T5738
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Arpad Ivan and Alan Barnett
Industrial dispute - alleged unfair dismissal - challenge to jurisdiction - jurisdiction not found - application dismissed REASONS FOR DECISION This matter concerns an application by Mr Arpad Ivan of Unit 2, 10 Medea Street, St Helens for a hearing pursuant to Section 29 of the Industrial Relations Act 1984 in relation to an industrial dispute. Written application by Mr Ivan was made on 9 August 1995 and received at the Commission the following day. Only very scant details of the circumstances of the dispute were provided with the application. The description of the dispute was provided by the following wording, quote:
Subsequently, on 17 August 1995 the matter was referred to me by the President for hearing and determination pursuant to Section 15(1)(d) of the Act. The first of two hearings at George Town was held on 20 September 1995, at which time Mr Ivan represented himself. He indicated that he had endeavoured to bring with him legal counsel but for some reason this arrangement had faltered and as a consequence he was forced to appear alone. Miss J Bourke of Counsel was granted leave of the Commission to appear and represent the employer, Mr Barnett, and Mr C Willingham appeared for the Minister for Industrial Relations and Training (the Minister) pursuant to Section 27 of the Act. Both Miss Bourke and Mr Willingham indicated that they wished to raise the question of jurisdiction and the legal capacity of the Commission to conduct a hearing and decide this particular application on merit. It was decided that since both agents were willing and prepared to proceed in relation to the threshold question at that time, then they would be granted that right, but that transcript would need to be provided to Mr Ivan's agent to enable him or her to respond on the next sitting day. Miss Bourke put a number of separate arguments in support of the argument that there was no jurisdiction to deal with the application. Firstly, it was argued that at the time of his alleged unfair dismissal in June 1990 the Act did not confer on Mr Ivan the standing to seek a hearing from the President pursuant to Section 29 of the Act. This she said was made clear in the matter of Gunn v Fahan School, Full Bench Decision1, 30 May 1994 at page 7. It was not until the enactment of the Industrial Relations Amendment Act 1994 (No 90 of 1994) that standing was given to a former employee (Section 29[1A]) and, it was argued, that the Act as amended could not properly apply to an alleged incident which occurred in June 1990, or indeed any time before that subsection came into effect. It was further argued by Miss Bourke that even if her first argument was not accepted and Section 29(1A) was relied upon because it gives standing to a former employee who has been dismissed, then again there was no jurisdiction because Section 29(1B) requires that an applicant seeking to rely upon Section 29(1A) must make application within 14 days of the day of termination. In this regard it was pointed out that Mr Ivan did not make application until August 1995, which was at least five years too late. The Commission drew the attention of Miss Bourke to the provisions of Section 21(1) and (2)(m) of the Act which provides as follows:
At first instance it was argued by Miss Bourke that if a discretion was available to the Commission to extend time in this matter, then such discretion should not be exercised in favour of the applicant because of the very long delay which had taken place. Later, supplementary argument was put to the effect that because of the manner of its defective drafting, and upon proper interpretation, Section 21(2)(m) of the Act did not confer on the Commission the right to extend the 14 day period stipulated in Section 29(1B) of the Act. This argument was supported by reference to the type of drafting contained in Part 5, Conduct of Appeals Before Appeal Tribunal, contained in the Resource Management and Planning Appeal Tribunal Act: reference to the case of Joseph v Davies, Supreme Court of South Australia, Hogarth J, SASR 86 at page 88; and reference to Glanville v Glanville, 1937, Crisp J, Supreme Court of Tasmania, 29 April 1937, Law Reports. In essence, the argument put was that case law supported the contention that the word "extend" is a term properly used to enlarge or give further duration to an existing right, but does not import the re-vesting of an expired right as would be the case in the present matter. Miss Bourke also put the argument that there was not enough (to support jurisdiction) if the connection between the subject of the dispute and the relationship of the employer and employee is remote or indirect, as was said to be the case in this matter. She said the decision in the Queen v Gozzi, Newtown Timber and Hardware Pty Ltd (A96 of 1994) Cox J, supports her position in this regard and relevant sections were quoted to the Commission. Further, and in the alternative, it was submitted by Miss Bourke that the application brought by Mr Ivan to this Commission is an abuse of process because he has already