BASTIEN - v - A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD [1997] IRCA 158

DECISION NO:158/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application under section 170EA lodged out of time - no order made extending time - whether justiciable application before the Court Workplace Relations Act 1996 ss 170EA(3)(a), 170EA(b), 170ED, 170ED(2) Carrasco v Kleenmaid Pty Limited (unreported, Industrial Relations Court of Australia, Moore J, 15 November 1996) Edwards v Commonwealth Bank of Australia (unreported, Industrial Relations Court of Australia, Moore J, 21 March 1997) Nelson v Scholle Industries (1996) 64 IR 9 ROBERT DOMINIC BASTIEN - v - A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD No. VI 1188 of 1997 Before: Judicial Registrar Millane Place: Melbourne Date: 13 May 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1188 of 1997 B E T W E E N : ROBERT DOMINIC BASTIEN Applicant A N D A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 13 May 1997 THE COURT DECLARES THAT: 1. Because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to section 170EA(3)(b) of the Workplace Relations Act 1996, the application to the Court is not duly lodged within the meaning of section 170ED(2) of the Act. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1188 of 1997 B E T W E E N : ROBERT DOMINIC BASTIEN Applicant A N D A.B.B. INSTALLATION - CONTRACT LABOUR PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 13 May 1997 REASONS FOR JUDGMENT The abovementioned proceeding was fixed for hearing before the Court on 13 May 1997 having previously been the subject of a directions hearing and telephone mention. On the return date the applicant appeared in person accompanied by a Court appointed interpreter and the respondent was represented by Mr Parry of counsel. The applicant seeks compensation alleging that on 12 September 1996 his employment with the respondent from 10 September 1996 was unlawfully terminated. The application made by the applicant and filed with the Australian Industrial Relations Commission (the Commission) on 4 December 1996 has attached to it a letter to the Commission from the applicant. In the section of the application where an applicant may seek an extension of time for lodging an application before the Commission, the applicant appears to have indicated by underlining the phrase "(or attached)" that he sought an extension of time to lodge the application with his reasons for doing so attached to the application document. The letter attached to the document does indicate a number of factual matters relevant to determining both whether pursuant to section 170EA(3)(a) of the Workplace Relations Act 1996 (the Act) there was written notice of termination and whether there was a reason or reasons for any delay in filing the application. On the return date Mr Parry initially made application to amend the title of the respondent to read "A.B.B. Industry Pty Ltd A.C.N. 000 390 536". This application was opposed by the applicant who maintains that the relevant employer is the respondent named in his application filed with the Commission and, so far as he was aware, at the date of hearing that entity was still a registered company. Clearly the identity of the true employer and the respondent to the proceeding is a matter which must be addressed in the proceeding. However, having noted the contents of the application and having further ascertained from the Court file that, apart from the certificate dated 3 February 1997 issued by the Commission pursuant to section 170ED of the Act following a conciliation conference, there was no evidence of any order being made granting or refusing any application to extend the time within which the application may be lodged, I took the view that I must first determine whether there was a justiciable application before me prior to hearing and determining any substantive claim and making any findings on the identity of the employer (see Carrasco v Kleenmaid Pty Limited (unreported, Industrial Relations Court of Australia, Moore J, 15 November 1996) and Edwards v Commonwealth Bank of Australia (unreported, Industrial Relations Court of Australia, Moore J, 21 March 1997)). Copies of the two decisions of Justice Moore were handed to the parties and the matter was stood down to enable the parties to read those decisions, to consider what evidence it was necessary to call and to obtain any instructions before addressing the Court further. On resuming the proceeding Mr Parry informed the Court that his instructions and the factual matters to which his witness would depose, indicated that there was no justiciable application before the Court. The applicant was invited by me on a number of occasions to give evidence on the preliminary issue only; that is to say, whether there was written notice of termination, an application to extend time for lodging his application and any orders made by the Commission granting or refusing such an application, if there was one. At this juncture, the applicant sought to adjourn the hearing date to obtain legal representation because he said he did not wish to give evidence without obtaining legal advice on these matters. This application for adjournment was opposed by the respondent. I refused the application by the applicant for an adjournment for a number of reasons. In my view it was not just and convenient to delay the matter further. The parties attended Court with witnesses on subpoena on 13 May 1997. At all times the applicant represented himself in this proceeding and was aware that it was necessary for him to give evidence in relation to all the issues relevant to determining his claim. The only evidence sought from the applicant if he chose to contradict any of the factual matters or the submissions made by the respondent to the Court on 13 May 1997, was in relation to the preliminary issue. That was evidence of factual matters that I expect to be within the knowledge of the applicant. If there was no contest on the factual issues relied on by the respondent to say there was not a justiciable application before the Court then, in view of the binding authorities of Justice Moore and, in particular, Edwards' case, I then took the view that there was nothing to be gained by delaying the determination of the preliminary issue. The applicant declined on a number of occasions the invitation to give evidence on the preliminary issue; although he did cross-examine the respondent's witness. It appears to have been accepted by both parties that the application filed with the Commission and the attachment to it forming part of the application, contained an application for an extension of time in which to lodge the principal application. Graham Blair Gardner (Gardner), who is the respondent's corporate industrial relations manager, gave evidence on behalf of the respondent. He told the Court that the applicant was employed by A.B.B. Installation & Services Pty Ltd between 10 and 12 September 1996 on which latter date the applicant's employment was terminated. The respondent relied on a number of documents to indicate that there was written notice of termination in accordance with section 170EA(3)(a) of the Act (Exhibits R1, R2 and R3) (for discussion of what amounts to written notice see Justice von Doussa's decision in Nelson v Scholle Industries (1996) 64 IR 9). Those documents comprise two employment separation certificates (Exhibits R1 and R3) dated 19 September 1996 and 14 October 1996 respectively. The employment separation certificates variously state that termination was due to "a shortage of work" and "unsuitability for this type of work". Exhibit R2 is a letter from the respondent's personnel consultant to the applicant dated 26 September 1996. In effect, this letter is a statement of service which Gardner told the Court he believed was sent to the applicant when the applicant sought a reference from the respondent through his solicitors. Gardner also expressed the belief that the two employment separation certificate documents were sent to the applicant by ordinary post. Exhibit R1 contains a hand written notation with a signature Gardner believed was that of the applicant. The notation reads: "To DSS, Information gieven (sic) by A.B.B. regarding my termination of work is not true. In reality it was an illegal dismissal and discrimination. Robert D Bastien" The evidence of Gardner provides a basis for arguing that there was written notice of termination. Gardner also told the Court that on 31 January 1997 he attended a conference with Commissioner Cribbs at the Commission. This conference was an attempt to conciliate the claim and did not deal with any application to extend the time for lodging a claim. The upshot of Gardner's evidence, even after cross-examination by the applicant who did not appear to seriously challenge the factual issues raised in Gardner's evidence, is that the Commission appears not to have dealt at all with any extension of time application. It is regrettable that the parties have come this far without resolution of the substantive claim. However, as was noted by Justice Moore in the Edwards' case, this Court does not have authority to deal with the application for extension of time and this is a matter which must be addressed by the Commission. Having heard the evidence and having heard from the parties generally, I informed the parties that my reasons for judgment would be handed down shortly and I made the following declaration that: Because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to section 170EA(3)(b) of the Workplace Relations Act 1996, the application to the Court is not duly lodged within the meaning of section 170ED(2) of the Act.