Australian Industrial Relations Commission|2008-11-18

Jamie Winters, Justin Winters and Peter Jeffrey Winters v Aussie Junk Pty Limited [2008] AIRC 863; (18 November 2008)

Termination of employment - extension of time application and application to amend original application.

[1] This decision relates to three applications (the applications) pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act), made by respectively Mr Jamie Winters (U2008/5843), Mr Justin Winters (U2008/5844) and Mr Peter Winters (U2008/5847) (collectively referred to as the Winters, the applicants) in respect of the alleged harsh, unjust or unreasonable termination of their employment on or about 23 July 2008 by Aussie Junk Pty Limited (the respondent, Aussie Junk).

[2] The Transport Workers' Union of Australia (TWU) on behalf of the applicants, filed in the Commission individual Applications for Relief in Relation to Termination of Employment on the requisite Form(s) R27 on 18 August 2008. These applications were filed outside the 21 day period allowed for under s.643(15) of the Act. The respondent filed a Notice of Employer's Appearance in each matter on the requisite Form(s) R28 on 11 September 2008. On the respondent's Form(s) R28, the respondent indicated in each matter its objection to the Commission extending the time for lodgement of the application(s), but did not object to conciliation prior to the determination of the time issue. At this time, the respondent also filed a Motion to Dismiss for Want of Jurisdiction on the requisite Form(s) R29 in all matters, not objecting to conciliation prior to the jurisdiction issue being dealt with.

[3] The matters were listed for conciliation before Commissioner Grainger on 16 September 2008 in Canberra. At the conciliation, the applicants represented by Mr Ben Sweaney of the TWU, and the respondent represented by Blake Dawson, were unable to settle the matters. The Commission then re-listed the matters for a Jurisdiction and Extension of Time Hearing and issued Directions on 16 September 2008 for the filing of submissions in respect to those issues. The parties filed submissions complying with the Directions issued by the Commission, yet on short notice prior to the Hearing the applicant(s), through Mr Ben Sweaney of the TWU, advised the Commission of their intent to seek an amendment of their applications. The Jurisdiction and Extension of Time Hearing proceeded in Canberra on 7 October 2008. At that date, no applications to amend the original applications had been received in the Commission. At the hearing Mr Sweaney undertook to withdraw the applicants' applications in these matters under s.643(1)(a) of the Act by close of business on Thursday 9 October 2008. [1]

[4] Subsequent to the 7 October 2008 hearing the Winters withdrew their instructions to TWU to act on their behalf in these matters and Mr Angus Bucknell from Maurice Blackburn formally entered an appearance in the Commission in each matter on the Requisite Form R31 on 9 October 2008 on behalf of the applicants. On 14 October 2008 Mr Bucknell wrote to the Commission seeking leave pursuant to s.111(1)(l) of the Act to delete at paragraph 18 'grounds for application' that the termination was 'harsh, unjust or unreasonable' and to insert therein an application pursuant to s.659 (discrimination or other prohibited reason). This letter advised the Commission that Mr Peter Winters and Mr Jamie Winters rely specifically on s.659 (2)(e) of the Act and that "Mr Justin Winters relies upon the same grounds pursuant to s.659(2)(e) and also relies upon s.659(2)(a)" of the Act.

[5] The Commission then issued directions on 15 October 2008 for the filing of submissions, and listed the matter for an Extension of Time and Amending the Application Hearing in Canberra on 13 November 2008.

[6] Only at the hearing on 13 November 2008 did Mr Bucknell tender three "Amended Applications" on Form R27 (MFI1 for Mr Jamie Winters, MFI2 for Mr Justin Winters, MFI3 for Mr Peter Winters) and these were actually filed by the Canberra Registry just as the 13 November 2008 hearing was reaching its conclusion.

[7] At the 7 October 2008 hearing the applicants were represented by Mr Ben Sweaney. On the 13 November 2008 the applicants were represented by Mr Angus Bucknell, solicitor. At all hearings the respondent was represented by Mr Jeffrey McCarthy of counsel.

(1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:

(l) allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;

643 Application to Commission to deal with termination under this Subdivision

(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; or

(b) on the ground of an alleged contravention of section 659, 660 or 661; or

(c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).

