Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T7212

 

TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T8371

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

Terrence James Price
(T7212 of 1997)

and

Roadways Pty Ltd

 

DEPUTY PRESIDENT B R JOHNSON

HOBART, 17 February 1998

Termination of employment - circumstances disclose presence of industrial dispute within meaning of Section 3(1) of Act - submissions to contrary dismissed - application for extension of time pursuant to Section 21(2)(m) granted

REASONS FOR DECISION

On 1 September 1997 Mr T J Price, a mechanic, applied to the President for a hearing pursuant to Section 29(1A) of the Industrial Relations Act 1984. The subject matter of Mr Price's application concerned an alleged industrial dispute relating to the termination of his employment on 23 May 1997 by Roadways Pty Ltd. On 4 September solicitors representing Mr Price, Ware & Otlowski, lodged with me a written application, with reasons, for an extension of time pursuant to Section 21(2)(m)(i) of the Act. Ware & Otlowski subsequently substantially amended that application, for reasons that will appear later, by a further and supplementary application lodged on 23 September 1997.

At the outset Ms M Lyon, a legal practitioner who appeared by leave of the Commission for Roadways Pty Ltd, made it clear that the Company would vigorously contest both applications. She indicated that, as to the Section 29(1A) application, her client's assertion would be that it must fail for want of jurisdiction because:

(a) the application does not disclose on its face an industrial dispute within the meaning of Section 3(1) of the Act; and

(b) the claim by Mr Price for reinstatement, in all the circumstances, is not a bona fide claim.

Concerning the extension of time application Ms Lyon, relying on principles set out in Hunter Valley Developments Pty Ltd v Cohen,1 said the Company would submit that I should not exercise the Commission's discretion to extend time in this matter.

The arguments put to the Commission proceeded on the basis that the relevant statutory provisions for purposes of determining this application were those that obtained prior to commencement, on 28 June 1997, of the Industrial Relations Amendment Act 1997.2

At the preliminary hearings (11 and 25 September 1997) Ms A Valentine, a legal practitioner, appeared by leave of the Commission for the applicant. At the hearing of 7 November, which dealt with the threshold questions mentioned above, Mr W M Hodgman QC appeared by leave of the Commission for Mr Price.

An "industrial dispute" within the meaning of the Act?

Before the Commission can validly make an order pursuant to Section 31(1) of the Industrial Relations Act 1984, Ms Lyon contended, the Act requires the completion of a logical sequence of steps. That is to say, there must be:

(i) an "industrial dispute" as defined;

(ii) an application by a former employee pursuant to Section 29(1A) made within 14 days of termination of employment (or such other period of time as the Commission may determine pursuant to Section 21(2)(m)); and

(iii) a proper exercise by the President of his power under Section 29(2) to convene a hearing before a Commissioner.

Those are the same steps, Ms Lyon submitted, about which a Full Bench of the Commission in Capital Hill Corporation v Terence James O'Connor,3 observed that:

"We do not disagree with Mr O'Farrell's description of the elements that go to constitute a valid exercise of the Commission's jurisdiction under Section 31 of the Act."4

In short, Ms Lyon contended, an application to the President for a hearing pursuant to Section 29(1A) must prima facie disclose sufficient material to evidence the presence of an "industrial dispute" within the meaning of the Act. If it does not do so, Ms Lyon asserted, there is no basis upon which the President can convene a hearing before a Commissioner pursuant to Section 29(2) of the Act.

In the present case, Ms Lyon argued, the material before the President at the relevant time disclosed that it was an application made by a former employee, purportedly pursuant to Section 29(1A) of the Act. However, it merely described the circumstances of Mr Price's termination without specifying the nature of the relief or order sought from the Commission. That is to say, the application contained no mention of a claim for reinstatement or compensation instead of reinstatement or, indeed, for any other form of relief. In those circumstances, Ms Lyon submitted, there was a fatal flaw in Mr Price's application from the outset. That is so, she argued, because it did not disclose on its face an industrial dispute of a kind capable of enabling the President to convene a hearing pursuant to Section 29(2) of the Act.

In support of her contention Ms Lyon relied on the observations of Zeeman J in New Town Timber & Hardware Pty Ltd v Gurr,5 a judgment of the Full Court of the Supreme Court of Tasmania, where His Honour said:

"The second respondent [Gozzi C] made it clear that he considered that the dispute amounted to an industrial dispute for the purposes of the Act and that he had jurisdiction to give a direction pursuant to the Act, s31(1) that the appellant pay the first respondent a sum of money in settlement of the dispute. The learned primary judge, having identified the dispute in the way I have stated, held that the dispute was an industrial dispute for purposes of the Act. It is fundamental to the exercise of the powers conferred upon the President by s30 that he may exercise them not in respect of any actual or apprehended dispute but only if such a dispute is an industrial dispute within the meaning of the Act. If the President purports to exercise those powers in respect of a dispute which is not an industrial dispute then he acts without jurisdiction. A summons issued by him when he does not possess jurisdiction to issue it cannot operate so as to confer jurisdiction upon a Commissioner under s31(1). In any event the jurisdiction of the Commissioner to make orders under s31(1) is limited to making orders which concern the industrial dispute in respect of which the conference was convened."

In the present case, Ms Lyon submitted, all Mr Price's application did was raise the circumstances of his termination, without putting in issue the actual termination itself by way of a claim for reinstatement or some other form of relief. Consequently, in the absence of that essential element, the application on its face did not disclose the presence of any industrial dispute within the meaning of the Act. It follows, Ms Lyon continued, that there was nothing on which the President could act, by reason of Section 29(2), to refer the matter to a Commissioner.

In that sense, Ms Lyon went on, the facts of the current matter are distinguishable from Capital Hill, in which there was a clear claim for reinstatement or such other remedy as the Commission might think fit. The present matter, she said, is not unlike that of New Town Timber & Hardware, in which the claim was for compensation only.

In summary, Ms Lyon concluded, the facts of the matter show the President could not properly refer Mr Price's application to the Commission as presently constituted because, on its face, it did not disclose even a prima facie industrial dispute. That is so, Ms Lyon contended, because the application only stated the circumstances of the termination without claiming any relief whatsoever.

Nevertheless, if the Commission should find it has jurisdiction to hear the matter, the facts and circumstances do not disclose a bona fide "industrial dispute". In his initial application, Ms Lyon observed, Mr Price did not seek reinstatement - a position confirmed by Ware & Otlowski in their letter of 4 September 19976 which states inter alia, "... the applicant is not applying for reinstatement ..."

However, Ms Lyon continued, at the hearing on 11 September Ms Valentine sought and was granted leave to amend the application by deleting the "previous grounds" and substituting fresh grounds.7 Subsequently, by way of affidavit of 19 September lodged in support of his extension of time application, Mr Price changed his request for relief by stating that "I genuinely wish to be reinstated to my former position with the respondent".8 Ms Lyon conceded that Mr Price confirmed that position in cross-examination. Even so, she said, his further evidence is that at the time of his dismissal he was emotionally distraught and concerned about his finances9 and he acknowledged that, when he made his application to the President, he was seeking compensation.10

Those facts, when taken into account with "the way that the proceedings had been run to date",11 Ms Lyon submitted, show that Mr Price is not genuinely seeking reinstatement. He is doing so, she continued, only because it is necessary for the Commission to consider whether or not reinstatement is practical before it can entertain a claim for compensation. For that reason, Ms Lyon concluded, Mr Price's application is not a bona fide claim for reinstatement. As such, she continued, it could not constitute a genuine industrial dispute of the kind capable of giving rise to jurisdiction in the Commission to make an order pursuant to Section 31(1) of the Act.

