CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - APPLICATION FILED OUT OF TIME - EXTENSION OF TIME SOUGHT
INDUSTRIAL RELATIONS ACT 1988 , s170EA
Transport Workers’ Union of Australia v National Dairies Limited (No.2) (1994) 57 IR 186
INGRID BLANCH v TJUWANPA RESOURCE CENTRE INC
No. DI 95/1025
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 3 AUGUST 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. DI 95/1025
QUEENSLAND DISTRICT REGISTRY
BETWEEN: INGRID BLANCH
Applicant
AND: TJUWANPA RESOURCE CENTRE INC
Respondent
MINUTE OF ORDERS
CORAM: BOULTON JR
PLACE: BRISBANE (HEARD IN DARWIN)
DATE: 3 AUGUST 1995
THE COURT ORDERS THAT:
1. The time for filing the substantive application be extended to 16 February 1995.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. DI 95/1025
QUEENSLAND DISTRICT REGISTRY
BETWEEN: INGRID BLANCH
Applicant
AND: TJUWANPA RESOURCE CENTRE INC
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN DARWIN)
DATE: 3 AUGUST 1995
REASONS FOR JUDGMENT
These reasons are common to this application, and DI 95/1024, and should be read as such.
Each applicant seeks an extension of time within which to file an application for relief in respect of termination of employment by the respondent. The respondent opposes the extension sought.
The applications for extension of time are dated 14 February 1995, while the substantive applications were filed on 16 February 1995. It is common ground that the applicants received written notice of termination of employment on 16 September 1994.
I have considered the remarks of Keely J in Transport Workers' Union of Australia v National Dairies Limited (No 2), and his opinion that it may well be easier for an applicant, under para 170EA(3)(b) of the Industrial Relations Act 1988 (“the Act”), to persuade the court to allow a "further period" (for the making of an application) than it is for an applicant, under section 11 of the Judicial Review Act, to persuade the Federal Court, applying the principles referred to by Wilcox J in the Hunter Valley case.
Bearing these remarks in mind, and the Hunter Valley principles, I propose to grant the extensions of time sought. The following facts influence me in so doing:
1. The applicants' solicitor was ignorant of their rights under the Act until 12 or 13 December 1994 when she received advice from Counsel that he believed the applicants were already out of time to commence proceedings in this court. To that point the applicants' solicitor had believed their remedy was at common law. Since termination, she had had contact with the respondent but in respect of alleged outstanding leave and other entitlements, and not the dismissals, having been specifically instructed by the applicants to postpone raising the question of wrongful dismissal with the respondent until after these leave and other entitlements had been sorted out.
2. There is no reasonable explanation for the delay which then ensued until the filing of the applications for extension of time. The applicants' solicitor was tardy in following up Counsel for his advice as to the appropriate form with which to institute proceedings, and settled "pleadings"; likewise, Counsel apparently did not address his brief. The applicants' solicitor, having not received the requested advice from Counsel, did not brief other Counsel until 6 February 1995. New Counsel provided advice on 10 February 1995, and the subject applications were filed shortly thereafter.
3. As to prejudice occasioned by the delay, the respondent does not point to any specific prejudice. While it was said in submissions that other persons have been employed since in the positions formerly held by the applicants, I note that the applicants do not seek reinstatement.
4. In respect of the merits of the substantive applications, the applicants received notice of termination while on holidays interstate. The notice is directed to them as a couple, despite the fact that Mr Blanch is described as garage foreman and Mrs Blanch as bookkeeper. Mr Blanch, now almost 63, had worked for the respondent for almost 10 years, and Mrs Blanch, now 53, for 9 years. An Employment Separation Certificate for each applicant refers to "management restructuring" as being the reason for termination. The manager of the respondent has ticked the "no" box in answer to the questions on that form "Was employment terminated due to: Unsatisfactory work performance; Misconduct?"
In contrast, the letter of termination makes reference to "an unsatisfactory attitude towards Aboriginal people and problems experienced with satisfactory operation in the Garage and Associated Works Division" on the part of Mr Blanch. "Unsatisfactory accounting practices" are levelled against Mrs Blanch.
Despite the lengthy delay, I am satisfied in all the circumstances that it is fair and equitable in each case to grant the extension sought.
The orders I make are that in each case the time for filing the substantive application be extended to 16 February 1995.
I certify that this and the preceding TWO (2) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 3 AUGUST 1995
Counsel for the Applicant: Mr Spargo
Solicitor for the Applicant: Caroline Scicluna & Associates
Counsel for the Respondent: Ms Gearin
Solicitor for the Respondent: Dittons
Date of hearing: 13 July 1995
Date of judgment: 3 August 1995