(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:

(a) the employee whose employment was terminated; and

(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;

(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.

(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee's employment, or within such period as the Commission allows on an application made during or after those 21 days.

Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

659 Employment not to be terminated on certain grounds

(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(a) temporary absence from work because of illness or injury within the meaning of the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an ITEA;

(h) absence from work during maternity leave or other parental leave;

(i) temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances."

673 No second applications under section 643 concerning same termination to be made

An application must not be made under section 643 in relation to a termination of employment of an employee where a previous application under section 643 was made in respect of the same termination unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application.

674 Limitation on applications alleging unlawful termination

(1) An application alleging unlawful termination of employment must not be made by an employee if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings:

Note: Subsection (3) defines an application alleging unlawful termination and other termination proceedings.

(2) An employee must not commence other termination proceedings in respect of a termination of employment if an application alleging unlawful termination of the employment has already been made, unless the application:

application alleging unlawful termination means an application under section 643, in respect of a termination of employment, on the ground that the termination constitutes a contravention of section 659 because it was done for a reason set out in subsection 659(2).

other termination proceedings means proceedings, in respect of a termination of employment:

(i) under a provision of this Act other than section 643; or

(iii) under a provision of a law of a State or Territory that is not excluded by section 16; and

(i) harsh, unjust or unreasonable (however described); or

for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination).

Note: Section 16 provides for the exclusion of certain State or Territory laws.

(4) Without limiting subsection (3), other termination proceedings includes an inquiry in respect of a complaint (the HREOC complaint):

(b) that relates to the termination of employment of an employee (whether or not as a result of an amendment of the complaint).

(5) For the purposes of this section, an employee commences other termination proceedings of a kind referred to in subsection (4):

(a) unless paragraph (b) applies - when the employee makes the HREOC complaint; or

(b) if the HREOC complaint constitutes, or would constitute, other termination proceedings as a result of an amendment of the complaint - when the complaint is amended."

[9] Mr Sweaney of TWU for the applicants filed the following written outline of submissions in respect to the extension of time of the applications in the Commission on 24 September 2008:-

"1. The Applicant submits that the leading authority providing principles for out of time applications is Brodie-Hanns v MTV Publishing Ltd (1995) 67IR298, the judgment of Marshall J in Brodie-Hanns provides for five considerations that are as follows;

(1) first, special circumstances are not necessary, but the Commission must be positively satisfied that the prescribed period should be extended;

(2) second, action taken by the applicant to contest the application, other than applying under the Division to seek relief;

(3) third, prejudice to the respondent including prejudice caused by delay will weigh against the extension of time. The mere absence of prejudice to the respondent is an insufficient basis for granting of extension of time;

(4) fourth, the merits of the substantive application may be taken into account in determining whether to grant an extension of time; and

(5) considerations of fairness between the applicant and other persons in a like position are relevant to the Commission's exercise of discretion

see Brodie-Hanns v MTV Publishing Ltd (1995)67IR298 at 299-300.

2. In applying the factual situation that exist in this matter to the five principles

outlined in Brodie-Hanns the Applicant submits the following;

In regard to (1) the facts indicate there are a range of special circumstances that indicate an extension of time should be granted, including but not limited to the following;

• The Applicant was not formally notified of his dismissal by the Respondent until 31 July 2008.

• On the 23 July 2008 the Respondent refused to provide any basis for the dismissal other than vague comments regarding 'communication issues'. The Applicant has clearly been denied any form of procedural fairness or natural justice.

In regard to (2) the facts indicate that the Applicant took a range of actions to contest the termination including but not limited to the following;

• The Applicant upon being advised by representatives from Thiess, whom the Respondent contracts the Mitchell premises from, of his dismissal sought immediately the assistance of the Transport Workers' Union (TWU) (the Union) to ascertain his rights.

• The Union also sought, on behalf of the Applicant, to hold discussions with the Respondent. The Respondent refused to participate in any discussions.

In regard to (3) the facts indicate the Respondent will not suffer prejudice if an extension of time is granted. The facts indicate the following;

• There is no evidence of any prejudice to the respondent.

• In the circumstances the delay has not been a substantial one.

