DECISION NO: 167/96 CATCHWORDS TERMINATION OF EMPLOYMENT - delay in bringing proceedings - application seeking an extension of time within which to file application - whether extension of time should be granted - principles to be applied for the granting of an extension of time Industrial Relations Act 1988 s 170EA Jacqueline Brodie-Hanns v MTV Publishing Limited, Industrial Relations Court of Australia, VI 1725R of 1995, Marshall J, 31 October 1995, as yet unreported, 5. No. TI 95/1256 ALBIN ERICH RICHTSTEIGER v CENTURY GEOPHYSICAL CORPORATION JUDGE: Marshall J PLACE: Adelaide DATE: 26 April 1996 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA ) ) DISTRICT REGISTRY ) No. TI 95/1256 BETWEEN: ALBIN ERICH RICHTSTEIGER Applicant AND: CENTURY GEOPHYSICAL CORPORATION Respondent JUDGE: Marshall J PLACE: Adelaide DATE: 26 April 1996 ORDER THE COURT ORDERS THAT: 1. The time for the filing of the applicant's application be extended to 7 September 1995. 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 ) ) SOUTH AUSTRALIA ) ) DISTRICT REGISTRY ) No. TI 95/1256 BETWEEN: ALBIN ERICH RICHTSTEIGER Applicant AND: CENTURY GEOPHYSICAL CORPORATION Respondent JUDGE: Marshall J PLACE: Adelaide DATE: 26 April 1996 EX-TEMPORE REASONS FOR JUDGMENT AS REVISED FROM TRANSCRIPT BACKGROUND - THE PROCEEDING On 7 September 1995 the applicant lodged in the Tasmania District Registry of the Court an application pursuant to s170EA Industrial Relations Act 1988 ("the Act"). The applicant alleged that he was employed by the respondent as a manager in 1986 and that his employment was terminated at the end of April 1995. He sought compensation and other relief in the associated jurisdiction of the Court. Although the applicant resided in South Australia and the respondent's head office was located there, the application was lodged in the Tasmania District Registry by the applicant's Hobart-based solicitor. When filing "a notice of employer's appearance", the respondent alleged that it was not the employer of the applicant but that the true employer was Schogar Pty Ltd ("Schogar"). On 28 September 1995, Judicial Registrar Parkinson made an order transferring the proceeding to the South Australia District Registry pursuant to Order 10, Rule 1(2)(f) of the Rules of Court. On 19 October 1995, Judicial Registrar Farrell referred the matter to the Australian Industrial Relations Commission ("the Commission") for conciliation. On 17 November 1995, Senior Deputy President Hancock certified that the Commission had been unable to settle the matter by conciliation. Certain procedural directions were made by von Doussa J on 19 December 1995. On 2 February 1996 his Honour ordered that the hearing proceed on 24 and 26 April 1996 up until the close of the case for the applicant, "and that the hearing then be adjourned to a date to be fixed so as to permit the respondent to make a submission of no case to answer, and have such submission determined, before calling ... evidence from any witness who resides overseas.". The making of an order in the terms set out above was advanced by the respondent and not opposed by the applicant. In fact, Mr Crotty who appeared for the applicant then and later before me, said that:- "I cannot see how that prejudices the applicant's case in any way." PRELIMINARY ISSUE - EXTENSION OF TIME When the hearing commenced on 24 April 1996, Mr Crotty made an application on behalf of the applicant for an extension of time within which to make the application under s170EA of the Act. At the time of the filing of the application s170EA(3) of the Act provided that an application must be made within 14 days after the employee receives written notice of the termination or within such further period as the Court allows. Written notice of the termination was received on 25 January 1995. The applicant sought an extension of the time within which the application may be made until 7 September 1995, i.e., the date of the filing of the application. The Court heard evidence and submissions on the matter from approximately 11.00 am to 1.00 pm on 24 April 1995. At 2.00 pm, after the luncheon adjournment, the Court announced that it would order that the time within which the application may be made would be extended to 7 September 1995 and that it would provide its reasons for so doing as soon as was reasonably practicable. The Court then proceeded to hear the applicant's evidentiary case until the conclusion that afternoon. What follows are the reasons of the Court for granting the extension of time under s170EA(3)(b) of the Act prepared with the benefit of the intervening Anzac Day holiday and delivered