s.643 application for relief in respect of termination of employment

[1] The applicant in this matter is Ms Tracy Smart. It is alleged by the applicant that the termination of her employment by Australian Postal Corporation (the respondent) was harsh unjust or unreasonable. The applicant's employment was terminated on 30 July 2007. The application to the Commission made pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) was lodged on 1 October 2007. The Act requires such applications to be lodged within 21 days of the termination of employment taking effect. Thus the application was lodged approximately 41 days out of time. The applicant asks the Commission to exercise the discretion it has at s.643(14) of the Act and allow the application. The respondent opposes such a course.

[2] The applicant's employment was subject to the terms of a "pre reform" enterprise agreement (the Australia Postal Enterprise Agreement 2004-6) (EBA6). EBA6 at Attachment A subclause 10.1 empowers the respondent to take certain disciplinary action (including dismissal) against an employee.

[3] Attachment A also empowers an employee the subject of disciplinary action taken pursuant to subclause 10.1 to seek a review of such disciplinary action by a "Board of Reference" where the disciplined employee believes the penalty imposed to be harsh, unjust or unreasonable. An application for review must be lodged within 14 days of (in this case) the dismissal.

[4] The applicant's employment was terminated with effect from 30 July 2007 by way of a letter of that date. The letter also advised the applicant of her right to seek a review pursuant to EBA6. The letter of termination also contained the following:

"If you wish to consider your rights under the Workplace Relations Act 1996 in respect to alternative legal remedies including the time limits that apply, you will need to seek external advice." (emphasis added)

[5] The applicant exercised her rights under EBA6. A review was undertaken by a "Board of Reference". In a decision dated 19 September 2007 the Chairman of the board of Reference concluded that the termination of the applicant's employment was not harsh unjust or unreasonable. That decision was sent by Express Post to the applicant's representative, the Communications Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[6] As already noted the applicant lodged her application in this jurisdiction on 1 October 2007. The application in this matter was not lodged until the review process under EBA6 was completed. Without objection from the respondent, the Commission conducted a conciliation conference between the parties on 30 October 2007. Unfortunately a resolution was not achieved and the parties agreed a timetable for the lodging of material for the extension of time application. It was further agreed that the Commission would determine whether to extend time on the basis of the written material (ie without a hearing) unless the Commission decided that a hearing was necessary.

[7] It is well settled that the relevant principles to be applied when considering an application to extend time are those contained in the decision of Marshall J in _Brodie-Hanns v

MTV Publishing Limited_. [1] I turn to consider those principles.

[8] The applicant submits that there was an acceptable explanation for the delay. It is submitted that the applicant sought a review in accordance with the requirements of EBA6. It is said that the applicant was not advised by her representative/s in those proceedings of the need to lodge an application pursuant to s.643(1)(a) of the Act and to pursue that application concurrent with the application for review under EBA6. It is claimed that the failure of the CEPU representatives to advise the applicant to lodge the s.643(1)(a) application constituted "representative error". Support for finding that the failure to lodge the s.643(1)(a) application "in time" because the applicant was pursuing the EBA6 review was an acceptable explanation for the delay was said to be found in a decision of SDP Acton in Brett Norman v Australia Post. [2]

[9] It is true that in that matter Her Honour did conclude that the applicant in that matter acting on the advice of his union had failed to lodge his application in the period required by the statute because he had initiated a review (as contained in an earlier EBA) and in those circumstances there was an acceptable explanation for the delay. However as the respondent submits Her Honour went on to say:

"I think it is reasonable for an employee to expect their union will correctly advise them in respect of termination of employment matters. The CEPU should take action to ensure that it does not repeat the incorrect advice it gave to Mr Norman." (emphasis added)

[10] SDP Action's direction to the CEPU could not be more clear or stark. The CEPU was clearly advised that its advice to Mr Norman was incorrect and that the CEPU was to ensure that it did not repeat such incorrect advice.

[11] In this matter, given Acton SDP's comment, when taken with the letter of termination where the respondent specifically draws to the attention of the applicant (and by implication her representatives) her rights under the Workplace Relations Act 1996 and the need to take into account "the time limits that apply" it is not reasonably open to conclude that there was a reasonable explanation for the delay. To the extent that the applicant relies on representative error there is an express direction from the Commission to the applicant's representatives to ensure such error does not occur. It is self evident that the CEPU has failed to meet the Commission's requirement in this regard.

[12] In D.A. Schmidt v Australia Post [3] which dealt with (relevantly) almost identical circumstances, the Commission (as currently constituted) said:

"Given the inadequate explanation for the delay in instituting these proceedings together with the minor additional weight provided by my finding in relation to the substantive application, I have decided to refuse to accept this application. In so doing I wish to make it clear that I do not find any merit in the respondent's submission that it should not have to engage in two sets of proceedings, one under the Act and one under the EBA. Clearly such a course is open to employees terminated by the respondent. It is my view however that should an employee wish to avail him or herself of both courses compliance with the requirements to initiate proceedings under both the statute and the EBA is essential. It is not proper for the time limit prescribed by the Parliament for initiation of proceedings under the Act to be extended simply because the terminated employee is engaged in some alternate agreed process. That is particularly so when that process does not preclude an application under the Act whilst that agreed process is still under way."

[13] There is nothing in these proceedings which would lead me to a different conclusion. For the foregoing reasons I am not satisfied that there was an acceptable explanation for the delay in the lodging of this application.

Other action taken by the applicant to contest the termination

[14] Clearly the applicant took action to contest the termination. The respondent relies on a lull in such action during the period 20 September (the date the Board of Reference's decision was forwarded by Express Post to the applicant) and 1 October (the date this application was lodged.

[15] The applicant responds by submitting that the Board of Reference decision was not received until Friday 21 September 2007. The relevant CEPU officer was absent from work on that day. The relevant officer became aware of the decision on Monday 24 September 2007 and this application was lodged 7 calendar days later following a teleconference with the applicant and the CEPU's legal representatives on Friday 28 September 2007.

[16] Whilst there might be some tardiness in the delay in the week of 24 September it is not telling against the applicant. Given the Board of Reference decision the gaining of legal advice to consider its content was an appropriate and sensible step.

[17] Considering the issue overall it is my view that the applicant, from the date of the termination of her employment, did take action to contest such termination up to the time she lodged this application.

[18] It is not submitted that prejudice will be visited on the respondent if this application is accepted, however the respondent submits and I accept that the absence of prejudice is not of itself a reason to extend time and accept the application.

[19] On the material that has been provided to me there is nothing on which I could make a finding that the merits of the substantive application lend weight toward a conclusion that this application ought be accepted despite being lodged outside of the 21 day statutory limit.

[20] Submissions were made and certain contentions advanced. These were not supported by evidence. The decision of the Board of Reference was relied upon by the respondent. For the purposes of this test in the Brodie-Hanns Principles I am prepared to attach weight to the Board of Reference decision. It is an agreed process and its contents, including its findings and conclusions must carry some weight for the current purpose. It would not necessarily carry weight in full arbitral proceedings considering whether the termination was harsh unjust or unreasonable. That is not the task currently being undertaken.

Consideration of fairness between the applicant and other persons in a like position

[21] There is nothing in the material which would lead me, in accordance with this principle, to attach weight toward a conclusion to extend time and accept this application.

[22] For the foregoing reasons I have decided to decline the application to extend the time for the lodging of this application. The substantive application is not accepted. The application is dismissed. An Order dismissing the application can be found at PR980056.

Printed by authority of the Commonwealth Government Printer

[1] (1995) 67 IR 298