• In regard to (4) and the merits of the application the Applicant submits the following;

• On the 23 July 2008 the Respondent failed to provide any explanation for terminating the Applicant other than stating `communication issues'. Only changing the grounds following legal advice.

In regard to (5) the Applicant submits the following;

• The Commission has granted an extension of time to Applicants in far less meritorious factual circumstances than exist in the current matter.

• It is submitted that the delay was in no way attributable to the Applicant.

• There was some lack of clarity in regards to the termination of the applicant, termination was not confirmed in writing until 31 July 2008.

• The Applicant instructed the Union to file the application, and provide the necessary information within twenty one days of 23 July 2008. Due to an internal administrative error, the Union was unable to.

• Application for lodgement was received by the Sydney Legal Department for processing and filing from the Canberra Branch, on behalf of the Applicant. During this period of time the Legal Department was experiencing a high workload which was a contributing factor in delaying lodgement of the application.

• Assuming that the date of termination was 23 July rather than 31 July 2008, the application is only two days out of time and the respondent has suffered no or negligible prejudice as a result of the delay.

• At no time was the Applicant remiss in lodging the application but was due to the processing part of the application by the Union.

3. It is submitted that in all of the circumstances of this case that the Commission should exercise its discretion under section 643(14) and grant an extension of time."

[10] Mr Bucknell for the applicants filed the following written outline of submissions in the Commission on 28 October 2008:-

"APPLICANT'S SUBMISSIONS WITH RESPECT TO EXTENSION OF TIME

The decision in Brodie-Hanns v MTV Publishing (1995) 67IR298 enunciates the principles for extending time.

1. The distinctive characteristics of the decision in Brodie-Hanns are that the Commission is to be positively satisfied that the prescribed period should be extended.

2. The consideration of the causes of action taken by the applicant other than applying under this division to seek relief.

3. Prejudice to the respondent due to the delay in accordance with the principles of Brisbane South Reqional Authority v Taylor B27/1995 (1996) High Court of Australia.

4. In accordance with the decision of Brisbane South Reqional Authority v Taylor that the merits of the substantive application should be taken into account.

5. The consideration of fairness between the applicant and other persons in a like position relevant to the Commissions exercise of discretion.

6. The applicants were not formally notified of his dismissal by the respondent until 31 July 2008.On 23 July 2008 the respondent failed to provide any basis for the dismissal other than comments regarding "communication issues". The applicants were unable to identify on the basis of those comments as to the nature of the termination. The applicants thereafter availed themselves of their rights and obtained advice from the Transport Workers Union and on the basis of that advice the applicants sought to have discussions with the respondent which the respondent refused to participate in.

7. Having regard to the short delay with respect to the unfair dismissal proceedings and having regard to the delay in time with respect to the notification of unlawful dismissal proceedings it is submitted that the respondent does not suffer any prejudice having regard to both the short period of time with respect to the unfair dismissal proceedings and on the basis of the evidence of each of the applicants as to the notice that the respondent has received with respect to the substantive issues raised with the respect to the unlawful dismissal proceedings. Upon that basis it is submitted that the respondent does not suffer any material prejudice.

8. With respect to the merits of the application it is submitted on behalf of each of the applicants that there is a strong prima facie case with respect to unlawful dismissal having regard to the context and the history of the matters pertaining between each of the applicants and the respondent as well as the third parties who have been involved with respect to the applicant's various complaints.

9. With respect to the delay itself it is submitted that as a matter of procedural fairness and having regard to the relative position of the respondent as against the applicants that the delay was not attributable to the applicants rather it was attributable to the peculiar circumstances of the Transport Workers Union and that having regard to the gravity of the issues raised by each of the respondents and particularly those of Jamie and Justin Winters that it would be procedurally and substantially unfair to disallow the applicants to commence proceedings.

10. With respect to the respondent's submissions regarding the extension of time application they have not had regard to the merits of the amended application for unlawful dismissal which is presently sought.

11. Having regard to the respondent's submission that the explanation offered by the Transport Workers Union with respect to the extension of time application it of itself does not disqualify the applicant's application for extension of time nor does it address the issue of probity or issues of justice and fairness in allowing the applicants to proceed.

12. The issues of clarity with respect to the circumstances of the termination have not been appropriately addressed and even in the event that it is accepted that the manner of the termination was "clear" the relative prejudice to the respondent is not substantial.

