PR940405 PR940405 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Darryl Fernandes and Bellawin Engineering Pty Ltd (U2003/6492) SENIOR DEPUTY PRESIDENT LACY MELBOURNE, 11 NOVEMBER 2003 Alleged unlawful termination of employment - application for extension of time. DECISION [1] The following reasons for decision is an edited version of the decision given in transcript on 24 October 2003. [2] Mr Darryl Fernandes (the applicant) commenced employment as a fitter and turner (tradesman) with Bellawin Engineering Pty Ltd (the respondent) on 28 April 2003. The applicant was permanently employed from that time until 1 September 2003. On 1 September 2003, the respondent terminated the applicant's employment for reasons of unsatisfactory work performance and attendance. The applicant denies that his work performance or attendance were deficient in any way. Mr Fernandes has applied to the Commission for relief in respect of the termination of his employment. [3] The respondent by its appearance, notice of which was apparently given on 10 October 2003, moved for dismissal of the application for want of jurisdiction. It contended that the application was lodged out of time and objected to the Commission extending the time for lodgement and to conciliation before determination of its objection. The applicant does not dispute that the application was lodged out of time, however he requests that the Commission extend the time for lodgement of the application, through the exercise of its discretion under s.170CE (7) of the Workplace Relations Act 1996 (Act). [4] The issue that arises for consideration is therefore whether the Commission should exercise its discretion to extend the time for lodgement of the application. Background [5] The respondent engaged the applicant as a fitter and turner at its Tullamarine factory on 28 April 2003. The applicant was required to carry out machinery work on manufactured products. The company was responsible for manufacturing and maintenance of biscuit machinery. It did this by re-conditioning old machinery and maintaining existing machinery. [6] On 1 September 2003, the applicant was called into the office for a general discussion. During that discussion Mr Frank Goodwin, the Company Director, suggested that the applicant had spent excessive hours on the sub-assembly of a "biscuit cutting assembly". The applicant disputed this. In his defence, he explained that the reason why some tasks took longer than others was that he was required to work without drawings. In these instances he was solely relying on the memory of one senior tradesman. Further delays resulted when certain parts that were manufactured in-house were incomplete. [7] Another issue raised at the meeting with Mr Goodwin on 1 September was the number of sick days taken by the applicant. The respondent claimed that the applicant had been absent from work for over seven weeks (a total of 35 days), out of 88 days of service. Although that was the claim that was made in the respondent's notice of appearance, in the course of the proceedings before me, the respondent said that the number of absent days was seventeen. [8] The applicant denied that he had been absent for this length of time. According to the application, his total absences were eleven days, but in the course of his submissions he in fact said that he had been absent for a total of ten days. He further stated that he had furnished Mr Goodwin with Doctor's Certificates when absent, copies of which were also provided to the Commission. These indicate that the applicant was absent from work ten working days and a further day to attend a funeral. This totals eleven working days. [9] At the conclusion of the meeting between Mr Goodwin and the applicant on 1 September, the applicant's employment was terminated and a Certificate of Service was issued on the same day. No prior warnings regarding performance, either verbal or written, were given to the applicant prior to the termination of his employment. Submissions and evidence: [10] There are a number of disputed issues of fact arising out of the submissions made by the applicant in person, who appeared in the proceeding before me and Mr DeCarteret who appeared as agent for the respondent. [11] It seems unnecessary for me to finally determine any of those matters. I am satisfied however, that the applicant during the course of his employment was absent for a total of at least ten working days, for which he provided medical certificates. If he was absent for any other days, they were days in respect of which he did not provide a certificate. There is no evidence before me about that issue and I make no final determination in relation to it. [12] On the issue of performance, again there is no evidence before me about that particular matter. [13] I have competing contentions about the applicant's performance. It does appear to me from the applicant's own submissions that during the course of his employment, he raised with the employer a number of issues about the materials that were being provided for work that was required to be done. It is also apparent to me that during the course of his employment he had been spoken to about the length of time that he was taking to complete his assigned tasks. The Commission's Discretion [14] The discretion conferred by s.170CE (7) as it is literally written is both expansive and generally at large. It must, however, be exercised consistently with the objects of the WR Act and in particular, the objects and purposes for which Part VIA was enacted. [15] The prima facie position is that the legislative time limit of 21 days should be complied with and an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise its discretion under s.170CE (7) in their favour. 