Jennings v Salvation Army

[2003] FCA 1193

Federal Court of Australia|1996-09-24|Before: Wilcox CJ, Madgwick JJ, Marshall J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1996-09-24

Before

Wilcox CJ, Madgwick JJ, Marshall J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The issue for determination in the motion before the Court is whether the applicant, Mr Jennings, should be allowed an extension of time to commence an application under s170CP of the Workplace Relations Act 1996 (Cth) ("the Act") in respect of the termination of his employment by the respondent, Salvation Army (Victoria) Property Trust Incorporated ("the Salvation Army").

[2]

Background 2 Mr Jennings' employment with the Salvation Army was terminated with effect from 10 January 2003. On 20 January 2003 Mr Jennings filed in the Australian Industrial Relations Commission ("the Commission") an application for relief in respect of the termination of his employment. The original application relied upon s170CE(1)(a) of the Act, claiming that the termination was harsh, unjust, or unreasonable. On 10 February 2003, solicitors acting for Mr Jennings applied, by facsimile transmission, to amend the application so as to allege a contravention of s170CK of the Act. 3 The Commission attempted to settle the matter in dispute in the application in a conciliation conference held on 24 February 2003. On 4 March 2003, the Commission issued a certificate under s170CF(2) of the Act, in which it stated that all reasonable attempts to settle the matter by conciliation were not, and were not likely to be, successful. That view was expressed with respect to both grounds relied upon in the amended application. 4 Pursuant to s170CFA(3) and (6) of the Act, Mr Jennings' solicitors lodged a notice of election to bring proceedings in this Court for an order under s170CR. The relevant form used for that purpose (Form R25) ended with the following note: "In the event that an applicant elects to bring court proceedings, the lodgment of this Notice of Election Form in the Industrial Registry will not have the effect of commencing any such court proceedings. Consequently, in addition to the lodgment of this Form in the Industrial Registry (and the giving of a copy to the employer), it is incumbent upon the applicant to also commence such proceedings before an appropriate court." 5 Due to either oversight or ignorance of the law or both (a topic to which I will later return), Mr Jennings solicitors did not commence proceedings in this Court until the application in this proceeding was filed on 30 May 2003. It appears from the applicant's material that the solicitors for Mr Jennings contended that the proceeding was filed on 27 May 2003 and requested an extension of time until that date. The document lodged and filed in court has the court stamp of 30 May 2003. The application was purportedly filed pursuant to s170CP, but did not contain any request for an extension of the time within which to bring the proceeding under s170CP(6). That sub-section provides: "The application must be made within 14 days after the lodgment of an election under s170CFA(6), or within such period as a court allows on an application made during or after those 14 days." 6 In accordance with s170CP(6) the application should have been filed with the Court on or about 19 March 2003. It was filed some 10 weeks out of time. 7 As at 19 March 2003, the Salvation Army considered that Mr Jennings no longer contested the termination of his employment.

[20]

14 Whatever view one takes about Mr Singer's placement of blame at the feet of his clerk, it appears to me that his firm should have been aware that it was required to lodge a proceeding in the Court by 19 March 2003 to obviate the necessity to seek an extension of time. It failed in its duty to its client by not doing so. 15 In Duff v Freijah (1982) 62 FLR 280 at 287, Northrop J said: "It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution." 16 Further in Wolcott v Davis (1984) 4 FCR 124, at 128, Muirhead J said: "…it is the parties' solicitors who, on their behalf, conduct litigation and who have the obligation of complying with statutory procedures. It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness or accident, constituted special reasons." 17 Duff and Wolcott were cited in the primary judge's decision at first instance in Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd (IRCA, unreported 9 May 1996, Decision No 201 of 1996). In addition, the primary judge said at p.8: "…as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 351, a delay by a solicitor although not necessarily to be treated as the direct delay of a client is not necessarily a sufficient basis to excuse the delay in bringing an application." 18 The Full Court in Roger Coyne at p.6 said: "The delay from 25 April 1995 is attributable to a combination of apparent ignorance or oversight by the appellant's solicitors of the existence of the time limit and the time taken by the appellant to raise the money required by those solicitors as a condition of instituting proceedings. We find nothing erroneous in the learned primary Judge's analysis of those facts or his discussion of the circumstances in which a solicitor's delay or negligence may prejudice a client's application for extension of time." 19 In my view the delay in bringing the application in the instant case has not been satisfactorily explained. There is no reason why the solicitors for Mr Jennings, acting competently, should have waited until 10 weeks after the expiry of the relevant time limit before lodging the application in this Court. That, of itself, does not mean that an extension of time should not be granted but is a factor militating against the exercise of the Court's discretion in Mr Jennings' favour. It is a factor that I am prepared not to hold against Mr Jennings to any great extent in this case, given my view of the overwhelming position in support of the Salvation Army in relation to matters relevant to the merits.