13. While there may be some criticism of the TWU conduct with respect to filing of the proceedings this should not be visited upon the applicants.

14. The respondent makes an issue with respect to alleged prejudice against it upon the basis that it is a "small" employer. On the respondent's own evidence it has no less than seven establishments in two different states and one territory and with respect to the place of work of the applicants, has obtained that through a tender process with the ACT Government. It is submitted by the applicants that accordingly the respondent is not a "small" employer and accordingly the justice of otherwise with respect to the respondent defending the application should not be taking it into account on the basis of it being a small employer. The relative position of the applicant's who are individuals against the employer is of greater significance than the respondent being allegedly a small employer.

15. With respect to the respondents submissions the application is without merit the respondent to be fair is not formally seized of the applicant's application for unlawful dismissal rather than their previous application for unfair dismissal.

16. The applicants would submit that in every respect the matters raised within the applicant's statements are matters of gravity and seriousness of a nature that the Commission would accept on a prima facie basis is an issue of sufficient merit to allow the application

Section 111(1)(1) provides a broad discretion to the Commission to allow the amendment on any terms it thinks appropriate of any application or other document relating to proceedings. Section 111(1)(1) provides jurisdiction to the Commission to amend proceedings.

The Commission with [sic] be aware of the evidence before it with respect to the failure by the TWU to identify an application for unlawful dismissal. The Commission will observe that each of the applicant's instructed Maurice Blackburn with respect to this application on 8 October 2008. At that time it was identified by Maurice Blackburn that each of the applicants had potential entitlements with respect to the issue of unlawful termination. It is understood that those issues were in fact raised by the Transport Workers Union at a directions hearing shortly prior to 8 October 2008.

It is submitted on behalf of each of the applicants that the allegations raised within the applicant's statements are of such a serious nature and clearly form a prima facie case that Section 659(2)(e) with the case of each of the applicants and s.659(2)(i) with respect to Justin Winters have been breached and offended by the respondent. It is submitted on behalf of the applicants that the allegations raised by each of the applicants are of such a serious nature that it would be against the interest of both public policy and against the interest of fairness and justice on behalf of the applicants for them to be denied the opportunity to amend their applications on the basis of not having had recourse to legal representation prior to 8 October 2008.

With respect to each of the applicants it is asserted in particular the statement of Jamie Winters that there have been a multiplicity of matters raised before the requisite authorities with respect to the filing of numerous complaints involving the allegation of violations of laws and regulations and that there is evidence before the Commission particularly on the part of Jamie Winters that the respondent by servants and agents was seized of the fact of these complaints and had not only ultimately terminated the employment of each of the applicants upon those basis but had threatened to do so on numerous occasions. The Commission will observe prior to termination that the applicants had made complaints internally with respect to issues of lack of training, the handling and disposing of hazardous materials, the failure to make payments with respect to superannuation, the failure to clarify the award upon which the applicants and others were employed, failure to make a payment for public holiday leave, the failure to implement or fund an adequate training and safety equipment program, the failure to appoint an auditor, castigation by the respondent of the applicants for the ultimate belated appointment of an auditor.

The Commission will observe that the applicants had made written submissions or complaints as well as making internal submissions and complaints, had made external submissions and complaints to Thiess Services, an associated entity of the respondent, ACT No Waste, an agency of the ACT Government, the Workplace Ombudsman, various ACT members of the Legislative Assembly and the Transport Workers Union, as well as ultimately following the termination in the Australian Industrial Relations Commission.

The applicants submit that there is ample evidence for the Commission to form the view that there is a prima facie case that there have been serial breaches of Section 659(2)(e) as well as in the case of Justin Winters a breach of Section 659(i) having regard to the workers compensation claim that he had made prior to the time of his termination.

Furthermore, the applicants submit generally that they have been prejudiced by their association with each other and that they have been dismissed as an entity rather than individually."

[11] The respondent filed the following outline of submissions in respect of the extension of time of the applicants in the Commission on 2 October 2008:-

1. The Applicant filed an application for relief in relation to termination of employment on 18 August 2008 (Application). The application was made pursuant to s643(1) of the Workplace Relations Act 1996 (Cth) (Act).

