Russell Arthur Pearson v Aboriginal Housing Advisory Service Incorporated [1995] IRCA 686

CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - question of operative date of termination at the INITIATIVE OF THE EMPLOYER - application for EXTENSION OF TIME in which to bring proceedings. Industrial Relations Act 1988 ss 170CD(4), 170DC, 170EA(3) Siagian v Sanel Pty Ltd (1994) 122 ALR 333 AMPESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471. Byrne v Australian Airline (1995) 131 ALR 422 Hunter Valley Developments Pty Limited v Cohen [1984] 3 FCR 344. RUSSELL ARTHUR PEARSON V ABORIGINAL HOUSING ADVISORY SERVICE INCORPORATED

No DI95/1242 Before: Judicial Registrar Blokland Place: Darwin Date: 29 December 1995 REASONS FOR JUDGMENT

The application The applicant has filed an application seeking relief pursuant to s 170EA of the Industrial Relations Act. There are two preliminary issues raised at the directions hearing which I have been asked to resolve before embarking on the merits. It is convenient at this point to simultaneously dispose of those issues although in doing so I am aware that if the applicant fails on either issue, that is effectively the end of the matter. Having been asked to determine both issues, I will proceed to do so. First is the question of whether or not the Court has jurisdiction given the applicant was given notice in writing by way of a letter dated 28 March 1994. The relevant clause of the notice reads "4 (four) weeks written notification of termination of service under Section 14 (B) is hereby effective from COB 29/3/94". The question before the Court is "what is the operative date of termination?" This has significance given the relevant part of the Industrial Relations Act came into force on 30 March 1994. The second issue before the Court is whether or not the applicant should be granted an extension of time in which to bring the application, filed as it was, on 22 November 1995. The relevant date of termination The relevant part of the Act came into force on 30 March 1994. This problem has been the subject of detailed discussion: Siagian v Sanel Pty Ltd (1994) 122 ALR 333; AMPESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471. The applicant in this case argues that of the two relevant dates, being the 29 March 1994 or four weeks from then, being the 29 April 1994, the latter date should be considered the "termination day". The applicant, it is argued, could have kept the contract on foot by choosing to work the last four weeks, or presumably presenting and being "ready and able" to work. It is argued the applicant did not accept the notice as terminating the contract.