the Convention may have been Article 8(3) thereof which states:
A worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination.
In exercising its discretion whether or not to grant an extension of time to an applicant in like position to this applicant, the Queensland Industrial Relations Commission might have regard to the time within which such applicant has exercised his or her right to appeal against termination of employment (by the filing of an application in this Court).
Accordingly, I am satisfied in terms of subsection 170ED(4) of the Commonwealth Act, and decline to consider further the application referred to the Court by the Australian Industrial Relations Commission.
I order that the application in this Court be dismissed.
I certify that this and the preceding two (2) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 12 August 1996
Counsel for the Applicant: Mr Horneman-Wren
Solicitors for the Applicant: Nall Payne Craswell
Counsel for the Respondent: Mr Traves
Solicitors for the Respondent: Feez Ruthning
Dates of hearing: 12 August 1996
Date of judgment: 12 August 1996
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