Russell Arthur Pearson v Aboriginal Housing Advisory Service Incorporated

[1995] IRCA 686

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - question of operative date of termination at the INITIATIVE OF THE EMPLOYER - application for EXTENSION OF TIME in which to bring proceedings.

Industrial Relations Act 1988 ss 170CD(4), 170DC, 170EA(3)

Siagian v Sanel Pty Ltd (1994) 122 ALR 333
AMPESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471.
Byrne v Australian Airline (1995) 131 ALR 422
Hunter Valley Developments Pty Limited v Cohen [1984] 3 FCR 344.

RUSSELL ARTHUR PEARSON V ABORIGINAL HOUSING ADVISORY SERVICE INCORPORATED

No DI95/1242

Before:  Judicial Registrar Blokland
Place:  Darwin
Date:  29 December 1995

REASONS FOR JUDGMENT

The application

The applicant has filed an application seeking relief pursuant to s 170EA of the Industrial Relations Act. There are two preliminary issues raised at the directions hearing which I have been asked to resolve before embarking on the merits. It is convenient at this point to simultaneously dispose of those issues although in doing so I am aware that if the applicant fails on either issue, that is effectively the end of the matter. Having been asked to determine both issues, I will proceed to do so. First is the question of whether or not the Court has jurisdiction given the applicant was given notice in writing by way of a letter dated 28 March 1994. The relevant clause of the notice reads “4 (four) weeks written notification of termination of service under Section 14 (B) is hereby effective from COB 29/3/94”. The question before the Court is “what is the operative date of termination?” This has significance given the relevant part of the Industrial Relations Act came into force on 30 March 1994. The second issue before the Court is whether or not the applicant should be granted an extension of time in which to bring the application, filed as it was, on 22 November 1995.

The relevant date of termination

The relevant part of the Act came into force on 30 March 1994. This problem has been the subject of detailed discussion: Siagian v Sanel Pty Ltd (1994) 122 ALR 333; AMPESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471. The applicant in this case argues that of the two relevant dates, being the 29 March 1994 or four weeks from then, being the 29 April 1994, the latter date should be considered the “termination day”. The applicant, it is argued, could have kept the contract on foot by choosing to work the last four weeks, or presumably presenting and being “ready and able” to work. It is argued the applicant did not accept the notice as terminating the contract.

With all respect to Mr Woodcock, the law as it stands is against his case. Siagian v Sanel Pty Ltd  and AMPESMA v Skilled Engineering Pty Ltd both stand for the proposition that under the relevant part of the Act, “termination day” which is defined in the Act as “the day on which the employer terminated the employee’s employment” inevitably refers to the giving of notice. In the case before me there is no other act than the giving of notice which could be said to be the relevant act . If the applicant claims the contract of employment was still on foot until a date when the termination was accepted, it presents some difficulty for him claiming at the same time a termination at the initiative of the employer. In AMPESMA v Skilled Engineering Pty Ltd, (above), Gray J noted three categories of employee which fell outside of the scope of the Act; namely, (i) where the contract of employment was alleged to have come to an end, whether by expiry of notice or otherwise, before 30 March 1994;
(ii) where notice of termination was given before 30 March 1994 and expired after that date; and
(iii) where a payment was made in lieu of notice before 30 March 1994 and the notice, if it ran, would have expired after that date. Even if the applicant is correct in the assertion that the relevant date is  29 April 1994, he is still caught by categories (ii) and (iii) above. In this part of the Act, it is the act of the employer, a unilateral act,  which is relevant to the question of the termination, not whether or not the termination is valid.

As to the applicant’s argument concerning keeping the contract on foot notwithstanding the giving of notice, even in contexts outside of the scope of this part of the Act, (if it wasn’t put to rest after Siagian v Sanel Pty Ltd and AMPESMA v Skilled Engineering Pty Ltd,) that argument is now even more doubtful after Byrne v Australian Airline (1995) 131 ALR 422 where the majority state at page 432

“The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end.” I note also that under the Act, time runs in respect of filing an application, from the giving of notice rather than from any theoretical date in the future.