issued proceedings in the Supreme Court (number 407 of 1991). In that matter a statement of claim has been issued, a defence has been filed by the defendant and a request for further and better particulars has been made but there has been no response since April 1992. Miss Bourke said the Supreme Court matter was a claim alleging unfair dismissal by Mr Ivan. A further point of argument advanced by Miss Bourke was that according to the application before me, Mr Ivan does not seek reinstatement or re-employment and there is no view on which he would now be able to seek it because such a lengthy period of time has elapsed. Therefore it would appear that he only claimed compensation and because of that the Commission has no jurisdiction to entertain this claim. Reference was made to the Full Court of the Supreme Court of Tasmania decision delivered on 27 July 1995 in Newtown Timber and Hardware Pty Ltd v Gurr and Gozzi (A44/1995) to support this particular argument. Mr Willingham for the Minister provided argument to the Commission supporting a finding that the Commission possessed jurisdiction to hear the application on merit. In this regard Mr Willingham said jurisdiction depended upon the validity of the application within the provisions of Sections 20 and 21 of the Act. It was further submitted that much turned upon the wording and intent of Section 29 of the Act and the definition of "employee" as it related to termination of employment. He argued that notwithstanding the decision of the Full Bench of the Commission in the Gunn v Fahan School case2, an employee whose services had been terminated must have always had the right to reinstatement, otherwise Section 3(1) of the Act (definition of an industrial dispute) would be a nonsense. However to remove any uncertainty in this regard the Parliament amended the Act as from 16 December 1994 to reinforce the view that dismissed employees have the right to be heard if the circumstances were believed to be unfair. More to the point, it was submitted that it matters not whether the application before the Commission be viewed as being made pursuant to Section 29(1) or Section 29(1A), as the former was always available. Mr Willingham also pointed out that Mr Ivan's application made no mention as to the remedy sought as no reference was made to either reinstatement or compensation, but this should be no bar to the finding of jurisdiction. It was submitted the first issue that must be determined by the Commission was whether the allegation of unfair dismissal was well founded or not. He said the question of remedy flows from the provisions of Section 31(1) of the Act and I was therefore urged to hear the case (as to merit) and to do everything proper to give a just and expeditious hearing of the matter and to act with equity, good conscience and the merits of the case. Turning to the suggestion of a possible abuse of process on the basis of a matter relating to the same set of facts being currently before the Tasmanian Supreme Court, Mr Willingham submitted that was unrelated to the question of jurisdiction. It was rather, he said, a question of the exercise of the Commission's discretion as to whether or not it might be appropriate to adjourn Mr Ivan's application sine die whilst other proceedings are concluded. It was further submitted that I am not able to deal with the issue of the application being out of time until after the question of jurisdiction was determined as the question of calling into aid Section 21(2)(m) (discretion to extend any time) follows the establishment of jurisdiction. Mr Stanton of Counsel was granted leave to appear for Mr Ivan when the hearing resumed on 28 November 1995 and, having received previous transcript, argued in support of there being jurisdiction in the prevailing circumstances. Argument and precedent case references were relied upon to rebut submissions made earlier on behalf of the employer, going to the following issues:
Decision The original application made by Mr Arpad Ivan to the President related to an alleged unfair dismissal and also touched upon other issues including alleged non-payment of wages and alleged dangerous overloading of a boat ("Vendetta"). However the President's referral to me pursuant to Section 15(1)(d) of the Act concerned an industrial dispute with Mr Alan Barnett of Bridport re alleged unfair dismissal. It is to be noted that Section 29(1A) of the Act enables a former employee to apply to the President for a hearing before a Commissioner only in respect of an industrial dispute relating to the termination of the employment of that employee. The question of jurisdiction to hear and determine this matter was raised by the employer through counsel, and it is now that issue which I address. Counsel for Mr Alan Barnett argued that on a number of authorities earlier cited and on a number of separate grounds there was no jurisdiction for me to proceed to hear this matter as a valid industrial dispute. Counsel for Mr Arpad Ivan disagreed and argued the opposite case referring to decided cases also. The Minister for Industrial Relations and Training (the Minister), through