TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T8081

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Albertus Letter
(T7897 of 1998)

and

Pioneer Building Products Pty Ltd trading as Nubrik

Industrial dispute - termination of employment - extension of time - not granted - application dismissed

REASONS FOR DECISION

This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Albertus Letter of South Launceston.

Mr Letter was in dispute with Pioneer Building Products Pty Ltd trading as Nubrik of Longford (the Company) over the amount of severance pay he received in respect of the termination of his employment with the Company as a result of redundancy (Section 29(1A)(b) of the Act).

Mr R Pearce, a legal practitioner, after the Commission dismissed an objection by the Tasmanian Chamber of Commerce and Industry Limited (the Chamber) representing the Company, was granted leave to appear on Mr Letter's behalf.

The Chamber also opposed the granting of an extension of time to Mr Letter since his application was lodged outside the 14 day time limit prescribed in Section 29(1B) of the Act.

Mr Letter came forward as a witness in support of the application for an extension of time and the following evidence was given:

• Mr Letter had been employed by the Company for 37 years, latterly as the production supervisor.

• Talk of a redundancy had started in March 1997 and resumed in March 1998.

• On the basis that the proposals were inadequate Mr Letter had refused the Company's redundancy offer until April 1998 when he accepted a proposal.

• Even when he accepted the redundancy offer, Mr Letter was of the view that the amount was inadequate and he told the Company then (in April 1998) he could pursue a payment of at least two weeks pay for each year of service.

• The redundancy package included 55 weeks pay, four weeks pay in lieu of notice plus $8000 in compensation for the loss of the use of a Company car.

• Mr Letter accepted the redundancy offer in April 1998, but, did not finish work with the Company until 30 June 1998.

• He lodged an application for a dispute hearing over his redundancy on 10 August 1998 (almost five weeks after his employment terminated).

• Mr Letter was unaware of the 14 day time limit on his application until early August.

It was submitted on Mr Letter's behalf that an extension of time should be granted in all the circumstances. It was pointed out that the Company had not sought to show that it had been prejudiced by the delay.

In opposing an extension of time the Company said that it was not an automatic right and the general principles on the matter, endorsed by the Commission in O'Connor v Capital Hill Corporation1 needed to be taken into account.

The Company canvassed the general principles quoted and submitted on that basis that the extension of time should not be granted.

On Mr Letter's behalf it was acknowledged in response that the general principles mentioned ought to be applied and, in that context, the Company had conceded that matter of merit could not be determined because all the evidence on that had not been adduced.

As to Mr Letter's ignorance of the time limit, it was admitted as irrelevant, but, submitted that it was still a factor. The Commission was also asked to note that Mr Letter was an uncomplicated person in legal matters, he had not experienced this kind of thing before and he did do his best to make enquiries.

DECISION

I have considered and applied the general principles relied on by both sides in this application, which were originally enunciated by Wilcox J in the case Hunter Valley Developments Pty Ltd v Cohen2 and as a result I have decided not to grant an extension of time. There was no acceptable reasonable explanation for the delayed application in this case. Mr Letter knew in April 1998 that his employment would be terminated at the end of June 1998. It would have been reasonable to have lodged a dispute application in April 1998 as Mr Letter had made it known then to the Company that he considered the redundancy payment to be inadequate, but, his application was not lodged till more than 12 weeks after that. Even after his employment ceased Mr Letter took five weeks to lodge his application.

Mr Letter certainly expressed to the Company his dissatisfaction with the amount of the redundancy payment at the time he accepted, but, he did not continue to make the Company aware that he was going to contest the matter till over 12 weeks later.

The Company agreed there was no prejudice as a result of the delayed application, but, that is not a key element in this determination and I regard it as neutral.

Whilst I accept the submission that the merit of Mr Letter's case was not canvassed fully, nonetheless, there was a not insignificant redundancy package accepted by Mr Letter, albeit reluctantly. In these circumstances I am persuaded the substantial merit of the application was not sufficient for me to grant the extension of time.

There was no evidence that other employees of the Company had been made redundant or had disputed any redundancy payment so considerations of fairness do not enter into this determination.

For all these reasons I reject the application for an extension of time for lodgement: the application is dismissed and I so order.

P A Imlach
COMMISSIONER

Appearances:
Mr R Pearce (of counsel) for Albertus Letter
Mr A Cameron of the Tasmanian Chamber of Commerce and Industry Limited, with Mr M Ridge and Mr G Bowman, for Pioneer Building Products Pty Ltd trading as Nubrik

Date and place of hearing:
1998
October 7
Launceston

1 Tasmanian Industrial Commission, T6563 of 1996
2 Federal Court of Australia (1984) 3 FCR 344