2. Section 643(14) of the Act requires that a s643(1) Application "must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days."

3. A note to section 643(15) of the Act states that in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 (Cth). The Commission should apply those principles in response to this application. In particular:

(a) special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend;

(b) action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time;

(c) prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time;

(d) the mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;

(e) the merits of the substantive application may be taken into account in determining whether to grant an extension of time; and

(f) consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

4. The Applicant's employment was terminated on 23 July 2008, and the Application was filed with the Commission on 18 August 2008. Accordingly, the Application was filed 5 days outside of the twenty-one day time period.

5. The Applicant's submissions regarding reasons for the delay in filing the Application can be summarised as follows:

(a) An alleged lack of clarity in regards to the termination of the Applicant's employment, and that written confirmation of termination was not received until 31 July 2008; and

(b) An allegation that the Transport Workers' Union's (TWU's) legal department in Sydney was experiencing a high work load at the relevant time.

6. The Respondent submits that the Applicant's explanation for the delay is neither established nor acceptable.

7. The Respondent submits that there was no lack of clarity in regards to the termination of the Applicant's employment. On 23 July 2008, the Applicant was called to a meeting with the director of the Respondent, Mr Richter, at the Respondent's Mitchell premises. He attended the meeting, together with his sons Mr Jamie Winters and Mr Justin Winters. Mr Richter formally advised the Applicant at this meeting that his employment was terminated with immediate effect.

8. The suggestion of any 'lack of clarity' should be discarded in light of the subsequent events.

9. The Applicant did not attend work on his next rostered day, and has not done since. Instead, following the meeting with Mr Richter, the Applicant informed the TWU that his employment had been terminated. Accordingly, both the Applicant and the TWU were aware on 23 July 2008 that the Applicant's employment had been terminated.

10. Communications between the TWU and the Respondent, as discussed below, also proceeded on the basis and understanding that the Applicant's employment had been terminated on 23 July 2008.

11. The Respondent also submits that there is no evidence to support the Applicant's contention that the high workload experienced by the TWU's legal department contributed to the late lodgement of the Application. Also, as discussed below, the TWU was actively representing the Applicant during the statutory period within which an application to the Commission must be filed and can be presumed to know well the applicable statutory periods within which an application to the Commission must be brought.

12. Following the termination of the Applicant's employment, the TWU was advised by the Respondent that all communication in respect of the termination of the Applicant's employment should be directed to the Respondent's legal representatives.

13. On or around 29 July 2008 the TWU contacted the Respondent's legal representatives to seek written confirmation of the reasons for the termination of the Applicant's employment.

14. On 31 July 2008 the Respondent's legal representatives advised the TWU in writing that the Applicant's employment had been terminated on 23 July 2008 as a result of his serious misconduct. A copy of that letter is annexed and marked "A".

15. On 25 August 2008 the TWU wrote to the Respondent's legal representatives and requested that the Respondent complete and return a Centrelink Employment Separation Certificate for the Applicant. A copy of that letter and its enclosure is annexed and marked "B".

16. The Respondent's legal representatives provided the TWU with a completed Centrelink Employment Separation Certificate in respect of the Applicant under cover of a letter dated 27 August 2008. A copy of that letter and its enclosure is annexed and marked "C".

17. None of the requests made by the TWU to the Respondent's legal representatives could be viewed as contesting the fact of the termination of the Applicant's employment.

18. As the Application is lacking in merit and was filed out of time, the Respondent should not be put to the substantial cost and significant management time that would be involved in defending the Application.

19. In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300-301, Marshall J held that a small employer should not be put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate. The fact that the Respondent is a small employer exacerbates the prejudicial effect of the costs and management time that will be involved in the defence of the Application. Accordingly, it would be unjust to require the Respondent to defend the Application.

20. Consideration of this principle is unnecessary given that prejudice will be suffered by the Respondent if the extension of time application is granted. However, even if the Commission found that the Respondent was not going to suffer any prejudice, that conclusion would not itself be sufficient to grant an extension of time (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300).

22. The Applicant's employment was terminated as a result of the serious misconduct identified in the Form R28 - Notice of Employer's Appearance, previously filed with the Commission. This misconduct constituted a valid reason for the termination of the Applicant's employment.

