T11370
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Carlo Francesco Zagni and Zaganite Specialised Coatings Pty Ltd
Industrial dispute - severance pay as a result of redundancy - application for alleged unfair termination of employment - extension of time to lodge or amend application - exceptional circumstances - applications granted - relisted for conciliation conference REASONS FOR PRELIMINARY DECISION [1] On 3 March 2004, Carlo Francesco Zagni (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Zaganite Specialised Coatings Pty Ltd. [2] The matter was listed for a conciliation conference on 29 March 2004. Mr H Murray, solicitor, appeared for the applicant. Mr J Zeeman, solicitor, appeared for the employer. [3] Mr Zagni was employed by Zaganite Specialised Coatings Pty Ltd (Zaganite) from 1979 until 13 February 2004. [4] Some time in 2003 Roadways Proprietary Limited (Roadways) purchased the business. On or about 21 August 2003 Mr Zagni accepted an offer from Mr Sidney, CEO of Roadways, to work as Business Manager for Zaganite. [5] On 13 February 2004 Mr Zagni was called to a meeting with Mr Sidney. Following a brief discussion, Mr Zagni's services were terminated. [6] On 3 March 2004 Mr Zagni lodged an application pursuant to s.29(1A) of the Act. This section reads:
[7] Using the Commission's form (which is not a prescribed form) Mr Zagni wrote "No" against "alleged unfair termination of employment" and "Yes" against "severance pay in respect of termination of employment as a result of redundancy". [8] At the 29 March conciliation conference Mr Zeeman contended that the termination was not as a consequence of a redundancy and therefore there was no entitlement to severance pay. Without elaborating, Mr Zeeman indicated that the termination resulted from a "performance issue". [9] The hearing was adjourned until 30 April 2004 to hear argument as to Mr Zagni's foreshadowed application to amend the original application so as to include an "alleged unfair termination of employment". [10] Mr Zagni submitted into evidence an Affidavit1 and was subject to cross-examination. The respondent did not call evidence. At the conclusion of the hearing I issued a decision on transcript. I now publish my reasons for decision. [11] The first issue to be determined is whether the original application can be amended, or whether it is necessary to lodge a new application. [12] Mr Murray submitted that the form filled out by Mr Zagni was not a prescribed form. It would have been open to the applicant to answer "Yes" to both questions and leave it to the Commission to determine whether s.29(1A) (a) or (b) applied. He said that the jurisdiction of the Commission was invoked when the s.29(1A) application was lodged. It does not matter whether it is under (a), (b), (c) or (d). This, Mr Murray submitted, was a straightforward amendment to the original application, which was clearly within the power of the Commission to accept. There was no requirement to seek an extension of time pursuant to s.29(1B), and hence no necessity to establish the existence of "exceptional circumstances". [13] Mr Zeeman submitted that s.29(1A) provides in each separate paragraph a statutory cause of action. In the case of subsections (a) and (b), each application must be lodged within 21 days. Section 29(1B) provides for an extension of time where "exceptional circumstances" can be demonstrated. For the applicant to succeed it would be necessary to lodge a fresh application and then apply for an extension pursuant to s.29(1B). [14] Section 20(1)(a) of the Act reads: "20. (1) In the exercise of its jurisdiction under this Act, the Commission - (a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;" [15] It seems to me that, consistent with this statutory requirement, nothing turns on whether it is a fresh application or an amendment to the original application. The distinction is purely technical which can be remedied at the stroke of a pen. [16] I do however agree with Mr Zeeman that each of the subsections in s.29(1A) must be read as separate actions. If I was to accept Mr Murray's contention, then an application seeking a long service leave or award breach remedy, could, perhaps many months later, be converted to an unfair termination claim, without the necessity to seek an extension of time. This would seem quite inconsistent with the intention of the Act as it relates to time limits for certain actions. The High Court judgement in Brisbane South Regional Health Authority v Taylor is pertinent to this observation:2
[17] I conclude therefore that it is necessary in this matter for the applicant to obtain an extension of time. This of course invokes a consideration as to the existence of "exceptional circumstances". [18] Mr Zagni's affidavit relevantly states:3 "... 5. That before 13 February, 2004 I believed that my employment would be continuing, and that it would not be terminated unless the respondent had good reason to terminate it. 6. That on 13 February, 2004 at around 11.00am the respondent's Chief Executive Officer Mr Phil Sidney rang me and asked me to meet him at around 2.00pm that afternoon. 7. That I met with Mr Sidney in his office at the respondent's premises at 17 South Arm Road, Mornington as arranged. 8. That at the meeting Mr Sidney told me that decisions had been made to relocate, and reorganise the respondent's business and that as part of those processes my services were no longer required from that day. 9. That at the meeting, and at Mr Sidney's request, I gave him the mobile 'phone and lap-top computer I had been using, and arranged to deliver to the respondent the Toyota Landcruiser I had been using. 10. That during the course of the meeting Mr Sidney handed me a form of release and asked me to sign and return it to him in due course. A copy of that document is annexed and marked 'B'. 11. That immediately after the meeting I collected my personal possessions and left the premises. 12. That at no time, at or after the termination of my employment with the respondent was I ever informed by any person employed by, or connected with the respondent, or any other person, that my employment was terminated for any reason connected with my working capacity, performance at work or conduct as an employee. 13. That at no time prior to the termination of my employment was I ever informed by any person employed by, or connected with the respondent, or any other person, that my employment was in jeopardy, or that the respondent was not satisfied with my work. 14. That at no time prior to 29 March, 2004 when I heard the respondent's counsel advise the Commission that my termination was not by way of a redundancy was I given any reason to believe that it was terminated for any reason other than the respondent's proposed reorganisation." [19] Under cross-examination Mr Zagni said:4
[20] The first occasion that Mr Zagni became aware that the termination might have been for reasons other than redundancy was the conciliation conference on 29 March 2004. It was at this point that he foreshadowed an application to amend. [21] Based on the evidence I believe Mr Zagni had every reason to believe he had been made redundant. The termination was effected in the context of a relocation, re-organisation and turning two offices into one. There was no mention of any performance related issues or anything else. The fact that he nominated redundancy in his application when he could have covered all bases by answering "Yes" to both (a) and (b), in my view underlines the genuineness of Mr Zagni's view as to termination on the grounds of redundancy. [22] For Mr Zagni to be denied the opportunity to pursue his claim simply because he may have guessed wrongly as to the reasons for termination, when no other reason had been given, would amount to justice denied. [23] I have no hesitation in concluding that the applicant has demonstrated the existence of exceptional circumstances. The extension of time is granted and the application is accordingly amended to include an application pursuant to s.29(1A)(a) of the Act.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A1 |