1 Until the amendments to the WR Act on 30 August 2001, the primary consideration in making such a determination was whether it would be unfair to the applicant not to grant an extension of time. [16] In Telstra-Network Technology Group v Kornicki (Kornicki) 2 , the Full Bench laid down the following guidelines to assist members of the Commission in determining whether it would be unfair not to grant an application to extend time: A. Primary consideration should be given to two factors: " Is there an acceptable explanation for the delay? It would generally not be unfair to refuse to accept an application lodged out of time where no acceptable explanation for the delay exists: Alonzo v Harvey Norman-Fyshwick [Print P0319, 21 April 1997 per Ross VP; Watson DP and Gay C]. However, consistent with the view of Brooking J in Dix v Crimes Compensation Tribunal, while the existence for an acceptable explanation for the delay is relevant to the exercise of that discretion; and The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for the lodgement, however, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the application to establish that the substantive application was not without merit. B. Depending on the circumstances of a particular case, the provision of a `fair go all round' may also allow regard to be had to the following considerations: Whether the applicant actively contested the decision to terminate his or her employment prior to lodging the application for relief; and Prejudice to the respondent caused by the delay in filing the application. We note however, that these considerations are very much secondary in nature and are of themselves, unlikely to be determinative of an application." [17] Much debate in recent years, however, has centred around the narrower decision of Brodie-Hanns v MTV Publishing Ltd (Brodie-Hanns) 3 as it is said that the amendments to s 170CE (7) now prescribes the application of its principles in the following note: Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988. [18] In Brodie-Hanns, Marshall J, after referring to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen 4 , set out the following principles to be applied in the exercise of the discretion from that decision: (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 for the delay which makes it equitable to 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. [19] I have previously considered these respective tests in my decision in Pham Hwa Ngoc v Sneddon & Kingston Plastics Pty Ltd . 5 In that case I observed that the "Brodie-Hanns Note" , albeit in a slightly different form, first appeared in the original Bill as a note to a differently worded provision concerning extension of time, to that which now appears in the WR Act. The wording was subsequently altered as the Bill progressed through Parliament and has simply been reproduced in later reprints of the Act, despite subsequent amendments to s.170CE (7). [20] I further noted that the Brodie-Hanns decision itself was decided upon a different model and as such, its principles cannot merely be transposed under the current regime. [21] I am therefore of the view that the guidelines formulated in Kornicki provide an equitable and practical approach to the exercise of the discretion which s.170CE (7) confers on the Commission and as such, I adopt it. Was there an Acceptable Explanation for the Applicant's Delay? [22] The applicant is self-represented and first made inquiries of Wageline regarding his claim on 3 September 2003, that is two days after his employment was terminated. He was then referred to the Australian Industrial Relations Commission and, after further discussion with a representative from the Commission, received in the mail, an application form on 5 September 2003. [23] The applicant did not complete and return the form by post until 29 September 2003, that is some 28 days after the termination of his employment and seven days after the date on which the application or the time for the application expired. [24] The application was in fact received in the Registry on 2 October 2003. Asked in the course of his submissions before me about the reason or the explanation for his delay, the applicant said, and I quote: "No real reason" What are the Merits of the Substantive Claim? [25] On the merits of the substantive claim it appears to me that there are a number of aspects of the operation of the business of the respondent that gives rise for some concern about the way in which employees are required to do their work and the conditions in which they work. However, it also appears that during the course of the applicant's employment, he was absent from work on a number of occasions, ten of which he did at least provide certificates. [26] It is also apparent to me on the submissions made by the applicant himself, that during the course of his employment there was some dissatisfaction with his performance and he was in fact spoken to about the time in which he took to perform his duties. Although I think there may be some merit in the applicant's claim, I do not think it is substantial. Prejudice to the Respondent [27] It is not apparent that the applicant took any steps to inform the respondent prior to lodging the application in the Commission, that he was challenging the decision. In fact, he was specifically asked during the course of his submissions whether or not he had spoken to the respondent to express any objection or other discontent about the termination of his employment and he said that although he spoke to some employees in the company after the termination of his employment and asked about the whereabouts of Mr Goodwin, he did not do so on the basis that he was wishing to express any objection to the termination of his employment. Nor did he attempt to inform Mr Goodwin of his intention to take some action in respect of it. Conclusion [28] In all the circumstances of this case, I have decided that it is not appropriate to extend the time to receive the application. The application will therefore be struck out. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: Mr D Fernandes on his own behalf Mr M DeCarteret on behalf of Bellawin Engineering Pty Ltd Hearing details: 2003. Melbourne: October 24. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Telstra-Network Technology Group v Kornicki Print P3168. 2 Print P3168 3 (1995) 67 IR 298. 4 See note 4 above. 5 PR934744