T8373
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Paul John Rundle and Tasmanian Electro Metallurgical Company Pty Ltd
Industrial dispute - termination of employment - extension of time - arbitrated REASONS FOR INTERIM DECISION This was an application for a dispute hearing made under section 29 of the Industrial Relations Act 1984 (the Act) by Paul John Rundle of Launceston. Mr Rundle was in dispute with Tasmanian Electro Metallurgical Company Pty Ltd (the Company) over the alleged unfair termination of his employment on 29 September 1998. The matter was initially the subject of a dispute hearing application by The Australian Workers' Union, Tasmania Branch1 (the AWU) which was dismissed by the Commission on 7 April 1999 (the previous application). This application was lodged on Mr Rundle's behalf by the legal firm Simon Parsons and Co., represented at the hearing by Mrs K O'Donnell. The Company was represented by Mr W FitzGerald of the Australian Mines and Metals Association (Incorporated) (the Association). In accordance with section 28(5) of the Act Mrs O'Donnell being a legal practitioner sought leave to appear on Mr Rundle's behalf and also, under section 29(1B) of the Act, sought leave for an extension of time to be granted to enable the application to proceed. The Association opposed both the application for extension of time and the application for leave to appear. The Commission was advised that the previous application had been adjourned at least twice at the request of the Union involved and, being concerned at the delay Mr Rundle had asked Mrs O'Donnell to take over and represent him. Because the Union was not proceeding with its application it was dismissed and a new application was lodged on Mr Rundle's behalf by Simon Parsons & Co., to enable the matter to proceed hence the application for the extension of time. Mrs O'Donnell relied on the precedent case, Hunter Valley Developments v Cohen2 (the Hunter Valley case) to support her application for an extension of time and submitted that there were special circumstances. She recounted the principles set down in the Hunter Valley case and applied them to this case. The Association submitted that the Hunter Valley decision had been replaced as a precedent by the C Kornicki and Telstra - Network Technology Group3 decision (the Kornicki case) which established some simple, main features, that there should be an acceptable explanation and there should be a "fair go all round" which included factors like actively contesting the decision to terminate the employment and prejudice to the employer because of the delay. The Association said that the application for extension of time should be dismissed because it lacked merit in that it relied on the alleged unlimited sick leave policy of the Company whereas the letter of termination contained no reference to sick leave and the Company did not have an unlimited sick leave policy. The Association also noted that Mr Rundle himself had not signed the application (it had been signed on his behalf by Simon Parsons & Co.) and submitted that, because of the restrictions placed upon a legal practitioner's status in section 28(5) of the Act, Mrs O'Donnell had no status at the time the application was made and therefore it should not be accepted. Mrs O'Donnell rejected the Association's submissions and, in particular, said that the previous application had not been made by Mr Rundle and he was not the one who sought the previous adjournments. Mrs O'Donnell also said that there really was no difference between the two cases relied on, the Hunter Valley case and the Kornicki case, and she submitted that it was not necessary for the application to rely on the substantive merits at that stage rather, "It's sufficient for the applicant to establish that the substantive application was not without merit." She said Mr Rundle should not be penalised for what the previous applicant did or did not do. Finally, Mrs O'Donnell said the Commission should not be weighed down by legalities such as those raised by the Association. DECISION The Commission has not established any precedent as to individuals signing applications and even if the Commission were to refuse appearance to a legal practitioner in this case, there is no bar to such a legal practitioner signing the application in the first place on behalf of the employee concerned. I accept Mrs O'Donnell's submissions. The circumstances surrounding the prosecution of the previous application are relevant to my considerations as to the application for an extension of time: there was a reasonable explanation for the delay in this application. Prima facie the AWU was the applicant in the previous application and was responsible for any delays and adjournments for whatever reasons. I consider it would be unwise and unfair for the Commission to penalise Mr Rundle for what happened with the previous application. I also accept that the merits of the case ought to be properly debated at a full hearing and, in this instance, the Commission should not be "weighed down by legalities" surrounding the second, albeit late application. I reject the Association's submissions, an extension of time is granted and I so order. The application will be set down for hearing in the near future.
P A Imlach Appearances: Date and place of hearing: 1 Tasmanian Industrial Commission T8024 of 1998 |