Zlatko Henry v Woolworths (Vic) Pty Ltd [1995] IRCA 648

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4211 of 1995 B E T W E E N : ZLATKO HENRY Applicant AND WOOLWORTHS (VIC) PTY LTD Respondent Before:Judicial Registrar Murphy Place: Melbourne Date: 5 December 1995 EX-TEMPORE REASONS FOR JUDGMENT The Court has before it two notices of motion. The substantive motion is that of the Applicant and is that pursuant to Section 170EA of the Industrial Relations Act ("the Act") he have an extension of time to bring these proceedings. The period of time that he seeks is an additional 37 days. The evidence before the Court is two affidavits of the Applicant and one from the union organiser, Mr Sadler ("Sadler"). In addition, there are two affidavits from representatives of the Respondent, including one from Mr Foxley ("Foxley") its Industrial Relations Manager. The Applicant was cross-examined on his affidavits. The evidence is in conflict as to the circumstances of events following the termination of the Applicant's employment on 19 June 1995. The issue in dispute is what impression the Shop Distributive and Allied Employees Union ("the Union") gave the Respondent about the issue of the Applicant's termination and his future with the Respondent. The Applicant gave evidence that he contacted his union to ask it to act on his behalf. It is common ground that the union, through two of its officers, Sadler and Mr Gazenbeek ("Gazenbeek"), attempted to have the Respondent withdraw criminal charges that it had asked the police to lay against the Applicant. The union was unsuccessful in achieving this result. It was the Applicant's evidence that he saw the whole of the issue of criminal charges and his reinstatement to his position as tied up together. The union referred him to its solicitors. The Applicant had arranged an appointment with a different firm of solicitors but was too stressed to attend. The Applicant did see the union's solicitors at the union office and was told that another solicitor from the same firm would be in touch with him. After a couple of weeks he contacted the solicitors and was told that they had, in effect, no record of his case. A short time after this he was advised by a friend that his present solicitors handled unfair dismissal claims. He went to see those solicitors and these proceedings were issued on 9 August 1995. The Applicant's evidence as to what he expected his union to do conflicts with the affidavit evidence of Foxley. His affidavit states that Gazenbeek indicated to him that the Applicant, after the Respondent refused to withdraw the charges, did not want his job back. This is contrary to the affidavit of Sadler who swears that after speaking to the Applicant:- "I took the view that if (the Applicant) was found guilty of the police charges he would have no basis for an unfair dismissal claim and that if he was found not guilty of the police charges I would be able to negotiate with (the Respondent) for (the Applicant's) reinstatement." Sadler also states that he advised the Applicant his reinstatement would be dependent upon the outcome of the police charges, he should just take action to avoid a conviction on the police charges, and he would deal with the unfair dismissal claim later. In evidence the Applicant maintained that he had lost confidence with both the union solicitors and the union when they were unable to further assist him. In evidence was a medical certificate indicating that the Applicant attended his general practitioner for stress on 20 June and 20 July 1995. The approach to be followed by the Court on an extension of time application under section 170EA has been the subject of consideration in a number of cases. Generally, the considerations discussed by Wilcox J, as he then was, in the case of Hunter Valley Developments v Cohen (1984) 3 FCR 344 have been applied. These considerations have been the subject of a gloss by way of comment by Keely J in the decision of Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186, 189 and also by Beazley J in Turner v K & J Trucks Coffs Harbour Pty Limited, (Industrial Relations Court of Australia, 10 August 1995). Applying the considerations here, the first issue is whether there is an acceptable explanation for the delay. The explanation given by the Applicant for the delay in taking these proceedings is just adequate. It is explicable to some extent by the stress he was suffering, as evidenced by the medical certificate. Further, it is explicable by his evidence that he saw the criminal charges and the loss of his job as bound up. It is reasonable to conclude that when the Respondent refused to drop the charges the Applicant saw a need to have the charges resolved before the next step was taken, namely, negotiation to reinstate him to his position. All this is consistent with Sadler's affidavit. The next issue is the merits of the application. It is undesirable that this be discussed in any detail. Manifestly, it could not be said that the application lacks merit where, on the Applicant's own evidence, a Magistrate's Court has dismissed the charges as trifling. Further, the Applicant, in his affidavit, indicates that he had not been the subject of any prior discipline proceedings. The final factor is the question of prejudice to the Respondent. The Court does accept that the Respondent has made some changes to its operation by replacing the Applicant and training his successor. This however is lessened as a factor when regard is had to section 170EE(1)(a)(ii) of the Act which gives the power to the Court to reappoint an Applicant to a position no less favourable than the previous position. It also has less weight given the size of the Respondent's operation. Balancing all these factors is always difficult. The balance here is in favour of an extension of time. The actual period sought is relatively short and shorter than the periods that have been the subject of extensions of time in other successful applications. The Applicant was under medical treatment. The Applicant contested the termination by reason of him seeking to use the union to have the charges dropped against him. On his own evidence he was, however, let down by his union. There was no evidence however that he had been advised by the union of the need to take action speedily under the Act. While the union could be deemed to know of the need to take such proceedings, the affidavit of Sadler was unchallenged and was to the effect that he would deal with reinstatement after the resolution of the criminal charges. Finally, it is not appropriate in this case to characterise the application as lacking in merit given the Applicant's good record and the outcome of the criminal charges. While there could be some prejudice to the Respondent by allowing the extension of time, I am not satisfied that this factor is such a decisive consideration, having regard to the other factors, that the extension of time should not be granted. MINUTES OF ORDERS THE COURT ORDERS: 1. The period that the time for the making of an application pursuant to Section 170EA of the Act be extended to 9 August 1995. 2. The Respondent's notice of motion dated 8 November is dismissed. 3. The matter be listed for trial on a date to be fixed. 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 four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 13 December 1995 Solicitors for the Applicant: Messrs Price Higgins Counsel for the Applicant: Mr S Stuckey Solicitors for the Respondent: Messrs Clayton Utz Counsel for the Respondent: Mr S Wood Date of hearing: 5 December 1995 Date of judgment: 5 December 1995