Joseph Szabo v TT Line Company Limited [1995] IRCA 624

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Extension of time. Industrial Relations Act 1988, S170EA CASES: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 Coker-Godson v National Dairies (1995) 57 IR 186 Turner v K & J Trucks (Coffs Harbour) Pty Limited (unreported) IRCA (11 August 1995) Decision No. 360/95 Grout v Gunnedah Shire Council (1994) I IRCR 143 Mahnken v Saunders Logging Pty Limited (1994) 57 IR 237 JOSEPH SZABO v TT LINE COMPANY LIMITED No. VI-3332/95 Before: Ryan JR Place: Melbourne Date: 20 November 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-3332/95 B E T W E E N: JOSEPH SZABO Applicant AND: TT LINE COMPANY LIMITED Respondent RYAN JR MINUTES OF ORDER 20 NOVEMBER 1995 THE COURT ORDERS THAT: The motion seeking extension of time is dismissed and the application for remedy filed on 15 June 1995 is also dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-3332/95 B E T W E E N: JOSEPH SZABO Applicant AND: TT LINE COMPANY LIMITED Respondent COURT: RYAN JR PLACE: MELBOURNE DATE: 20 NOVEMBER 1995 APPLICATION FOR EXTENSION OF TIME The applicant has lodged a very late application for compensation for what he claims was the unlawful termination of his employment of head pantry man on the vessel, Spirit of Tasmania. The applicant today sought to amend the application so that it be an application for reinstatement. The amendment to the application to make it one of reinstatement is granted. The respondent, by letter dated 22 April 1994, exhibit JS1, advised the applicant that, following a thorough internal investigation of an incident involving a passenger on Tuesday, 1 March 1994, the applicant was dismissed from TT Line employment. The application for remedy and claim of unlawful termination of employment was not lodged until 15 June 1995. The principles relating to extension of time have been set out in the well known and often cited case of Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348. At 348, Wilcox J, as he then was, suggested the following principles to guide, not in any exhaustive manner, the exercise of Court discretion in applications for extension of time: "1 Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. It is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. It is a pre-condition to the exercise of the discretion in favour of an applicant for extension to show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. 2. Action taken by the applicant, other than by specific application, is relevant to the consideration of the question whether an acceptable explanation for delay has been furnished. 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. 4. Mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. 6. Considerations of fairness as between applicants and other persons otherwise in a like position, are relevant to the manner of exercise of the discretion." I propose to deal with each of these six criteria. 1. DELAY AND EXPLANATION OF DELAY In terms of section 170EA(3)(a) of the Industrial Relations Act 1988, the application is more than 13 months out of time. Strict compliance with section 170EA(3)(a) required the application to be made by 7 May 1994 as written notice of termination was received by the applicant on 22 April 1994. The application was, in fact, filed on 15 June 1995. The applicant, by way of his affidavit of 10 October 1995, and the documents exhibited to that affidavit, seems to claim that his union, the Municipal Union of Australia and, in part, the Maritime Council of Australia, are responsible for the delay in making the application under section 170EA. The applicant's affidavit of 10 October 1995 is imprecise or, at least, uninformative in a number of areas. The applicant seems to imply that he relied on his union for advice until an unspecified date in late May 1995 when, according to his counsel, but on this the affidavit is silent, the applicant consulted a solicitor. The applicant states that at the time of the termination, on 22 April 1994, he was on worker's compensation as a result of a recurrence of a work related injury to his back and the recurrence was sustained on the Spirit of Tasmania on 12 April 1994. He states, in paragraph 11 of his affidavit, that he contacted his union. He does not say when, but his counsel stated that it was shortly after receipt of the letter of termination of 22 April 1994. Paragraph 11 of the applicant's affidavit of 10 October 1995 reads as follows: "I contacted my union, the Maritime Union of Australia, but was told that there was nothing that could be done about the termination. I had been informed that the Victorian Police were considering charging me with assault based on information they had received from the passenger and other persons who claimed to be witnesses to the alleged incident. It is my belief that the company had informed the union about the alleged incident and the possibility of police charges being laid. The union informed me that nothing could or should be done until those charges had been heard. I had no reason to question this advice particularly as I was concerned with my injury and the effect it might have on my working life." In late June 1994 the applicant received a letter from the chairman of the Marine Council informing him that the Council proposed to inquire into his suitability to engage as a seaman following a report that on 1 March 1994 on board the Spirit of Tasmania, the applicant physically assaulted a passenger. On 15 July 1994, and the letter is