23. On 23 July 2008 the Applicant was formally advised that his employment was terminated with immediate effect.

24. While the Applicant alleges in his submissions that the "Applicant has an extremely strong case", the Applicant has failed to put before the Commission any evidence as to why that is so or to support a finding that the merits of the Application favour an extension of time.

25. Additionally, the Respondent submits that the Applicant has a poor case, both on the merits and because the Respondent employed fewer than 100 employees, including the Applicant, at the time the Respondent gave the Applicant notice of termination and terminated the Applicant's employment, with the result that the Commission does not have jurisdiction to determine the Application pursuant to section 643(10) of the Act.

Fairness between the applicant and other persons in a like position

26. The Act provides a specific time limit for the lodgement of applications for relief in respect of termination of employment. There is no evidence of any person in a like position to the Applicant being able to bring an application against the Respondent or anyone else, where the Applicant cannot. Furthermore, the acceptance of a late application by the Applicant on the basis of a delay without adequate explanation and where the Legislature has identified the Respondent as an employer against which an application should not be brought at all would be unfair to past intending applicants or other persons who have been excluded from bringing an application by reason of their non-compliance with the statutory time limit.

Determination of the extension of time application

27. The Respondent submits that the Commission should not extend the time period in which the Application may be filed, and dismiss the Application."

[12] The respondent filed the following written outline of submissions in the Commission on 11 November 2008:-

1. On 23 July 2008, the respondent terminated the applicants' employment.

2. By applications filed on 18 August 2008, the applicants each applied to the Commission for relief under s.643(1)(a) of the Act on the ground that the termination of their employment was harsh, unjust or unreasonable.

3. By outline dated 24 September 2008, the applicants made submissions as to why the Commission should grant an extension of time for the applicants to file their applications.

4. By outline dated 24 September 2008, the respondent made submissions as to why the Commission did not have jurisdiction to hear the applications.

5. By outline dated 2 October 2008, the respondent made submissions as to why the Commission should not extend time within which the applicants may file their applications, and should instead dismiss the applications.

6. On 7 October 2008, the Commission heard from the parties as to whether time should be extended for the applicants to file their applications, and whether it had jurisdiction to hear the applications. Both questions were made otiose from the outset because the applicants' representative informed the Commission that the applicants intended to withdraw their claim that the termination of their employment was harsh, unjust or unreasonable and instead apply for relief on the ground that the termination of their employment was unlawful, per s.643(1)(b) of the Act. The transcript of the proceedings on 7 October 2008 is at annexure "A".

7. The applicants did not identify the grounds upon which the terminations were said to be unlawful until the hearing on 7 October 2008, at which point the respondent and the Commission were informed that the applicants intended to allege a breach of s.649(2)(e) - understood to mean s.659(2)(e): transcript PN 8 and PN 16.

8. In response to the applicants' abandonment of their claims alleging unfair termination of their employment, the respondent repeatedly pressed for the applications to be dismissed: PN 13, PN 14, PN 48 and PN 51. The Commission determined that there was no need to dismiss the applications because the applicants were withdrawing them, and obtained the applicants' confirmation that that was correct: PN 50-52 and PN 60-63.

9. The questions in issue were resolved on the basis that the applicants would withdraw the applications presently before the Commission by 5.00pm on 9 October 2008, and file new applications alleging unlawful termination. At PN101ff, in explanation to one of the applicants personally, the Commission noted -

'THE COMMISSIONER: … it's not just about technicality. It is about an actual fact and that is that you're withdrawing one application and going to replace it with another application. The other application is not here.

Mr Sweeney hasn't lodged a fresh application for you and until he does I can't issue any directions. …

But then again, Mr Sweeney, I think what I'm taking the situation to be is that you have withdrawn your 643(1)(a), is that correct?

We were seeking the assistance of the Commission to amend that original application. Obviously that's not possible, we need to withdraw under 1(a) and resubmit a fresh application under 643(1)(b) …

As undertaken we will consent to end the proceeding and withdraw the file by 5.00 pm, 9 October 2008.

THE COMMISSIONER: Yes all right. And you're therefore not pressing any extension of time issue. I therefore don't need to deal with the extension of time issue today.

