MOONEY, V W & B MORIESON PTY LTD [1997] IRCA 186

DECISION NO:186/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -Review of Judicial Registrar's decision - Application for extension of time - Termination of employment without giving reasonable period of notice - Whether termination of employment was for a valid reason - Whether decision to terminate employment based on irrelevant considerations Industrial Relations Act (1988) Victoria v Commonwealth (1996) 138 ALR 129 Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Peter Vel v The Human Rights and Equal Oppotunity Commission (unreported, Federal Court of Australia, 16 April 1997) Kenefick v Australian Submarien Corporation Pty Ltd (No.2) (1996) 65 IR 366 Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 Grout v Gunnedah Shir Council (1994) 125 ALR 355 Davis v Portseal Pty Ltd (unreported, Industrial Relations Court of Australia, 10 April 1997) May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112 Brown v Power (1996) 66 IR 1 Shackley v Australia Croatian Club Ltd (1996) 141 ALR 736 Shackley v Australia Croatian Club Ltd (unreported, Industrial Relations Court of Australia, 24 April 1997) No. NI 4174R of 1995 LEISA JANE MOONEY V W & B MORIESON PTY LTD MOORE J SYDNEY 5 JUNE 1997

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 4174R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Leisa Jane MOONEY Applicant AND: W & B MORIESON PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 June 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The time for filing of the application be extended to 27 October 1995. 2. Order 2 of the orders of the Judicial Registrar made on 30 April 1996 be varied by substituting the sum of $6,000 for $5,460. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 4174R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Leisa Jane MOONEY Applicant AND: W & B MORIESON PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 June 1997 REASONS FOR JUDGMENT On 26 October 1995 Ms Leisa Mooney lodged an application under s 170EA of what was then entitled the Industrial Relations Act 1988 ("the Act") alleging that her employment with W & B Morieson Pty Ltd ("the Company") had been terminated on 20 September 1995 in contravention of provisions of the Act. The application was heard and determined by a Judicial Registrar who, on 22 April 1996, determined that the termination of Ms Mooney's employment involved a contravention of s 170DB, s170DC, s 170DE(2), s 170DF(1)(a) and s 170DF(1)(e). The Judicial Registrar determined there had been no contravention of s 170DE(1). The Judicial Registrar ordered the Company pay Ms Mooney $420 damages for contravention of s 170DB(2) and compensation under s 170EE(3) of $5,460. The Company sought a review under s 377 of the Act of the determination of the Judicial Registrar. While a review is a hearing de novo, it was agreed that it be conducted by reference to the evidence before the Judicial Registrar, that is, "on the papers". The hearing of the review was on 12 February 1997. Section 170DE(2) no longer has relevance as it is not a valid law of the Commonwealth: see Victoria v Commonwealth (1996) 138 ALR 129. The following are the relevant facts, though I will later deal expressly with several contentious issues concerning matters of detail. The Company traded under the business name of Warwick Morieson Optometry. As that name implies, it provided optometry services and the principal of the business was Mr Warwick Morieson. It carried on business in two locations in Sydney, one at Chatswood and the other in the city. Ms Mooney commenced employment as a receptionist/assistant on 21 September 1994 working at both practices. In November 1994 another receptionist, Ms Gurney, was employed by the Company to replace a receptionist who was leaving. On 30 March 1995, Ms Mooney injured her ankle while travelling home from work and was, for a period, incapacitated. She underwent a program of rehabilitation and recommenced working on 12 July 1995, though only at the city practice and her duties were limited. On 5 August 1995 she received a letter signed by Mr Morieson, dated 3 August 1995, informing her that her employment would be terminated on 2 September 1995. The letter made clear that this was necessary because the Company was selling the Chatswood practice, the sale would be completed "near the end of the month" and that the purchaser was making their own arrangements about staff. On 23 August 1995, Mr Morieson informed Ms Mooney that the sale of the Chatswood practice had been delayed and her employment would be extended by two weeks. On that date a reference was written for her by Mr Morieson in generally positive terms. On 28 August 1995 the Federated Clerks Union of Australia, New South Wales Branch, filed an application under New South Wales legislation concerning the alleged unfair dismissal of Ms Mooney seeking an order that the threatened dismissal not occur and seeking compensation in the sum of $10,946.00. The Judicial Registrar found that Mr Morieson became aware of the application before 2 September 1995. It appears to have been an uncontentious fact found by the Judicial Registrar that in mid September 1995 the settlement date for the sale of the Chatswood practice was agreed to be 22 September 1995. It also appears to have been an uncontentious fact found by the Judicial Registrar that after that settlement date had been decided upon, Mr Morieson told Ms Mooney she could work in the week commencing 18 September 1995 and, in due course, she was rostered to work on Tuesday 18 September, Wednesday 20 September and Friday 22 September 1995. On Tuesday 19 September 1995, Mr Morieson raised with Ms Mooney the proceedings under New South Wales law and Ms Mooney described him as having been extremely angry. This was not put in issue by Mr Morieson in his evidence. On 20 September, Mr Morieson and Ms Mooney had a further conversation. The Judicial Registrar found that Mr Morieson requested Ms Mooney change her rostered working day from the Friday to the Thursday and finish her employment on the Thursday. The Judicial Registrar noted that the Thursday was the first anniversary of her employment. The Judicial Registrar also appears to have found that Ms Mooney responded to the request by saying she had an appointment with a physiotherapist which she could not change. The Judicial Registrar found Mr Morieson then said the "you are finishing at 2:00pm. You can't work for me tomorrow and I don't need you on Friday, so you might as well finish up now." The Judicial Registrar concluded that this constituted a termination of Ms Mooney's employment at the initiative of the Company. On 21 September 1995, Ms Mooney saw a doctor who certified she was suffering from a respiratory tract infection and "will be/was unfit for work up to and including the 21/9/96". On Friday 22 September 1995 Ms Mooney attended the offices of the Company and received outstanding pay. It did not include any payment for notice. The settlement of the sale of the Chatswood practice did not take place that day. It had been deferred to 30 September and then 9 October 1995. It did not proceed on either day and settlement was ultimately effected on 1 December 1995. On 11 October 1995 the Company placed an advertisement in the paper seeking a receptionist. When asked why he had not contacted Ms Mooney to see if she wanted the job, Mr Morieson said that "it was (his) understanding at the time she was taking (him) to court and claiming $10,000". A receptionist was appointed on 23 October 1995 and continued working for the Company till approximately 15 December 1995. Extension of time The application under s 170EA was filed on 26 October 1995. At that time s 170EA 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 might allow. Counsel for the Company submitted that the letter of 3 August 1995 constituted written notice of the termination or, alternatively, that the separation certificate given to the applicant on 22 September 1995 constituted written notice of the termination. It was submitted that, on either approach, the application was filed more than 14 days after receipt of that written notice. Counsel for Ms Mooney submitted that neither is written notice, for the purposes of s 170EA. He went on to submit that even if either was written notice, time should be extended in the circumstances. It appears the Judicial Registrar took the view that it was not necessary to extend time because there had been no written notice received by Ms Mooney. It was in those circumstances that he went on, in substance, to decide her application in her favour, which has given rise to this review. Counsel for the Company submitted that in the absence of an adequate explanation for the delay, the discretion to extend time should not be exercised in favour of Ms Mooney. I am prepared to assume that written notice was received by Ms Mooney and that 14 days elapsed after its receipt before the application was lodged under s 170 EA. However, notwithstanding the submission of counsel for the Company to the contrary, this, in my opinion, is a case where the discretion to extend time should be exercised in favour of Ms Mooney. It was submitted by counsel for the Company that it is necessary for Ms Mooney to show an acceptable explanation for the delay: see Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 at 415. This approach has its recent origins in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. However it is not necessary in all cases for there to be an acceptable explanation before time is extended. This is illustrated by the observations of Branson J in Peter Vel v The Human Rights and Equal Opportunity Commission (unreported, Federal Court of Australia, 16 April 1997). Her Honour set out the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd (supra) and then said: "Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 noted that the first of Wilcox J's guidelines requires modification since the Full Court decision of Comcare v A'Hearn (1993) 119 ALR 85; that is, that it is possible that the justice of a particular situation might require an extension of time even when the applicant fails to give an explanation for the delay. Justice Hill in Kim Hyun Tai v Bolkus at 252 stated: "Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered. So, too, would failure to give any explanation at all. But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant [sic] for review." While there is no evidence of an explanation, in the sense of direct evidence as to why Ms Mooney took the time she did to lodge the application, there is evidence that on 28 August 1995 proceedings were commenced under state law by a trade union acting on her behalf. I think it might reasonably be inferred that the commencement of those proceedings distracted the applicant's attention from her rights under federal law. However even if such an inference cannot reasonably be drawn, I nonetheless consider that in the circumstances of this case time should be extended. It would appear that neither party insisted on the issue of extension of time being determined by the Judicial Registrar as a threshold matter. Accordingly, there were two days of hearing before the Judicial Registrar that, as earlier noted, have given rise to this review. Costs have been incurred on Ms Mooney's part in prosecuting her application before the Judicial Registrar and defending, in the review, the outcome she achieved before him. The delay in filing the proceedings under s 170EA was not great and the Company was plainly on notice that her ultimate termination might give rise to litigation. I propose to order that the time for filing of the application under s 170EA be extended to 27 October 1995. Alleged contravention of S 170DB Section 170DB precludes an employer from terminating an employee's employment unless the employee has been given a minimum period of notice which varies depending on the employee's period of continuous service. This qualification of the employer's right to terminate does not arise if the employee is guilty of serious misconduct. That proviso has no relevance in the present proceedings. Section 170DB does not require written notice and it serves an entirely different purpose to the provision in s 170EA concerning written notice which I have just discussed. Section 170DB provides: " (1)An employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or (b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period. (2) The required period of notice is first worked out using this table: Employee's period of continuous service with the employer Period of notice Not more than 1 year At least 1 week More than 1 year but not more than 3 years At least 2 weeks More than 3 years but not more than 5 years At least 3 weeks More than 5 years At least 4 weeks