In reply, Mr Hodgman submitted that as to jurisdiction the Commission correctly set out the law in Capital Hill which, he contended, contrary to Ms Lyon's submission, is on all fours with the present case.12 In any event, he went on, Zeeman J's observations do not reflect the majority judgment of the Full Court in New Town Timber & Hardware.

The facts surrounding the current application, Mr Hodgman continued, clearly show that Mr Price has established a prima facie case regarding jurisdiction, that is:

The respondent Company employed him as a mechanic;

He alleged it was not a condition of his employment that he should hold a current driver's licence;

On the day he was disqualified from holding a driver's licence (23 May 1997) the respondent Company terminated his employment;

After the intervention of Senior Counsel on his behalf (23 May 1997), asking that termination not occur or, if it had to occur, that he be re-employed, the respondent said it would reconsider its position;

On 26 May 1997 the respondent Company confirmed its decision to terminate his employment and indicated that he would not be re-employed.13

The facts of the matter, Mr Hodgman contended, show Mr Price claimed at a very early time, through Senior Counsel, that the Company should not terminate his employment or, if it did so, it should immediately re-employ him. Furthermore, he submitted, having regard to Section 31(1A) of the Act and "the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer" (the ILO Convention), it is arguable that there was:

(i) no valid reason, in terms of Article 4, for Mr Price's dismissal; and

(ii) no compliance with the procedural fairness requirements of Article 7.

Going to the genuineness of Mr Price's claim for reinstatement, Mr Hodgman submitted that in Wedesweiller v Cole14 Sheppard J considered inter alia the effect of delays by a solicitor in relation to limitation periods. In that case, Mr Hodgman said, His Honour referred to the observations of the High Court in Sophron v The Nominal Defendant15 that "such a consideration as the blamelessness of the claimant and the responsibility of his solicitor is very material". On that basis, Mr Hodgman argued, if an applicant should not be prejudiced because of error by a solicitor regarding a time limit then a fortiori error by a solicitor regarding remedy should likewise not be held against the client.

In any event, Mr Hodgman continued, "it matters not one whit or tittle that the form of relief was not expressly sought".16 The facts of the matter, he continued, disclose prima facie the existence of an industrial dispute. That is, Mr Price's claim is that he was unjustly treated by Roadways Pty Ltd as to propriety of the action taken against him and by the Company's total failure to hear him before terminating his employment.

The evidence, Mr Hodgman submitted, is that the applicant, Mr Price, is a 43 year old man who has no formal education and no knowledge of the law. In addition, he has experienced a most horrific time in that he suffered serious injury, was off work on workers' compensation, went to court on an "exceeding .05 charge" and, at the same time, had to cope with matrimonial problems.

Mr Price certainly admitted in cross-examination, Mr Hodgman went on, that monetary compensation would "suit me financially but it doesn't suit me mentally".17 However, he had already said, in the same cross-examination, that he wanted and needed reinstatement.18 Mr Price, Mr Hodgman said, put his faith in the hands of his solicitor, Ms Valentine, to whom he went for advice. She, with commendable candour and honesty, as required by her profession, openly revealed in the current proceedings that she might have misunderstood the nature of the Commission's jurisdiction. It would be wrong in such circumstances, Mr Hodgman asserted, if the Commission were to allow "pettifogging technicalities" to get in its way.

The evidence is overwhelming, Mr Hodgman contended, that there is a prima facie case as to jurisdiction.

I begin my consideration of the issues by going first to the Full Bench decision in Capital Hill. In that case, it seems to me, the Bench's concurrence with Mr O'Farrell's description of the elements "that go to constitute a valid exercise of the Commission's jurisdiction under Section 31 of the Act"19 went only to those specific points that, in the present case, Ms Lyon refers to as "steps".20 That is to say, as to the relevant such "step" in these proceedings, there must be "a proper exercise by the President of the power to convene a hearing before a Commissioner" pursuant to Section 29(2) of the Act.21

As I comprehend Capital Hill, however, the Full Bench, contrary to Ms Lyon's submission here, did not go so far as to endorse Mr O'Farrell's proposition that:

"... a Section 29(1A) application must display on its face sufficient material to disclose an industrial dispute within the meaning of the Act" otherwise "there is no basis upon which the President can act, pursuant to Section 29(2), to convene a hearing before a Commissioner."22

The Full Bench clearly noted Mr O'Farrell's submission to that effect.23 Equally clearly I think, the Bench was careful not to rule on the question - most likely because, as Ms Lyon fairly pointed out, the Bench went on to reject that ground of appeal for different reasons.24

What, then, is the nature of the statutory responsibility that Section 29(2) of the Act, as it was before the 1997 amendments, casts upon the President? For this purpose, it is helpful to view Sections 29(1A) and 29(2) in context. The former provided that:

"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 employment of that employee."

with the latter stipulating that:

"The President must convene a hearing before a Commissioner if an application is made under subsection ... (1A)."

It will be seen straightaway that the President's duty, in respect of Section 29(1A) applications, was quite different from that required of him pursuant to Section 30 of the Act, upon which Zeeman J remarked in that part of his judgment in New Town Timber & Hardware to which Ms Lyon referred me.25 In His Honour's words, which follow shortly after the extract upon which Ms Lyon relies:26

"It is implicit from s30 that a conference under that section is intended to be a conference at which the parties attempt to settle the dispute which the President has found to exist or which he apprehends may arise. ... An absence of precise notice as to the nature of the dispute found to exist or apprehended by the President (which must rely on the findings made by the President) is a denial of natural justice because it means the parties have no means of ascertaining the proper subject matter of the conference or the ambit of the jurisdiction of the Commissioner presiding at the conference."

In a nutshell, in my view, the logic behind Zeeman J's observations is that the President could not form the opinion required of him by Section 30 unless or until he had found on the particular facts the existence of an "industrial dispute" within the meaning of the Act. Hence, in the absence of such a finding, he could not have validly directed a Commissioner to preside over any particular conference.

Section 29(2) however, as I have said, was quite different. That provision informed the President that he must convene a hearing before a Commissioner in respect of an application made by a former employee under Section 29(1A) for such a hearing. There is nothing in Section 29(2) in my opinion that, unlike Section 30, contemplated any preliminary adjudicative role or arbitral function on the part of the President to determine whether the dispute was in fact an "industrial dispute" within the meaning of the Act. All Section 29(2) of the Act required of the President upon receipt of an application of the relevant kind, it seems to me, was the administrative function, vested in him personally, of convening a hearing before a Commissioner.

It matters not in the circumstances, as Mr Hodgman submitted, whether remedy was, or was not expressly claimed ab initio. Simply put, what the Act obliged the President to do, in my opinion, was merely convene a hearing before a Commissioner regarding an "application made" of the relevant kind. The President having undertaken that action, it then fell to the Commissioner concerned to determine whether, on the facts, there was jurisdiction. That is, in terms of Section 29(1A), whether there was present "an industrial dispute relating to the termination of employment" of the applicant within the meaning of the Act.

The fundamental misconception in Ms Lyon's submission, in my view, is that it supposes the need for a Section 29(1A) applicant to specify at the outset the nature of any order or orders sought by way of remedy, pursuant to Section 31(1) of the Act, as if they were necessary indicia of the existence of an actual "industrial dispute". Certainly, as Mr Hodgman contended, an applicant under Section 29(1A) must put in issue his or her termination of employment, among other things, for the purpose of establishing the presence of an "industrial dispute" within the meaning of the Act. However, as I said earlier, that is a question of fact.