exhibited, the applicant wrote to the chairman of the Council setting out his position. I have read that letter and, indeed, I have read with care all exhibits in this particular matter. In September 1994, the applicant received a further letter from the chairman of the Marine Council. The letter informed him that the Council will be considering some further documents in its deliberations. In paragraphs 18 to 22 of his affidavit, the applicant deposes as follows: "Subsequently criminal charges were laid against me by the Tasmanian Police. It was necessary for me to carefully prepare my defence especially as I believed, based on the information I had received from the union referred to in paragraph 11 of this affidavit which I have cited, that a favourable outcome in the Tasmanian Court would influence the process of obtaining reinstatement. I, therefore, gave little further thought to the processes of the Council. The charges were heard and determined as set out in paragraph 6 of the affidavit. After the Tasmanian Court decision, I made a number of attempts to contact the union to formally advise them of the decision and to reactivate the attempts to obtain reinstatement. On 3 May 1995, I spoke to a person I know to be a union official named Dick Ryan. I was advised that I need to speak with another official of the union, named Mick Dolman. I was unable to speak with Mr Dolman until 15 May 1995. I arranged an appointment for 16 May 1995. This took place at 10.00 am on that day. At that stage, the decision of the Council was not known so it was determined to await that before taking any action. On or about 29 May I received a letter from the chairman of the Council advising me that the Council had determined that I was "unsuitable for engagement as a seaman" effective from 25 May 1995. Now produced and shown to me and appended hereto and marked "exhibit JS5" is a copy of the said letter. Although the Council meeting which made the determination was on 25 May 1995, it is apparent from the chairman's letter that the decision of the Tasmanian Court was not taken into account by the Council in its deliberations. The effect of the determination is to make it illegal for me to work as a seaman in the Australian Merchant Navy or for any employer to engage me as such. In other words, my livelihood has been taken away. Prior to receiving the former advice from the Council, I had arranged to meet with Mr Dolman again on 5 June 1995. This appointment was cancelled at the behest of Mr Dolman and was rescheduled for 7 June 1995. The meeting took place but I was informed by Mr Dolman that there was nothing the union could do for me. I was advised that I could appeal for Council's determination in the Administrative Appeals Tribunal, but that the situation with the company was closed. I could not believe that that would be the case in view of the way my situation had been dealt with up till then and the fact that I had always been acting on advice in what I believed was the proper way to handle the matter. I had always believed that the matter with the company could be dealt with further and was stunned to be simply dropped at the end of the process. I consulted a solicitor, who urgently sought the advice of counsel. I was informed and believe that counsel advised that although my application to the Industrial Relations Court of Australia would be well out of time the Court has a discretionary power to extend the time to lodge an application where circumstances make it reasonable to do so and where other particular criteria are met." The Court notes that the applicant does not say when he consulted a solicitor but his counsel states that it was late May 1995. The applicant continues: "I have commenced proceedings in the Administrative Appeals Tribunal for a review of the Council's determination. However, those proceedings have been adjourned pending the outcome of the proceedings in this matter in the Court." The kernel of the applicant's explanation of reasonable delay emerges in the first four sentences of paragraph 23 of his affidavit of 10 October 1995 where he states: "If I had been properly advised at the outset I would have made application to the Court within the time prescribed by the legislation. However the action I took was based on advice I was receiving at the time. I had no reason to doubt that the advice so received was correct. At all times I believed I was taking appropriate action to challenge the decision of my employer." The Court is not satisfied that the applicant has presented a reasonable explanation for delaying his application to this Court until 15 June 1995. The applicant relies heavily on advice which, he claims, he received from his union on an unspecified date, probably, in late April 1994 and on 16 May 1995 and on 7 June 1995. No evidence has been tendered by the applicant from the union in support of his statements about the timing and nature of the advice he received. Furthermore, the applicant was legally represented in the Magistrates' Court in Devonport in February 1995 but no evidence is given by the applicant as to whether he sought any advice at that time about the termination of his employment on 22 April 1994. I am not satisfied that there is an acceptable explanation for the very long delay in this case. 2. ACTION TAKEN BY THE APPLICANT The applicant clearly contested and still contests the decision of the Marine Council that he was unsuitable for engagement as a seaman. However, the Court has no evidence before it that the applicant put the respondent