CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - WRITTEN NOTICE OF TERMINATION - Extension of time for filing application Industrial Relations Act 1988 ss 170EA John Nelson -v- Scholle Industries (unreported IRCA No. 588/95, 17 October 1995). Goulding and Transport Workers Union of Australia -v- Quality Bakers of Australia (unreported IRCA No. 10/95, 18 January 1995) Denave -v- John Stephens Catering Equipment Pty Limited (unreported IRCA No. 243/95, 6 June 1995). KATIE CAIRNS -v- TOFU PTY LIMITED No. NI 1508 of 1995 COURT: LINKENBAGH JR PLACE: SYDNEY DATE: 13 DECEMBER 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1508 OF 1995 BETWEEN: KATIE CAIRNS Applicant AND: TOFU PTY LIMITED Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) 13 December 1995 Linkenbagh JR This is an application under the provisions of Section 170EA of the Industrial Relations Act, 1988 ("the Act"). The application comes before me today listed specifically for the hearing the issue of whether or not the applicant should be granted an extension of time in which she would have filed her application. Section 170EA(3) of the Act provides that an application must be made within 14 days after the employee receives written notice of the termination. The matter has proceeded to date in several Directions Hearings before the Court and proceeded for part of the hearing before me this morning on the basis that written termination of the employment had been given. The documents on which the applicant relied to assert that there had been written notice of termination were not annexed to her application, although she ticked the box on her original application which indicated that written notice had been given. It became apparent on the documents produced before me in the course of argument this morning and some short evidence by the applicant in the witness box, which was terminated prematurely, that there was a real issue in the matter as to whether or not written notice had, in fact, been given. It is my finding the written notice was not given. The relevant facts are that on 22 September 1994 the applicant was given, in the morning, a memorandum which set out some matters which in the opinion of her employer, as expressed in that memorandum, constituted grounds for summary dismissal, and she was asked to attend a meeting later that day. The meeting took place and at that meeting the employment was terminated. The applicant was paid her entitlements the following day. The payment of those entitlements was accompanied by a handwritten document as written notice of termination of employment and it has not been argued before me that it was. Nor has it been argued before me that the memorandum which preceded the meeting on 22 September 1994 constituted written notice of termination. Both parties conceded that it was not. The respondent argues that what was written notice of termination was a letter dated 4 October 1994, which is exhibit 2. Counsel for the respondent argued that an employer can give written notice of termination after the event and that the meaning of those words in section 170EA(3) allows a document which comes into existence after an oral termination of employment to be written notice for the purpose of that section. I cannot accept that in the circumstances of this case the letter of 4 October could constitute written notice. I am assisted in the law of the matter by a decision of His Honour Justice von Doussa in John Nelson -v- Scholle Industries (unreported IRCA No. 588/95, 17 October 1995). In that case the applicant received two documents, one at the time of termination and the other, being the Department of Social Security Separation Certificate, a day or two after the termination. His Honour expressed the view that both of those documents were written notice of termination in the circumstances of that case. His Honour referred to the words of Judicial Registrar Farrell in Goulding and Transport Workers Union of Australia -v- Quality Bakers of Australia (unreported IRCA No. 10/95, 18 January 1995) in which the Judicial Registrar said this: "In my view, a written notice should be clear and unequivocal in advising the applicant that his employment is being terminated and on what date. It should be addressed to the applicant and it should be signed by the respondent or a person employed by the respondent having the appropriate authority to terminate the applicant's employment. It is also preferable that the notice should spell out the reasons for the termination of employment." His Honour did say that it was not appropriate in the matter that he was hearing to undertake a close analysis of the correctness of the tests set by Judicial Registrar Farrell, but given that his Honour quotes those tests and then deals with the application before him in their context, I accept that the Judicial Registrar's words should be of some assistance to me in this matter. I am also assisted by the decision of Judicial Registrar Parkinson in Denave -v- John Stephens Catering Equipment Pty Limited (unreported IRCA No. 243/95, 6 June 1995). Judicial Registrar Parkinson considered the relationship of the words in the Convention concerning Termination of Employment in relation to the giving of written notice and refers to some authorities in relation to the meaning of the expression "notice" and "written notice" saying: "To a large measure the expression has been interpreted as not relying on any actual state of knowledge in the person who is to receive the information provided but rather that the fact that the subject matter of the notice, in this case, the termination of the employment, has been brought clearly to his attention. I am not convinced that such an approach to interpreting the Industrial Relations Act 1988 is entirely appropriate. However, in this case, in any event, it could not be said that the subject matter of the document provided to the applicant was that of the termination of the employment of the applicant at the initiative of the