Sukkar v P and M Quality Smallgoods Pty Limited
[1996] IRCA 418
•22 May 1996
DECISION NO: 418/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - EXTENSION OF TIME - REVIEW of DECISION of JUDICIAL REGISTRAR granting application to lodge claim out of time - PRINCIPLES to apply on review of decision to extend time
Industrial Relations Act 1988 (Cth): s 170dc, s 170ea
Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412
Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344
Coker-Godson v National Dairies Limited, (Industrial Relations Court of Australia, Keeley J, 22 August 1994, unreported)
Foxcroft v The Ink Group Pty Limited (1994) 57 IR 65
Bomanite Pty Limited v Slatex Corporation Australia Pty Limited (1991) 32 FCR 379
Griffiths Ex Services Club Limited v FLAIEU (1993) 51 IR 186
FATAT SUKKAR v P & M QUALITY SMALLGOODS PTY LIMITED
NI 3469 of 1995
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 22 MAY 1996
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
NI 3469 of 1995
BETWEEN FATAT SUKKAR
Applicant
AND P & M QUALITY SMALLGOODS PTY LIMITED
Respondent
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 22 MAY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The orders made by the learned Judicial Registrar be quashed.
The application for extension of time be declined.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
NI 3469 of 1995
BETWEEN FATAT SUKKAR
Applicant
AND P & M QUALITY SMALLGOODS PTY LIMITED
Respondent
CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 22 MAY 1996
EX TEMPORE REASONS FOR JUDGMENT
Revised from Transcript
MADGWICK J: This is an application for review of a Judicial Registrar's decision extending the time under s 170ea of the Industrial Relations Act 1988 (Cth) (the Act) for lodgment of an application for relief in respect of Ms Sukkar's termination of her employment with P & M Quality Smallgoods Pty Limited (P & M).
Ms Sukkar was employed by P & M in its meat processing works in May of 1989, and her services were terminated on about 23 June 1994. Ms Sukkar suggests that from about late 1993 she began to be maltreated by a considerable number of the employees of P & M, apparently following an intimate body search in the company's car park by one of P & M's security officers.
In 1994 she was moved into the boning room which is a chilled workplace and where she was the only woman among some 60 men employed there. In April 1994 she claims that, as a result of heavy work that she was required to do in the boning room, she developed disability in her fingers and shoulders. Armed with a medical certificate, she sought light duties and work which did not require her to work in close proximity to an air conditioner. She later collapsed at work and, in May, commenced workers compensation proceedings.
On 22 June 1994, she furnished a medical certificate saying that she was not fit for work in a cold environment and that if she continued to do so her complaints, which were pins and needles in all fingers, pain in the left shoulder spreading to the arm, stiffness, numbness and pins and needles in both knees, would worsen significantly. She provided that medical certificate on the day of her termination of employment.
The next day she collected her belongings from P & M's premises and when she returned home she found that a salami pack of meat had been placed among them. She telephoned the personnel officer, Ms Chater, and advised her that somebody had put salami among her belongings apparently in an effort to discredit her. She was in touch with her solicitors in May 1994.
By letter of 13 May her solicitors detailed fairly fully her account of matters and her complaints up to that time. Among other things, the solicitors said:
"Our purpose in writing to you at this time is to put you on notice that without prejudice to any rights our client already has against your company in respect of which she reserves all such rights any further victimisation, harassment or intimidation of our client or any unlawful acts against our client will be vigorously pursued by our client against the company, its servants and agents.
We require you to immediately cease the campaign of victimisation and harassment against our client and to confirm to us in writing forthwith that you have done so."
Indignant follow up letters were sent by the solicitors on 30 May to the home addresses of directors of P & M. P & M's account of the matter is that in essence Ms Sukkar was a reluctant worker, and a refractory and truculent one. Ms Chater, on 20 May, made a lengthy statement critical of Ms Sukkar and including the allegation that Ms Sukkar's own brother, who was employed by P & M, had asked to have his sister moved from his section because there were too many problems with her. It was said that she was warned three times, apparently in the presence of the union delegate, for abusive language to other employees and that she came to be in the boning area because Mr Hunt, the Managing Director of P & M, had offered her one last chance to continue in employment there.
It had been explained to her by the union organiser, Mr Wilcox, that this was indeed her last chance. She was taken off overtime because she was apparently too slow, and she complained about this. Thereafter she began to complain about conditions in the boning room being excessively cold because of air, presumably too cold, coming through air-conditioning vents. Her work was regarded by Ms Chater as light. Ms Chater categorised Ms Sukkar as "a continuous troublemaker".
The only explanation for Ms Sukkar's failure to take proceedings promptly was given by her solicitor in an affidavit. He said:
"Prior to 29 August 1995, the only evidence held by the applicant that the respondent's purpose and intention in its treatment of the applicant was to procure the termination of the applicant's employment, was the applicant's personal belief and an inference from all the circumstances."
The advent of the evidence of Linda Chater (which I discuss below) was the first time the applicant's belief that the respondent wanted to terminate her employment could be confirmed by a witness with personal knowledge of the intentions of the respondent.
