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T6179

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Miss Elly-Jean Sommer
(T6179 of 1996)

and

K.R. Corporation Pty Ltd
(trading as Tint-a-Car)

 

DEPUTY PRESIDENT ROBINSON

HOBART, 25 June 1996

Industrial dispute - termination of employment - extension of time granted

REASONS FOR DECISION

This matter concerns an application by Miss Elly-Jean Sommer for a hearing to settle an industrial dispute pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act).

The industrial dispute was said to be with K.R. Corporation Pty Ltd, ACN 068 634 757, trading as Tint-a-Car Launceston (hereinafter called Tint-a-Car), and concerned the alleged summary termination of Miss Sommer by the employer without proper or lawful cause. The application also alleged that the termination of services was unlawful and unfair and contrary to law.

This particular application was dated 22 April 1996 and received at the Tasmanian Industrial Commission, addressed to the President, on 24 April 1996.

Section 29 of the Act provides, inter alia:

"29 - (1) An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute that has arisen or the applicant considers is likely to arise.

(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of the employment of that employee.

(1B) An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment is to be made within 14 days of the day of termination."

Since the services of Miss Sommer were said to have been terminated on 15 January 1996 then the present application was made more than 14 days from that date. As a consequence of this the applicant sought an extension of time to allow for the filing of the application pursuant to Section 21(2)(m) of the Act.

Section 21 of the Act provides, inter alia:

"(1) Subject to this Act, the Commission may regulate its own procedure.

(2) Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it -

(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) ...
(i) ...
(j) ...
(k) ...
(l) ...

(m)  extend any time -

        (i) prescribed by or under this Act, except a time prescribed in relation to an appeal; or

    (ii) fixed by an order of the Commission;"

The jurisdiction of the Commission to extend time in relation to this application was not at issue so far as the parties were concerned. I am satisfied that jurisdiction exists based upon "Reasons for Interim Decision" issued on 18 December 1995 in matter T5797 of 1995, re Kerry Wayne Scott and Nubco Pty Ltd, Watling C., and I adopt those reasons. That decision had been provided to both parties for their information prior to the date of hearing.

The first matter which was at issue in the present case before me was whether I should exercise my discretion in favour of the applicant in the prevailing circumstances.

It was not in dispute that Miss Sommer had submitted an earlier application for a hearing1 pursuant to Section 29(1A) of the Act in relation to her alleged termination of services on 15 January 1996, based upon what would appear to have been a similar set of facts. That application was lodged within 14 days but was defective in that it named her employer as Keith Mulley (Franchise Holder, High Performance Parent Company) trading as "Tint-a-Car". However in the present application the employer is correctly described as K.R. Corporation Pty Ltd, a company in which Mr Mulley is named as a director.

On 10 April 1996 I issued "Reasons for Decision" supporting the dismissal of application T6052 of 1996.

In hearing the question as to whether a proper case could be made out sufficient to justify the exercise of my discretion to extend time pursuant to Section 21(2)(m) of the Act both parties produced witness evidence; relied upon reported cases in relation to the same issue; and put forward argument.

The applicant, Miss Sommer, said she had been employed by Tint-a-Car in Launceston towards the end of September 1995. After working there for two weeks she said she was sent on a training course in Perth, Western Australia for three weeks. She then returned to work at Tint-a-Car until 15 January 1996. It was alleged by Miss Sommer that another employee, Paul Fisher, who was said to be a foreman tinter and her immediate superior, was in an aggressive sort of mood all day on 15 January 1996 and in a conversation with her told her to: "Just get your stuff and f... off". She said she then said to Mr Fisher: "Do you want me to get my things and go?" And he allegedly then said: "Whatever - yes."

Miss Sommer said that following this conversation she gathered her bag and went to see Mr Glen Rainsford whom she said was the manager and told him that Mr Fisher had told her to go and asked what she should do. She said Mr Rainsford declined to comment and so after a brief interval she left.

Miss Sommer also said she listed Mr Keith Mulley as her employer in her first application for a hearing2 because she believed he was in fact her employer. And this conclusion was reached because his name was on a document received in connection with arrangements for a training course. However Miss Sommer was shown other documentation at the hearing which listed her employer as K.R. Corporation Pty Ltd. Under cross examination Miss Sommer acknowledged that there had been a meeting of staff called by Mr and Mrs Mulley before her services came to an end and staff had been told at that time that if employees had any problems they could go and see Mr and Mrs Mulley. The question as to who in the organisation could "hire and fire" employees was raised with Miss Sommer by Counsel for the employer but she denied that this question was addressed during the meeting.

Mr Keith Richard Mulley, a director of K.R. Corporation Pty Ltd gave sworn evidence concerning the calling of all staff together on Tuesday, 9 January 1996, when Miss Sommer was present. He said staff were told their jobs were safe and from then on there were no foreman tinters and no managers other than he and his wife. It was also said that if there were problems staff should see him, and that he and his wife were the only persons who could hire and fire.

In deciding whether or not to grant an extension of time in this matter I have accepted the fact that the Act provides in Section 29(1B) that applications are required to be made within the prescribed time and therefore I should not extend time unless a proper case has been made out. However I am satisfied that the applicant, Miss Sommer, as a person inexperienced in such matters, made a genuine error in the name of her employer when completing the first application form which, significantly, was lodged within the prescribed time but was dismissed for reasons given in matter T6052 of 1996.

I am also satisfied on the evidence before me that the applicant has made out at least an arguable case in relation to the dispute proper notwithstanding the presentation of some conflicting witness evidence.

Finally, I am of the view that in present circumstances, and given the fact that an earlier application gave notice to the correct employer of at least the likelihood of a pending industrial dispute, the respondent has not been prejudiced by the delay in making the present application.

For all of these reasons it is my decision to grant an extension of time pursuant to Section 21(2)(m) of the Act to allow this matter to be heard as to merit.

It should at the same time be noted that I intend returning the file to the President with a request that it be referred to another Commissioner for continuance.

 

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr S.J.N. Brown, of Counsel, for Miss E.J. Sommer.
Mr G. Richardson, of Counsel, for K.R. Corporation Pty Ltd (trading as Tint-a-Car).

Date and Place of Hearing:
1996
June 6
Launceston

1 T6052 of 1996
2 T6052 of 1996