T12589
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Steven Colin Trotter and Sandy Bay Hi-Fi Retail Pty Ltd
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of an award or a registered agreement - Order issued REASONS FOR DECISION [1] On 1 March 2006 Steven Colin Trotter (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a dispute with Sandy Bay Hi-Fi Retail Pty Ltd (the respondent) re: severance pay in respect of termination of employment as a result of redundancy and alleged breach of award or registered agreement. [2] On 2 March 2006, a notification was sent to the applicant and the respondent notifying of the Commission's intent to conduct a hearing (conciliation conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 21 March 2006 at 9.30 am. [3] On 9 March 2006 the Commission received correspondence from Mr Nigel Dreaver (the Director and Secretary of Sandy Bay Hi-Fi Retail Pty Ltd), for the respondent, outlining his views of the application. [4] On 20 March 2006 a medical certificate was delivered by hand, by Mr Dreaver to the Commission, expressing that he would be unfit to attend the conference. [5] The Commission chose to hear submissions from the applicant. [6] On 27 March 2006, a copy of all exhibits and a verbatim transcript was forwarded to the respondent requesting a response within a period of time. No response was forthcoming. A further hearing was set down for Tuesday, 9 May 2006 at 9.30 am. [7] At the commencement of the hearing it was agreed by Ms Tyson that this matter be heard in parallel with T12582 of 2006 (Mrs PK Tilyard), T12592 of 2006 (Mr JP Cooper) and T12599 of 2006 (Mr S Reidy). The evidence educed with respect to the events leading up to the closure of business is common to the four matters. [8] At the hearing the applicant represented himself. Mr Benson, Ogilvie Jennings, Barristers & Solicitors, sought and was granted leave to appear for the respondent. [9] At the commencement of the hearing Mr Dreaver, for the respondent, had not appeared. The Commission was informed by Mr Benson that:
[10] Mr Benson presented a threshold matter with respect to the applications of the applicant, Mr Reidy and Mr Cooper being out of time. [11] Mr Benson then sought and was granted a short adjournment to attempt to locate Mr Dreaver. After approximately forty-five minutes the hearing was reconvened. Mr Benson informed the Commission that he had located Mr Dreaver and, although "only twenty minutes away", at the commencement of the adjournment had still not arrived. The Commission elected to continue with the hearing. Mr Benson sought and was granted leave to withdraw. [12] Approximately one and a half hours after the original commencement of the hearing Mr Dreaver arrived. He offered no apology or explanation for his tardiness. Mr Dreaver continued the representation of the respondent. [13] The applicant was employed as a sales representative by the respondent on a permanent basis from 23 July 2001, until his alleged retrenchment on 4 February 2006. The applicant cited the closure of the business as the reason for his termination. [14] Mr Dreaver said the applicant left his employment of his own volition at the same time as another key employee left. He stated that as a result of the action by the two employees the business could not function and had to close down. [15] The applicant sought payment of outstanding annual leave, payment in lieu of notice and redundancy commensurate with his 4.5 years of service. [16] Mr Dreaver sought forfeiture of one weeks wages in lieu of notice. BACKGROUND [17] In evidence it was stated by both Mr Reidy and Mr Cooper that they were made aware, some time prior to Christmas 2005, that there was a probability that the respondent would cease operation in the foreseeable future. It was alleged by Mr Cooper that Mr Dreaver had confided in him at that time, that due to poor health he would be forced to close the business. This was not challenged. [18] It was further alleged by Mr Reidy that the respondent had been given notice to quit the premises by the property's landlord. [19] Mr Dreaver initially denied there was an issue with the lease. Subsequently however, in his further evidence, he alluded to "ongoing negotiations" with the landlord, which facilitated him still occupying the premises. He further denied the business was in danger of closing at that time. He cited another local business, Danny Burkes, which ran a closing down sale "for a very extended time". [20] Mr Dreaver broached the subject of starting a sale on Boxing Day with some of the employees. The applicant, Mr Cooper and Mr Reidy all said Mr Dreaver wanted to conduct a sale during that time, but would not pay penalty rates. Although some agreed to work for ordinary time payment, the sale did not eventuate. [21] There were general discussions with the employees and the respondent, and between the employees themselves, regarding setting up a `closing down' sale for January. [22] Mr Reidy said that he approached Mr Dreaver asking for all the staff to be given time off around the post Christmas - New Year period. He said he reminded Mr Dreaver that the staff had worked for an extended period without time off and that he, Mr Dreaver, would require that time to organize the sale. Mr Reidy also said he discussed with Mr Dreaver that the break would help the employees get motivated to maximize the sales effort in the proposed closing-down sale. [23] Although challenging Mr Reidy's evidence as to why time off was given to the employees, Mr Dreaver conceded he had charged Mr Reidy with boosting morale. [24] The applicant, and the other three employees, claimed Mr Dreaver was evasive when challenged on issues of the business closure and of payment of entitlements. The applicant, Mr Reidy and Mr Cooper all said that at various times they spoke to Mr Dreaver, either personally or by telephone, regarding closure of the business and payment of entitlements. This was not challenged. [25] Indeed, evidence was presented that Mr Dreaver had been in negotiations with a representative of Bartertrade to have entitlements paid out in vouchers redeemable for goods and service.2 The employees rejected this notion. [26] It was alleged the situation became so frustrating the employees, including the applicant, en masse penned a letter on 16 January 2006 demanding answers to their concerns3. [27] The main points of the letter were as follows:
[28] The gist of Mr Dreaver's curt scribbled reply4, was as follows:
[29] As a result of alleged evasiveness by Mr Dreaver, after he had replied to their letter of 16 January 2006, it was stated by the applicant, Mr Reidy, Mrs Tilyard and Mr Cooper that another letter was sent requesting further clarification. This letter, composed by Mr Cooper, was dated 31 January 20065. Again, in that letter the applicants sought some commitment from the respondent:
[30] The respondent did not reply to this letter. [31] Mr Reidy gave evidence that he took a telephone call from Mr Dreaver on the afternoon of the 2 February 2006. The gist of which was that he was told that his last day of work would be Friday, 3 February 2006. He was also asked to notify another employee, Mrs Tilyard, that her last day of work would also be Friday, 3 February 2006; and to inform the applicant his last day of work was to be Saturday, 4 February 2006. [32] The applicant and Mrs Tilyard both confirmed that Mr Reidy did, indeed, inform them of the date of their last workday. [33] At paragraph 732 of transcript, Mr Dreaver said:
[34] Mr Dreaver did not deny a conversation took place, but denied the content. [35] It followed that: the applicant finished on 4 February 2006; Mr Reidy finished on 3 February 2006; and Mrs Tilyard finished on 6 February 2006. [36] It was stated by Mr Benson, during the course of submissions on behalf of the respondent:
[37] Mr Dreaver stated7 that no one was given notice to quit:
[38] Mr Dreaver cited his response #3 to the letter of the 16 January 2006 as evidence of his intention to maintain the employment of his staff. [39] Mr Dreaver also claimed he was aware the applicant had applied for a job with Classic Video Pty Ltd trading as Video City (Video City) and that he resigned to take up that position. [40] The applicant refuted this. [41] The applicant stated that after Mr Dreaver's response to the letter of the 16 January 2006 and his discussion with him, wherein it was confirmed that 4 February 2006 would be the date of closure, he had applied for a job with Video City. He was interviewed on 31 January 2006 by Video City, but was still a party to the letter of that date sent to Mr Dreaver. The applicant confirmed he was offered a position, but being subject to signing an AWA he had five days grace within which to accept. [42] The applicant submitted the signed AWA on Monday 6 February 2006, two days after his alleged termination. [43] The applicant was asked to proffer an argument as to why his late application, under s29(1B) of the Act, should not be dismissed. He alluded to a series of attempts to bring this matter to a conclusion. Much of his effort was taken up pursuing the matter in the wrong jurisdictions on direction from legitimate authorities. FINDINGS [44] I turn to the threshold issue of the application being out of time. The Act is clear as to the conditions under which an extension of time may be granted. Simply put, "exceptional circumstances" must be proven by the applicant to have the matter accepted. EXTENSION OF TIME PRINCIPLES [45] Whilst there is little by way of guidance for a consideration of "exceptional circumstances" within this jurisdiction, there is ample authority on the principles and considerations relevant to extension of time applications generally. [46] A decision by Abey C, dated 18 May 2004, Izard v R.G. Simmons as Trustee for R.G. Simmons Family Trust, T11310 of 2004. In this authority, Abey C considered the leading authorities on the matter of extension of time. I am comfortable in applying the process Abey C adopted to the instant threshold matter. [47] The common threads in the authorities cited by Abey C point to the following as being relevant matters for consideration: · The length of the delay; · The explanation for the delay; · The prejudice to the applicant if the extension of time is not granted; · The prejudice to the respondent if the extension of time is granted; · Action taken by the applicant to contest the termination, other than applying under the Act; · Any relevant conduct of the respondent; · The nature and circumstances of any representative error; and · The applicant's prospect of success at the substantive hearing. [48] These considerations are to be underpinned by the following principles: · Prima facie the time limits should be complied with. There is public interest in the prompt institution and prosecution of litigation before the Commission; · Ignorance of the law is no excuse; · The onus rests on the applicant to demonstrate sufficient reason to justify an extension; · Each case must be considered on its own facts and circumstance; · The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time; · The discretion to allow out-of-time applications is directed towards ensuring that justice is afforded to both parties; and · Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion. Industrial Relations Act 1984 [49] Prior to 1 January 2001, applications were required to be lodged within 14 days of the date of termination, with a discretionary power for the Commission to extend for "any further period the Commissioner considers appropriate in the circumstances". [50] This section was amended by the Industrial Relations Amendment Act 2000 [No. 104 of 2000]. The time limit was extended to 21 days, with the power to extend only when the Commissioner "considers there to be exceptional circumstances". [51] It is a common understanding Parliament intended, through the 2000 amendment, to both extend the time period and that more rigor be exercised in terms of granting an extension of time. [52] The phrase "exceptional circumstances" is not defined and there is little guidance available in terms of authority. In Schwerin v Equal Opportunity Board and Others [1994 2 VR at 287] McDonald J noted the Oxford English Dictionary 2nd ed. definition of "exceptional":
