T10588 and T10677
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Rachael Heather Birt and Kingston RSL T/A Club Kingston (under liquidation)
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - extension of time - order issued REASONS FOR DECISION [1] On 5 December 2002, Rachael Heather Birt and on 21 January 2003 Gidget Dee Siggins (the applicants), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 ("the Act"), for hearings before a Commissioner in respect of an industrial dispute with Kingston Sub-branch of the Returned Services League of Australia Incorporated, Incorporation No. 02983C [under liquidation] (the respondent) arising out of severance pay in respect of termination of employment as a result of redundancy. [2] A hearing was convened at the Commonwealth Law Courts, 39-41 Davey Street, Hobart before myself, to commence on Thursday 23 January 2003 at 10.30 am. [3] At the hearing, Ms J Fitzgerald of the Working Women's Centre, appeared on behalf of the applicants, and Mr F Ireland appeared for Paul Cook, the official liquidator of the Kingston Sub-branch of the Returned Services League of Australia Incorporated ("Club Kingston"). Background [4] These applications relate to the termination of employment of the applicants by Club Kingston on 14 August 2002 in the case of Ms Birt and 15 August 2002 in the case of Ms Siggins. The applicants were informed on 14 August 2002 that they would no longer be required because the club was ceasing trading at 8.00 pm that night. Ms Siggins worked for one further day cleaning in preparation for lock-up. According to the applicants, the 14 August 2002 was the first that they knew that their positions would be terminated. [5] The applicants say that they were assured that their outstanding entitlements would be forthcoming and the official liquidators would contact staff with instructions. No instructions were given at the time in relation to the Industrial Commission or the Commonwealth Government's GEERS scheme. It was not until 4 November 2002 that staff received a letter from the liquidators, in which they were informed that they would need to seek an order from the Tasmanian Industrial Commission in order to have redundancy entitlements awarded. [6] It appears that this delay was due to the liquidator not being officially appointed until 22 October 2002. [7] According to information received from Mr Ireland, Ms Siggins commenced employment on 18 November 1999 and Ms Birt on 28 July 2001. They were both permanent employees, Ms Siggins full time and Ms Birt part time, employed under the terms of the Licensed Clubs Award. Extension of Time [8] Section 29(1B) of the Act says:
[9] Ms Birt's application was made on 5 December 2002, three months out of time, and Ms Siggin's application was made on 21 January 2003, approximately four and a half months out of time. [10] Mr Ireland opposed the granting of an extension of time. He said that on 4 November 2002 the liquidators had written to the applicants and had set out in clear terms the need to make an application within 21 days. [11] Mr Ireland said that a reasonable situation would be for the clock to start ticking from the date the letters were sent to the applicants. Even though that letter was sent two months after the expiration of the 21 day time limit the applications were still made more than 21 days after the date of the letters from the liquidators. He said that if the time was counted from then, Ms Birt's application would still be 10 days out of time and Ms Siggin's two and a half months. He said that it was a matter of ascertaining what the exceptional circumstances were after 21 days had elapsed from 4 November 2002. [12] Ms Fitzgerald, for the applicants, said that the letter from Paul Cook and Associates did inform them that there was a 21 day time period for making an application to the Commission, but failed to inform them that the time could be extended in exceptional circumstances. Given that the employees had received those letters close to three months after the date of termination there was some confusion as to whether or not they were still able to make applications. [13] Ms Fitzgerald told the Commission that Ms Birt was 31 weeks' pregnant at the time she received the letter from the liquidators and was undergoing a series of tests in relation to concerns about the health of her baby. The stress relating from these circumstances led to a delay in her application. The delay in Ms Siggin's application was as a result of her mother being ill and passing away in the period between the receipt of the letter and the lodging of the application. [14] Both applicants provided statements to the Commission about their particular circumstances. Mr Ireland did not challenge those statements, instead informing the Commission that he would accept them and was not disputing anything in relation to the personal circumstances of either applicant. [15] Ms Birt told the Commission that the tests were because her baby was at high risk of having Down's Syndrome and that there was a period of time when she was extremely stressed because of that, particularly during the period when she was awaiting the test results. In addition she was "totally unsure" of what to do about the matter, which was why she had gone to the Working Women's Centre. [16] Ms Siggin's statement said that her family had been informed that her mother had terminal cancer and the family had then provided care for her. Her mother died on 9 December 2002. FINDINGS [17] I now confirm, in writing, the decision given extemporaneously. Extension of time [18] On the question of extension of time, I find that the terms of the letter sent to the applicants by the liquidator on 4 November 2002 are such as would lead the applicants to believe that it was too late to make application to the Commission in respect of a dispute relating to severance pay. [19] The relevant part of the letter said:
[20] No reference is made to s.29(1B) of the Act, which allows an extension to the 21 days to be given in exceptional circumstances. The 21 days expired on 5 and 6 September 2002, two months before the letter was written. It is likely that the applicants would have concluded that it was too late to make an application. They had been told that they would be contacted by the liquidators in relation to their unpaid entitlements. When they were contacted the information which they were given, unfortunately, was not complete. [21] Mr Ireland said that, in the circumstances, a reasonable period for an extension of time would be 21 days after the date of the letter of 4 November 2002. Had the letter made reference to the Commission's ability to extend the time limit, I might have agreed with him, provided that there were no other circumstances to take into consideration. In this case, however, there were. Both applicants were undergoing traumatic experiences in their personal lives. The circumstances of the likely misunderstanding caused by the omission from the letters sent by the liquidators combined with the stress being experienced by the applicants amounts to exceptional circumstances. I find that there are exceptional circumstances and that the 21 days should be extended to the date of the hearing, 23 January 2003. Severance payment [22] I find that the applicants were made redundant on 14 and 15 August 2002, when Club Kingston closed its doors and terminated the employment of Rachael Birt and Gidget Siggins. [23] I find that both applicants were permanent employees with a reasonable expectation of continuing employment. [24] I have decided that each applicant should receive a severance payment based on two weeks' wages for each completed year of service or part thereof. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that the respondent, the Kingston Sub-branch of the Returned Services League of Australia Incorporated, Incorporation No. 02983C (under liquidation) pay to the former employees whose names are set out below the amounts specified below, in full and final settlement of the industrial disputes referred to in T10588 of 2002 and T10677 of 2003, which refer to severance pay, such payment to be made no later than 5.00 pm on Monday 24 February 2003.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit R1 |