DECISION NO: 719/95 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application to extend time for filing of application - application to strike out - whether separation certificate constitutes written notice of termination - leave to extend time. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170EB, 170EE, 170DB CEPU v Western Australian Specialty Alloys Pty Ltd and Skilled Engineering Pty Ltd (unreported, IRCA No. 571/95, Madgwick J, 12 October 1995) Tunnicliff v Bristile Limited (unreported, IRCA No. 449/95, Ryan JR, 28 April 1995) John Neale Nelson v Scholle Industries (unreported, IRCA No. 588/95, Von Doussa J, 17 October 1995 Denavi v John Stephens Catering Equipment Pty Ltd (unreported, IRCA No. 243/95, Parkinson JR, 6 June 1995) Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Michael Turner v K & J Trucks Coffs Harbour Pty Limited (unreported, IRCA No. 360/95, Beazley J, 10 August 1995) Oostra and Ors v Spastic Society of Victoria, (unreported, IRCA No. 125/95, Staindl JR, 31 March 1995) LEANNE MAY WILLCOCKS -v- MAKFREN HOLDINGS PTY LTD t/as CIRCUIT TECHNOLOGY (1990) - WI 1329 of 1995 BEFORE: BOON JR PLACE: PERTH DATE: 14 DECEMBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1329 of 1995 BETWEEN: LEANNE MAY WILLCOCKS - Applicant AND: MAKFREN HOLDINGS PTY LTD t/as CIRCUIT TECHNOLOGY (1990) - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 14 DECEMBER 1995 THE COURT ORDERS THAT: 1. The respondent's notice of motion to strike out the applicant's application for a remedy for unlawful termination of employment dated 3 April 1995 because of the delay in filing the application is dismissed. 2. The time for the filing of the applicant's application under Section 170EA be extended to and including 3 April 1995. 3. The matter be set down for a further directions hearing on Thursday, 18 January 1996 at 9.30 am NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1329 of 1995 BETWEEN: LEANNE MAY WILLCOCKS - Applicant AND: MAKFREN HOLDINGS PTY LTD t/as CIRCUIT TECHNOLOGY (1990) - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 14 NOVEMBER 1995 REASONS FOR JUDGMENT This is the hearing of two applications on notice of motion as follows: 1. An application by the applicant for an order that the time for the filing of the applicant's application pursuant to Section 170EA of the Industrial Relations Act 1988 be extended to 3 April 1995; and 2. An application by the respondent seeking an order that the Court strike out the applicant's application claiming a remedy for unlawful termination of employment dated 3 April 1995 because of the delay in filing the application. These two applications were heard together. There were two main issues before this Court as follows: (a) whether or not a copy of the Department of Social Security Employment Separation Certificate given to the applicant at the time of termination constituted written notice of termination within the meaning of those words in paragraph (3) of Section 170EA; and (b) if the employment separation certificate did constitute written notice, whether or not this Court should exercise its discretion to allow the substantive application to be made after the fourteen day time limit provided for by Section 170EA(3). BACKGROUND The respondent is a manufacturer of electronic circuit boards. The applicant was employed by the respondent from 1 July 1991 as a screen printer in the manufacturing process. The respondent terminated the applicant's employment on 16 September 1994. It was alleged that the applicant had sabotaged the respondent's manufacturing process which caused damage to the respondent's products. It was alleged that the applicant had added acetone to the ink used in the screen printing process. The effect of adding acetone to the ink was that it diluted the ink so as to make it unsatisfactory for use in the screen printing process. Members of the respondent's management interviewed several members of staff. The applicant was then called in to a meeting on 16 September 1994 and the allegation that she had sabotaged the respondent's manufacturing process was put to her. According to the respondent, the applicant did not deny the allegations and offered no explanation. The applicant was then advised that she was dismissed immediately without notice from her employment. In her substantive application filed in this Court the applicant states that she received no written notice of termination. It is common ground, however, that on 16 September 1994 the applicant was given a copy of the Department of Social Security Employment Separation Certificate which sets out the applicant's name, address, the date she started work with the respondent and the date she last worked for the respondent. The certificate states that the employment was terminated due to misconduct and that the employee did not cease work voluntarily. Under the heading "Give Reason for Voluntary Termination of Employment or for Unsatisfactory Work Performance" the employer's representative has written "wilful misconduct". The form sets out the name and address of the respondent and it is signed by Travis French, the Financial Controller of the respondent company. In an affidavit sworn on 3 April 1995 the applicant states that she denies that