Provided the facts otherwise disclose the presence of an "industrial dispute" as defined, it does not matter, in my view, what was, or was not, contained in the paper application by way of a claim for reinstatement. That, in this case, is simply a question of remedy. It is not the application itself, or any claim for a particular remedy, that necessarily establishes the existence of an "industrial dispute" but, rather, the actual facts of the matter. For example, as in this case, where Mr Price, through Senior Counsel, put in issue from the outset the validity of his termination of employment by Roadways Pty Ltd.27

Consequently, the question of remedy, i.e. reinstatement, compensation, or some other form of relief, is an issue that will fall for determination only when an applicant asks the Commission to make an order pursuant to Section 31(1) of the Act. There is some support for this view, I believe, in the judgment of Underwood J (with whom, on this point, Cox CJ and Wright J agreed) in Saarinen v University of Tasmania (1997) where His Honour observed that:28

"The jurisdiction of the Commissioner was limited to making orders 'for the purpose of ... settling the industrial dispute.' The exercise of that discretion did not depend solely upon facts and events that had occurred at the time the dispute arose. The exercise of that discretion depended in part on all the events that had occurred until immediately prior to the moment the Commissioner was asked to make an order."

I return to Ms Lyon's primary submission.29 In my opinion, "a proper exercise by the President of his power under Section 29(2) of the Act to convene a hearing before a Commissioner" in relation to an application of the relevant kind made pursuant to Section 29(1A), did not require the President to undertake any preliminary adjudicative role or arbitral function or to remark upon the presence or absence of a claim for reinstatement. The President's task, as I comprehend the Act, was to ensure that he had before him an "application made" of the relevant kind and to perform the simple administrative act of convening a hearing before a Commissioner.

In the circumstances I reject Ms Lyon's contention that an application made pursuant to Section 29(1A) of the Act was required to disclose on its face the form of relief sought before the President could validly convene a hearing before a Commissioner. In my view, such an assertion misconstrues the plain meaning of the Act, which only required of the President, in the circumstances, an administrative act in respect of an application of the relevant kind. The responsibility for determining whether jurisdiction existed to make an order pursuant to Section 31(1) of the Act, in my opinion, resided (or resides) in the Commissioner before whom the President convened the particular hearing.

I move now to Ms Lyon's contention regarding the genuineness of Mr Price's claim for reinstatement. Her contention to the contrary,30 the evidence suggests to me that, as a matter of fact, Mr Price never did change his mind about the nature of his request for relief. Mr Hodgman's own evidence, given by way of affidavit31 (which Ms Lyon did not challenge) is that on 23 May 1997 he received instructions from Mr Price to telephone Roadways Pty Ltd and "ask them whether they would consider re-employing Mr Price". Mr Hodgman's further evidence is that the same day he "contacted Roadways Pty Ltd by telephone and spoke to Mr Victor Green" asking him if the Company would consider re-employing Mr Price. The following Monday (26 May), according to Mr Hodgman's evidence, Mr Green told him the Company would not re-employ Mr Price. Subsequently, in these proceedings, Mr Price confirmed in his oral evidence that (as I have already noted) he wants and needs reinstatement.32

I pause here to note that Mr Hodgman's uncontested evidence establishes to my satisfaction, as a matter of fact and contrary to Ms Lyon's contention, that from the very day of his dismissal Mr Price, through his legal advisor, put in issue with his former employer the matter of his termination of employment. That position is the one he maintained in his oral evidence in these proceedings.

Nevertheless, by way of an intervening occurrence between the day of his dismissal and that oral evidence, there is the matter of the statements of his solicitors, Ware & Otlowski, concerning the nature of Mr Price's claim, as contained in materials lodged in this Commission on his behalf in support of his application for an extension of time.

In the first place, as Ms Lyon pointed out, Mr Price did not specify in his initial application the nature of the relief that he sought. Furthermore, in the grounds submitted by Ware and Otlowski in support of Mr Price's application for an extension of time, there is the statement, already referred to, that "the applicant is not applying for reinstatement".33

The view that Ms Lyon encouraged me to take (at least by inference) is that I must accept those disclosures as necessarily reflecting Mr Price's instructions at the relevant times. Consequently, Ms Lyon argued, as I understand the thrust of her submission, Ms Valentine's 11 September 1997 amendment of the extension of time application, Mr Price's affidavit of 19 September, and his subsequent evidence in cross-examination only go to demonstrate that Mr Price's current claim for reinstatement is not genuine because "it merely suits his purposes to do so as it's necessary for him to seek reinstatement and for the Commission to consider whether or not reinstatement is practical before he would be entitled to any compensation, or any award of compensation from the Commission".34

In considering these issues, I commence by observing that, to my mind, the evidence leaves no doubt that Ms Valentine misunderstood the nature of the Commission's jurisdiction. That conclusion draws support from her examination-in-chief of Mr Price on 11 September, her affidavit of 19 September,35 and Mr Hodgman's concession to that effect in his submissions of 7 November 1997.36

I must now digress momentarily for the purpose of going to that part of Ms Lyon's submission that, in the present context, relied upon "the way the proceedings have been run to date".37 Ms Lyon did not further develop her assertion, perhaps because I was bold enough at the time to say that "I understand".38 The inference I then drew, whether intended or not, was that Ms Lyon's comment represented an implied criticism of the fact that, after hearing the parties but acting on my own motion, I adjourned the hearing of 11 September 1997 for reasons of procedural fairness, ie. to avoid what was, in my judgment, a real prospect of substantial prejudice to Mr Price.

My decision to adjourn the particular hearing arose from a decision of Ms Valentine not to call Mr Price as a witness because, having had "no opportunity to speak at great length with him about the mode of how he should be giving his evidence", there was "the risk of Mr Price prejudicing himself".39 Ms Lyon quite properly objected to such an approach on the grounds that it did not afford the employer any opportunity to cross-examine Mr Price on the circumstances set out in the letter accompanying his application. In addition, again quite properly, Ms Lyon made it plain that, should the matter proceed in the manner suggested by Ms Valentine, Roadways would contest admissibility of the particular letter as evidence and question the evidentiary weight that the Commission might place on its contents.

Ms Lyon, on instructions, opposed the adjournment, arguing that (a) her client was ready and able to proceed and that (b) while such action was open to the Commission as a matter of discretion, it should only take such a course on the basis of supporting evidence.

At conclusion of the above discussion I adjourned the hearing on the grounds that (i) Mr Price's lack of preparedness to give evidence constituted, in the circumstances and in terms of procedural fairness, a likely prejudice to his applications and (ii) Ms Valentine, by admission in private conference,40 was doubtful about her capacity to proceed immediately with a response to the issues of jurisdiction of which Ms Lyon, with commendable fairness, had given notice.

If those are the circumstances upon which Ms Lyon relied in support of her contention that "the way the proceedings have been run to date" somehow demonstrates a want of genuineness on the part of Mr Price's claim for reinstatement, then I reject the submission. In adjourning the proceedings in the circumstances before me I applied Section 20(1)(a) of the Act, which enjoins the Commission to "act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms".

I return now to the main point of Ms Lyon's submissions concerning genuineness of Mr Price's claim for reinstatement. The facts of the matter, as I have already noted,41 are that Mr Price, through Senior Counsel, put in issue his termination of employment from the day of its occurrence and, at the same time, he sought re-employment - a position that, according to the evidence, he maintained to the day of the hearing.42 Even Mr Price's admission that monetary compensation would suit him financially but not mentally does not, in my opinion, impeach his position concerning reinstatement because the evidence is that he preceded that observation with the statement that he wanted and needed reinstatement.43

Indeed, the only statement that conflicts with what the evidence discloses to be Mr Price's actual position regarding reinstatement is that which appears in his solicitor's letter of 4 September 1997.44 But that statement does not fall for consideration in an environment devoid of relevant surrounding circumstances. To the contrary, the evidence shows that the statement was made by a solicitor who, by her own candid admission and by concession of Senior Counsel, misunderstood the nature of the Commission's jurisdiction.45

In the circumstances, I am satisfied on the evidence that Ware & Otlowski's statement of 4 September that Mr Price "is not applying for reinstatement" reflects an error on the part of his solicitor, rather than any equivocation on Mr Price's part concerning the genuineness of his desire for reinstatement. That conclusion, I believe, leaves the way open for me to make a finding of genuineness regarding Mr Price's claim for reinstatement. However, before taking that step, it is relevant to consider whether Ms Valentine's misunderstanding of the Commission's jurisdiction could entertain consequences for Mr Price in the sense that he might arguably be bound by his solicitor's error.