I conclude the termination took place with the giving of notice on 29 March 1994. The applicant cannot access the remedies provided in the relevant part of the Act . The jurisprudential reasons for the interpretation adopted here are comprehensively dealt with in the respective judgements of the Chief Justice in Siagian v Sanel Pty Ltd and by Gray J in AMPESMA v Skilled Engineering Pty Ltd. As a matter of precedent those decisions are binding.

Extension of Time

Even if I am wrong in my decision concerning the relevant termination day, I refuse leave on the application to extend time. Section 170EA(3) Industrial Relations Act(1988) requires an application to be lodged within 14 days of receiving written notice of termination of employment. This application is some 18 months out of time. The extraordinary length of the delay requires strong  reasons for extending time. The governing principles are those relied upon by Mr Saundry as set out by Wilcox J (as he then was) in Hunter Valley Developments Pty Limited v Cohen [1984] 3 FCR 344. I address each of the principles. (1) That the applicant show an acceptable reason. Here, the applicant’s reason is primarily that he has sought advice from some ten organisations with legal or “quasi legal” functions. None of those organisations advised him of any right under the Act. It was not until the applicant sought advice from Mr Woodcock that he appreciated he may have a remedy. I conclude in relation to the first principle that the applicant has given an explanation which explains a delay of sorts. It does not explain the extraordinary length of the delay. I note in his favour that he appears at some stages to have been vigorous in pursuing advice.  Of course it is not a unanimously held view that receipt of wrong advice explains delay. Other Courts have held that the remedy may lie against those who have given the wrong advice. In the light of my finding on the first jurisdictional point, those other organisations may have in fact given the applicant the correct advice, if in fact they advised him not to proceed under the Act. (2) Other action taken by the applicant to indicate he wanted to pursue an action. I have already stated he has made a number of organisations aware of his plight. There is no evidence before me indicating what action he has taken in respect of keeping the respondent appraised of his dissatisfaction with the decision and his intention to pursue a legal remedy. (3) & (4)  Whether or not there is prejudice to a respondent; mere absence of prejudice is not enough. Here the respondent’s say that the time speaks for itself. Further, Mr Saundry told the Court he was instructed that a principal witness was no longer with the employer. Whilst the instructions are not evidence, it does not surprise me that a respondent will have problems conducting a case such a long time after the relevant events. These are the very types of issues which will almost certainly be a problem in conducting the case now. In this registry, because of the transient nature of much of the population of Darwin, even cases which are heard and determined within three to four months of the termination of employment inevitably result in problems locating witnesses who have moved inter-state or to more remote parts of the Territory. I note the strong possibility of the respondent in a case such as this having even greater difficulties. In the context of  remedies sought under this Act, reinstatement becomes almost impossible to address after this length of time without prejudice to other persons. (5)The merits of the substantial application. If this case went to hearing it would not be straightforward. The applicant has a number of hurdles. He notes he is aware of this in his affidavit. These include a question concerning whether or not he is an excluded employee due to being on probation. I have no other information on the merits of the case.

(6) Considerations of fairness as between applicants and other persons otherwise in a like position. Applications for extension of time are not unusual. They appear to be granted fairly readily by the Court when the delay can be explained and when the delay is short. My researches note a number of applicants have been unsuccessful in achieving extensions of time when the delay is more than three (3) and certainly more than six (6) months. I think it would be grossly unfair to other potential applicants to allow an extension of time in this case. Considering the mix of factors which I am required to have regard to, I am of the view that time should not be extended.

Orders of the Court:

(1) That leave to extend the time to bring an application pursuant to s 170EA(3)(b) Industrial Relations Act be refused.

(2) That the application seeking a remedy for unlawful termination of employment pursuant to Part VIA - Div 3 Industrial Relations Act be dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial

Registrar Blokland........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

Date: 29 December 1995

Mr Woodcock appeared for the applicant.
Mr Saundry appeared for the respondent.