Walker v Bartter Enterprises [2001] NSWIRComm 209

Industrial Relations Commission of New South Wales

CITATION : Walker v Bartter Enterprises [2001] NSWIRComm 209 PARTIES : Cody Keith Walker Bartter Enterprises Pty Ltd FILE NUMBER: IRC 125 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - application filed out of time - applicant advised by union of 21 day time limit - no advice to employer of intention to seek relief- inconsistency between affidavit and evidence - termination resulting from physical violence initiated by applicant - exercise of discretion to admit application out of time declined - application for relief denied. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/28/2001 DATE OF JUDGMENT: 09/10/2001

APPLICANT Mr P Kirsop Solicitor of Thompson Norrie Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Mr P Ludeke

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 10 September 2001 Matter No IRC 125 of 2001

CODY KEITH WALKER AND BARTTER ENTERPRISES PTY LTD

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 209

1 This matter was subject to arbitration proceedings on 28 August 2001 consequent upon earlier proceedings which determined that the matter could not be settled by agreement between the parties and which gave rise to directions for the filing and serving of statements of evidence. 2 On hearing Mr P Kirsop, Solicitor of Thompson Norrie Solicitors, appeared with and on behalf of Mr C Walker, the applicant. Mr P Ludeke appeared on behalf of Bartter Enterprises Pty Ltd, the respondent, with Ms C Boyd. 3 Mr Kirsop brought evidence from Mr C Walker, who was subject to cross examination by Mr Ludeke . 4 Prior to cross examination Mr Ludeke foreshadowed an application that the Commission not exercise discretion to admit the application out of time. 5 The incident precipitating the termination of Mr Walker's employment is described in paragraph 7 of his affidavit (ex 1) in the following terms: On the 12th December 2000 I walked past Joel Hartigan (a co-worker who was then standing next to a "kebab" machine which is a machine approximately six feet hight the first five feet from the ground of which is solid and of which one foot is a wire mesh protective screen, the mesh being approximately two millimetres thick and being so close that one cannot put one's finger through it). I tipped some cold water from the tray I was carrying down his boot. He made some comment (I cannot remember exactly what). I was then grabbed by Mark Jackson who held me from behind and said to Joel words to the effect "Here's your change you can hit him now". Joel did not hit me and after a moment or two Mark let go of me, Joel pushed me by putting his hand on my chest. I did the same to Joel and almost immediately Geoff Thompson (referred to above) came out of the boning room and said words to the effect "you two (pointing to Joel and I) are about to go to management. 6 In cross examination Mr Walker conceded that the tipping of water into Mr Hartigan's boot was preceded by a verbal exchange between them involving name calling and derogatory comments not detailed in his affidavit. 7 Mr Walker further conceded that the version of events given in para 7 of ex 1 involving him being grabbed by Mr Jackson was not that given to management during its investigation of the matter. The version offered during the investigation, which was revealed to be quite thorough, was that he and Mr Hartigan grabbed one another by the shirt front and pushed and shoved one another until separated by the supervisor, Mr Thompson. 8 Mr Kirsop put this as merely a scuffle. 9 In his affidavit Mr Walker made assertions that the practice of dunking continued and that other incidents of physical exchange between employees occurred and was condoned by management. 10 In other parts of exhibit 1 Mr Walker described the dunking of employees in a mobile water tank as part of resignation or retirement procedure, which he concedes management warned all employees should cease. 11 In all instances these assertions did not withstand cross examination, being revealed as hearsay and/or without foundation. 12 In cross examination by Mr Ludeke Mr Walker conceded that on termination of employment he immediately sought advice from the Australasian Meat Industry Employees' Union, Newcastle and Northern Branch ('the Union'). Mr Walker's evidence was that an official of the Union made enquiry into the matter on his behalf and on the following day, 14 December 2000, informed him that there was inadequate basis to pursue litigation in the matter. Mr Walker conceded that he was informed that he could pursue the matter independently if he chose and that he had 21 days from the date of termination of his employment in which to make an application. 13 At the conclusion of Mr Walker's evidence the parties made submissions in respect to the application being filed out of time. 14 In support of the application that discretion be exercised to admit the application out of time Mr Kirsop put that the delay of nine days is adequately justified by the intervention of the Christmas/New Year period. 15 Mr Ludeke put that no case had been made out for exercise of discretion, submitting that the applicant was made aware of his obligation to file in time and failed to do so. 16 At the conclusion of submissions an ex tempore decision was delivered in the following terms: HIS HONOUR: The onus is on the applicant to make out the case for the intervention of the Commission. In these proceedings the Commission is firstly asked by the respondent to consider refusal of an exercise of discretion to admit the application out of time, which is pressed by the applicant. In considering that matter I go to the length of delay, which is conceded to be approximately nine days, and the justification provided of the intercession of the Chrismas/New Year period. Ordinarily, and if that were the only circumstance relevant, the intercession of the Christmas/New Year period would be considered within discretion.