The applicant's solicitor gave information and belief evidence that he was contacted by Ms Chater on 29 August 1995, and was told, and had reason to believe, that Ms Chater would give evidence that Mr Hunt had said to her, prior to Ms Sukkar's dismissal: "We will move Fatat Sukkar to the boning room. If she can't handle it we will sack her, I want to find a way of sacking her". Then, on 23 June, Mr Hunt had urged Ms Chater to take steps to ensure that Ms Sukkar left immediately; Mr Hunt's son, a trainee manager, had urged Ms Chater to have somebody arrange to put a sliced pack of salami into Ms Sukkar's bag and had, immediately after, asked the security guard to ensure that everybody was properly searched when they left work that afternoon.
Ms Chater's account was that she had quite recently left the employment of the respondent and had come forward with her evidence in order to deal with what she termed a "guilty conscience". None of this says that what Ms Chater had put in a statement she made in May 1994 was incorrect.
Mr Hunt's evidence is that he had had an affair with Ms Chater for many years and he had terminated it in about February 1995. Ms Chater had taken this very badly and was very upset. Among other things, Mr Hunt gave evidence that there would be police records which would indicate a pattern of harassing phone calls to his home from Ms Chater: he had felt obliged to raise them with the police. He gave other evidence, some hearsay, to the effect that Ms Chater was simply using Ms Sukkar to cause him and his company some trouble.
Ms Sukkar, neither before the Judicial Registrar nor here before me, gave any explanation herself as to why she had not sought relief from the court promptly after her dismissal or until after Ms Chater had contacted her solicitor. The parties agreed before the Judicial Registrar, as best I can make it out, to limit their cross-examinations. In particular, Mr Alkadamani tells me, and I accept it, that he understood that his client would not be the subject of criticism for his not cross-examining Mr Hunt in detail. The parties agreed that the review should be conducted on the material before the Judicial Registrar.
However, when it became clear to me that there was in fact, in the material, no examinable explanation from Ms Sukkar of her delay, and that she was, for unexplained reasons, not present at court today, I indicated that, if it was sought to have the proceedings adjourned, to enable this deficiency to be remedied then, upon the tendering of an undertaking to pay P & M's costs occasioned by such an adjournment, I would look favourably upon it. An application for adjournment was made but unaccompanied by such tender. It was opposed and I refused it.
For better or for ill and however it has arisen, the position therefore is that there is no explanation from Ms Sukkar in a form that permits it to be tested, and her solicitor's affidavit stops short of saying that he advised her not to proceed because of the insufficiency of evidence. There is no new primary fact to which Ms Chater might testify. It is simply that she may be expected to give evidence confirming the inferences drawn by Ms Sukkar that (a) an attempt was made to incriminate her by placing produce of P & M among her belongings, and (b) there was, for some little time, a desire on the part of P & M to get rid of Ms Sukkar accompanied by underhand tactics and an absence of fair dealing, in particular, an absence of the fair dealing contemplated by s 170dc of the Act.
Ms Sukkar wishes to ventilate not only her rights under the Act in this court but also to bring claims in the accrued jurisdiction of the court for damages for personal injury said to arise out of the direct and vicarious negligence of P & M. It was indicated she had commenced workers compensation proceedings.
It was agreed on all hands that the best guidance as to the principles to be applied to a case like this is to be found in the judgment of Beazley J in Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412 at 414-415. Her Honour did not greatly dissent from the application to proceedings in this court of the test for extension of time summarised by Wilcox J, in Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344 at 348. So far as relevant here, these may be summarised as follows:
(a)Special circumstances need not be shown;
(b)But the court will want affirmative satisfaction that it is proper to grant the application;
(c)The prescribed period is not to be ignored.
(d)"It is the prima facie rule that proceedings commenced outside that period will not be entertained";
(e)It is a pre-condition to the exercise of discretion in an applicant's favour that the applicant show an acceptable explanation of the delay;
(f)It is a further pre-condition that the applicant show that it is fair and equitable in the circumstances to extend time.
(g)"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 a decision (who has not "rested on his rights") ... and a case where the decision-maker has been allowed to believe that the matter was finally concluded."
(h)This depends not only on the public policy consideration of the "need for finality in disputes" but also the problem of fading of memory with time.
Any actual prejudice, including any prejudice in defending the proceedings occasioned by the delay is a material factor to be taken into account against extending time.
(j)But the mere absence of prejudice is not enough.
(k)"The merits of the substantial application are to be properly taken into account in considering whether an extension of time should be granted."
In Turner, her Honour, as I understand it, shared the prima facie reservations expressed by Keeley J in Coker-Godson v National Dairies Limited, (Industrial Relations Court of Australia, 22 August 1994, unreported), in particular as to the requirements that the court would not grant the application unless, in the actual words employed by Wilcox J, "positively satisfied that it is proper so to do", that prima facie proceedings outside the period would not be entertained, and also, that it is a pre-condition that the applicant show an acceptable explanation of the delay.