[22]

Prejudice 21 I accept that the Salvation Army will be prejudiced in the event that the proceeding is permitted to be lodged out of time, but to some extent the prejudice is of its own making. It will be at risk of an order being made against its interests for the reinstatement of Mr Jennings if the proceeding is permitted to stay on foot. This will occur in circumstances where it has hired a replacement employee. 22 The evidence before the Court is that a replacement employee was engaged on 17 March 2003, some two days before the expiry of the relevant time limit. In Roger Coyne at first instance, the primary judge said at p.9: "Ansett has employed a replacement employee. The delay in the filing of the application will have the potential to prejudice Ansett especially if a reinstatement order is under active consideration at the conclusion of the review. Adverse consequences may arise for the replacement employee. This factor also supports Ansett's position in the context of the application to extend time. Of course, such a matter would not defeat an otherwise appropriate case for reinstatement in an application brought within time or where time is extended due to other factors. See Jason Scott Johns v Gunns Limited (1995) 60 IR 258, 271." 23 The primary judge's approach in Roger Coyne on all issues except his consideration of the relevance of the merits of the substantive proceeding were approved by the Full Court, as is made clear at the commencement of the final paragraph of their Honour's reasons for judgment. 24 The issue in the instant case that diminishes the prejudice to the Salvation Army is the time at which it was filled. The Salvation Army would have been in a far stronger position in relation to the question of prejudice if it was able to inform the Court that it waited until the expiry of the time limit and considered all issues closed in respect of the possibility of Mr Jennings contesting the termination of his employment before replacing Mr Jennings with another employee. Although on the other hand, the case does not illustrate a circumstance where the Salvation Army dismissed Mr Jennings and immediately employed someone else. 25 On the whole, I consider that the issue regarding prejudice only marginally militates against an extension of time. The marginal militation arises from the fact that, if the proceeding was allowed to continue, the Salvation Army would have to prepare for a trial and rely on memories of witnesses in circumstances where those memories would be impaired by the length of time that has passed since the events relevant to the proceeding actually occurred. I note the submission of counsel for Mr Jennings that that particular factor should be rendered small or insignificant by the fact that the Salvation Army would have prepared for conciliation before the Commission. However, I accept the countervailing consideration raised by counsel for the Salvation Army that preparation for a conciliation is different and less onerous than preparation for an actual trial. 26 In summary, I find that the question of prejudice militates against an extension of time, but only to a small extent.

[34]

· at the time of his termination Mr Jennings was claiming compensation under the Accident Compensation Act 1985 (Vic) in respect of injury suffered during his employment; · one of the reasons for the termination was because of Mr Jennings' temporary absence from work because of injury or illness. 33 Under s170CK(2)(a) of the Act, employment is not to be terminated for reasons which include a reason that the employee is temporarily absent from work because of illness or injury. The material before the Court, although at this stage limited, reveals that Mr Jennings was absent from work at the time of his termination because he had been suspended on full pay pending the outcome of an investigation by the Salvation Army. It would be difficult in those circumstances for him to establish that the Salvation Army was actuated in terminating him by the reasons set out in s170CK(2)(a). 34 Further, as counsel for Mr Jennings acknowledged, Mr Jennings may have a difficult task if the matter proceeded to trial in demonstrating that his absence from work was within the description of such absences set out in regulation 30C of the Workplace Relations Regulations. That is because the evidence in this case indicates that a medical certificate was supplied to the Salvation Army in respect of an absence that commenced in late November, where regulation 30C(1)(a) provides that the employee must have provided a medical certificate for the illness or injury within 24 hours of the commencement of the absence, or such longer period as is reasonable in the circumstances. The advancement of a contention that the period, as disclosed by the evidence in this case, was reasonable in the circumstances, would seem to be a difficult one. 35 Mr Jennings also relies upon s170CK(2)(e). That subsection refers to: "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…" In my view the making of a claim under the Accident Compensation Act does not fit within paragraph (e). Such a claim is not the filing of a complaint against an employer involving alleged violation of laws or regulations. Also, it is not the filing of a complaint against an employer involving recourse to competent administrative authorities. It involves nothing more than making a claim for compensation under a no-fault compensation scheme. 36 Mr Jennings counsel sought an adjournment for the purposes of raising factual issues on the part of Mr Jennings' case alleging that the termination was for reasons related to the making of a workers compensation claim, given that no factual matters were referred to in the Statement of Claim. Even if I am incorrect in my view of section 170CK(2)(e) of the Act, the Statement of Claim in its current form does not make out any such allegation by any proper pleading and there was no application before the Court to amend it.

Jennings v Salvation Army

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