MR MCCARTHY: I only seek the order which I understood was to be by consent that the discontinuance be filed by 5 o'clock this Thursday.

THE COMMISSIONER: Yes. Well, if that's a consent order then I'm happy to grant consent in those terms, Mr Sweeney.

MR SWEENEY: I'm happy to make the undertaking that the applicants will withdraw the application under 643(1)(a).

THE COMMISSIONER: Yes. …By close of business this Thursday.

MR SWEENEY: That's correct. I'm happy to make that undertaking if that eases the process in accordance with the issue of orders.

THE COMMISSIONER: Well, on that basis I adjourn the matter noting the undertaking from Mr Sweeney regarding the intention to withdraw the unfair application by close of business this Thursday.

MR MCCARTHY: Perhaps just to be pedantic for a minute, what I have noted is an undertaking to withdraw, not an intention to withdraw.

THE COMMISSIONER: Yes, absolutely. No, an undertaking to withdraw, yes absolutely. Mr. Sweeney.

10. Contrary to the undertaking, the applicants did not withdraw their application by 5pm on Thursday, 9 October 2008, and still have not withdrawn their applications. Instead the applicants have ignored everything said on their behalf on 7 October 2008, including the undertaking, and now press for orders that the Commission extend time within which their applications may be filed, and for leave to amend their applications.

11. The respondent pressed repeatedly for orders that the applications be dismissed because the applications were abandoned. The Commission declined to make those orders solely with reliance upon the undertaking given by the applicants' representative, in the presence of his clients and on their instructions, that the application would be withdrawn by 5.00 pm on 9 October 2008: PN 52 and PN 62.

12. An undertaking has, for all practical purposes, the same effect as an order. It is a legally enforceable promise as to what will occur, with the result that orders in terms of the undertaking become unnecessary. An undertaking to the Commission involves an obligation in the same way as an obligation imposed by an order of the Commission. An undertaking, if broken, involves the same consequences as would follow upon disobedience of an order.

13. The applicants have made plain they have no intention of honouring the undertaking given on their behalf, and indeed seek orders contrary to it. Accordingly, the respondent seeks orders that the applications be dismissed, to give effect to the undertaking.

14. The proposition that the applicants may engage different representation, and by that simple technique, divorce themselves from the undertaking is untenable, especially where the undertaking was given on their instructions and in their presence.

15. The applications were dealt with to finality on 7 October 2008, save for the applicants performing their promise to the Commission. The applications should be dismissed.

16. The present proceedings concluded on 7 October 2008 on the basis that the applicants would, in due course, file fresh applications alleging unlawful termination of their employment. That option remains open to them. An application for leave to extend time to file those applications can be dealt with if and when those applications are filed.

17. Whether to extend time should be considered in the context of the applications that the applicants wish to press, namely applications alleging unlawful termination, which are yet to be filed, not the present applications which seek entirely different relief.

18. Even if the Commission were minded to consider the 'amendments' now sought, the notion that the applicants wish to 'amend' their existing applications is misconceived. Rather, the applicants each wish to abandon their present application and substitute it with another. The Commission's power to amend, under s.111(l), is not a device for achieving that substantively different outcome.

19. The power under s.111(1)(l) is to amend, meaning "to alter, to change for the better, to remove or correct faults": Macquarie Dictionary Revised Edition. The proposed change is entirely outside the scope of an amendment. The applicants, in truth, seek to bring fundamentally new applications and to abandon their existing applications.

20. The applicants admit as much in paragraph 15 of their submissions with respect to extension of time.

21. Also, to 'amend' in the fundamental way proposed would constitute a contradiction of s.674 of the Act. It would allow the proposed applications alleging unlawful termination of employment to proceed in a manner which would circumvent the requirements of s.673 of the Act.

22. Even if the Commission were to consider the applications to extend time in the context of the present applications, rather than the intended applications alleging unlawful termination that are yet to be filed, the Commission should not be persuaded to do so having regard to the principles set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, as quoted in paragraph 3 of the respondent's previous submissions dated 3 October 2008.