employer, or that the document constituted anything other than a summary of amounts paid by the respondent to the applicant." This is a case where the Judicial Registrar was considering a document in the nature of a summary of termination payments. Judicial Registrar Parkinson goes on to say: "The use of the words "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 spelt out in any document which purports to be a written notice of termination for the purposes of section 170EA(3)." The decisions are of limited assistance as each matter must be determined on its own facts. I note that the Macquarie Dictionary gives several meanings for the word "notice". (1) Information or intelligence: to give notice of a thing. (2) An intimation or warning. (3) A note, placard or the like conveying information or warning. (4) A notification of the termination at a specified time of an agreement as for renting or employment given by one of the parties to the agreement. It is my view that the word "notice" implies and means that it is notice of an event which is about to happen, or which is to happen in the future and the notice must be contemporaneous with the action and at the very most, if a written document is to be relied upon as written notice, it must be contemporaneous or come into existence very shortly after the act of termination itself. It must be for the purpose, or one of its purposes must be, that of conveying to the person to whom it is addressed the intention to terminate the employment or the fact of the termination of the employment. Turning to the facts in this matter, the letter of 4 October 1994 has a purpose which is clear on its face. Page 2 of the letter reads, after having set out the history of the meeting which occurred on 22 September: "Having given you an opportunity to explain yourself in respect of all of those matters, the partners consider that your explanations were inadequate and unsatisfactory. The partners told you so and the partners of this firm then dismissed you. You have asked us to confirm in writing the grounds for your dismissal. In response to that we say that we made it perfectly clear to you in our meeting the reasons for your dismissal. The explanations that you gave us in respect of the eight matters were inadequate and unsatisfactory. Nevertheless at your request we propose to reiterate for you so that there is no doubt the reasons why your explanations to us were unsatisfactory and inadequate." That is the purpose of the letter, and: "However, we are of the opinion that the matters set out here together with other matters we have previously raised with you amount to conduct on your part which left us with no alternative but to summarily terminate your services." The purpose of this letter was to write a response to a request by the applicant, for confirmation of the reasons for the termination of her employment. The letter was not intended to be, and cannot be construed as being, notice of the termination of the employment which had taken place many days before. It is not necessary for me to consider the issue of the extension of time for filing of the application. The order I then propose to make is that the matter be fixed for hearing before a Judicial Registrar other than myself. I think that is appropriate given the informal way in which information has been received by me today and the interests of justice probably dictate that it should be heard by another Judicial Registrar. I will not give you a hearing date. I will order a timetable for affidavits. I expect that it will be strictly complied with. There is an allegation in the papers that the applicant has been very tardy about complying with orders in the past. No further time will be tolerated in this matter in that regard and I will expect that the timetable be complied with. The orders that I foreshadow, therefore, subject to anything either of you wish to say, are: 1. The matter is to proceed on affidavit evidence with oral cross-examination. 2. The applicant is to file and serve affidavits as to the evidence-in-chief of any witness on whose evidence she proposes to rely by 4pm on Thursday, 25 January 1996, 3. The respondent is to file and serve affidavits as to the evidence-in-chief of any witness on whose evidence it proposes to rely, and in reply by 4pm on Friday, 1 March 1996. 4. The applicant is to file and serve affidavits in reply by 4pm on Friday, 15 March 1996. 5. The matter is listed for further directions at 9.30am on Monday, 18 March 1996. 6. All procedural orders which have not been complied with are vacated. I make the following notes: 1. I expect strict compliance with the timetable; 2. The matter is to be listed for hearing before a Judicial Registrar other than myself I certify that this and the preceding eight (8) pages are a true copy of the reasons for Judgment of Judicial Registrar Linkenbagh. Date: 18 January 1996 APPEARANCES Counsel for the applicant: Mr P Barnes Counsel for the respondent: Mr R Desiatnik Solicitors for the respondent: Bingham Turnell Corah INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1508 OF 1995 BETWEEN: KATIE CAIRNS Applicant AND: TOFU PTY LIMITED Respondent BEFORE: LINKENBAGH JR PLACE: SYDNEY DATE: 13 DECEMBER 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The matter is to proceed on affidavit evidence with oral cross-examination. 2. The applicant is to file and serve affidavits as to the evidence-in-chief of any witness on whose evidence she proposes to rely by 4pm on Thursday, 25 January 1996, 3. The respondent is to file and serve affidavits as to the evidence-in-chief of any witness on whose evidence it proposes to rely, and in reply by 4pm on Friday, 1 March 1996. 4. The applicant is to file and serve affidavits in reply by 4pm on Friday, 15 March 1996. 5. The matter is listed for further directions at 9.30am on Monday, 18 March 1996. 6. All procedural orders which have not been complied with are vacated. Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules