Robert John Farnell v Ansett Air Freight [1995] IRCA 441

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY TI 236 of 1994 B E T W E E N : ROBERT JOHN FARNELL Applicant AND ANSETT AIR FREIGHT Respondent Before: Judicial Registrar Murphy Place: Hobart Date: 31 August 1995 REASONS FOR JUDGMENT (Ex Tempore) (Revised from Transcript) The respondent in this matter, by way of notice of motion filed 11 July 1995, seeks an order that the application be dismissed. The notice of motion also seeks other alternative relief. The ground on which the respondent seeks to have the application dismissed is that the application was not issued within 14 days of the date of termination of employment under section 170EA(3) of the Industrial Relations Act (the Act). The chronology in this matter as revealed in the affidavit material before the Court was that on 27 July 1994 an incident occurred between the applicant and a member of the public. On 28 July 1994 there was an interview between representatives of the respondent, the applicant and a representative of the Transport Workers Union (the union). On 1 August 1994 the applicant was advised in writing that his contract with the respondent was terminated. Thereafter, on 18 August 1994 a meeting occurred between a representative of the union, the applicant and a representative of the respondent, at which the applicant made it clear to the Respondent that he believed that he had been unfairly dismissed. In August 1994 the respondent replaced the applicant with another driver. During September and October 1994 the union and the applicant's solicitors interviewed witnesses in relation to the original incident. In November 1994 a meeting took place between a representative of the union, the applicant, and a representative of the respondent in relation to his dismissal. Subsequently, on 10 November the respondent wrote to the union indicating that it was still investigating the incident and that it would be in touch with it within a week or so. The applicant's affidavit reveals that during November and December he was advised by his solicitors that an application to the Court needed to be made. He deposes that his solicitors tried to contact the union to ascertain progress. He was further advised on 9 December that it was thought that the respondent was not responding. He was advised on that date by his solicitors that he was entitled to lodge an application with the Court and that it needed to be lodged because of time limits. The solicitors were too busy to lodge the application and on 20 December the application was lodged in the Court. The application was served on the respondent on 10 January 1995. The application, as filed by the applicant, also sought an extension of time and reinstatement to his position. Before setting out the relevant principles for a consideration of the issue of an extension of the 14 day period, which is, prima facie, a quite short period, it is appropriate to refer to comments in Mahnken v Saunders Logging Pty Limited (1994) 57 IR 237. In that decision Northrop J refers to the fact that matters are to be listed speedily within the court and he says the reason for this is as follows: These are circumstances where the Parliament has created a new type of remedy, a remedy which should be made available as quickly as possible where an employee's employment has been terminated. Reinstatement may be an order that is made. If such an order is to be made, it should be made as speedily as possible. The Court has been referred to a number of authorities on the applicable principles for an extension of time under section 170EA. The decisions of the Court in Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 and a recent decision of Turner v K & J Trucks Coffs Harbour Pty Limited, (Beazley J, 10 August 1995) make it clear that the non-exhaustive list of factors set out by Wilcox J, as he then was, in Hunter Valley Developments Pty Limited v Cohen (1984) 4 FCR 344 are the factors to be taken into account in the exercise of the discretion. The Court does not propose to set out the relevant considerations in that case but to set out a consideration of the factors which it is considered relevant in this matter. Explanation for the delay. The applicant's explanation for the delay in issuing these proceedings is that he believed in September that his union would continue to try to negotiate on his behalf a satisfactory outcome of the matter. He refers in his affidavit to the union and his solicitors locating and interviewing witnesses. He refers to a meeting due to be held on 24 October, which he believed was intended to be a meeting with a "reference committee" under a dispute clause of his subcontract agreement with the respondent. He also refers to mention being made of the possibility of referring the matter to the Industrial Relations Commission. He states that he was unaware of a specific application under the "new unfair dismissal laws or any time limits applying thereto." In evidence is a letter from the respondent to the applicant's union, dated 10 November. That letter refers to a meeting which took place on 3 November and refers to the applicant's "challenge to his termination". It refers to interviewing the other party to the incident and goes on: Until this interview is completed and Police records of the incident thoroughly examined, AAF (the respondent) is unable to reverse its original decision regarding Mr Farnell's termination of his contract. It is my expectation that these matters shall be completed within the following week or so. The applicant states that after this letter the respondent did not reply and he was told that he had to issue an application. He further states that his solicitors were too busy to issue it and he did so himself. Significantly there was no material before the Court from either the union or the applicant's solicitors as to why neither of those parties took any action to issue the proceedings in this court. The application should have been made by 15 August and in fact was made on 20 December, some 127 days out of time. Given that the applicant was using both the services of his union and solicitors, and in the absence of any material from either of them as to why the application was not lodged within time, I regard the reasons proffered for the failure of the applicant to issue the proceedings as unsatisfactory to say the least. Other action taken by the applicant. The Court accepts that the applicant made it clear that he believed that he had been unfairly dismissed. It is clear from the letter of the respondent dated 10 November that he challenged the dismissal. This consideration, however, must be tempered by the lack of any evidence from either the union or the solicitors as to what actions were actually taken. It is also relevant that the parties bound themselves in the subcontract agreement to clause 18, a disputes clause. This clause refers to disputes being referred to a reference committee and, in the event that negotiations are unsuccessful, reference to the Australian Industrial Relations Commission. No such reference ever took place. Here the failure of the applicant to proffer any satisfactory reason why, when he had an industrial organisation acting for, him lessens the strength of the consideration that he disputed his dismissal. Prejudice to the respondent. The respondent, during August 1994, replaced the applicant with another subcontract driver. The precise terms of the replacement were not in evidence. The Court infers that it was on a similar basis to the applicants subcontract arrangement with the respondent. Allowing an extension of time will, it was argued, prejudice the respondent by upsetting its business arrangements with the replacement driver including, in the event of a successful order for his reinstatement, the termination of that driver's contract. I am satisfied that this is a significant ground of prejudice for the respondent. The whole purpose of a short time period to issue proceedings under section 170EA, and the primary remedy available to the Court of reinstatement, is to allow the re-establishment of the status quo as soon as possible in the event of a finding of a breach of the Act. Although I accept that the applicant was disputing his dismissal there is no evidence before the Court which would indicate that the respondent was ever told that it replaced the applicant at its peril. The way that the applicant and his advisers could have done this was by taking the relatively simple step of issuing and serving an application. To now expose the respondent to the possibility of a reinstatement order does cause it some prejudice, as well as upsetting the replacement driver's own arrangements. The merits of the case. There was no concession by the respondent that the applicant had a meritorious case. This makes this case different from Turner's case (above). Counsel for the respondent submitted that the merits of the case should not be a relevant consideration: Duff v Freijah (1982) 62 FLR 280. Counsel for the applicant, however, submitted that on the material the applicant had presented a prima facie case. He referred particularly to the fact that on the material it was arguable that there had not been a proper investigation by the respondent. It is obviously undesirable in a procedural motion such as this to consider in any detail the substantive merits of the case. I accept the submission of counsel for the respondent that the substantive merits of the case should not be given any weight in this particular case because, on the material before the Court, both sides have arguable cases. In relation to the respondent's case I refer to the fact that the subcontractor agreement throughout refers to the applicant not as an employee but as a subcontractor. Is it fair and equitable to extend the time? The Court has already observed that the material before it does not provide any satisfactory explanation for the failure to issue these proceedings within time. The Court cannot be fettered in its discretion by any list of considerations referred to in previous cases. Each case must be determined on the material before the Court, bearing in mind that the applicant carries an evidentiary burden to move the court to exercise a discretion in his favour. Here, having regard to the comments in Turner's case (above), the Court must balance the length of the delay, the explanation for the delay and the prejudice which has been identified to determine whether it is just and equitable to extend the time. Here the length of delay is significant, 127 days out of time compared to a 14 day time limit. Next, the explanation of the delay is unsatisfactory even though I accept that the respondent knew that the applicant did not accept the dismissal. The evidence is that since the day after the incident, the applicant had assistance of a union, which I infer was a registered organisation under the Act, to assist him. That organisation had the right to make an application on his behalf. Its privileged position under the Act means that it must be fixed with the knowledge of the relevant time limits, yet there is no explanation as to why it took no action to issue an application. Further, solicitors were also retained at some stage and have given no explanation as to why they did not issue the proceedings within the relevant time limit. In addition to these considerations I am satisfied that there would be some prejudice to the respondent by granting the application. I refer to the still current application, made in the original application, for reinstatement. Having regard to all these matters I am not satisfied that it would be just and equitable to extend the time limit under section 170EA and I therefore allow the motion. Having regard to this decision it is unnecessary for the court to consider the alternative orders sought in the notice of motion. The order of the Court: That paragraph (1) of the notice of motion is allowed and the application is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That paragraph (1) of the notice of motion is allowed and the application is dismissed. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 6 August 1995 Solicitor for the Applicant: Wilson Dowd 53-55 Davey Street, Hobart, 7000 Counsel for the Applicant: Mr A. Buckley Solicitor for the Respondent: Page Seager 162 Macquarie Street, Hobart Counsel for the Respondent: Mr F. Parry Date of hearing: 31 August 1995 Date of judgment: 31 August 1995