David Jack Strachan v Liquorland (Australia) Pty Limited [1995] IRCA 326

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - Redeployment - Application Filed Out of Time - Application Dismissed - Costs Allowed, Unreasonable and Vexatious. Industrial Relations Act 1988 ss 170CD,170EA(3) Pam Coker-Godson -v- National Dairies Ltd VI262 of 1994 Marriott -v- Oxford & District Co-op Society (1963) 3 WLR 984 Grumble -v- Killingsworth (1970) VR 161 Canceri -v- Taylor (1994) 55 IR 31 David Jack Strachan -v- Liquorland (Australia) Pty Limited No. NI 1266 of 1995 COURT: LOCKE JR PLACE: SYDNEY HEARING DATES: 24, 25 & 26 MAY 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1266 of 1995 BETWEEN: David Jack Strachan Applicant AND: Liquorland (Australia) Pty Limited Respondent BEFORE: LOCKE JR PLACE: SYDNEY DATE: REASONS FOR JUDGMENT The Application In this matter the applicant alleges breaches of Division 3 of part VIA of the Industrial Relations Act 1988 (the Act). He further seeks associated relief in the accrued jurisdiction of the court arising from the termination of his employment. These are set out in paragraphs 8,9, and 10 of the applicants Points of Claim. Other pleas for relief are as follows: (i) Leave to file the applicant out of time; (ii) Costs and interest. The facts and circumstances surrounding the application The applicant who is a married person with a wife who is employed and 2 adult children, is presently a store manager, with the respondent company. His period of employment spanned a period of fifteen years and some months, having commenced work with the respondent as a salesman on 29 October 1979. Very soon after commencing such employment, (in about March 1980) he was promoted to the position of store manager. Another promotion occurred in about February 1986, when the applicant became an Area Manager. At this level one had the power to terminate employment of employees. However, this power was usually exercised, since 1994, in consultation with the State Manager Personnel for New South Wales. As an Area Manager, the applicant was in receipt of $44,000.00 per annum as well as being provided with a motor vehicle. Provision of a motor vehicle was to enable the applicant to visit the various stores in his area with facility. Private use was permitted of the vehicle in respect of which $140.00 per month was paid to the respondent. The applicant remained a member of the Coles Myer superannuation fund, the respondent being an wholly owned subsidiary of that corporation. On 4 July 1994, the applicant was redeployed within the respondent's enterprise. It was suggested that he be sent to Ingleburn as Store Manager. A meeting was held to discuss this option and indeed the applicant's future role in the company. Some differences exist between the applicant and the respondent's General Store Operations Manager, Mr Peter Daniel Hill, as to what actually occurred at the meeting. Present at the meeting were the applicant together with Messrs Clarke and Hill. It is the respondent's case that performance was the basis of this consideration. There is a plethora of evidence that the applicant was admonished, advised and warned about this aspect of his work emanating from the respondent's witnesses, particularly Mr Clarke, who between August 1993 and September 1994 was the Operations Manager of the Southern Region, supervising four area managers, one of whom was the applicant. The applicant denied or trivialised such allegations. Mr Clarke giving evidence under cross examination was asked: "You never discussed the removal of Mr Strachan from his position as Area Manager prior to that meeting?" He replied: "Yes, as I said before we discussed that as an option of transferring him to Ingleburn if he could not substantiate or give us a good reason for his poor performance." At this stage it is pertinent to note, that some days prior to the meeting of July 4, a letter which is included in the applicant's statement as Annexure "C" (annexure "C") prepared by Mr O'Hart which was to be used as a discussion point with him at a later stage. It is thought appropriate the document be set out in full. It reads: "(Liquorland letterhead) 4th July, 1994 Mr David Strachan Dear David, This is confirmation of our offer of appointment as Store Manager on the following terms:- Position Store Manager Location Ingleburn, #3472 Remuneration Your salary will be Grade 12, $36435.35 per annum which includes payment for any overtime, weekends and public holidays worked. Holiday loading of 17 1/2% and an allowance for being a holder of a Liquor Licence is also included. The position is of managerial status and is not based on any award. Your employment is of a weekly tenure. This contract will be reviewed in 12 months, 1st August, 1995. At that stage your remuneration maybe adjusted in accordance with the current store Managers remuneration policy based on the store you are in at the time. This will be discussed with you at the time. Managers Bonus Scheme You are eligible for the managers bonus Scheme paid half yearly. You will receive notification at the commencement of each half year. Superannuation You are already a member of the Coles Myer Superannuation Fund, which has a direct financial benefit for members. Your contributions are salary sacrificed (tax effective) and the Company's contribution is currently 2.4 times. It also offers a substantial death and disablement benefit. Benefits You are currently receiving a further executive discount benefit of 5% which operates on Grace Bros/Myer card purchases. This arrangement will remain. General Employment Conditions Employment may be terminated by either party by giving one week's notice, except in the case of misconduct justifying instant dismissal. Hours of Work You will be required to work a managerial roster depending on your store location. Rosters are subject to change from time to time as trading conditions demand. Annual Leave Annual Leave is accrued at the rate of four weeks per annum and long service leave is as provided by state legislation. Annual Leave entitlement cannot be accrued and must be