Kevin John THORPE V STATE TRANSIT AUTHORITY [1995] IRCA 724

DECISION NO: 724/95 CATCHWORDS INDUSTRIAL LAW - Termination of Employment - Extension of Time for filing Application - Reason for Delay Industrial Relations Act 1988 ss 170EA, 170EA(3). Turner v. K & J Trucks Coffs Harbour Pty Limited (unreported) Judgment No 360/95 No. NI 3119 of 1995 Kevin John THORPE -V- STATE TRANSIT AUTHORITY CORAM: LINKENBAGH JR PLACE: SYDNEY DATE: 13 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 3119 of 1995 BETWEEN: Kevin John THORPE Applicant AND: STATE TRANSIT AUTHORITY Respondent CORAM: LINKENBAGH JR PLACE: SYDNEY DATE: 13 DECEMBER 1995 REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) This is an Application pursuant to the provisions of Section 170EA of the Industrial Relations Act 1988. It comes before me today listed for the limited purpose of my determining whether or not I should exercise the Court's discretion to extend the time for filing of the application. Section 170EA(3) provides that an Application should be filed within 14 days after written notice of the termination is given. The written notice which is relied upon is a letter dated 22 March 1994 from the State Transit Authority to the applicant. I make no finding and have not addressed the issue of on what date the termination took effect because of the limited purpose for which the hearing today has been listed I consider it appropriate that I make quite clear that I have given no consideration and make no finding in relation to the date of termination. But for the Order that I am about to make, that issue would have been left to determination on the final hearing of the matter. From what I have said it is apparent that I am not going to exercise the discretion to extend the time for filing of this Application. My reasons are that the letter was, on the evidence of Mr Thorpe, received by him on about 4th or 5th April 1994. His evidence is that he knew of no reason why he should be retired on medical grounds and that he did not know and was not told what his rights were concerning the matter as at the time he received the letter. His Application to the Court is dated 23 July 1995 and was filed on 3 August 1995. The delay between the receipt of the letter and the date of filing is therefore approximately one year and four months. The matters which are relevant in applications of this kind have been stated by the court on occasions and in particular by Justice Beazley in Turner v. K & J Trucks Coffs Harbour Pty Limited (unreported) Judgment No 360/95 10 August, 1995. There must be, on any balance of the matters that I must consider, an explanation by the applicant for the delay. Mr Thorpe has sworn an affidavit and given evidence before me and been cross-examined. I can find little in that evidence to indicate that he took any real steps to exercise whatever rights he may have had in relation to the termination of his employment. He says in his affidavit that from April 1994 onwards he tried his best to get information explaining "retired - medically unfit". However, there is no evidence before me that he did anything immediately following the receipt of the letter. That must be seen in the context that he had been on sick leave since about November, 1994 and had whilst on sick leave been seen by a consultant psychiatrist and neurologist at the request of the State Transit Authority. In the light of that, his evidence to me is that he knew of no reason why his employment should be terminated, yet he did nothing of any substance immediately following the final decision to retire him. He was told in April on the telephone by the Depot Manager that he should pursue his rights under the Freedom of Information legislation and informed me that he did not act on that advice because he was unemployed and there would be a cost involved. He wrote to the Minister at some stage, I think his evidence in fact is that he wrote to three Ministers and on 10 August 1994 he received a reply which is exhibit 1. That reply made it clear to him that his retirement had been reassessed and that the decision would not be reversed or changed and it suggested to him that he should follow the appeal processes which were available to him. There is no evidence before me that he took any steps, even at that time, to follow up his appeal rights and I have no doubt that he would have had a right of appeal to the Transport Appeal Board in New South Wales. Mr Thorpe's explanation for his lack of action, at one stage, to me, was that he had reasons best known to himself and that those reasons were to do with the way that he was feeling. I can understand that Mr Thorpe would have had some personal reaction to the termination of his employment and the prospect of unemployment. However, I am of the view that if he was of the opinion that there was no reason for his termination and that he was concerned that the termination was not for a good reason, he would have done, at the time, more than he did do. He saw the Union and the Union took no action. The evidence before me in relation to why the Union took no action is incomplete but there is no evidence before me that Mr Thorpe took any real steps to pursue whatever he may have been entitled to from the Union or in any other way. It is of great significance to me that Mr Thorpe gave evidence that he found out about the Industrial Relations Court through the media, and that was in about November of 1994. He told me that he did not take any action at that time because he was not feeling too happy. That is, in my view, perhaps a reason for there to be another short delay after finding out that there was a possible avenue of redress with the Court but that does not explain a delay of a further nine months or so before the Application was eventually lodged. Because of my conclusion that there is an inadequate explanation for the delay, it is not necessary for me to address the other factors which may be relevant in applications of this kind and for those reasons I dismiss the Application filed on 3 August 1995. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Linkenbagh. Associate: Renee Cauchi Date: 2 May 1996 Appearances: Mr Thorpe in person Solicitor for the Respondent: Clayton Utz Counsel for the Respondent: Mr M Sweeney SC