she was guilty of wilful misconduct. It appears from the applicant's affidavit that immediately after the termination she contacted her union's Assistant Secretary, Mr Jim Murie, and on 22 September 1994 he instituted an application in the Western Australian Industrial Relations Commission. That application sought a conference pursuant to Section 44 of the Western Australian Industrial Relations Act 1979. An affidavit of Mr Murie states that on 23 September 1994 he had a phone conversation with Mr Travis French during which Mr French threatened to go to the police if the union pursued its application of reinstatement of Ms Willcocks. Mr Murie's affidavit said that on 30 September 1995 a conference was held in the Western Australian Industrial Relations Commission before Commissioner A R Beech. During the course of the conference Mr Murie was advised by the Commissioner that "a more appropriate pathway was to use a Section 29 application rather than a Section 44 application". Mr Murie's affidavit states that accordingly on 5 October 1994 the earlier application was formally discontinued. On 12 October 1994 the union instituted an application in the Western Australian Industrial Relations Commission seeking an order relating to unfair dismissal pursuant to Section 29 of the Western Australian Industrial Relations Act 1979. On the following day, on 13 October 1994, two detectives from the Brentwood CIB came to the home of the applicant. They said they had a complaint from the management of the respondent. After Ms Willcocks' explanation to them the police officers said there was no need for them to press charges. Ms Willcocks' affidavit states that because of the Christmas holiday period the Western Australian Industrial Relations Commission was unable to hold a conference on the Section 29 application until 5 January 1995, at which time the matter came before Commissioner P E Scott. At the conference Ms Willcocks was represented by Mr Lovell from her union. Mr Lovell told the Commissioner that there had been no investigation or any proper investigation of the allegations against Ms Willocks and that if such investigation had been properly held, the company would have found that sabotage, if any, had been carried out by another person whose name would be produced in evidence at the hearing of the matter. The matter was set down for hearing before Commissioner Scott on 20 and 21 February 1995. On 8 February 1995, Mr Beros of the Chamber of Commerce and Industry which represented the respondent made an application in the Western Australian Industrial Relations Commission seeking an order for further and better particulars of "all general" allegations referred to in Ms Willcocks' Section 29 application. On 16 February 1995 an urgent conference was heard in the chambers of Commissioner Scott. It appears that at this conference Mr Beros raised the issue of whether the Western Australian Industrial Relations Commission had the jurisdiction to determine the matter under Section 29. Ms Willcocks' affidavit states at paragraph 16: "Mr Lovell on this basis informed the Commissioner that he felt he had no alternative but to discontinue the application within the State Commission and to take it into the jurisdiction of the Industrial Relations Court of Australia. Mr Beros and the representatives of the company were advised by Mr Lovell that he would be continuing to take action on my behalf in the Industrial Relations Court of Australia not only for unlawful termination but possibly in respect of breach of contract and other matters related to the dismissal." Ms Willcocks then instructed Mr Lovell to discontinue the action and asked him to proceed in the Industrial Relations Court of Australia. The Section 29 application in the State Commission was formally discontinued on 17 February 1995. It appears that in the weeks following 21 February 1995, Mr Lovell sought legal advice and prepared a statement of claim to allow Ms Willcocks to seek wider remedies. Apparently Mr Lovell engaged in research and was working on cases on behalf of the union in similar sorts of matters as a consequence of which certain questions of law were being referred as a special case to the full bench of the Industrial Relations Court of Australia. Those actions were CEPU v Western Australian Specialty Alloys Pty Ltd and Skilled Engineering Pty Ltd (unreported, IRCA No. 571/95, Madgwick J, 12 October 1995); and Tunnicliff v Bristile Limited (unreported, IRCA No. 449/95, Ryan JR, 28 April 1995) It was said that the questions stated in those cases were relevant to the application in this matter and to the courses of action which the applicant seeks to pursue. On 3 April 1995 Ms Willcocks filed an application under Section 170EA in the Industrial Relations Court of Australia. At the same time she filed the notice of motion that the time for filing of the application be extended. A copy of the statement of claim prepared by Mr Lovell states that the applicant is not seeking reinstatement but is seeking compensation under Section 170EE of the Industrial Relations Act. Further, Ms Willcocks is seeking damages for breach of contract to a total amount of $190,428. Ms Willcocks is also seeking damages for alleged unconscionable