taken as soon as possible after the end of the qualifying year. Sick Leave You will be entitled to 5 days sick leave for the first year of employment and 8 days for any subsequent year. Medical Benefits We are able to make available to you a special MBF package of health insurance. Regular contributions may be made directly from your salary. Brochures are available with full details. Commencement Date 1st August, 1994 Please sign the attached copy indicating your acceptance of this offer and return to Personnel Department." It will be noticed that the applicant failed to sign the document as he was not satisfied with the salary package. "Signed .................................. Shane O'Hart David Strachan Personnel Manager Employee Date 4/7/95" Mr Moses for the applicant took issue with the witness, Mr O'Hart that this document was "merely to be used as issues:- as a letter of discussion with the applicant..... especially and you prepared the document a couple of days before and you have post dated it and you mean to come here and tell the court seriously that this document was only to be used with my client on 4 July as a discussion point." "Absolutely", replied the witness. In essence, similar cross examination took place when Mr Hill was giving evidence and both witnesses were adamant that at the time annexure "C" was created, no final decision had been made regarding the applicant's redeployment and annexure "C" was a standard document. As Mr O'Hart said it was "incorrect" to say there was no room for discussion. It was not a fact accompli. Mr Clarke when cross examined on this point replied: "Yes, as I said before we discussed that option of transferring him to Ingleburn if he could not substantiate or give us reason for his poor performance." An affirmative response fell from Mr Hill when asked by Mr Moses if Annexure "C" was prepared at his request. Subsequently he gave this evidence: "I had decided and we had decided that it would be appropriate for us to transfer David to Ingleburn store subject to the discussions that was to take place." This response is consistent with what was deposed by this witness in his affidavit as to what he said to the applicant at the meeting of July 4. "David you have been brought in to discuss your position at Liquorland and your future role in the company. You and I are both aware that in the past you have agreed with us that your performance has been inadequate. You had a discussion with Steve late last year where you conceded that point, and said that you had set yourself a personal objective to improve your performance over the following six months. In our opinion, you have not improved your performance adequately and we have therefore come to the decision that you need to be redeployed. On that basis, you're being redeployed to stores as a Store Manager. Whilst you are being taken out of area management, you do have sufficient skills and experience for you to do a good job managing a store and in that role you have the potential to be a good asset to the company. Is there anything you would like to say at this point, David? The applicant said: "No" Peter Hill further said: "The store we have selected is Ingleburn and as you're aware, that is our major store in the region. It should provide a sufficient challenge for you to maintain your confidence and enthusiasm so that you can cope with your change of role. It's also pretty close to your home. As a major store, it well let you earn a salary as close as possible to your current salary. Do you have any problems with this, David?" The applicant: "No." Peter Hill continued: "As a Store Manager, your salary will be less and you won't have a company car any more, but we will let you keep your car until the end of July. We are aware that there is a gap between your current remuneration and a Store Manager's pay, and if that causes you personal hardship or financial difficulty, we can provide an opportunity to narrow that gap if you want it. We don't have to discuss the details of that now. You'll have to ring me on Monday and confirm that you have understood and let me know if you want to discuss your salary any further." Mr Strachan: "I understand." Mr Clarke's recollection as to what occurred at the meeting is deposed to in his affidavit sworn 16th May 1995. It reads: "Peter Hill: "We believe that you skill level is not suited to area management, and that you are better suited to stores. There is a position available at Ingleburn store, which is big enough to give you a challenge and allow you to use the skills which you do have. It is also only two or three minutes from your home. Would you like to make any comment or complaint David?" David Strachan: "No." Peter Hill: "The usual Store Manager's salary is about (he named a figure which I do no recall) which is less than your current pay, but we don't want to impact on your financial situation. I can discuss with you a lifestyle component of your package as Store Manager, so that you can work extra hours and ensure that you won't take a drop in salary. You are also welcome to keep the facility car for another month, so that you can arrange for alternative transport. What are your thoughts on all of this?" David Strachan: "I'm happy with the salary and the package, but we'll have to review the lifestyle component." Peter Hill: "Take the rest of the week off, consider the situation and ring me on Monday about what you want to do." "I do not recall that Peter Hill handed the applicant any document to sign. The entire basis of the meeting was that none of the matters discussed required an immediate response from the applicant, and Peter Hill did no require the applicant to sign any document before leaving the meeting." Having observed those giving evidence for the respondent on this point and given the possible fading of recollection with the effluxion of time, I accept that it was both Mr Hill and Mr Clarke's intention to offer the applicant an opportunity to explain "his lack of sufficient improvement" in his performance, before arriving at a final decision to redeploy him or not. Both Messrs