The appropriate guidance, I think, is again to be found in the observations of Underwood J in Saarinen, to which I have already referred. In brief, that case is authority for the view that the Commission's exercise of its discretion under Section 31(1) of the Act to make an order in settlement of an industrial dispute depends "in part on all the events that had occurred until immediately prior to the moment the Commissioner was asked to make an order".46

In the present matter the Commission thus far has not been asked to make an order pursuant to Section 31(1) of the Act. Indeed, the proceedings have not yet even approached questions and issues of merit. All the evidence discloses is an error that arose from Ms Valentine's misunderstanding of the Commission's jurisdiction, which she corrected promptly and openly in defence of her client's position. In my view, in the presence of evidence that demonstrates Mr Price's blamelessness in his solicitor's error, ie. the consistency, both before and after that event, of his expressions of a desire for reinstatement, and in the absence of any evidence that might for some other reason signify a want of bona fides on his part, I am of the opinion that no consequences flow from his solicitor's error to the detriment of Mr Price.

But, even if those particular circumstances did not obtain, it seems to me to be at least arguable on the basis of Saarinen that, because (as I have already concluded)47 an industrial dispute concerning termination of employment can exist, within the meaning of the Act, quite independently of a claim for reinstatement, it is irrelevant to argue, as a matter of threshold jurisdiction, the genuineness of any particular claim for reinstatement. Contentions of that nature will only be relevant, I think, to the kind of order that the Commission might make pursuant to Section 31(1) of the Act by way of remedy including whether, if at all, the Commission should consider compensation.

Having regard to the above considerations I reject Ms Lyon's contention that Mr Price's application must fail for want of jurisdiction because his claim for reinstatement is not a bona fide claim.48

In summary, returning to Ms Lyon's original contentions, I find that:

(a) the fact that an application of the relevant kind made pursuant to Section 29(1A) of the Act may not disclose on its face the form of relief sought does not operate to prevent the President from validly convening a hearing before a Commissioner pursuant to Section 29(2) of the Act; and

(b) that the facts and circumstances surrounding Mr Price's application disclose the presence of an industrial dispute within the meaning of the Industrial Relations Act 1984.

Application for extension of time - Section 21(2)(m)(i) of the Act

In respect of Mr Price's application for an extension of time pursuant to Section 21(2)(m)(i) of the Act, it was common ground between Mr Hodgman and Ms Lyon (who submitted that the Commission should not grant the application) that the appropriate principles for determining such matters are those laid down by the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen.49 In the circumstances it is convenient to follow those principles seriatim50 in recording the parties' contentions.

My method of applying the principles will be to weigh them individually, according to the arguments put to me by the parties, and make such findings as appear appropriate according to the evidence. At conclusion of that exercise it is my intention, taking all those matters into account, to exercise the Commission's discretion by considering the totality of the circumstances surrounding Mr Price's application. That approach, as I understand the submissions put to me on the point, accords with the views expressed by the parties.51

Special Circumstances

"Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. ... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time."

The facts of the present matter, Mr Hodgman contended, are such that they are capable of positively satisfying the Commission it would be appropriate in all the circumstances to grant the application. As to the reason for delay in lodging Mr Price's application, Mr Hodgman continued, Ms Valentine clearly and honestly admitted, in her affidavit of 19 September 1997,52 that she had misunderstood the nature of the Commission's jurisdiction and the presence of a time limit in relation to applications of this kind. Furthermore, he went on, it was a term and condition of the solicitor-client retainer that Ms Valentine would obtain legal aid before researching the substantive law regarding Mr Price's claim.

In addition, Mr Hodgman said, Mr Price's affidavit of 19 September showed he was personally unaware, and was not informed by Ware & Otlowski, of any time limits in relation to his unfair dismissal application or that there was a need for him to act with some urgency concerning the matter.

Turning to the principles of law applicable in such circumstances, Mr Hodgman relied on the observations of the High Court, referred to by Sheppard J in Wedesweiller, that in relation to limitation periods "such a consideration as the blamelessness of the claimant and the responsibility of his solicitor is very material";53 Burchett J in Winter v Deputy Commissioner of Taxation (1987) 87 ATC 4065 ("failure by a solicitor to take the proper steps could in itself be regarded as establishing sufficient cause for an extension of time");54 a similar approach followed by Spender J in Repatriation Commission v Gordon (1989) FCR 569;55 and in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) IRCA 412 where Beazley J commented that "the solicitor's lack of knowledge of time limits provides some assistance to the applicant's case, in that nothing she did imparted any sense of urgency to the applicant".56

All those cases, Mr Hodgman contended, say the same thing: they do not excuse the practitioner, but they do suggest that an applicant should not be prejudiced because of a genuine error by a young practitioner that led to Mr Price not receiving correct advice when he specifically sought it. The evidence is, he added, that Mr Price acted relatively quickly after receiving advice from Senior Counsel that he should contest his dismissal. Nothing adduced by Ms Lyon in cross-examination, Mr Hodgman said, shows any dilatory act on Mr Price's part in pursuing the matter: to the contrary, from the very day of his dismissal Mr Price instigated representations for his reinstatement.

Ms Lyon submitted, in effect, that the principles established by the Federal Court cases relied on by Mr Hodgman are inappropriate for applications made to the Industrial Commission, where the whole idea is that matters will be dealt with expediently and as quickly as possible. That objective, she went on, is the reason why the Act provides a strict time limit of 14 days. In the circumstances, it is necessary for the time limit to be adhered to unless there are positive reasons why it should not be observed.

That contention, Ms Lyon argued, reflects the comments of Dawson J of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 that "the onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant" and that (agreeing with McHugh J) "once the legislature has selected a limitation period, to allow the commencement of action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."57

McHugh J, in the same case, Ms Lyon said, observed that there are four broad rationales for the enactment of limitation periods:58

"as time goes by, evidence is likely to be lost";

"it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed";

"people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them";

"the public interest requires that disputes be settled as quickly as possible";

Although Mr Hodgman attempted to achieve Mr Price's reinstatement on the day of his dismissal (23 May 1997), Ms Lyon submitted, Mr Price did not contact Ware & Otlowski until 10 June and it was not until 13 June that he gave Ms Valentine proper instructions. Those facts, Ms Lyon continued, show that irrespective of any delay attributable to his solicitors Mr Price, on 10 June, was even then outside the time period specified by the Act - indeed, to comply with the requirements of the Act, Mr Price should have lodged his application no later than 6 June 1997.

In the event, Ms Lyon observed, Mr Price's application was not lodged until 1 September 1997, approximately 100 days after the termination of his employment. Mr Hodgman's opinion to the contrary, she contended, that is a very long period in Industrial Commission terms in circumstances where an applicant is seeking the remedy of reinstatement.

I am satisfied the delay that occurred in lodgment of Mr Price's application following his consultation with Ms Valentine on 13 June 1997 was, if not entirely, then very substantially attributable to the inexperience of his solicitor. I do not think the credibility of this opinion is impeached in any serious way by the fact that, as Ms Lyon argued, Mr Price did nothing himself, as he might and perhaps should have done, to hurry things along. I say this because, as Ms Lyon fairly acknowledged, an experienced solicitor, in the circumstances, would most likely have obtained instructions on 13 June to lodge an application with the Commission, at no cost to the client, pending resolution of the legal aid question. Accordingly, having regard to the authorities put to me by Mr Hodgman, I am prepared to find Mr Price has an acceptable explanation of the delay that occurred after 13 June 1997.