conduct on the part of the respondent. Further, the applicant is seeking damages for alleged defamation on the part of the respondent. On 9 June 1995 the respondent filed a notice of motion and supporting affidavits. That notice of motion sought in part that this Court strike out the applicant's application because of the delay in filing the application. It also sought an order that the Court decline to consider or determine the applicant's application because there is available to the applicant an adequate alternative remedy in respect of the termination pursuant to Section 170EB of the Industrial Relations Act. The matter came before Deputy District Registrar Richardson on 15 June 1995. She made orders that the matter be referred to a judge for determination of the question of adequate alternative remedy. The matter was heard by Justice Lee on 26 July 1995. His Honour handed down his Reasons for Judgment on 22 August 1995 in which he found that the provisions of the Industrial Relations Act 1979 (WA) did not constitute an adequate alternative remedy. There was a further directions hearing on 14 September 1995 at which it was ordered that on the notice of motion of the respondent filed 8 June 1995 the question of the applicant's delay in filing the application be dealt with at a preliminary hearing. That matter and the question of an extension of time were argued before me on 21 November 1995. WAS THERE A WRITTEN NOTICE OF TERMINATION? The fourteen day time limit for making an application in this Court only applies if the employee has received a written notice of termination. It is the argument of the respondent that the Social Security separation certificate constitutes a written notice of termination within the meaning of Section 170EA(3) of the Act. It is the argument of the applicant that this did not constitute written notice and that therefore there was no restriction on the time for the filing of an application in this Court. I referred both parties to the decision of his Honour, Justice Von Doussa, in John Neale Nelson v Scholle Industries (unreported, IRCA No. 588/95, 17 October 1995). In that case his Honour considered that another document (which is not relevant to the circumstances of this case) constituted written notice of termination. His Honour, however, went on to say that (at page 6-7 of the Judgment): "In my view the second document referred to at trial which the applicant received also constitutes written notice of termination. It is common ground that within the day or two following the termination the applicant was supplied by the respondent with a Department of Social Security form headed 'Employment Separation Certificate'. That document, like the previous one, had a dual purpose but in my view the fact that there is a dual purpose does not prevent the document constituting written notice for the purposes of paragraph 170EA(3)(a). The Employment Separation Certificate stated the employee's details including the applicant's name, his full address, the date when he commenced work and the date when he last worked. In its text the document posed the question 'Was employment terminated due to .............' and then sets outs under a number of bullet points, 'Shortage of work?' 'Unsuitability for this type of work?' 'Unsatisfactory work performance?' and 'Misconduct?', with boxes against each question to be ticked for a positive or negative answer. The form was completed with a tick answering 'yes' to the question 'Was the employment terminated due to unsatisfactory work performance?'. Then follows the further question and answer: 'Give reason for voluntary termination of employment or for unsatisfactory work performance: As per our Warning Procedure and Attendance Policy.' The document is signed on behalf of the respondent. In light of the conclusion that written notice was received by the employee it is necessary to consider whether the power given to extend time should be favourably exercised." Prior to the hearing of the notice of motion both parties were unaware of that decision. Not surprisingly, the respondent relies on the decision in support of its claim that the applicant in this case received written notice of termination. The advocate for the applicant sought to distinguish Nelson's case primarily on the basis of decisions of Judicial Registrars in this Court. It was also said that in the case of Nelson the employee was given verbal notice and some forewarning as to what was going to happen. The advocate for the applicant said that in Nelson's case there was clearly a line of information available as to what was occurring. It was said that this was not so in Ms Willcocks' case as the termination of her employment came without warning. Further, the advocate for the applicant relied on the decision of Judicial Registrar Parkinson in Denavi v John Stephens Catering Equipment Pty Ltd (unreported, IRCA No. 243/95, 6 June 1995). In that case, Judicial Registrar Parkinson stated at page 5 of her decision: "The Act contains at Section 170DB provisions in relation to the period of notice required to be given to employees in certain circumstances. To a large measure this section is concerned with the manner in which the amount of notice is calculated and the circumstances where notice is not required to be given. Regard is had to the reasons for the termination for the purposes of the calculation of the period of the notice entitlement, an example of this being the provision for no notice in circumstances of serious misconduct. It is clear that to effect a termination lawfully under this Act, notice of the type prescribed by Section 170EB (sic) must be accorded to the employee. It would be unusual outcome if the 'written notice' prescribed by Section 170EA(3) was satisfied by a document which contains no reference to the very matters prescribed by Section 170DB." The advocate for the applicant stated that as the respondent was arguing that no notice was required to be given by it under Section 170DB as it was alleged that the applicant was guilty of serious misconduct, any notice of termination to be effective should clearly set out the basis of the allegations of the serious misconduct. It was said that as this was not done in the separation certificate, the certificate itself did not constitute adequate written notice of termination. Although it is desirable for written notice to termination to clearly set out the reasons for which the employment has been terminated, I don't accept that if a written notice of termination does not set out in detail every allegation of alleged misconduct it is not an effective notice. In this case, the separation certificate referred to the reason for termination as being wilful misconduct. I accept that this view of effective notice goes against the thrust of some of the reasoning in decisions of Judicial Registrars of this Court in relation to effective notice of termination. However, I consider myself bound by the decision of his Honour Justice Von Doussa in Nelson's case and I am unable to distinguish this case. An employment separation certificate may constitute written notice but will, of course, not automatically do so in all cases. For example, the separation certificate may not have been provided to the employee even if it was completed by the employer. Alternatively, the certificate may not make it clear that the termination was at the initiative of the employer, for example where the certificate has been completed in such a way that it appears that the employee left the employment voluntarily. In this case, because of the decision in the case of Nelson, I am satisfied that the applicant did receive a written notice of termination within the meaning of Section 170EA(3)(a). SHOULD THERE BE AN EXTENSION OF TIME FOR THE FILING OF THE APPLICATION? In relation to the question of whether or not to grant an extension of time for the filing of the substantive application, the respondent adopted the principles set out by Wilcox J (as he then was) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. In Michael Turner v K & J Trucks Coffs Harbour Pty Limited (unreported, IRCA No. 360/95, 10 August 1995), her Honour Justice Beazley referred to those general considerations. I will not set out those considerations in full but broadly speaking they include the following: 1. The applicant for an extension of time must 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 the present proceedings, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is relevant. 4. The mere absence of prejudice is not enough to justify the grant of an extension. Public considerations often intrude in this context. 5. The merits of the substantial application are properly to be taken into account. 6. Considerations of fairness between applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion. On behalf of the respondent it was set out that there had been a four week delay in the filing of the application for unfair dismissal in the Western Australian Industrial Relations Commission. It was said that after the Commission proceedings were discontinued there was a further seven week delay until the filing of the application in this Court, which amounted to a total of eleven weeks' delay. The respondent stated that if one looks at the delay from the date of the termination until the commencement of the proceedings in this Court the passage of time is approximately seven months. The respondent referred to the case of Oostra and Ors v Spastic Society of Victoria, (unreported, IRCA No.125/95, 31 March 1995) in which Staindl JR held that a ten month delay between the letter of termination and filing the application was sufficient reason to strike out the application. In the meantime, the applicant in that case had pursued an application in the Victorian Industrial Relations Commission. The respondent stated that in this case there was a substantial likelihood of the witnesses' memories of the events having faded. It was said that the respondent was prejudiced by a material witness having left the country. Although the name of that witness was provided to this Court it was unclear what the thrust of his evidence would have been. The respondent further submitted that there would be an unsettling effect on the employees in the workplace of the respondent as the applicant had made allegations of impropriety. It was said that this amounted to real prejudice to the respondent if the matter was allowed to go ahead. Further, the respondent said that there was real merit in the respondent's substantial case. It was said that if this Court refused to allow an extension of time for the filing of the application that that would not be the end of the applicant's legal rights. The applicant would still have an opportunity to bring proceedings in the civil courts as the statement of claim in this matter alleged a breach of contract, defamation and unconscionable conduct. The representative for the applicant stated that at all times the respondent was aware that the applicant was challenging the termination. This was a difficult application and some parts of it have been a test case relating to the existence of an adequate alternative remedy in the State jurisdiction. It was said that this application has had a torturous history. The parties have continued in this application as though it were filed in time, and the parties have established present law in relation to the adequate alternative remedy. It was said that it was not as though the applicant was sitting on her hands, and as the applicant is no longer seeking reinstatement there would be no prejudice in the way the respondent's operations would continue if the application were to proceed. It was said that there was no evidence of a loss of memory and that the respondent's primary witnesses were still in Western Australia. There were serious matters to be tried and the applicant would suffer extreme prejudice if the application to extend time were not allowed as she would be denied a remedy. On the other hand, there was no evidence of real prejudice to the respondent. It was said that the applicant has been accused of industrial sabotage which is a very serious allegation and that she should be entitled to litigate that matter. The applicant's explanation for the delay includes the fact that several proceedings were instituted in the Western Australian Industrial Relations Commission and were discontinued once it was discovered that there was no jurisdiction. It was thought appropriate to consider the outcome of some test cases in this Court which had relevance to the substantive application in this matter before an application was filed. Further, it is clear that at all times the applicant was under the mistaken impression that there had been no written notice issued to her by the respondent within the meaning of Section 170EA of the Act. For this reason it was considered at all times that the fourteen day time limit did not apply in this case. Both parties were unaware of Justice Von Doussa's decision in Nelson's case and the representative for the applicant had at all times, perhaps understandably, understood that the Department of Social Security Separation Certificate did not amount to a written notice of termination because of the decisions of Judicial Registrars in, inter alia, the case of Denavi v John Stephens Catering Equipment Pty Ltd. In these matters one has to balance the interests of the parties. Because of the unusual history in this case, including the fact that other questions of jurisdiction have already been argued before this Court in relation to this matter, I am satisfied that the matters put forward by the applicant amount to an acceptable explanation for the delay in filing the application. I have taken into account that the matter has already proceeded in this Court for some time; that the respondent was made aware at all times that the applicant challenged the termination; that the applicant is no longer seeking reinstatement; that it is not possible to determine at this stage the relevant merits of the application as there appears to be a total conflict between the parties as to the facts surrounding the case; that although the respondent has one witness overseas the primary witnesses for the respondent are still within Western Australia; that any decision of this Court is not likely to unsettle people who have since been employed by the respondent; and that the delay is not such as to affect the memories of the people involved in this matter, particularly as the respondent was made aware shortly after the termination that the applicant challenged the decision. I hasten to add that I am concerned about the delay in this matter and this decision must not be taken as condoning substantial delays as a matter of course. This decision turns on the unusual facts in this case. I therefore make the following orders: 1. The respondent's notice of motion to strike out the applicant's application for a remedy for unlawful termination of employment dated 3 April 1995 because of the delay in filing the application, is dismissed. 2. The time for the filing of the applicant's application under Section 170EA be extended to and including 3 April 1995. 3. The matter be set down for a further directions hearing on Thursday, 18 January 1996 at 9.30 am. I certify that this and the preceding twelve pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon. Associate Date: Representative for the applicant: Mr A F Lovell, Communications Electronic Plumbing Union Representative for the respondent: Mr A J Smetana Chamber of Commerce and Industry of Western Australia Date of Hearing of the Notice of Motion : 21 November 1995 Date of Decision: 14 December 1995