Hill and Clarke appeared as bona fide witnesses with no particular axe to grind so far as the applicant personally was concerned. As the evidence fell (on either version) the applicant did not avail himself of the opportunity which had been offered him. A suitable explanation could have changed management's mind as Mr Hill responded when asked by Mr Moses: "Mr Hill, I told you you had already made a decision to redeploy Mr Strachan prior to him entering the meeting." "Yes" he replied "subject to David being unable to convince us or put forward to us a case that that shouldn't take place" And again: I don't know what words David would have to have used but he would have had to convince us that there was something limiting his performance that might be able to be handled in some way that would enable him to perform at the appropriate level." It is found as a fact annexure "C" was prepared as a precaution in case a rebutter was not provided by the applicant. On any view of the evidence an explanation from the applicant was not forthcoming. The applicant's version is set out in pages 2 - 3 of his statement of evidence. "On the 4th July, 1994 at 5.00p.m. I was called into the General Manager, Mr Peter Hill's office at Silverwater. Mr Steve Clarke was present at this meeting but did not converse. Mr Hill said words to the following effect:- "David, the future direction and plan of the company does not include you as an Area Manager. You are to be demoted back to a Store Manager at Ingleburn. The store is in such a mess and I believe you are just the person to sort it out. Your salary will be reduced from it's current standing to this managerial agreement." At this time, Mr Hill handed me a copy of the Managerial Agreement, which is annexed hereto and marked with the letter "C". Mr Hill said in words to the following effect:- "I want you to sign this. You can have the car until the end of the month and hand it over on the 1st August." After Mr Hill said this, I was in a state of shock. I had been c Company Executive for nine (9) years. I said words to the following effect:- "What's going on here?" I looked to Steve Clarke and said in words to the following effect:- "Is this a work performance issue Steve?" Steve Clarke did not answer me. Mr Hill said words to the following effect:- "No, David. The future direction and plan of the company doesn't include you." I said words to the following effect:- "I can't believe this. I'll have to discuss this with my family. I was supposed to be going on one (1) week's leave as of tomorrow, but I would like to take a further week in order to sort myself out after this bombshell." Mr Hill said words to the following effect:- "That will be fine." On Friday, 8th July, 1994 Mr Hill telephoned me at home. He said words to the following effect:- "David, are you going to take our offer?" I said words to the following effect:- "I've got no other choice, because I have a mortgage and other financial commitments to service. The salary package you offered me on the 4th July is not suitable." Mr Hill said in words to the following effect:- "What figure are you looking for?" I replied in words to the following effect:- "$40,000.00." Mr Hill replied in words to the following effect:- "You better come in Tuesday and we'll discuss it." Messrs Hill & Clarke take issue with the applicant's version. What Messrs Hill and Clarke recollected as taking place has been referred to previously. It will be seen from those portions of the evidence quoted, that the applicant remained at odds with what Messrs Clarke and Hill said occurred. When cross examined on what was said and done at that small assembly on July 4, the applicant made very few concessions, save that he agreed that Mr Hill said to him: "Is there anything you would like to say at this point David?" He further agreed that he said no. When interrogated on the amount of his future remuneration (close to but less than presently) the applicant agreed he had no problem with that. Discussion of performance being an issue was a point from which he would not resile nor would he abandon his averment that Mr Hill had said words to the effect: "the future directions and plan of the company does not include you." On balance, a finding must be made at this point in the evidence that there was no protest by the applicant to his anticipated change of duties, a consent position. The applicant made a request for two weeks off work to discuss the situation with his family. Such appeal was granted although it must be recorded the applicant was preparing to have one week away from work anyhow. Mr Hill and other witnesses called by the respondent appeared competent and well motivated, doing their best to give an honest recollection of events of the long since. There were some limitations to their specific recollection which might well be expected given the passage of time since the events occurred. They were further disadvantaged in this regard by not having notice of a need to recall until seven months had transpired. Despite these limitations they were quite impressive witnesses and must be accepted as truthful ones. On the other hand, the applicant was not so impressive. He appeared petulant and had a tendency to overstate situations such as his evidence: "I have been seeing a cardiologist on a regular basis and have been receiving check ups on a regular basis in relation to my chest pains." It became clear during the course of the evidence that this was blatantly untrue. The only cardiologist he had seen was a Doctor Day on 27 January 1995 and he had no further consultations thereafter. There are other examples of such overstatement throughout the evidence. Thus, in those areas in which the evidence of the respondent's witnesses conflicts with that of the applicant's, I prefer the former, particularly in respect of the events of 4th July. On 5th July, the applicant took two weeks leave and on 13 July commenced working at the Ingleburn Store. There he remains. On Friday 8th July 1994, a telephone conversation took place between the applicant and Mr Hill. Who initiated the call is inconsequential. It is uncontroverted that the effect of the conversation was as follows; Mr Hill: "Are you going to accept the position at Ingleburn?" To which the applicant replied: "Yes, I am." Continuing, the General Manger, Store Operations posed: "Will it be necessary for us to review the salary gap?" Responding: "Yes..... I can't survive on $36,000.00 that your offered me." Upon being pressed by Mr Hill what figure he had in mind, the applicant nominated $40,000.00. Arrangements were made to finalise the matter of salary on the following Tuesday. The effect of the agreement reached on that day was that the applicant work an additional three hours per week which would have the result of supplementing the usual store managers salary by some $2,285.00 per annum. A letter from Mr Hill to the applicant formalised this arrangement and became exhibit "E" in the proceedings. As a store manager the applicant had no need to use a motor vehicle in the course of his employment, so the company vehicle was returned. He was thus saved $140.00 per month. The applicant has not incurred any expense in procuring a motor vehicle for his private purposes. He was given the use of one by his aunt who doesn't drive. Thus the motor car is neutral. From the date the applicant returned to work after a 2 week absence he performed the duties of the Ingleburn Store Manager of the respondent company. He did so without protest. When Mr Goot asked the applicant: "You made no protest about that time?" His response was: "Not at the time, no." Continuing, Mr Goot asked: And you made no protest until you instituted these proceedings in February 1995." Replying, the applicant said: "That's correct." Indeed, the evidence supports a finding there was no protest from the applicant about his redeployment. However, in late October and on 29 November 1994 the applicant did remark that he had been experiencing chest pains and anxiety attacks inter alia as a result of the stress and humiliation he had experienced because of his change of duties. On 29 November, as an addendum to his performance review (annexure "A" to the affidavit of Peter John McFarland, his area manager), the applicant wrote: "I think in the last five months I have coped considerably well considering the stress, humiliation, loss of remuneration that I have been put through by some executives." Despite this alleged sequelae of his demotion, the applicant as he said did not protest nor did he take any sick leave or seek any reduction in work load. Further, the only person he spoke to at Liquorland was Mr McFarland. On 20 October 1994 the applicant alleges he attended upon his local medical practitioner, who reported on 28 October, he had suffered a slight heart attack. That report was not given to his employer nor did it become an exhibit in the proceedings as Mr Goot objected to the tender unless the medical practitioner issuing the report was called as a witness to be tested under cross examination. The doctor did not appear as a witness despite there being a further three hearing of days after the matter was mooted and no explanation was given for his absence. Be that as it may, the applicant was referred to a cardiologist, Dr Lance Day, who examined him on 27 January 1995. Exhibit "B" makes no reference to a slight heart attack merely chest pains. The applicant undertook a stress test and was told to rest for two weeks. He was prescribed no medication and as previously stated he has sought no on going treatment. Whilst attending to his duties at the Ingleburn establishment on 26 December 1994, Mr McFarland was also present. The applicant allegedly said to Mr McFarland: "I need to have a month off in January to have tests on my heart and also my chest because the pains are not getting any better....... I won't take sick leave. I'll just take a months holiday to have further tests..... I am owed three months annual leave." Whilst acceding to this request, Mr McFarland denies that this was the extent of the conversation between the two. He contends that the applicant made no reference to the leave being for health reasons - it was annual leave he sought. Mr Goot put to the applicant in cross examination: "You told Mr McFarland simply that you wanted to take some annual leave." The applicant varied what he said in chief by adding "rest and holidays". From what emerged in the evidence, this period of time that the applicant was away from his work place could best be characterised as annual holidays as only two days of the period were given over to medical procedures - the 5th or 6th of January and the consultation with Dr Day. For reasons already set out and also the fact that once again the applicant has varied his evidence, I accept Mr McFarland's version as to the reasons given by the applicant on 26th December, 1994. This is but another effort on Mr Strachan's part to bolster his case. One cannot be entirely sure, but it is thought that it was during the month of January 1995, that the applicant and his spouse, whilst visiting a hospital, saw an advertisement promoting his now solicitors as employment legal advisers. After discussions with his wife, the applicant approached Messrs Smith Kerrison Foster Solicitors on 4 January 1995 (Statement of Evidence) or 6 January 1995 (Annexure "A" to application dated 13 February 1995). No evidence was led by the applicant that he was aware or otherwise of Division 3 of Part VIA of the Industrial Relations Act. However, in cross examination he conceded that he had been sent a number of memos "on it...." "on the retail traders". This first fact is corroborated by the evidence given by Mr McFarland which will he referred to anon. Yet, when the applicant was asked: "You knew on 12 July 1994 when you had the conversation you say you had with Mr Hill about money, you knew that if you felt aggrieved about what happened you could exercise your rights?" He responded: "No, I didn't." When it was put to the applicant that at the time he made a conscious decision not to pursue the matter any further at that time, he concurred. Then later: "Yes, and you knew at the time