T12599
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Simon Reidy (T12599 of 2006) 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 8 March 2006 Simon Reidy (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 9 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 that this matter be heard in parallel with T12582 of 2006 (Mrs PK Tilyard), T12592 of 2006 (Mr JP Cooper) and T12589 of 2006 (Mr SC Trotter). 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 Trotter 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 initially under a training contract and then as a sales consultant by the respondent on a permanent basis from 14 February 2005, until his alleged retrenchment on 3 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, back pay for underpayment of wages, payment in lieu of notice and redundancy commensurate with his 11.75 months of service. [16] Mr Dreaver sought forfeiture of one weeks wages in lieu of notice. BACKGROUND [17] In evidence it was stated by both the applicant 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 both the applicant and Mr Cooper 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 Trotter 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] The applicant 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. The applicant 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 the applicant's evidence as to why time off was given to the employees, Mr Dreaver conceded he had charged the applicant 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 Trotter 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 Trotter, 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] The applicant 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 Mr Trotter his last day of work was to be Saturday, 4 February 2006. [32] Mr Trotter and Mrs Tilyard both confirmed that the applicant 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 3 February 2006; Mr Trotter finished on 4 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 the applicant, on a number of occasions had threatened to resign. The applicant confirmed this, but although threatening to, never actually resigned. [40] In evidence the applicant said he had offered to stay on in the business until the "closing down" sale was complete and the business finally closed, in return for being granted leave late the previous year. [41] The applicant alleged that the respondent had reneged on an agreement to reduce his initial training from six to three months, which caused him the loss of remuneration. Mr Dreaver refuted this. [42] The applicant cited his letter of offer of employment8 which stated:
[43] There was no minimum duration stipulated. [44] The applicant produced a document9, which indicated the applicant had completed various aspects of the training to the satisfaction of the assessor. [45] At the time of submitting his application, the applicant had attached a copy of his Certificate II in Retail Operations signed by Bruce Grant the NGT Chief Executive Officer and dated 18 April 2005. [46] Mr Dreaver challenged the applicant's statement that he had agreed to reduce the training period to three months. He cited two letters from the Department of Education (attached to correspondence to the Commission by Mr Dreaver dated 9 March 2006) to support his position. The first, dated 23 August 2005, states:
[47] The second is a standard letter sent to host employers on the nominal date of secession of the training program. [48] Mr Dreaver argued that the training provider would not agree to a completion in three months. He offered no supporting evidence for his claim. [49] 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 [50] 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 [51] 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. [52] 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. [53] 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. [54] 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 [55] 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". [56] 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". [57] 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. [58] 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":
[59] 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]:
[60] 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). [61] 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". [62] The applicant took 32 days to make an application under s29(1A) of the Act. [63] It is clear the applicant followed a number of routes to alleviate his alleged loss of entitlements. In my view he made every possible effort to achieve a solution. However, it does not explain the delay beyond that of the other employees who were within the same environment. I accept applicant would be prejudiced if not granted an extension of time. [64] I also accept the respondent would be prejudiced should an extension be granted. [65] It is evident throughout this matter the applicant and the other employees attempted many actions to challenge the onset of termination. [66] 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. [67] Misdirection can be attributed to agencies in authority and from whom the applicant would have expected correct advice. [68] The applicant was employed full time for less than one year, and in my opinion does not have much prospect of success in the substantive matter. [69] The applicant could have initially argued that he had demonstrated "exceptional circumstances" had he applied at the same time as the other employees. He gave no specific explanation for the further delay. I reject the request for extension of time. [70] 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. [71] Mr Dreaver said he was aware of the applicant's and Mr Trotter's 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. [72] 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. [73] Mr Dreaver would not admit he had given the applicant notice to quit during his telephone conversation of 2 February 2006. The applicant, however, relayed termination notices to both Mr Trotter and Mrs Tilyard. There was no evidence that the other two employees acted with surprise. Indeed, it was evident they were expecting just such notification. [74] Mr Dreaver's attempt to discredit the applicant by citing his threats to resign and at one point, even drafting a letter of resignation. There is no evidence the applicant resigned. Indeed it was not challenged that the applicant had agreed to "stay on" until after the business was closed. [75] Mr Dreaver's statement that the business need not have closed down at the time it did, is contradictory to his own evidence in his 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 2006. I find the applicant's employment was terminated on or around the 3 February 2006 as a result of redundancy. [76] I turn to the training arrangements. There is evidence that a shortened training period was mooted prior to the applicant's appointment. There is evidence he successfully completed the required training in around three months. There is no evidence to support early release for training was not "allowed". [77] In the letter of appointment Mr Dreaver quotes the rate for wages expected by the applicant on completion of the training. [78] I fall on the weight of probability being: there was an agreement that the applicant would be paid the appropriate wage rate on early completion of his training without time limitation, and I so find. [79] I further find that the applicant is entitled to payment of outstanding leave, underpayment of wages and one week's pay in lieu of notice as per the Retail Trades Award. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Sandy Bay Hi-Fi Retail Pty Ltd, pay to Simon Reidy the sum of three thousand one hundred and forty six dollars and forty two cents made up as follows:
The above amount of three thousand one hundred and forty six dollars and forty two cents to be paid to Simon Reidy by no later than 5.00 pm on Friday, 14 July 2006. James P McAlpine Appearances: Date and place of hearing: 1 Transcript, PN225 |