T12400
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Geoffrey Wharton and Motorsports Tasmania
Industrial dispute - termination of employment - application lodged out of time - application for extension of time - application refused REASONS FOR DECISION [1] On 14 November 2005, Geoffrey Wharton (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 Motorsports Tasmania arising out of the termination of his employment. [2] This matter was listed for a hearing (conciliation conference) on 8 December 2005, and a hearing on 19 December 2005. Mr Wharton was self-represented. Mr S Chopping, solicitor, appeared with Mr D Caplice, for Motorsports Tasmania. [3] The applicant commenced employment with the respondent on 8 June 2004 in the position of Sales and Marketing Manager. [4] Mr Wharton was summarily terminated on 2 May 2005. [5] Mr Wharton lodged an application pursuant to s.29(1A) of the Act alleging inter alia that he had been unfairly terminated by the Chairman of the Board of Motorsports Tasmania. The application was accompanied by a 147 paragraph Statement of Claim. [6] The application was lodged 175 days out of time. The applicant seeks an extension of time pursuant to s.29(1B) of the Act. The respondent opposed the application. [7] The principles and considerations applicable to applications for an extension of time are well established and confirmed by a Full Bench on appeal.1 They are:
[8] Mr Wharton made a sworn statement. Mr Chopping chose not to cross-examine or call counter evidence. [9] Mr Wharton's submissions are summarised as follows. [10] The application has unique, compelling and significant circumstances that justify an extension of time. [11] The severance process is incomplete. Even at the time of hearing matters pertaining to salary entitlements had not been attended to, contrary to a previous undertaking by the respondent. [12] The respondent had breached an agreement relating to severance terms resulting in the necessity for the applicant to institute civil proceedings. This was not resolved until 16 September 2005. [13] The respondent's legal representative was placed on notice "of a scathing action of unfair dismissal" during June 2005. Note: the Commission was not provided with a copy of this correspondence. [14] The applicant has suffered financial hardship as a consequence of the termination. [15] The applicant would be further disadvantaged if he was forced into an alternative jurisdiction. [16] A major element in a difficult employment relationship related to what Mr Wharton contended was indifference on the part of the General Manager and Board to essential OH&S issues in an inherently dangerous environment (High-speed motor sport). It was consistent with the duty of care owed that these matters be aired in order that remedial action is taken and the exposure to risk reduced. [17] Mr Wharton described his relationship with the General Manager in the following terms:2
[18] Mr Chopping submitted that the matters raised by Mr Wharton were not relevant to an application for an extension of time. No proper explanation for the delay in lodging the application had been provided. Findings [19] The application was lodged substantially out of time. It follows that a heavy onus falls to the applicant to justify an extension. [20] Section 29(1B) of the Act reads:
[21] In my view the term "exceptional circumstances" must relate to the delay in lodging the application, rather than exceptional circumstances attaching to the application in its widest sense. [22] A major thrust of Mr Wharton's submission went to concerns he held as to OH&S issues with the respondent's operations. Whilst I have no doubt that these concerns are genuinely held, their relevance or otherwise pertain to the merits of Mr Wharton's substantive application, rather than an application for an extension of time. [23] Mr Wharton's statement of claim is extremely detailed. On the papers at least I conclude that he has an arguable case for unfair termination. It follows that his prospect of success in a substantive hearing would not be a barrier to the granting of the extension sought. [24] The difficulty with the application is that Mr Wharton has not provided a compelling explanation for the extensive delay in lodging the application. [25] I accept that the employment contract came to an end on 2 May 2005, notwithstanding that a number of financial issues remained outstanding. The fact that these issues continued to fester for an extended period of time was indeed unfortunate, and I am sympathetic to the frustration clearly felt by Mr Wharton. They did not however alter the reality that the contract came to an end on 2 May 2005. [26] The relevant question is whether the actions of the respondent prevented or hindered Mr Wharton from lodging the application in a timely manner? I was not provided with any evidence that this was the case. [27] The lodging of a s.29(1A) application is very straightforward. Even if supporting documentation is required, this can be provided at a later date, without affecting the validity of the application. The main reason for the 21-day time limit is to put the respondent on notice and to facilitate an early conciliation conference. It is expected that the time limits will be complied with and extensions will only be granted where a compelling explanation for the delay is provided. That is the first consideration. The other considerations only come to bear if the primary explanation is provided. [28] In this case the applicant has failed to provide a proper explanation for the substantial delay. [29] The application for an extension of time is refused. [30] I so order.
Tim Abey Appearances: Date and Place of Hearing: 1 T11860 of 2004 Patch's Variety v Samantha-Jo Lewis 2/5/05
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