you could have pursued the matter further if you had wanted to at the time.'" Replying the applicant said: "I could have, yes." Application for leave to serve the application out of time. In his application file on 15 February 1995, the applicant seeks leave to file his claim out of time. Annexure "A" to that application contains what are described as the reasons for so filing out of time and are as follows: 1. After discussing the problem with my wife and family, I had no other option than to take a change in employment as it was still income, but I had to renegotiate my wage package as I have a mortgage and other financial commitments. I did not wish to jeopardise 15 years service with the company and resign; 2. I was due for Long Service on 22.10.94 after 15 years of employment which represented a substantial sum of money; 3. In October 1994 I began suffering with chest pain and had various tests, the last of which revealed the pain to be related to anxiety, stress and increased physical workload; 4. I was not aware of the legal requirements in making the application for redress; 5. I took on (1) month off work for further tests from 1st January, 1995, (it was six weeks actually). 6. I sought legal advice from Messrs Smith Kerrison Foster, Solicitors, on 6th January, 1995. I saw Mr Rod Smith. The matter was allocated to Beverley J. Foster. I spoke to Miss Foster over the telephone on the 24th January, 1995 and had a conference with her on the 31st January, 1995, when she advised me to take these proceedings. On 22 October 1994, the applicant would have been in the respondent's employ for fifteen years and would have been entitled to long service leave. He attributed the possible loss of this entitlement as being the reason for his failure to assert his rights. Interestingly enough, he left it for at least another four months before bringing the application in this court. Having acknowledged he was aware of avenues of redress, the applicant also conceded that at no time did he say to the company: "I regard myself as being terminated such as to give rise to an application for reinstatement." This was not done until 15 February 1995. Even in the period 4 - 6 January (it is on our selection) until 15 February, was notice given to the respondent that proceedings could be anticipated. Section 170EA(3) of the Act provides: 3. "Time Limits for Applications: an application must be made: (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the court allows on an application made during or after those 14 days. Time limits imposed by the Act must be taken seriously. Some reasonable explanation for delay and in this case quite a long delay must be forthcoming. Instantly there has been a significant period of time which has elapsed between the date a filing should have taken place in compliance with the Act and the date upon which the application was actually filed. Application of Principles for Extension of Time Counsel for the applicant submitted that there was no need for the applicant to make an application for leave to be heard out of time as no written notice was given to the applicant of his alleged termination. That argument is rejected. The letter of 4th July 1994 (being Annexure "C" to the applicant's statement) and being an offer of employment as a Store Manager together with the letter of 18th July (exhibit "E") confirming the salary on any view constitutes for the purpose of the Act written notice. That being so, it is now necessary to examine the principles governing the exercise of discretion to grant an extension of time. In Pam Coker-Godson -v- National Dairies Ltd No VI 262 of 1994 pp 5 - 7 Keely J referred to the principles listed by Wilcox J (as he then was) at pp 348 - 349 in Hunter Valley Developments Pty Ltd -v- Cohen (1984) 3 FLR 344. This latter case involved a consideration of Section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Keely J's rider that it may well be easier for an applicant under subsection 3 of S170EA of the Act to persuade this court to allow an extension of time than it is for an applicant under the legislation reviewed by Wilcox J to persuade the Federal Court to extend time, is accepted. The principles distilled in Hunter Valley Developments Pty Ltd -v- Cohen provide a substantial guide to what must be decided instantly. In the application of those principles, for convenience it is necessary to set them out seriatim. "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 to do so. The "prescribed period" of twenty-eight days is 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: se Doyle at 287, Duff at 484 - 485, Hickey at 525-527 and Wedesweiller at 533 - 534. 4. 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 to 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 applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535." Applying those principles to the present case, the reasons for the delay in bringing the application are those already referred to and which are set out in annexure "A" to the application. It is my opinion none of the six reasons relied upon constitute a reasonable explanation for the long delay in bringing this case. Paragraphs 3 and 5 of annexure "A" constitute a misconception of an explanation of a delay. In addition paragraph 5 sets forth a situation not entirely supported by the evidence. Paragraphs 1 & 2 merely explain why the applicant made a conscious decision not to pursue the matter, not to rock the boat, lulling the employer into a false security that all was well. Paragraph 4 takes the matter no further in light of the evidence on this point that fell at the hearing. It is clear from the evidence that the applicant was either aware or ought to have been aware that he may have had some rights which he could have enforced against the respondent. As an Area Manager he had the power to terminate employment of persons under his control, albeit in consultation with his superiors. Being so armed it would be incumbent upon him to acquaint himself with the necessary knowledge to do so legally. Indeed, in annexure "A" & "B" to his statement of evidence - "Position Description Store Manager/Area Manager", one of the key accountabilities/tasks imposed upon a Store Manager or Area Manager is to ensure that all government obligations are met, to ensure compliance with relevant industrial awards and government regulations including....... employment law. The measurement requirement for this being one hundred per cent compliance. It would appear that the applicant has signed both annexure "A" & "B". This being so the applicant ought to have known of the termination of employment provisions of the Act, including time limits. Mr Moses submitted that the applicant may not have been aware of any time limits existing for the filing of an application. However, he did not adduce any evidence in chief as to the state of the applicant's knowledge on this point. There can be no doubt that the applicant knew of the legislation. Apart from anything else he conceded that he had received pamphlets circulated by the respondent's National Manager Personnel Operations, Mr Shane O'Hart on the subject, to ensure good employee relations practice at the store level and to resolve disputes within house. These documents are annexures "A" and "B" to Mr O'Hart's affidavit sworn 10th May 1995. It must be conceded these annexures are silent on time limits. Both in his oral and affidavit evidence, Mr O'Hart affirmed that, apart from the circulation of pamphlets, he discussed at fortnightly or monthly meetings in 1993 and 1994, at which the applicant was present, changes to the Federal industrial relations laws and in particular unfair termination provisions. In addition he said: "They could always come to me for advice." Mr O'Hart could not recollect whether or not time limits were discussed at any meeting at which relevant Federal laws were discussed. However, the applicant did know that rights may exist, that is all that has to be demonstrated. However, he said: "I've decided not to pursue the matter any further." One might wonder why it took until 15 February to file an application when the applicant spoke with M/s Foster on the phone on 24 January 1995 or at least immediately after the conference the applicant had with her on 31 January 1995. Why the fifteen day delay? Especially as, Mr Goot submitted "applications in this court..... are really a matter of filling in boxes." Should the applicant have sought to hide behind the actions of his solicitors for the delay after 4 January 1995 (as it appears he has), decided authority would prevent him from so doing. In Grumble -v- Killingsworth (1970) VR 161 at 176 McInerney J decided that in most cases the courts have held that the client cannot disassociate himself from the delay of his solicitor and that the sins by way of omission or delay of his solicitor must be visited "on the client". Finally there is no evidence that the applicant by non curial means continued to make the respondent aware that he contested his redeployment or that he ever intended to contest it between 4 July 1994 and 15 February 1995. For this reason Marriott -v- Oxford and District Co-op Society Ltd (1969) 3 WLR 984 must be distinguished from the instance case. For these reasons I find the explanation for the delay in bringing these proceedings are not adequate to satisfy the test of reasonableness. It would not be just and equitable to exercise the discretion in the applicant's favour on this point as the applicant rested on his rights for seven months having made a conscious decision to transfer from one position to another subject to certain conditions to wit: the re-negotiation of a salary package, which he successfully brought about. Another material factor militating against the grant of extension of time is any prejudice to the respondent including any prejudice occasioned by the delay. The fact that there is no action is highly prejudicial to the respondent because the respondent was lulled into a sense that all was well and if it had not been lulled into that sense it could have acted to better protect its interest. The applicant knew that the respondent regarded him, the applicant, as having accepted the position by consent, of Store Manager and again if the applicant seeks to resile from the position, that is prejudicial to the respondent. The applicant knew that a new Area Manager had been appointed at least by 1 August 1995 and he has given evidence to that effect. On this point the first principle set out by Wilcox J certainly was relevant to the respondent in this case. The respondent was denied the opportunity to take statements from potential witnesses immediately after Mr Strachan had been redeployed and if he served notice that he protested against his change of circumstances. Events would have been fresher in potential witnesses minds if the applicant had contested the situation in October when his long service leave fell due. He did not. Mr Goot submitted further areas of prejudice, apart from any prejudice to the respondent in defending the proceedings occasioned by delay. "Well, the prejudice we point to is the fact that we were not put on notice as we ought to have been within 14 days of 4 July that any of these matters were going to be contested. Accordingly, we were not in a position to take contemporaneous statements from our witnesses.... The respondent acted to their disadvantage and prejudice by backfilling the position and putting in arrangements and proceedings as if all was well and in a number of other ways." All valid points! Whilst I accept the respondents witnesses as being truthful, I do acknowledge that there were limitations to which they all referred as to their ability to recall things with the passage of time. Earlier notice would have obviated this. Even being so disadvantaged, observing their demeanour and carefully listening to their evidence there is no doubt they were doing their best to recollect in the circumstances. One might infer, bearing in mind the importance the respondent attached to staff having knowledge of the rights of employees and the assiduous manner the evidence discloses of Mr McFarland's imparting to Area Managers, inter