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T11652

  TASMANIAN INDUSTRIAL COMMISSION

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

Dalveer Singh
(T11652 of 2004)

and

Huon Aquaculture Company Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 19 August 2005

Industrial dispute - alleged breach of award - alleged unfair termination of employment - application for extension of time - dismissed - no award breach found - no jurisdiction to consider other matters raised in application - refrain from further hearing

REASONS FOR DECISION

[1] In this matter the applicant seeks an extension of time pursuant to s29(1B) of the Act. Mr Singh's employment contract was terminated with effect from 23 July 2004. Mr Singh's application alleging unfair termination was received in the Commission on 17 June 2005, approximately 10 months out of time. The background to this application is an important contextual consideration.

Background

[2] On 11 August 2004 Mr Singh lodged an application, pursuant to s29(1A) of the Act, alleging that his employer was in breach of an award or a registered agreement. The application was lodged on the Commission form, and only the alleged award breach box was ticked. Part G of the form relating to "Additional particulars regarding Termination of Employment", was left blank. Part I, dealing with "Additional particulars regarding claims for alleged Breach of Award or Registered Agreement", was completed.

[3] The matter was listed for a conciliation conference on 1 September 2004. Mr Singh was self-represented and the Company was represented by Mr R Rollins, of the Tasmanian Chamber of Commerce and Industry Limited (TCCI), together with Mr D Wood. During the conference it became apparent that Mr Singh's concerns were directed more towards alleged shortcomings in relation to certain Department of Immigration (DIMIA) requirements applicable to the sponsoring employer, rather than a breach of any award of this Commission.

[4] The hearing was adjourned to enable further discussions between the parties.

[5] At the request of the applicant the matter was listed for further conciliation proceedings on 2 November 2004.

[6] On the morning of the conference the applicant presented with a medical certificate stating that he was "unfit for work". As a consequence the hearing was adjourned, to be resumed at the request of the applicant.

[7] On 26 April 2005 Mr Singh wrote to the Commission in the following terms:

"Refer to my telephone conversation with Julie during the middle of this month. I request the industrial commission to do the following:

(1) Give me a hearing date - 1st week of June suits me.

(2) During my hearing on 01 Sept 04 the commissioner informed me he has no jurisdiction over immigration matters. I would like you to give me the above in writing so that the matter can be raised with appropriate courts."

[8] On 28 April 2005 the Commission responded as follows:

"I have for attention your letter of 26 April 2005.

I confirm that the jurisdiction of the Commission is limited to alleged breaches of the relevant Award, in this case the Fish, Aquaculture and Marine Products Award.

The Commission does not have jurisdiction to deal with disputes arising from immigration matters.

Should you require a further listing of this matter you will need to provide precise details of any alleged breach of the Award.

Would you please advise your future intentions in relation to this matter not later than 1 June 2005 as this application needs to be brought to finality one way or the other."

[9] On 31 May 2005 Mr Singh again wrote to the Commission:

"Sub: Entitlements of Migrant Workers

My previous employer could not fulfil his legal obligations. I am seeking your help in getting my entitlements from Huon Aquaculture company. A migrant worker is entitled to the following:

(1) Repatriation

(2) Full payment of wages (DIMIA standards on wages)

(3) Reimbursement of money towards work related illness.

I think Tasmanian industrial commission have a responsibility of protecting the rights of migrant workers."

[10] The Commission responded by letter dated 6 June 2005.

"Thankyou for your correspondence of 31 May 2005.

As I explained in my correspondence of 28 April 2005, the Commission's jurisdiction is limited to alleged breaches of the relevant award, in this case the Fish, Aquaculture and Marine Products Award.

From your most recent correspondence there does not appear to be any allegations that the above award has been breached. The matters you have raised would seem clearly beyond the jurisdiction of the Commission, and as such, there would be no point in listing the matter for hearing.

In the circumstances it would be my intention to close the file unless we receive written advice from you, not later than Friday 17 June, which clearly indicates matters upon which the Commission does have jurisdiction."

[11] Further correspondence from Mr Singh was received in the Commission on 17 June 2005.