23. Regarding the first principle, there is no acceptable explanation for the delay - being a period, now approaching 4 months. The claim (if it is being made) that the applicants always intended also to allege unlawful termination when filing their applications, and did not do so by oversight, is not credible. The present applications, it is said, were considered by the TWU's 'legal department'. The applicants then filed submissions in support of their claims to extend time for bringing their claim for unfair termination. Not until 3 October 2008 did the applicants raise the issue of unlawful termination, and then only after the respondent filed submissions as to why the Commission did not have jurisdiction and Ms Aueb's statement in support.

24. Regarding the second principle, the applicants took no step to contest their termination prior to filing their applications, and not until 3 October was the question of unlawful termination even raised.

25. Regarding the third and fourth principles, the respondent would suffer significant prejudice were time to be extended to allow the applicants to proceed with applications alleging unlawful termination.

26. As discussed at paragraphs 29-33 below, substantive applications alleging unlawful termination (if filed) would be without merit. None of the applicants advance any direct evidence that his employment was terminated for any reason described in s.659(2)(e) or (i). To the contrary, the statements filed, particularly that by Mr Jamie Winter, make plain that the applicants propose to use their applications to the Commission, and presumably also the coercive powers of the Commission, as a platform from which to press a great variety of criticisms of the respondent and numerous other persons and bodies, including Thiess Services and ACT No Waste.

27. The relevance of any of these serious criticisms in relation to an alleged breach of s.659(2)(e) or (i), would be extremely doubtful, and yet the respondent would have little practicable option but to expend considerable time, effort and money in meeting these unfounded criticisms. The Commission would risk becoming a forum in which the applicants could air their grievances and utilise the various powers and processes of the Commission, and for no relevant purpose. These complaints can and should be dealt with by bodies with responsibility for dealing with them.

28. It is also neither relevant nor true for the applicants to submit that the respondent is not a small employer, and therefore to submit - presumably - that the respondent is big enough so that it should not be able to complain about the time and expense it would need to expend in order meet these applications. The size of the respondent's business is particularised in Ms Aueb's statement dated 23 September 2008 and the respondent's submissions as to jurisdiction dated 24 September 2008. The fact that the respondent has 7 depots variously in the ACT, NSW and Queensland at which it collects and recycles various objects that have been discarded by the public and which would otherwise form part of the community's waste, does not equate to the respondent operating a large business or being a large employer.

29. Regarding the fifth principle, the material filed makes plain that the merits of the proposed applications are poor. The applicants wish to allege that their employment was terminated contrary to s.659(2)(e), yet none of their witness statements contains any evidence that that occurred.

30. Mr Jamie Winters has filed a lengthy witness statement making a great variety of serious but generalised allegations against the respondent, Mr Dennis Richter and numerous other persons and bodies. The great majority of those allegations have nothing to do with the reasons set out in s.659(2)(e).

31. Furthermore, the respondent gave reasons for why Mr Winters' employment was terminated. By letter dated 25 June 2008, Mr Richter informed Mr Winters that his attitude towards the company and some management staff had been less than satisfactory, and why. Mr Richter also referred to Mr Winters allowing Mr Burness to return to the site contrary to the director's explicit instructions.

32. Mr Winters was put on notice that any further breaches would result in termination of his employment. On 23 July 2008, Mr Richter met with Mr Winters and informed him that his employment was being terminated. Mr Richter provided Mr Winters with a letter explaining various reasons as to why Mr Richter considered he had no option but to dismiss Mr Winters forthwith.

33. Neither Mr Peter Winters nor Mr Justin Winters advance any basis to suggest that their employment was terminated contrary to s.659(2)(e) or (i).

34. The applications for leave to extend time within which to file the substantive applications, and the applications for leave to amend the substantive applications, should be refused.

35. The substantive applications should be dismissed."

Extension of Time for Lodgements of the Applications

[13] The principles enunciated in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are as follows:-

"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

Jamie Winters, Justin Winters and Peter Jeffrey Winters v Aussie Junk Pty Limited [2008] AIRC 863;

At a glance

Court

Decision date

Source

Judgment (210 paragraphs)

Jamie Winters, Justin Winters and Peter Jeffrey Winters v Aussie Junk Pty Limited [2008] AIRC 863; (18 November 2008)

Parties

Legislation Cited (3)

Cases Cited (1)