That conclusion, however, is not the end of the matter. Contrary to Mr Hodgman's submission, the evidence suggests that between 26 May and 10 June 1997, Mr Price was in fact arguably dilatory in taking appropriate action to protest his termination of employment. On 26 May, having been informed by Roadways Pty Ltd that it would not re-employ Mr Price, Mr Hodgman quite properly and in timely manner advised Mr Price that, in the circumstances, "he should seek legal advice in relation to the termination of his employment" and "recommended that he instruct Ware & Otlowski Barristers & Solicitors".59

It is quite obvious from this evidence that, on and from 26 May 1997, Mr Price was possessed of unambiguous advice as to the action required of him regarding his dispute with Roadways Pty Ltd concerning his termination of employment three days earlier. Mr Price's first contact with Ware & Otlowski, however, did not occur until 10 June60 - an elapsed period of 10 business days61 - which was, even then, outside the 14 day cut-off date of 6 June 1997. The period of delay becomes 13 days if I take into account the fact that Mr price did not properly instruct his solicitor until 13 June. The only available explanation for that delay, as I appreciate the evidence, relies on the emotional and physical distress that Mr Price was undoubtedly suffering at the time from the combined effect of his drink-driving charge, employment, marital, financial and workers' compensation problems. The fact that, at the time, Mr Price was not aware of the 14 day time limit, does not assist him in this regard, in my opinion, because the need for him to take reasonably prompt action in his own defence was paramount in any event.

What am I to make of Mr Price's personal circumstances regarding an acceptable explanation of the delay that occurred between 26 May and either 10 or 13 June 1997? According to Mr Hodgman I should "take into account you're dealing with a 43 year old man with no formal education and no knowledge of the law, who on the evidence has been through a most horrific time".62 Ms Lyon, on the other hand, while not challenging Mr Price's circumstances, pointed out that his state of personal distress notwithstanding, he still had the presence of mind to seek advice from and give instructions to Mr Hodgman.

In the High Court case of Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Dawson J, referring to a statutory expression that conferred on a court discretion to extend time, observed (p. 2) that the "discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing". In my opinion, in light of His Honour's remarks, the question of whether Mr Price's personal problems provide him with an acceptable explanation for the period of delay that occurred between his receipt of Mr Hodgman's advice on 26 May and his subsequent contacts with Ware & Otlowski on 10 and 13 June 1997 will depend on all the surrounding facts and circumstances. In the narrow context of this principle alone, however, Mr Price's delay is favourable to the respondent employer's contention that the extension of time application should not be granted.

Action Taken by the Applicant

"Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision ... and a case where the decision-maker was allowed to believe that the matter was finally concluded."

On the day of his dismissal, Mr Hodgman said, Mr Price instructed Senior Counsel (who spoke to Mr Victor Green of Roadways Pty Ltd) to ask the employer not to terminate his (Price's) employment or, if that had to be done, to immediately re-employ him. Those instructions, Mr Hodgman argued, while not comprising an application to the Commission, were "a pretty fair indication that Mr Price was contending he had been unfairly dealt with".63

Ms Lyon submitted that had Mr Price's application followed within a short time of Mr Hodgman's representations to the Company on 23 May 1997, Roadways Pty Ltd most likely would not have been left with the understanding that the matter had finally concluded. However, Ms Lyon added, the application was not made within a week, or a couple of weeks, or within even three weeks of Mr Price's termination - indeed, it was not until 2 September 1997, some 100 days after the dismissal, that the Company received notice that Mr Price had filed an application with the Industrial Commission. In the circumstances, Ms Lyon asserted, Roadways Pty Ltd had every reason to believe the matter had been finalised.

In addition, Ms Lyon said, Mr Price admitted in cross-examination that, apart from instructing his solicitors, he had taken no other action in support of his claim of unfair dismissal: he agreed, she said, that he had not requested any information from the Industrial Commission, from a union, or from the Workplace Standards Authority. The jurisdiction of the Commission, Ms Lyon observed, is constructed so that lay persons may take matters into their own hands, but the evidence is that Mr Price chose not to do so. Nor did he chase up his solicitors, despite the fact that weeks and months were passing by. Any reasonable person in the circumstances, Ms Lyon argued, would have pursued the matter with some urgency, in order to get back into the workplace as soon as possible.

Despite the other problems in his life at the time, Ms Lyon submitted, Mr Price still had the presence of mind to instruct Mr Hodgman and Ware & Otlowski. In the circumstances, Ms Lyon contended, notwithstanding his other personal difficulties, it was not reasonably open to Mr Price to merely stand back and wait for something to occur in respect of his employment situation.

There is no doubt on the evidence that, on 26 May 1997, Roadways Pty Ltd was aware, by reason of Mr Hodgman's representations to Mr Green, that it was Mr Price's intention to challenge the Company's decision to terminate his employment. From that point in time, however, it is abundantly clear that Roadways Pty Ltd heard nothing from Mr Price or his agents confirming that intention. Indeed, the Company heard nothing more about the matter until 2 September 1997, when it received notice from the Commission that Mr Price had lodged his application. For those reasons, I accept Ms Lyon's submission that Roadways Pty Ltd had reasonable cause to believe the matter was finalised.

In the circumstances of this case, what measure of responsibility falls on Mr Price for the Company's state of mind as to his intentions? Having conferred with his legal advisor and given her instructions I do not believe it is reasonable to expect, as Ms Lyon suggested, that Mr Price then had some duty or obligation to request further advice from the Commission, a union, or the Workplace Standards Authority. As Mr Hodgman submitted, Mr Price put his faith in his solicitor's hands64 and left her to get on with the matter. I think he was entitled to do so since he could not know that a more experienced solicitor would have obtained instructions to lodge an application pro tem and to directly inform the employer of that action. In any event, the mere fact that the legislation enables lay persons to invoke the jurisdiction is not to be interpreted, in my opinion, as removing an applicant's freedom of choice in deciding whether or not to engage the services of an agent.

It is certainly the case, however, that Mr Price did not follow the matter up with Ms Valentine even though, as Ms Lyon observed, the weeks and months were passing by. I think it is reasonable to expect that, acting prudently in his own interests, he ought to have done so. On that assumption, what might the effect of such prudent action have been? Most likely, but only as a matter of conjecture, Ms Valentine would have informed him of her progress according to the status of her activities at the relevant time.65 What can be determined with some certainty in that context, however, is that Ms Valentine could not have given Mr Price any forewarning that he was "out of time" in terms of the requirements of the Act, because she herself did not become aware of that limitation until 31 August 1997.66

In summary, the evidence satisfies me that even had Mr Price made frequent follow-up calls to Ms Valentine, such action would not have served to alert Roadways Pty Ltd, at a date earlier than at least 31 August, of the fact that he was actively contesting his termination of employment. That position must obtain, I believe, because it was not until that date that Ms valentine became aware of the 14 day limitation period. In the circumstances it is my view that primary, if not sole, responsibility for the Company's belief that the matter had been finalised derives from error on the part of Mr Price's solicitor rather than from any want of action on his part.

Having regard to Ms Lyon's submissions on this point I find that there is nothing concerning alleged inactivity on the part of Mr Price that goes to prejudice my earlier finding that Mr Price has an acceptable explanation for the delay that occurred after 13 June 1997. That finding does not, of course, vitiate what I can accept as being the Company's genuinely held belief that, with the passage of time, the matter had been finalised. I will return to that issue at a later stage.

Prejudice to the Respondent

"Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension."