"My previous employer terminated my services after a period of eleven months. I think it was unfair dismissal, also the letter of termination which I received from my employer was not signed. I'm seeking Tasmanian Industrial Commission's help for my reinstatement. I would request the commission to give me a hearing date for the above."

[12] The Commission responded by letter dated 23 June 2005:

"I have for acknowledgement your correspondence received on 17 June 2005 in which you allege that you were unfairly terminated and now seek reinstatement.

Your application lodged on 11 August 2004 made no reference to an alleged unfair termination.

Section 29(1B) of the Industrial Relations Act 1984 reads:

`29. Hearings for settling disputes

...

(1B) An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate.

...'

This means that an application relating to an alleged unfair termination must be lodged within 21 days of the date of termination. This time limit may only be extended if the applicant is able to demonstrate the existence of "exceptional circumstances".

Clearly your application is significantly outside the 21-day time limit.

In the circumstances I propose to convene a hearing to determine this preliminary matter alone. You will need to demonstrate some "exceptional circumstance/s" which might justify the granting of an extension of time.

After hearing the parties I will in all likelihood reserve my decision and hand written reasons as soon as possible thereafter.

The outcome of this preliminary matter will determine whether your application proceeds to a hearing on the merits.

A Notice of Hearing is attached."

[13] The hearing was scheduled for 12 July 2005. Mr Singh was self-represented. Mr R Rollins, of TCCI, appeared for the Company.

Submissions

[14] Mr Singh submitted that due to illness, injury and stress associated with immigration matters, his decision-making abilities had been degraded. He also submitted that he had difficulty with the English language, which in turn led to a lack of understanding of the legislative requirements.

[15] Mr Rollins relied on the principles relating to extension of time applications as outlined in Izard v R G Simons as Trustee for R G Simons Family Trust trading as T & H Investments.1 He further submitted:

· Mr Singh had not at any stage during the alleged award breach proceedings, raised the question of unfair dismissal.

· The 21-day time limit requirement was clearly highlighted on the original s29(1A) application form lodged by Mr Singh.

· There was no satisfactory explanation for the delay.

· There was little likelihood of success should the application be determined on the merits.

· To allow the application to proceed would create a significant prejudice for the employer, who out of necessity had replaced Mr Singh.

Finding

[16] This application is substantially out of time and a heavy onus falls on the applicant to demonstrate the "exceptional circumstances" which might justify an extension.

[17] It is acknowledged that English is not Mr Singh's first language. Against that Mr Singh has at all times represented himself and at no stage requested the services of an interpreter. He demonstrated an ability to deal with quite complex DIMIA documentation and his correspondence with the Commission show reasonably advanced sentence structure.

[18] There seems no doubt that Mr Singh was suffering from some form of injury and/or illness at the time of termination. He did not however present any form of medical evidence as to how this might have prevented him from lodging an unfair dismissal application. Indeed his medical condition clearly did not prevent him from lodging the alleged award breach application.

[19] At no stage prior to 17 June 2005 did Mr Singh make any reference to an unfair termination. The employer could have quite reasonably concluded that this was not an issue. Indeed it would be open to conclude that Mr Singh raised the unfair termination issue only when all other avenues for relief, within the Commission, appeared to be closed off.

[20] There was insufficient material before me to reach any meaningful conclusion as to the prospect for success, should the matter be allowed to proceed.

[21] I am satisfied that the employer would be placed in a position of considerable prejudice should the matter proceed. One of the purposes of time limits is to create some element of certainty for employers in order that they may reorganise their business operations. In this case Mr Singh has, not unreasonably, been replaced.

[22] I am not satisfied that the applicant has established the exceptional circumstances which would justify an extension of time of some 10 months.

[23] The application for an extension of time is dismissed. I so Order.

[24] The applicant has failed to demonstrate that the Commission has jurisdiction to consider any other aspect of his original s29(1A) application.

[25] Accordingly, pursuant to s21(2)(c) of the act, I refrain from further hearing of the matter.

 

Tim Abey
COMMISSIONER

Appearances:
Mr D Singh, self-represented
Mr R Rollins, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr D Wood (1/9/04), for Huon Aquaculture Company Pty Ltd

Date and Place of Hearing:
2004
September 1
2005
July 12
Hobart

1 T11310 of 2004