[2008] AIRCFB 599 |
|
DECISION |
Workplace Relations Act 1996
s.120—Appeal to Full Bench
VICE PRESIDENT WATSON |
MELBOURNE, 20 AUGUST 2008 |
Appeal - termination of employment - extension of time - Workplace Relations Act 1996, s643(14), s 120.
Introduction
[1] This is an appeal, for which leave is required, by Mr G Druett against a decision made by Senior Deputy President Cartwright on 28 April 2008 declining to extend the time period for lodging an application under the Act. 1
Background
[2] Mr Druett made an application for a remedy in relation to the termination of his employment by the State Rail Authority of NSW, now trading as Railcorp, on 16 January 2008. It was alleged in the application that Railcorp had terminated the applicant’s employment on 2 April 1979. The application was lodged more than 28 years after the alleged termination.
[3] The application was made under s.643 of the Workplace Relations Act 1996 (the Act). Section 643(14) provides that an application under that section 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. Mr Druett sought an extension of time. In accordance with the procedure in s.648 the Senior Deputy President issued a notice to the parties on 1 April 2008 and invited them to provide further information relating to whether the extension of time should be granted. In response to this request Mr Druett filed a large number of documents, including transcripts and documents in relation to matters filed by him in other jurisdictions.
[4] Mr Druett submitted that he had been terminated unlawfully for misconduct based on a wrong finding of fact. He also provided a brief outline of the actions he had taken to seek a remedy in relation to this dismissal, including an initial application to the Railway Appeals Board on 2 May 1979, and a further application to the New South Wales Industrial Commission on 25 October 2002.
[5] On 28 April the Senior Deputy President dismissed the application to extend time. Mr Druett lodged this appeal on 5 May 2008 pursuant to s.120 of the Act.
Grounds and nature of the appeal
[6] A decision to grant an application for an extension of time under s.643(14) is a discretionary one and an appeal against a decision of this nature cannot succeed unless the appellant can demonstrate that the exercise of discretion is affected by error. 2
[7] In determining this appeal, Mr Druett and Railcorp were provided with the opportunity to make full written submissions.
[8] Mr Druett submitted a great deal of historical material in relation to his appeal. In relation to the grounds of his appeal, he submitted:
Civil liberties, the proper administration of justice, errors of law and public safety issues are important and constitute a public interest. There was a lack of procedural fairness eg no hearing or conciliation in the court below.
[9] Mr Druett also submitted that he has provided “overwhelming information re the delay” and that he has “raised ongoing concerns since 1996 re disability issues and have been the respondent in heavy litigation” in relation to other matters. He has provided a great deal of documentation supporting his involvement in other litigation.
[10] Railcorp submitted that the Senior Deputy President correctly applied the principles set out in Brodie-Hanns v MTV Publishing Ltd (Brodie-Hanns) 3 and that Mr Druett has not identified any error in the Senior Deputy President’s reasoning.
Conclusions
[11] Mr Druett has not supplied any details of the alleged “errors of law”.
[12] In our view the Senior Deputy President correctly exercised his discretion to determine the extension of time application without a hearing in accordance with s.647, and without conciliation taking place.
[13] We are further of the view the Senior Deputy President correctly applied the principles set out in Brodie-Hanns and we do not believe that there has been any error in the determination that there has been no acceptable explanation for the delay in lodging the application.
[14] We further note the Senior Deputy President’s statement that the Commission does not have jurisdiction to hear applications in relation to a terminations of employment prior to 30 March 1994.
[15] We are not satisfied that an arguable case has been made out by Mr Druett that the Senior Deputy President’s decision is subject to legal error or misapplied the discretion available to him. Nor are we satisfied that the appeal raises a matter of such importance in the public interest that leave to appeal is warranted. Leave to appeal is refused.
BY THE COMMISSION:
VICE PRESIDENT
Final written submissions: 6 August 2008, 9 July 2008.
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2 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 per Gleeson CJ, Gaudron & Hayne JJ at para [17] and per Kirby J at para [75]) and s.685(2) of the Act, the successor provision to 170JF(2).
3 Brodie-Hanns v MTV Publishing Ltd (1995) 64 IR298