on notice that he contested the specific dismissal of 22 April 1994. The Court accepts from correspondence from the respondent to the Council that the respondent opposed, and continues to oppose, any engagement of the applicant by rostering onto the vessel, Spirit of Tasmania. The Court assumes that the respondent knew that the applicant contested the Council decision but that does not constitute notice by the applicant or notice by the Council, or notice by anyone else that the applicant also contested and proposed to take action in respect of the specific dismissal of 22 April 1994. The action, which the applicant has taken and continues to take to contest the Council decision, does not justify an extension of time to bring this particular application under section 170EA into jurisdiction 13 months after the termination. 3. PREJUDICE TO THE RESPONDENT Counsel for the applicant asserts the acceptance of the application, which is now an application for reinstatement, does not create a degree of prejudice in defending the proceedings such as to constitute a material factor militating against the grant of the extension. The Court disagrees. The applicant was replaced by a relieving seafarer on or about 11 April 1994 and on 1 June 1994, a permanent seafarer was promoted to the position previously occupied by the applicant. In December 1994, the respondent reached agreement with the union for a reduction of seasonal manning. The Court accepts that the reinstatement of the applicant at this stage or in the near future or at any time might well have a disruptive effect and flow on to the casual pool of labour described in paragraph 23 of the affidavit of George Geoffrey Wood, Manager, Human Resources, TT Line. That is the affidavit sworn on 27 October 1995 and re-sworn recently because of minor technical defects with which counsel for the applicant take no objection. There is also the inevitable prejudice in the defence of the applicant's claim, given the stated ground of termination and the fact that the assault incident took place 20 months ago and has already been the subject of a Master's inquiry, a Marine Council inquiry and a two day hearing in the Magistrates' Court in Devonport. I have noted the apparent reluctance of certain witnesses to give evidence at any time let alone in this Court where a hearing might take place, if an extension of time was granted, in March 1996, two years after the event. 4. ABSENCE OF PREJUDICE Given a finding of prejudice to the respondent, this fourth principle is of no great relevance but, if it were to be later found that there was little or no prejudice to the respondent, Wilcox J observed in Hunter Valley Developments at 349 that a delay which may result, if an application is successful, in the unsettling of other people is likely to prove fatal for an application for extension of time. I find that such a delay in this case would be extremely unsettling. 5. MERITS OF THE SUBSTANTIAL APPLICATION Usually, at the time of consideration of an application for extension of time, I have found that I have not been in a position to express a view on the merits of the substantive application for remedy for unlawful termination. However, on this occasion, having read all the material tendered by the applicant and the respondent and, in particular, having read the written decision and reasons for decision of His Worship Magistrate T.J. Hill, exhibit GW8, I have substantial doubts as to the merits of the applicant's case. 6. CONSIDERATIONS OF FAIRNESS AND EQUITY I first doubted that this sixth criterion was of relevance in this case but I have decided it is relevant and that like all other five criteria, it applies in the respondent's favour. I accept the view of Keely J in Coker-Godson v National Dairies (1995) 57 IR 186 and Beazley J in Turner v K & J Trucks (Coffs Harbour) Pty Limited, (unreported) IRCA, (11 August 1995) Decision No. 360 of 1995, that prima facie, it may be easier to persuade a Court to accept a late application in the Division 3, Part VIA, Industrial Relations Act 1988 jurisdiction that in the circumstances of a administrative review as applied in Hunter Valley Developments. I also accept, without question, as Moore J said in Grout v Gunnedah Shire Council (1994) I IRCR 143 ct 160, that this legislation, that is Division 3, Part VIA, is beneficial legislation to be construed liberally. In terms of fairness and equity, the most liberal interpretation, in my view, does not warrant the execution of the discretion in favour of the applicant. I am conscious of what Northrop J said in Mahnken v Saunders Logging Pty Limited (1994) 57 IR 237. He said: "These are in 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." On the basis of all six criteria in Hunter Valley Developments, I am not prepared to grant the application for extension of time. I might add that I also note that the applicant has appealed to the Administrative Appeals Tribunal against the decision of the Marine Council and can pursue that appeal in another forum. I am not prepared to grant the application for extension of time. The motion seeking extension of time is dismissed and the application for remedy filed on 15 June 1995 is also dismissed. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 28 November 1995 Appearances: Counsel for the Applicant : Mr Bruce Shaw Solicitor for the Applicant : Haines & Polites Counsel for the Respondent : Mr David Bessell Solicitor for the Respondent : Page Seager Date of Hearing : 20 November 1995 Judgment : 20 November 1995