The absence of any evidence to the contrary from the Company, Mr Hodgman submitted, shows there is no prejudice to the respondent. Indeed, he said, the oral evidence of Mr B C Manson, Administration Manager at Roadways Pty Ltd, confirmed his awareness of the representations made to Mr Green.67 Mr Hodgman then went on to acknowledge Mr Manson also said that, should the Company be obliged to re-employ Mr Price, the mechanic hired in his stead would have to go. However, Mr Hodgman contended, that is not a matter "which would weigh upon this Commission with any great validity at all".68

The question of prejudice, Ms Lyon submitted, must be viewed in an industrial context in which the emphasis is on matters being dealt with quickly. From that point of view, she continued, Roadways Pty Ltd will suffer a substantial prejudice should success attend Mr Price's application because, in that event, the Company will have to disrupt its workforce by terminating the employment of another of its mechanics. The prejudice is particularly acute, Ms Lyon inferred, when it is borne in mind that the individual concerned has been employed for some three months in circumstances where the Company was not aware that Mr Price was contesting his dismissal.

Ms Lyon conceded, by way of explanation in response to a question from the Bench that, as indicated by Mr Manson's oral evidence,69 the employee concerned had actually been engaged by the Company before Mr Price's dismissal "in contemplation of Mr Price losing his licence".70 Nevertheless, Ms Lyon implied, that action does not serve to mitigate the prejudice that will occur if the Company is obliged to reinstate Mr Price. That is so, she said, because the person concerned is no longer being employed in contemplation of Mr Price losing his job. Should Mr Price return to the workplace, Roadways Pty Ltd will have to rearrange its workforce because the Company will no longer have a need for the extra employee.

In addition to specific prejudice, Ms Lyon asserted, the Company will also suffer general prejudice should Mr Price's application be successful, because the length of time that elapsed between Mr Price's dismissal and the subsequent filing of his application exposes the Company's officers to problems associated with fading memories.

Going first to the suggestion of general prejudice, there is nothing in the oral evidence of Mr Manson, as I recall hearing it and now read it, that indicates any problem of fading memory on his part. To the contrary, even after a period of some three months, he gave his evidence in a confident and forthright manner without finding it necessary to resort to the retreat of faulty or fading memory. There may be, of course, other officers of the Company who might be required to give evidence should this matter proceed further. However, the nature of the circumstances surrounding Mr Price's dismissal are not of such complexity that I would expect any general prejudice to arise by way of fading memories. For that reason I dismiss this aspect of Ms Lyon's submission.

Turning now to the matter of specific prejudice it is clear from the evidence of Mr Manson that, should Mr Price be reinstated, "we only need two mechanics; one would have to go".71 Such action, Ms Lyon submitted, would effectively disrupt the Company's workforce thereby occasioning specific prejudice to the respondent.

Clearly, I think, this argument would weigh heavily in favour of Roadways Pty Ltd had it appointed a mechanic to replace Mr Price as a consequence of its belief, reasonably held in the circumstances given the delay that occurred in lodgment of his application, that Mr Price's challenge to his termination of employment had been finalised. However, the evidence of Mr Manson appears to suggest that the Company employed another mechanic before it dismissed Mr Price "because Terry [Mr Price] we believed, and he believed, wasn't going to be with us very long".72 Ms Lyon, by way of explanation, said the Company took that action in contemplation of Mr Price losing his licence.

As Ms Lyon correctly pointed out, there is no evidence about those arrangements, other than that of Mr Manson; however, I see no reason to doubt the veracity of her explanation. But, whatever the purpose of the appointment may have been, its very occurrence and timing, in my opinion and contrary to Ms Lyon's submission, tend to mitigate the specific prejudice for which she argued. That will be because the circumstances suggest that, as between Roadways Pty Ltd and the mechanic employed in contemplation of Mr Price's departure and regarding the likely period of his employment, there must have been some understanding as to what would occur should Mr Price not lose his driver's licence, however unlikely either he or the Company might have thought such an event to be.

Finally, although Ms Lyon submitted that disruption of the workforce would occur should Roadways Pty Ltd be obliged to terminate the employment of the mechanic employed in contemplation of Mr Price's departure, the Company put no evidence before me as to the nature of that disruption, its possible extent or any detrimental outcome to which it might give rise. Nor was any attempt made to argue that those arrangements were in some way made as a consequence of Mr Price's actual dismissal.

It seems to me, after considering the parties' submissions, that the mere fact of terminating the employment of one employee and engaging another, by those acts alone, necessarily involves some disruption of the particular workplace. However, those circumstances comprise the ordinary day to day vicissitudes of conducting a business which is an employer of labour - they are not special and peculiar only to circumstances involving reinstatement of an employee. Without more, by way of evidence, that attempts to quantify the nature of the prejudice relied upon, merely beyond describing it as a disruption of the workforce and bearing in mind that the Company's arrangements may have preceded Mr Price's actual dismissal, I am disposed to find on the facts now before me that there is no prejudice to Roadways Pty Ltd that would justify refusal of Mr Price's application for an extension of time.

Public Interest Considerations

"However, the mere absence of prejudice is not enough to justify the grant of an extension ... In this context public considerations often intrude ... A delay which may result, if the application is successful, in the unsettling of other people ... or of established practices ... is likely to prove fatal to the application."

This proposition, Mr Hodgman argued, applies where the period of delay measures "months and months or even years". It has no application, he continued, where the period of time between a dismissal at the end of May and lodgement of an application occurs "within the space of a few short months".73

In the event that Roadways Pty Ltd should be obliged to put off another employee in order to make room for Mr Price's return, Ms Lyon submitted, there will be an inevitable unsettling of the workplace. Even if there is no prejudice, Ms Lyon contended, such an unsettling effect will likely prove fatal to the particular application. For example, she went on, in McCafferty v Savings and Loans Union (1995)74 Ryan JR, in applying the Hunter Valley principles, considered an application for extension of time that involved certain facts similar to those presently under review: the application was about three months out of time, the delay was occasioned by waiting on a grant of legal aid; and the employer was left in the dark concerning the employee's intentions. In that case, Ms Lyon said, the Judicial Registrar noted that, even where there is no specific prejudice, "such a delay [three and a half months from termination to lodgment] inevitably created some [general] prejudice".75

I think the observations I made in relation to the previous point concerning disruption of the workplace are of equal relevance in the present context. That is to say, regarding the current point, an unsettling effect in the workplace that results from putting off one employee and putting on another is merely one of the ordinary day to day vicissitudes of conducting a business that is an employer of labour - they are not special and peculiar elements that apply only to circumstances involving reinstatement of an employee. It is also relevant in this context that, on the evidence of Mr Manson, the Company's arrangements may have preceded Mr Price's actual dismissal. In any event there is no evidence before me tending to show that the unsettling effect upon which Ms Lyon relies would give rise to consequences for Roadways Pty Ltd that go beyond ordinary day to day activities associated with the employment of labour.

Concerning the observations of Ryan JR in McCafferty, on which Ms Lyon also relied, the Judicial Registrar noted that, regarding a fact situation similar to that in the present case, a delay of over three months inevitably created some general prejudice. Ryan JR did not, however, define the nature of that general prejudice in terms of "unsettling other people ... or of established practices". While I acknowledge that the Hunter Valley principles are essentially guidelines it seems to me, nevertheless, that it is not delay per se that may prove fatal to an application for extension of time, but "a delay which may result, if the application is successful, in the unsettling of other people ... or of established practices" or, indeed, some other outcome in the nature of a relevant public interest consideration.

Having regard to the above considerations I am satisfied, on the basis of the submissions and evidence put to me, that should Mr Price's application be granted, there is unlikely to occur a delay of such a nature as to unsettle people or established practices.

Merits of the Substantial Application

"The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted ..."

The present case, Mr Hodgman contended, is not simply a matter of Mr Price being denied his right to be heard, under Article 7 of the ILO Convention, as to why his employment should not be terminated. There is, in addition, he continued, Ms Lyon's concession that Roadways Pty Ltd had made up its corporate mind to dismiss Mr Price even before the event that ultimately gave rise to his dismissal had actually occurred. That candid concession, Mr Hodgman submitted, "actually put my case over the line".76

Ms Lyon, in reply, asserted that Mr Hodgman had put her comments, given by way of explanation to questions asked from the Bench, "on far too high a ground".77 There is, she said, no evidence before the Commission in terms of those matters.

What Mr Price has to show in this regard, Ms Lyon said, is that his application has some merit or, in other words, that he has a prima facie case. In that context, while Mr Price's evidence is that he was not aware that possession of a current driver's licence was a condition of his employment, the Company's position is that he was so advised. Indeed, Ms Lyon continued, Mr Price's actions following his drink-driving charge show that he was aware he would lose his job if he lost his driver's licence. For example, she said, he did not deny in his oral evidence that on each occasion he returned from court he said to his fellow employees "the matter has been adjourned, at least I can keep my job a bit longer".78

The evidence shows, Ms Lyon contended, that Mr Price was well aware that if he lost his driver's licence he would also lose his job. In the circumstances, Ms Lyon submitted, certain difficulties confront Mr Price if he is to demonstrate that he has a strong case.

The presence of Mr Manson's evidence, the allegation that Roadways Pty Ltd denied Mr Price procedural fairness, and the controversy between the parties regarding (a) what the Company may, or may not, have told Mr Price concerning the need for him, as a condition of his employment, to possess a current driver's licence, and (b) the extent to which he knew, or did not know, that he would lose his job if he lost his drivers licence, satisfy me that there is no reason, as a matter of the merits of the substantial application, for refusing to grant Mr Price's application for an extension of time.

Considerations of Fairness

"Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion ..."

There is no suggestion in the present circumstances that others might be prejudiced, Mr Hodgman urged, should the Commission decide to grant Mr Price's application.

In McCafferty, Ms Lyon said, Ryan JR observed that "if applications are not lodged in this jurisdiction until claims for legal aid are resolved, the jurisdiction will grind to a halt if such claims are given an imprimatur under S170EA(3) [of the federal Act]." The Judicial Registrar, Ms Lyon continued, then went on to add, relying on the observations of Northrop J in Mahnken v Saunders v Logging Pty Ltd (1994) 57 IR 237, that "the whole emphasis of the jurisdiction is expedition in lodging, expedition in conciliation and, if a hearing is necessary, expedition in listing for trial".79

The decided cases, Ms Lyon submitted, show there is a need for matters of this kind to be dealt with as quickly as possible. Such expedition, she continued, is a relevant consideration in the present case where a delay of three months in lodging the application caused Roadways Pty Ltd to believe the matter was finalised. Those circumstances, Ms Lyon argued, do not result in fairness for the employer who, having retained an employee on that basis, will be prejudiced should Mr Price's application be successful. This is especially so, Ms Lyon concluded, where the surrounding facts show that Mr Price took no steps of his own to get matters moving and has no acceptable explanation for the delay that occurred.

I am not convinced that the focus of this principle centres on considerations of fairness as between a particular applicant and his former employer, as Ms Lyon suggested. Rather, the objective seems to me to be a consideration of fairness as between the applicant and other persons who might be in a like position. That, in my view, was the approach taken by Ryan JR in McCafferty, where he considered the question of fairness as between the applicant then before him and others who might be in a like situation, ie. endeavouring to resolve legal aid claims before lodging a substantive application. In that case the Judicial Registrar, in refusing to grant an application for extension of time, observed on the facts then before him, in effect, that the federal jurisdiction would grind to a halt if such applications were to be granted merely because an applicant wished to first resolve a legal aid claim.

The present case, in my view, can be distinguished from McCafferty on two grounds: first, I do not understand that case to have involved delay arising from admitted error on the part of the applicant's solicitor and, second, again unlike McCafferty, there is present here the evidence of Mr Manson upon which Mr Hodgman relied in submitting that Roadways Pty Ltd had made up its corporate mind to dismiss Mr Price even before the event that ultimately gave rise to his dismissal had actually occurred.80 Those considerations, in my opinion, are sufficiently peculiar to the circumstances of this case to lead me to the conclusion that, as Mr Hodgman submitted, there is no suggestion in the present circumstances that others in a like situation might be prejudiced should Mr Price's application be granted.

By way of summary of the findings that I have made concerning individual elements of the Hunter Valley principles, the position is this. While Mr Price has an acceptable explanation for the delay that occurred following 13 June 1997,81 the delay that occurred between 26 May and 13 June (or perhaps 10 June) is unfavourable to him unless there is something in the surrounding facts and circumstances that, having regard to the remarks of Dawson J, allows the Commission to exercise its discretion in his favour because "justice is best served by so doing".82

Notwithstanding that Roadways Pty Ltd had reasonable cause to believe the matter was finalised,83 there is nothing in Mr Price's alleged inactivity that prejudices my finding that he has an acceptable explanation for the delay that occurred after 13 June 1997.84 As to prejudice to the respondent, my finding is that in the absence of evidence as to the nature of that prejudice, apart from merely describing it as a disruption of the workforce, there is no prejudice to Roadways Pty Ltd that would justify refusal of Mr Price's application for an extension of time.85

In terms of public interest considerations, I am satisfied that should Mr Price's application be granted, there is unlikely to occur a delay of such a nature as to unsettle people or established practices.86

Regarding merits of the substantial application I am satisfied, for reasons set out earlier, that there is no reason on that ground for refusing to grant Mr Price's application for an extension of time.87 Finally, concerning considerations of fairness, my conclusion is that on the circumstances of this case there is no suggestion that others in a like situation might be prejudiced should Mr Price's application be granted.88

It is now appropriate to consider all the above findings in a global sense, for the purpose of determining the outcome of Mr Price's application for an extension of time. In this regard, as well as relying on the Hunter Valley principles, Ms Lyon also referred to the observations of Dawson J89 and, in particular, McHugh J in Brisbane South Regional Health Authority, where the latter enumerated four broad rationales for enactment of limitation periods.90

Dealing with the first of those rationales, the only suggestion in this case that evidence might be lost because of the passage of time is that to which Ms Lyon referred to as problems associated with fading memories.91 My conclusion on that point was that Mr Manson, who gave evidence on behalf of the Company some three months after the actual event, had no difficulty recalling relevant memories. In addition I found that the facts and circumstances surrounding Mr Price's dismissal are not so complex, in my opinion, as to suggest general prejudice by way of fading memories.92

The second rationale goes to the oppressive nature of allowing an action long after the circumstances that gave rise to it have passed. In speaking to the Hunter Valley principle of Public Interest Considerations Mr Hodgman submitted that the particular proposition concerns delays of many months or even years but has no application to delays of a few short months.93 There is some support for this suggestion in Brisbane South Regional Health Authority, where the period of delay was 17 years. However, more specifically, it is hard to see how a delay of three months, in circumstances where there is no loss of evidence and Mr Manson, by the confident manner in which he gave his evidence, showed that the relevant events are still firmly fixed in his mind, could be oppressive in the absence of any direct evidence to that effect. There is no such evidence in this case.

The third of His Honour's four broad rationales is that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. In the present matter, the implication in Mr Hodgman's submission, as it concerns this point, is that Mr Manson's evidence suggests Roadways Pty Ltd might have arranged its affairs at a time prior to that on which it could be said by the Company that claims by Mr Price could no longer be made against it. Whether that was the case, of course, is a matter for the future, should Mr Price's substantive application go ahead.

The final of the broad rationales to which McHugh J referred concerns the public interest requirement that disputes be settled as quickly as possible. In that regard Ms Lyon's submissions emphasised a constant theme that, in an industrial jurisdiction, the objective is for applications to be dealt with expediently and as quickly as possible.94 In the circumstances of the present case the view that she pressed upon me was that, in the industrial jurisdiction, 100 days is a very long period.95

In the matter now before me the issue of quickly dealing with disputes appears to me to come down to competing elements of fairness. In the case of Roadways Pty Ltd, I have already expressed the view that, at the time Mr Price's application was lodged, the Company had reasonable cause to believe the matter was finalised.96 However, the evidence of Mr Manson suggests that it was not that belief upon which the Company acted when, in terms of Ms Lyon's explanation, it appointed another mechanic in contemplation of Mr Price losing his licence.

In Mr Price's case I found that, subject to all the surrounding facts and circumstances, the delay that occurred between 26 May and 10 or 13 June 1997 is favourable to the Company's contention that the extension of time application should not be granted.97 That said, one element of Mr Price's substantive application, as submitted by Mr Hodgman, is the assertion that the Company in terminating Mr Price's employment denied him procedural fairness.98 During the course of the present proceedings, however, the evidence of Mr Manson led Mr Hodgman to contend that, the question of Article 7 of the ILO Convention aside, Roadways Pty Ltd had made up its corporate mind to dismiss Mr Price even before the event that ultimately gave rise to his dismissal had actually occurred.99

In my view that aspect of Mr Manson's evidence, in terms of fairness as between Roadways Pty Ltd and Mr Price, weighs heavily in the latter's favour because it raises his unvarnished assertion of procedural unfairness to a much higher level, ie. an assertion that the evidence of Mr Manson, on its face according to Mr Hodgman, arguably appears to support. In circumstances where, on my earlier findings, there is no other prejudice to Roadways Pty Ltd in granting Mr Price's application for an extension of time I am of the opinion the facts of this matter are such that it is open to me to conclude, having regard to Dawson J's observations in Brisbane South Regional Health Authority, that this is a case, notwithstanding the delay that has occurred, in which justice is best served by granting Mr Price's application for an extension of time. In that regard I am comforted also by Section 20(1)(a) of the Industrial Relations Act 1984 which enjoins the Commission, in the exercise of its jurisdiction, to "act according to equity, good conscience and the merits of the case without regard to technicalities and legal forms".

I conclude these observations by formally finding that, after considering the facts and circumstances of this case as a whole, Mr Price has an acceptable explanation for the delay that occurred between 26 May and 10 or 13 June 1997. Furthermore, I find there is nothing in the four broad rationales espoused by McHugh J in Brisbane South Regional Health Authority that leads me to conclude that I should refuse to grant the application now before me.

Accordingly, after considering the submissions of the parties and the evidence put to me in this matter, the facts and circumstances when taken as a whole positively satisfy me, for all the reasons discussed above, that it is proper, fair and equitable for me to grant Mr Price's application for an extension of time and that justice is best served by my so doing. For the purpose of giving effect to that decision I now make the following Order:

THAT THE TIME in which the applicant herein, Mr T J Price, may bring an application pursuant to Section 29(1A) of the Industrial Relations Act 1984 concerning his termination of employment on 23 May 1997 by Roadways Pty Ltd be extended up to and including 1 September 1997.

 

B R Johnson
DEPUTY PRESIDENT

Appearances:
Ms A Valentine, a legal practitioner (11.9.97 and 25.9.97) and Mr W M Hodgman QC (7.11.97) for Mr T J Price.
Ms M Lyon, a legal practitioner, with Mr V Green and Mr B Manson for Roadways Pty Ltd.

Date and Place of Hearing:
1997
September 11, 25
November 7
Hobart

1 (1984) 7 ALD FC of A 315.
2 No. 18 of 1997.
3 T Nos 6915 and 6918 of 1997, 1 October 1997.
4 Supra, p. 5.
5 (1995) 5 Tas R 71, 107-108.
6 Grounds given in support of Mr Price's application for an extension of time.
7 Ms Lyon did not oppose the application, but she did reserve the respondent employer's right to cross-examine Mr Price on the point.
8 Exhibit V3, paragraph 15.
9 Transcript 25/9/97, p. 14.
10 Supra, p. 16.
11 Transcript 7/11/97, p. 43.
12 Supra, p. 45.
13 Transcript 7/11/97, p. 45.
14 (1983) 71 FLR 256.
15 (1957) 96 CLR 469, 474-475.
16 Transcript 7/11/97, p. 44.
17 Transcript 25/9/97, p. 16.
18 Supra.
19 T Nos 6915 and 6918 of 1997, p. 5.
20 Above, p. 2.
21 Supra; T Nos 6915 and 6918 of 1997, p. 3.
22 T Nos 6915 and 6918 of 1997, p. 3.
23 Supra, p. 5.
24 Transcript 7/11/97, p. 37.
25 Above, p. 3.
26 5 Tas R 71, p. 109.
27 Above, pp. 4-5 and Exhibit V2.
28 Serial No 121/1997, p. 11.
29 Above, p.2.
30 Transcript 7/11/97, p. 43.
31 Exhibit V2.
32 Above, p. 6.
33 Above, p. 4.
34 Transcript 7/11/97, p. 43.
35 Exhibit V1.
36 Transcript 7/11/97, p. 46.
37 Above, p. 4.
38 Transcript 7/11/97, p. 45."
39 Transcript 11/9/97, p. 4.
40 A pre-hearing conference at which I discussed with Ms Valentine and Ms Lyon the proposed conduct of the proceedings.
41 Above, p. 5.
42 Above, p. 6.
43 Supra.
44 Above, p. 4.
45 Above, p. 10.
46 Above, p. 8.
47 Above, pp. 8-9.
48 Above, p. 1.
49 (1984) 7 ALD FC of A 315.
50 Supra, p. 320 per Wilcox J.
51 Transcript 7/11/97, p. 56 (Lyon) and p. 57 (Hodgman).
52 Exhibit V1.
53 Above, p. 5.
54 Quoting Walsh J in Martin v Nominal Defendant (1954) 74 WN(NSW) 121 at 125.
55 At p. 574.
56 At p. 416.
57 131 ALR 1, p. 2.
58 131 ALR 1, p. 8.
59 Exhibit V2.
60 Exhibit V3.
61 In Tasmania, Monday 9 June 1997 was a public holiday.
62 Transcript 7/11/97, p. 46
63 Transcript 7/11/97, p. 48.
64 Supra, p. 46.
65 See Exhibit V1.
66 Supra.
67 Transcript 7/11/97, p. 32.
68 Transcript 7/11/97, p. 48.
69 Supra, p. 31.
70 Supra, p. 53.
71 Supra, p. 31.
72 Transcript 7/11/97, p. 31.
73 Transcript 7/11/97, p. 31.
74 No. TI-194/94 (950214).
75 Supra, p. 3.
76 Transcript 7/11/97, p. 57.
77 Supra.
78 Transcript 25/9/97, p. 14.
79 No. TI-194/94 (950214), p. 3.
80 Above, p. 25.
81 Above, p. 15.
82 Above, p. 16.
83 Above, p. 17.
84 Above, p. 18.
85 Above, p. 20.
86 Above, pp. 21-22.
87 Above, p. 22.
88 Above, pp. 23-24.
89 Above, p. 14.
90 Above, pp. 14-15.
91 Above p. 19.
92 Supra.
93 Above, p. 21.
94 See above, for example, at pp. 14, 19 and 23.
95 Above, p. 15.
96 Above, p. 17.
97 Above, p. 16.
98 Above, p. 5.
99 Above, p. 22.