alia of the effects of the termination provisions of the Act, that if he had to refresh his memory closer to the events of the applicant's transfer, he may have recalled whether or not he spoke of time limits. It is difficult to resist an inference that he did so. Evidence from the applicant would have been helpful. This is but one example, there are others where recollection may have been easier closer to the time. Despite Mr Moses' submission that in light of the extensive affidavits that have been filed in these proceedings by the respondent, it does not disclose any inability to defend these proceedings. I am, however, satisfied that the delay to some extent has prejudiced the respondent in the preparation of its case. With the effluxion of time, particularly seven months, there must always be the "fading of memory" problem. Cognisance has also been taken of the principle that the mere absence of prejudice is not enough to justify the grant of an extension. In this context public considerations often intrude. A delay which may result if the application is successful in unsettling other people or established practices is likely to prove fatal to the application. On this point, the company witnesses gave evidence of the fact that there was a backfilling of the positions almost immediately. Those persons have now been in their positions for nine months in consequence of the redeployment of the applicant and his failure to protest. Doubtless, those persons would be unsettled should the applicant be re-instated as a result of being granted leave to extend time to bring the application. The intention of the legislation for promulgating time limits in section 170EA(3) is so that matters can be dealt with expeditiously. There are eight area managerial positions, which are all filled and the company has no need for any more. The inference is that somebody will have to become a supernumerary if the applicant is reinstated as Mr Goot submits. Taking into account the merits of the substantial application in considering whether an extension of time should be granted, I feel that the application is totally misconceived. Most of the background in support of that proposition is set out under facts and circumstances surrounding the application. It must be re-iterated that the applicant is still employed by the respondent and still receives remuneration from it. He is a beneficiary under its superannuation policy. He also continues to benefit from Manager's Bonus Scheme and an Executive Discount benefit of 5% which operates on Grace Bros/Myercard purchases. It is hard to resist Mr Goot's following submission: "If you go to section 170CD we find that an expression in the Act has the same meaning in this division as in the termination of employment convention. And the termination of employment convention is schedule 10 to the Act and if one goes to Article 3 of Schedule 10 it can be seen that termination and termination of employment mean termination of employment at the initiative of the employer. But I emphasise the words termination of employment, not change in a job but termination of employment. Indeed, if one goes, for example to Article 12 of the convention one can see quite clearly that it is directed at circumstances quite distant from those which are before the court. It talks about benefits on separation and pensions and social security etcetera, etcetera which just have no application in a situation where, by consent, duties change but the employment continues and everyone knows that the employment is continuing and there are none of the incidents of termination of employment as we have come to know them and as the convention seeks and the division in the act seeks to deal with." Mr Moses cited Marriott -v- Oxford and District Co-op Society Ltd (1969) 3 WLR 984, as supporting the fact that the applicant had been terminated. Disagreeing Mr Goot submitted: "Now, one only has to read that summary of Marriott's case to realise how different it is from the case before the court as currently constituted. Here, no protest at all. And not working under protest for a few weeks while Mr Strachan looks for another job, having consented to it in the first place. So, we say that the first point made by my learned friend just is not a proper summation of the law." Reviewing the evidence there is no doubt that the applicant was at all times aware that the respondent regarded him as having accepted the position as Store Manager, a situation which clearly distinguishes the instant matter from Marriott's case (supra). In allowing the respondent to so regard the situation he lead the respondent to believe all was well. This situation continued well after he became entitled to his long service leave, the reason why he made a conscious decision not to pursue the matter, knowing full well he could have done so had he wished. In any discussion of the merits of the application performance or lack of it by the applicant which formed the basis of the transfer must be considered and taken into account. Mr Moses for the applicant submitted that even at its highest, the evidence of the respondent does not disclose a valid reason for what occurred on 4 July 1994. The only evidence was that of Messrs Clarke and Hill's observations on periodic visits to stores in the applicant's area that those stores were lacking in merchandise presentation and general cleanliness. No poor economic performance was relied upon, he submitted. At this point it ought be made abundantly clear, that at no time was it suggested in the course of the hearing that lack of economic performance was a reason for the applicant's redeployment. As Mr Goot submits, the evidence supports a finding that what was at the forefront of the minds of Messrs Hill, Clarke and others was Mr Strachan's performance as an area manager in areas such as his general performance and motivation. There is a plethora of evidence of lack of motivation he submitted. Just as there was ample evidence that Mr Strachan was aware of their concerns and according to them shared their misgivings. The applicant denied all