at 9.30 am this morning, 26 April 1996. As was agreed by counsel, the resolution of this matter is on the basis of an assumption that the applicant was an employee of the respondent and not Schogar. It is an assumption that is made only for the purposes of the application for an extension of time and in no way is indicative of any view of the Court on the issue of the identity of the employer of the applicant. The relevant principles which govern the Court's discretion to extend the time within which an application under s170EA of the Act may be lodged, are not in dispute. They are summarised in Jacqueline Brodie-Hanns v MTV Publishing Limited ("MTV"), Industrial Relations Court of Australia, VI 1725R of 1995, Marshall J, 31 October 1995 as yet unreported, at 5, where the Court said:- "1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2 Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion." ACCEPTABLE EXPLANATION Mr Schroeder, who appeared for the respondent, submitted that the delay in this case was unacceptable and that the period up to 2 August 1995 was a period in which the applicant should have made his application. No point was taken by the respondent about the period after 2 August 1995 because of the effect upon the applicant of a family bereavement. The evidence of the applicant is that he waited until the end of his notice period, then shortly thereafter, wrote to the respondent seeking an extension of his job. The applicant testified that it usually took about one month for the United States based chief executive of the respondent to reply to his correspondence. He also gave evidence that he was extremely upset by his termination and unable to speak to anyone about it until after August 1995. If one disregards the period up until the end of the notice period, it is clear that the delay in this case was acceptably explained. From 1 May to 11 May 1995, the applicant reflected upon his position, albeit in an environment of having lost a very senior position on, as the evidence shows, apparently little or no notice and with very little prospect of obtaining a like position elsewhere in Australia. It was reasonable for the applicant to wait until about mid-June 1995 for a response from the respondent. The six weeks' delay from mid June until very early August 1995, in the context of the anxiety being suffered by the respondent, is an acceptable delay in all the circumstances. Mr Schroeder submitted that the Court should take into account the period from 15 February 1995 to 30 April 1995 (the end of the notice period) when considering whether or not there is an acceptable explanation for the delay. Although the 14 day period in s170EA(3) of the Act runs from the date of receipt of written notice, in my opinion, where a relatively lengthy period of notice is given, it is possible that an applicant may be able to convince the employer during the notice period to retain her or him as an employee. This is especially so where, as was the evidence here, the applicant was engaged in work for the respondent during the notice period. In addition, in this case, I accept that the applicant was traumatised by the sudden loss of his position which made it extremely difficult for him to talk to anyone about it. In the circumstances, although not without some hesitation having regard to the relatively long period of almost 8 months between the receipt of the notice and the lodging of the application, I believe there is an acceptable explanation for the delay which makes it equitable to extend time in the exercise of my discretion to do so. OTHER FACTORS The other factors referred to in MTV are all neutral considerations in the instant circumstances. This is especially so regarding the topic of the merits of the application which the parties agreed would not be canvassed until after the Court had ruled on this matter. ORDER For the above reasons, the Court orders that the time for the filing of the applicant's application be extended to 7 September 1995. FURTHER HEARINGS The Court will now hear submissions from the parties as to whether the respondent should elect whether it wishes to call evidence before making its no case to answer submission. In light of the order of von Doussa J on 2 February 1996, I will invite the applicant's counsel to address the Court first on that issue. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 26 April 1996 Counsel for the Applicant: J Crotty Solicitor for the Applicant: James Crotty Counsel for the Respondent: R. Schroeder Solicitor for the Respondent: Knox Hargrave Date of hearing: 26 April 1996 Date of judgment: 26 April 1996