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[2007] AIRC 590
General information, not legal advice.
Australian Industrial Relations Commission
2007-07-18
Marshall J
Original judgment source is linked above.
The Applicant was clearly informed of allegations of misconduct first made known to him on 27 March 2007. From that time the Applicant was on notice that the allegations if proven would jeopardise his continued employment with the Respondent. The Applicant - while rejecting the allegations outright - was acutely aware of the seriousness of the allegations and of the likely consequences for him if proven correct in both a professional and personal sense. The Applicant sought proper advice sometime from early April 2007: the allegations were continuously denied and vigorously defended. The substantive application was filed on 31 May 2007 - seven (7) days beyond the statutory time limit (24 May 2007).
I am not persuaded that special circumstances existed which might lead to an extension of the prescribed period for the filing of the substantive application.
2. In relation to the second Brodie-Hanns principle, I am not satisfied that the Applicant actively contested his pending, or actual termination. While the evidence demonstrated that the Applicant challenged the allegations against him, I have no evidence that potential termination of employment was actively contested from 27 March 2007 onwards.
3. In relation to the third and fourth Brodie-Hanns principles, I am not satisfied that a delay in filing the substantive application would prejudice the Respondent in any way.
4. In relation to the fifth Brodie-Hanns principle, I have given consideration to the merit arguments tendered - albeit in affidavit form with supporting documentation - and I am satisfied that the weight of evidence against the Applicant concerning allegations of serious and wilfil misconduct arising from documented incidents of inappropriate behaviour while under the influence of alcohol far outweigh the Applicant's defence pleadings. I conclude that there is no merit in the substantive application.
5. In relation to the sixth Brodie-Hanns principle, I am satisfied that the Applicant was afforded a number of opportunities to explain/defend his position - without success. Throughout the investigation the Applicant obtained legal advice and was properly represented. As such, in my view, he was dealt with fairly and reasonably in the context of other persons in a like position.
[11] Having regard to all of the above, I am not persuaded that an extension of time ought to be granted. As a consequence, the Respondent's Notice of Motion to dismiss for want of jurisdiction is granted. The substantive application is dismissed.
Printed by authority of the Commonwealth Government Printer
C Nottage
National Australia Bank Ltd [2007] AIRC 590;
Note: An appeal pursuant to s.120 (C2007/2983) was lodged against this decision - refer to Full Bench decision dated 11 September 2007 [[2007] AIRCFB 716] for result of appeal.
(1995) 67 IR 298