T12176
DECISION APPEALED SEE T12391
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute
Barry Lyle Kingston
(T12176 of 2005)
and
T & E Gadzinski, (Tomasz Gadzinski, Elzbieta Gadzinski)
|
COMMISSIONER JP McALPINE |
HOBART, 4 October 2005 |
Industrial dispute - alleged unfair termination of employment - threshold matter - exceptional circumstances not found - application dismissed
REASONS FOR DECISION
[1] On 22 July 2005, Barry Lyle Kingston (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with T & E Gadzinski, (Tomasz Gadzinski, Elzbieta Gadzinski) (the respondent), arising out of his alleged unfair termination of employment.
[2] The application was listed for hearing on 15 September 2005 (Conciliation Conference) at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania.
[3] Barry Lyle Kingston for himself. Mr T Gadzinski and Mrs E Gadzinski for the respondent.
[4] A threshold issue was raised that the application had been lodged out of time. I chose to hear argument around the threshold matter during this hearing.
[5] This matter concerns an application for an extension of time pursuant to s.29(1B) of the Act which reads:
"An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate."
[6] The application, pursuant to s.29(1A), lodged on behalf of the applicant was received in the Commission on 22 July 2005. The application seeks a remedy in relation to the applicant's alleged unfair termination of employment. The application is clearly subject to the time limit of 21 days specified in s.29(1B).
[7] There is no dispute the termination of employment took place on 28 March 2005, which renders the application 116 days out of time.
EXTENSION OF TIME PRINCIPLES
[8] Whilst there is little by way of guidance for a consideration of "exceptional circumstances" within this jurisdiction, there is ample authority on the principles and considerations relevant to extension of time applications generally.
[9] The common matters for consideration:
- The length of the delay;
- The explanation for the delay;
- The prejudice to the applicant if the extension of time is not granted;
- The prejudice to the respondent if the extension of time is granted;
- Action taken by the applicant to contest the termination, other than applying under the Act;
- Any relevant conduct of the respondent;
- The nature and circumstances of any representative error; and
- The applicant's prospect of success at the substantive hearing.
[10] These considerations are to be underpinned by the following principles:
- Prima facie the time limits should be complied with. There is public interest in the prompt institution and prosecution of litigation before the Commission;
- Ignorance of the law is no excuse;
- The onus rests on the applicant to demonstrate sufficient reason to justify an extension;
- Each case must be considered on its own facts and circumstance;
- The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;
- The discretion to allow out-of-time applications is directed towards ensuring that justice is afforded to both parties; and
- Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.
Industrial Relations Act 1984
[11] Prior to 1 January 2001, applications were required to be lodged within 14 days of the date of termination, with a discretionary power for the Commission to extend for "any further period the Commissioner considers appropriate in the circumstances".
[12] This section was amended by the Industrial Relations Amendment Act 2000 [No. 104 of 2000]. The time limit was extended to 21 days, with the power to extend only when the Commissioner "considers there to be exceptional circumstances".
[13] It is a common understanding Parliament intended, through the 2000 amendment, to both extend the time period and that more rigor be exercised in terms of granting an extension of time.
[14] The phrase "exceptional circumstances" is not defined and there is little guidance available in terms of authority. In Schwerin v Equal Opportunity Board and Others [1994 2 VR at 287] McDonald J noted the Oxford English Dictionary 2nd ed. definition of "exceptional":
"... of the nature of or forming an exception; out of the ordinary course, unusual, special ..."
[15] McDonald J went on to note with approval, the comments of Hedigan J in Owens v Stevens [unreported, 3 May 1991] who was considering the expression "exceptional circumstances" as appearing in Sch. 5 of the Magistrates Court Act. [Vic]:
"The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendants and the victims. It may be that circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious before essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."
[16] In light of these observations it would seem sensible to be guided by the principles established by the various industrial tribunals.
[17] For an application to be successful there would need to be an additional element, or elements, consistent with the ordinary and natural meaning of the word "exceptional".
FINDINGS
[18] I now apply the principles outlined earlier in this decision to the facts of this case.
[19] The application was lodged some 116 days out of time. This is a significant delay.
[20] The applicant asserted he sought legal representation and claimed that his representative was at fault for the late filing of the application. The applicant was afforded 14 days to provide the Commission with evidence of his assertion. He was unable to produce any evidence to substantiate this claim.
[21] I turn to the application of "exceptional circumstances" to the request for extension of time. As defined earlier; out of the ordinary, unusual, special. In the instant matter, failure of the applicant to lodge an application, in time, I believe, was not an exceptional circumstance.
[22] I find there is no case for an extension of time, based on the existence of "exceptional circumstances" therefore the application is dismissed, and I so Order.
James P McAlpine
COMMISSIONER
Appearances:
Barry Lyle Kingston for himself
Mr T Gadzinski and Mrs E Gadzinski for T & E Gadzinski, (Tomasz Gadzinski, Elzbieta Gadzinski)
Date and Place of Hearing:
2005
September 15
Ulverstone