his agent, exercised a statutory right to intervene in the public interest or otherwise pursuant to Section 27 of the Act and presented argument in support of the finding of jurisdiction in this matter. The competing arguments put by the three participants brought into sharp focus not only the findings of competent authorities quoted, but through the intervention of the Minister, the element of the public interest and much of the spirit and intent of the legislation as well as its proper interpretation and application. It is true to say that Mr Willingham placed greater weight and emphasis upon these issues than past decisions of the Commission as constituted by a Full Bench, a decision of the Full Court of the Tasmanian Supreme Court, and various other industrial tribunals and courts. The Minister's agent drew attention to and relied upon the provisions of Sections 20 and 21 of the Act as well as other matters. Section 20 provides, inter alia, that:
The Minister's reference to the requirements of Section 20 which places an obligation upon the Commission to act according to equity and good conscience and the merit of the case, without regard to technicalities or legal forms may perhaps be regarded as constituting a plea for the Commission to respond to perceived community expectations as to how a lay tribunal may have operated at another time when the Act proscribed legal representation. However in my view the provisions of Section 20 of the Act dictate how the Commission is to exercise its statutory obligations after jurisdiction is found, and not before. It is true that historically Tasmania has been the beneficiary of a stable industrial climate in which recourse to disruptive and harmful action, such as bans and limitations on work, or even strike action or lockouts has been kept to a low level and been, no doubt, the envy of other States and Territories. This desirable outcome may be attributable in a large part to parties having ready access to a State tribunal, a respect for its independence and impartiality, an acceptance of its decisons and, above all, a desire by employers, employees and their respective organisations to have day-to-day disputes emanating from the workplace dealt with on merit before they escalate and to preserve a harmonious work environment with its concomitant benefits. The thrust of the Minister's submission going to the resolution of industrial disputes in the public interest without regard to the technicalities or legal form could be taken as meaning perhaps a return to that era when jurisdictional arguments were far less common. As commendable as those philosophies and objectives may be the Commission is bound by the laws made by the parliament and interpreted and enforced by the courts. Whilst the Commission has been given a dual role in settling and preventing industrial disputes through conciliation or arbitration, it can do neither unless it is clothed with the necessary jurisdiction to do so. The Act defines an "industrial dispute" and "industrial matter" and there have been very clear pronouncements from competent authorities as to what is meant by such expressions. If it is the view of the Parliament that there are impediments in the way in which the State system of regulating industrial relations is intended to apply, then no doubt it will address the issue in some way. It follows from what I have said that I am bound to decide the threshold issue of jurisdiction to hear and determine the matter referred to me on a strict application of the law as it presently stands. The range of arguments presented by counsel for the employer granted to me the opportunity to respond to each at length. However since I have decided that in the circumstances of this matter there does not exist jurisdiction to proceed further on the basis of one important element, then no good purpose would be served by addressing other questions raised. I rely upon the uncontested fact that Mr Ivan's services were terminated by Mr Barnett in June 1990 and find that because more than five years elapsed before the present application was made, then the connection between the subject of the dispute and the relationship of employer and employee is now remote and indirect. In this regard I rely upon the case of the Queen v Gozzi, Newtown Timber and Hardware Pty Ltd (A96 of 1994) Mr Justice Cox, Tasmanian Supreme Court. In that matter Mr Justice Cox referred to the case of Slonim and Fellows (supra) in which Gibbs C J spoke of the necessity for the dispute to arise out of, or in the course of, the relationship between employer and employee as such. At page 508 he said:
Later in that matter Cox J said at page 7:
Whilst no guidance was provided by the Supreme Court judgement or the reference to Slonim and Fellows as to the period of elapsed time which should be used as a measure, I conclude that after five years plus, the relationship of employer and employee between Mr Ivan and Mr Barnett can no longer be regarded as anything but remote. For this reason the application by Mr Ivan is dismissed.
A Robinson Appearances: Date and Place of Hearing: 1 T No 4774 of 1993 |