Leslie Alfred Hunt v Steggles Limited [1995] IRCA 358

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2696 of 1995 B E T W E E N : LESLIE ALFRED HUNT Applicant AND STEGGLES LIMITED Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 9 August 1995 REASONS FOR DECISION Two applications were made by Notice of Motion filed by both the Applicant and the Respondent and returnable before the Court on 2 August 1995. The first Notice of Motion filed by the Respondent on 10 July 1995 seeks:- 1. to dismiss the application; 2. to grant further or other relief as this Honourable Court deems fit and proper. The Respondent's Notice of Motion is supported by an Affidavit sworn by Chris Roussos on 7 July 1995. The second Notice of Motion was filed by the Applicant on 1 August 1995 and seeks:- 1. that the time for making an application for a remedy under s.170EA of the Industrial Relations Act 1988 be extended. This Notice of Motion is supported by an Affidavit sworn by the Applicant on 2 August 1995. No issue was raised as to the late filing of the second Notice of Motion and its accompanying Affidavit. However, I note that the Respondent on 1 August 1995 filed four further Affidavits all sworn on the same date by David Veltman, Warren Schofield, Wayne Jackson and Jay Beattie respectively. These affidavits all appear to be filed in answer to the Applicant's extension of time application. On the return date the Applicant sought to give evidence further to that deposed to by him in his Affidavit and was cross examined by Mr Douglas appearing for the Respondent. In turn, the Respondent called Mr Jackson as a witness. Mr Jackson adopted the contents of his Affidavit and was cross examined by Mr Niall of Counsel appearing for the Applicant. Otherwise both parties relied on the Affidavit material before the Court. The Notices of Motion raise two important issues. The first is what constitutes written notice of termination for the purpose of s.170EA(3) of the Industrial Relations Act 1988 (the Act) which says 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. In the event that the Court finds that there was written notice of termination received by the Applicant, the second issue is whether this Court, in all the circumstances, should exercise the discretion it has pursuant to s.170EA(3)(b) to extend the time for the making of an application, in this case, to 2 May 1995 when this application was filed by the Applicant. It is common ground that the Applicant's employment with the Respondent ceased on 9 November 1994. He had been employed from at least 1988. On 29 October 1994 it is alleged by the Respondent that there was a verbal altercation between the Applicant and the Respondent's leading hand, Mr Veltman, arising out of the Applicant's late arrival for his afternoon shift. At the end of his shift the Applicant commenced holiday leave until 9 November 1994. When the Applicant resumed his employment after his leave it is alleged by the Respondent's warehouse manager, Mr Schofield, in paragraph 5 of his Affidavit that he:- "requested the Respondent (sic) not to commence work until accompanying me and Mr R McDonald, NUW, to the Manager's office. I explained to the Respondent (sic) that his performance and behaviour were not of the required standard and I viewed his behaviour as unacceptable and when considered in the context of his previous behaviour, I had no alternative but to dismiss him, unless he could justify this unacceptable behaviour. As the Applicant did not display any indication that he was willing to change his behaviour, I formed the opinion that I had no alternative but to terminate his employment". The Applicant's explanation of the events giving rise to the termination of his employment by the Respondent is contained in paragraph 4 of his Affidavit as follows:- "At the termination interview Mr Bob McDonald the local union delegate was also present. He was already in the office when I arrived to (sic) my Supervisor's office. I indicated to Mr McDonald that I felt that my dismissal was unfair however at no stage did he indicate to me that I had rights to challenge the decision in the Court". The matters deposed to by both the Applicant and Schofield show that there is a prima facie dispute as to the lawfulness of the termination and the procedures followed in terminating the Applicant's employment. It was indicated to Mr Douglas by the Court that at this interlocutory stage it was not appropriate to call further evidence from his witnesses or, indeed, to address those parts of their affidavits filed with the Court where they seek to challenge the merits of the Applicant's case. These are matters more properly dealt with at hearing when all the evidence is before the Court. Insofar as the merits of the Application are relevant to any extension of time claim it is enough to show that there is a justiciable issue or prima facie case arising under the Act. It was agreed by the parties that on 9 November 1994 when the Applicant's employment was terminated by the Respondent the Applicant was given a document to sign, which document he signed and wrote on the back of the document:- "I Lesley Alfred Hunt consider that I have been unfairly dismissed on this day". The abovementioned document is entitled "APPLICATION Personnel Record Change" (see Exhibit A3). It was conceded by Mr Jackson that the document handed to the Applicant at the date of termination was a document which formed part of the company's personnel records and, on obtaining the Applicant's signature to that document, the Respondent kept the document as part of its file record without giving the Applicant a copy. It was further agreed by Mr Jackson that the document is a pro forma document prepared for the company's records when there is a change in an employee's status and it is not normal to provide an employee with a copy. The Applicant did not receive a copy of this document until it was requested by him after he had commenced this proceeding. In his affidavit sworn on 7 July 1995 and filed herein Chris Roussos alleges that on 9 November 1994 the Applicant was given written notice of termination. It is the Respondent's submission that Exhibit A3 is the document relied upon as evidencing written notice of termination for the purpose of s.170EA(3) of the Act. In his Affidavit sworn on 1 August 1995 and filed herein Mr Jackson asserts that the Applicant "...requested a notice of termination and this was given to him on 17 November 1994". When cross examined on this matter Mr Jackson alleged that on or about 15 November 1994 the Applicant asked for and was given a further document dated 16 November 1994 and entitled "Statement of Employment". It was asserted by Mr Jackson that this document amounted to notice of