[53] McDonald J went on to note with approval, the comments of Hedigan J in Owens v Stevens [unreported, 3 May 1991] who was considering the expression "exceptional circumstances" as appearing in Sch. 5 of the Magistrates Court Act. [Vic]:
[54] In light of these observations it would seem sensible to be guided by the principles established by the various industrial tribunals. As such, I agree with Abey C, that the considerations and principles summarized earlier in this section to be relevant to an application for an extension of time pursuant to s.29(1B). [55] For an application to be successful there would need to be an additional element, or elements, consistent with the ordinary and natural meaning of the word "exceptional". [56] The applicant took 25 days to make an application under s29(1A) of the Act. [57] In his evidence when challenged over the delay, the applicant cited that he was in " much the same position" as Mr Reidy. I have accepted his evidence. [58] It is clear the applicant followed a number of routes to alleviate his alleged loss of entitlements. In my view he made a every possible effort to achieve a solution. I accept applicant would be prejudiced if not granted an extension of time. [59] I also accept the respondent would be prejudiced should an extension be granted. [60] It is evident throughout this matter the applicant and the other employees attempted many actions to challenge the onset of termination. [61] The conduct of the respondent in this matter, in my view, has led to confusion and frustration for the employees and for the process of resolution. [62] Misdirection can be attributed to agencies in authority and from whom the applicant would have expected correct advice. [63] In my opinion the applicant has a high prospect of success in the substantive matter. [64] The applicant demonstrated "exceptional circumstances", and I so find. The Commission granted extension of time and the matter to proceed. [65] There was a strong and consistent case put by the applicant and the three other employees, that it was common knowledge the respondent was in the final stage of closing the business down in January and February of this year. Mr Dreaver's assertion that the business only closed because two key employees left is outweighed heavily by evidence from the applicant and the other employees and his own evidence contradicting his stated position. The respondent's reply to the letter of 16 January 2006 clearly shows the process of closing the business was well progressed. [66] Mr Dreaver said he was aware of the applicant's and Mr Reidy' intent to leave, yet made no attempt to mitigate the impact on the business by either recruiting to fill the potential voids or negotiating with either or both employees to stay. [67] In the entire matter of dealing with this application, I found Mr Dreaver to be evasive, deliberately obtuse and much of his assertion to be calumnious. Indeed, his response #3 to the letter of the 16 January 2006, in my view, further confirms his evasiveness and duplicity. [68] Mr Dreaver would not admit he had given instructions to Mr Reidy to inform the applicant of the demise of his employment, against the evidence of three witnesses. [69] Mr Dreaver's attempt to discredit the applicant by citing his search for another job when he knew the business was going to close down had no base in fact. He was merely throwing mud expecting some would stick. [70] The applicant demonstrated, unchallenged, that he only accepted alternative employment once he had lost his job with the respondent. [71] Mr Dreaver's statement that the business need not have closed down at the time it did, is contradictory to his own evidence in the reply to the letter of the 16 January 2006. In the letter he mentioned early February as an expected time for closure. He also stated that the payment of employees' entitlements was dependent on the sale of stock. It was common knowledge that Mr Dreaver was in negotiations with Bartertrade to broker a deal with respect to employee entitlements. No other conclusion can be drawn; the respondent had chosen to wind up his business around February of this year. [72] I find the applicant's employment was terminated on or around the 4 February 2006 as a result of redundancy. I further find that the applicant is entitled to payment of outstanding leave, one week's pay in lieu of notice as per the Retail Trades Award and redundancy of two weeks wages for each completed year of service. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Sandy Bay Hi-Fi Retail Pty Ltd, pay to Steven Colin Trotter, the sum of ten thousand nine hundred and fifty one dollars and eighty-four cents made up as follows: Accrued leave of 49 days $5,717.00 Notice of one week $581.64 Redundancy of 2 weeks for each completed year of service $4,653.20 Total $10,951.84 The above amount of ten thousand nine hundred and fifty one dollars and eighty-four cents to be paid to Steven Colin Trotter by no later than 5.00 pm on Friday, 14 July 2006.
James P McAlpine Appearances: Date and place of hearing: 1 Transcript, PN225
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