However, her Honour said, at page 418:
The length of the delay, the explanation for the delay and the absence of prejudice or alternatively the minimal prejudice to the respondent have to be balanced to determine if it is just and equitable to grant the extension of time.
It may not matter much whether one shares the reservations to which I have referred because on either view, particularly on Beazley J's balancing test, Ms Sukkar must fail here. However, I must say that, for myself, I see no reason not to apply the formulation made by Wilcox J. A very short period is prima facie imposed upon applicants for relief under the Act. There are obvious and very practical reasons why Parliament would have so prescribed.
In particular, it is plainly requisite that the applicant must show an explanation in the balancing process which is acceptable. Here, I think that no such explanation was shown. This is not a mere matter of form nor is it a matter of reluctance to draw an inference. Many other inferences are possible: for example, that Ms Sukkar's workers compensation rights may ultimately prove to be far more valuable than those in wire in these proceedings and ought not be prejudiced by what might be a lively examination of the facts in this court; that Ms Sukkar's evidence might not have been regarded alone as sufficiently credible to succeed in this court; that her own alleged state of fitness might mean that any compensation which might be secured in this court would be minimal; that she would prefer to pursue such remedies as she had in an arena where, if successful, she could get costs against the respondent; or that she was tired of the whole affair, and would prefer to limit her rights to the conventionally-understood and claimed ones available under the Workers Compensation Act.
Some of these matters have an impact upon an assessment of the merits of the substantial application, which I regard as legitimate. If Ms Sukkar is correct, then she has been, procedurally, badly treated, to say the least of it; she has really been treated in an appallingly dishonest and disrespectful fashion. That treatment may itself sound in some other remedy than under the Act, but alone it could not enlarge any compensation to which she might be entitled had her dismissal been unlawful for less inflammatory reasons. There is nothing penal about the relevant provisions of the Act. She does not seek reinstatement and to my mind it is by no means clear that, however badly she was treated, she would necessarily receive any substantial amount by way of compensation.
As I have indicated, there is nothing before the court to indicate that Ms Chater will resile from her May 1994 assessment of matters. If that be the true position, then even if Ms Sukkar's employment was unlawfully terminated, I would be entitled to take the view, indeed the court would pretty well be driven to it, that the employment was not going to last much longer in any event, and any compensation might be minimal.
There is some positive material to suggest some fading of memory and it would be fair to assume that, particularly with the departure of Ms Chater who had been the personnel officer at the relevant time, there might be some degree of difficulty in assembling a case now in response to Ms Sukkar's claims which would not have been present had the matter been pursued more promptly. However, on P & M's own case, Ms Sukkar, one has the feeling, would not readily be forgotten, and the extent of this prejudice, though real to some extent, should not be overstated.
There was debate also about the extent to which I ought to have regard to the decision of the Judicial Registrar the subject of the review. My attention was directed to Foxcroft v The Ink Group Pty Limited (1994) 57 IR 65 in which Wilcox CJ assimilated to reviews in relation to interlocutory orders made by Judicial Registrars, the appellate restraint shown by courts in relation to appeals proper from lower courts in relation to such matters. His Honour (at 67) referred to well known considerations of public policy: that without such restraint "there is a risk that the pre-trial process in hotly contested cases would become fragmented and more expensive and lengthier than it has to be" (quoting French J in Bomanite Pty Limited v Slatex Corporation Australia Pty Limited (1991) 32 FCR 379 at 391). Similarly the Industrial Relations Commission of New South Wales in Griffiths Ex Services Club Limited v FLAIEU (1993) 51 IR 186 applied to an appeal proper from a decision of a Conciliation Commissioner granting an application to lodge an out of time claim for reinstatement pursuant to the Industrial Relations Act 1991 (NSW), the well known appellate restraint on interference with the exercise of discretion of lower courts on questions of procedure.
Nevertheless, the right of a party to a review of the Judicial Registrar's decision is provided because of the perceived constitutional necessity that this be done. I confess to feeling some unease about this matter. I have doubts about whether such restraint is appropriate where, as here, while the matters may be procedural, they go to the very essence of whether the respondent employer is to be liable to anything under the Act.
Be all that as it may, I have read with care the judgment of the learned Judicial Registrar and I have given it respect. Nevertheless I have to act in accordance with my own appreciation of the matter and I do so. I regret that I cannot agree with the Judicial Registrar's approach.
To my mind, with respect, there was a considerable undervaluing of the necessity that there be a comprehensible, examinable explanation given on behalf of the applicant which might be weighed against the extreme delay and some degree of likely actual prejudice to the employer.
For these reasons, I quash the orders made by the learned Judicial Registrar and I decline to extend the time in which an application might be lodged under s 170ea(1) of the Act as it stood at the relevant times.
I certify that this and the preceding 9 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 22 May 1996
APPEARANCES
Counsel for the Applicant: R Alkadamani
Solicitor for the Applicant: Ternes & Salier
Counsel for the Respondent: R Warren
Solicitor for the Respondent: Hickson Lakeman & Holcombe
Date of hearing: 22 May 1996
0
6
0