termination received by the Applicant. Mr Jackson agreed that Exhibit R1; that is to say the Statement of Employment, was a standard letter usually given to employees when they leave their employment. It sets out a statement of the employee's employment but, as in this case, goes no further than the basic information. For instance it does not contain the reasons for termination or a statement to the effect that the Applicant's employment was terminated by the Respondent. In Liddell v Lembke 127 ALR 342 the majority of the Full Court of the Industrial Relations Court of Australia said at page 346:- "Subdivision C of Division 3 provides remedies in respect of an unlawful termination. It is not necessary to mention all its provisions. Section 170EA(1) confers on an employee a right to apply to the Court "for a remedy in respect of termination of his or her employment". The application may be brought on the employee's behalf by a trade union: see Section 170EA(2). The application must be brought within 14 days of the employee's receipt of any written notice of termination or such further period as the Court on application allows: see Section 170EA(3). Where there is no written notice, there is no time limit for an application." The Applicant referred the Court to the decision of Judicial Registrar Parkinson in Denavi v John Stephens Catering Equipment Pty Ltd (unreported VI 1663 of 1995, 6 June 1995). That decision involved Notices of Motion whereby the Respondent sought to strike out the Applicant's claim allegedly made outside the 14 day time limit and the Applicant, apart from seeking an extension of time for making his claim, argued that there was no written notice of termination in accordance with s.170EA(3) of the Act. Denavi had, it was found received from his employer on the day following the termination of his employment a document which set out the payments paid to the Applicant and further referred to an item identified as "Termination pay". This the Judicial Registrar found was not, objectively speaking, sufficient to constitute written notice of termination for the purpose of the Act. In reaching her decision in Denavi's case Judicial Registrar Parkinson expressed the view at page 4 of the decision that the purpose of the abovementioned requirement is to:- "ensure that an objective mechanism exists by reference to which the operation of time limits on proceedings may commence...." At page 5 of her decision the Judicial Registrar went on to say:- "the Act contains at s.170DB provisions in relation to the period of notice required to be given to employees in certain circumstances. To a large measure this section is concerned with the manner in which the amount of notice is calculated and the circumstances where notice is not required to be given. Regard is had to the reasons for the termination for the purposes of the calculation of the period of the notice entitlement, an example of this being the provision for no notice in circumstances of serious misconduct. It is clear that to effect a termination lawfully under this Act, notice of the type prescribed by s.170EB (sic) must be accorded to the employee. It would be unusual outcome if the "written notice" prescribed by s.170EA(3) was satisfied by document which contains no reference to the very matters prescribed by s.170DB. The use of the word "written" and "notice" in my view require that the fact of the decision made by the employer to terminate the employment, together with the basis upon which the termination is made, ie with or without notice, and the date of its effect, be clearly be spelt out in any document which purports to be a written notice of termination for the purposes of s.170EA(3) of the Act...." In principle I accept the Judicial Registrar's analysis of the requirements of notice noting also that the Respondent in its submissions to the Court conceded that at the very least the written notice must contain clear and unequivocal advice that the employment of the employee has been terminated. In the present case the personnel document (Exhibit A3) contrary to the Respondent's submission was not, on the facts, received into the possession of the Applicant. At best the Applicant was asked to and did sign a document which remained in the Respondent's possession as part of its corporate records. In any event the Respondent concedes that the purpose of the document was not to give notice of termination to the Applicant; rather it was to record the employee's change of status and such record incidentally recorded that his employment was terminated as well as recording other employment related details. The Statement of Employment (Exhibit R1), whilst there is no dispute that that document was received by the Applicant on or about 17 November 1994, is as its title suggests only a statement as to matters relating to the period of the Applicant's employment and the duties performed by the Applicant during the currency of his employment with the Respondent. The document is directed not to the Applicant but to"To Whom it May Concern". It does not pretend to be a notice to the Applicant of the termination of his employment. In the circumstances, and looked at objectively, I am not prepared to say that this document in any way constitutes written notice of termination of the Applicant's employment. The Respondent expressed the concern that if the requirements for written notice of termination of employment are as suggested by Judicial Registrar Parkinson in Denavi's case it will place an untenable burden on employers to provide detailed written notices of termination. I am not satisfied that this interpretation of the effect of the decision is a reasonable one as it is clear from the passages I have cited that the minimum requirements referred to by the Judicial Registrar are just that: the employer must communicate in writing the fact that the decision has been made to terminate the employee's employment together with a statement of the basis upon which the termination is made; that is to say with or without notice and the date of the effect of the termination. Accordingly, the Notice of Motion filed by the Respondent on 10 July 1995 is dismissed. Because of my findings concerning the written notice of termination it is unnecessary to further deal with the Applicant's Notice of Motion seeking to extend the time for making his application. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Notice of Motion filed by the Respondent on 10 July 1995 is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 9 August 1995 Solicitors for the Applicant: Ryan Carlisle Thomas Counsel for the Applicant: Mr R Niall Representative for the Respondent: Mr J Douglas of MTIA Date of hearing: 2 August 1995 Date of decision: 9 August 1995