these matters, but for the reasons I have already stated including the applicant's tendency to gild the lily and give evidence which he believes necessary to improve his case, I do prefer again that given by the respondent's witnesses. Mr Hill and Mr Clarke gave detailed evidence in this regard and were cross examined most extensively and intensively on their version. They remained unshaken. Giving evidence, Mr Hill General, Manager Store Operations, of the respondent company, said that he first became concerned about the applicant's performance in August 1993. It was a perception he built up over time by visiting the stores in the area under the applicant's control every six to eight weeks. During meetings held at the managerial level he formed the opinion that the applicant should be applying himself more. Visiting the relevant stores, Mr Hill became aware of store tidiness, planning at store level, lack of supervision. In short, the applicant was not performing as expected..... below par. This is not exhaustive of the evidence on this point. Mr Hill gave evidence he had numerous discussions with Mr Clarke, the Regional Manager and the applicant's direct supervisor about these topics. He was not able to recall the dates upon which these discussions took place regarding the applicant but he did recall the occasions. On the other hand the only way he dealt with these matters was by way of "prompting" during fortnightly meetings at the respondent's Silverwater establishment. He never took them up specifically or counselled him as "that was Mr Clarke's role." As there was no sufficient improvement in the applicant's performance in the areas complained of, Mr Clarke formed the opinion that a change of role might allow the applicant to perform better, that is in the role of Store Manager. Thus, the applicant was removed because he did not improve his performance as had been indicated to him as being necessary by Mr Clarke. Mr Goot submitted that the applicant can take no comfort from the mystery shopper project conducted by Hoed Holding Pty Limited on behalf of the respondent on 5 April 1993 (exhibit "I") and October 1993 (exhibit "H"). On these dates the applicant was the manager of area 2 and scored the highest and the third lowest respectively in the eight areas. Making submissions on this point, Mr Goot referred to the evidence of Mr Hill in which he stated these projects, whilst they may provide some indicative trends, they are not the standards by which Liquorland operates its stores and a mystery shopper employed by Hoed Holdings does not determine the standards of Liquorland and the like in relation to its stores. There being no evidence to contradict that given by Mr Hill on this point, it must be accepted that was the position. Mr Clarke, the respondent's State Manager from August 1993 to August 1994, supervised four area managers during that period, including the applicant. On more than one occasion, he said in evidence he discussed the applicants performance with him as he did with Mr Hill every Wednesday. It would appear these discussions took place on an ad hoc basis. Specific areas which were reviewed by Mr Clarke and the applicant were as follows: a) overstocks b) general housekeeping - dirty fridges and glass c) counter areas d) general cleanliness - dirty floors e) quality of display work. Motivation or lack of it was another concern Mr Clarke had about the applicant. This he discussed on several occasions with Mr Hill seeking from him ideas on how to dispel this problem. Indeed he spoke to the applicant directly and indirectly on this point as well as informing him in his view, his performance was not up to standard, below the standard of the other three stores under his control. These conversations took place personally and by telephone. Mr Clarke said he endeavoured to go through each of the stores problems one by one. This does not purport to be the limit of the evidence given on this point. It was quite far ranging. Suffice to say there were real concerns about the applicant's performance in the months prior to 4 July 1994. I am satisfied of that, just as I am satisfied that the applicant was aware of the disquiet the calibre of his performance was causing. This is despite the applicant attesting to the contrary. Apart from taking into account what has been stated anteriorly in relation to the substantial application, consideration was also given to the documentation filed as well as the evidence of 24, 25 and 26 of May 1995 and the submission made on 30th of that month. Nothing in that body of evidence has tended to dissuade me from the decision that will ultimately be made in this matter. As to the sixth principle expounded by Keely J in the Transport Workers Union case, consideration has been given as to the fairness between the applicant's and other persons otherwise in a like position - namely the eight other area managers including the one who filled the position vacated by the applicant. In balancing these competing factors I do not consider it appropriate to exercise my discretion in favour of the applicant. The application by the applicant seeking an extension of time is dismissed. It, thus follows, all applications made by the applicant are dismissed. The respondents application for costs In Canceri -v- Taylor (1994) 55 IR 31 Moore J held that this court has power to make an order for costs though the exercise of that power is limited by section 347 of the Act. Counsel for the respondent made an application for costs under that section on the basis that were the respondents to be successful, then the applicant had instituted the proceedings vexatiously and without reasonable cause. Instantly, I am satisfied that the applicant commenced these proceedings vexatiously and without reasonable cause and I order the applicant pay the respondent costs. I certify that this and the preceding thirty-nine (39 ) pages are a true copy of the reason for judgment of Judicial Registrar Locke. Associate: Caroline Sternberg Date: 20 July 1995 Appearances: Counsel for Applicant: Mr A Moses Counsel for Respondent: Mr R Goot