Dec 858/97 S Print P3168

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against a decision [Print P0295]

issued by Commissioner Deegan on 21 April 1997

Telstra-Network Technology Group

(C No. 32906 of 1997)

s.170CE application for relief re termination of employment

C. Kornicki

and

Telstra - Network Technology Group

(U No. 30051 of 1997)

VICE PRESIDENT ROSS

SENIOR DEPUTY PRESIDENT WATSON

COMMISSIONER GAY SYDNEY, 22 JULY 1997

Appeal re extension of time

DECISION

Background

This matter concerns an appeal against a decision of Commissioner Deegan to accept an out of time application for relief under s.170CE(8) of the Workplace Relations Act 1996 (the Act).

The facts in this matter are set out in the decision subject to appeal. Briefly put, in February 1996 the applicant applied for 12 months unpaid leave commencing on 1 April 1996. The applicant alleged that on 8 March 1996 his direct supervisor, Mr Sheridan, told him it would be all right for him to leave the country without receiving written approval of his application for unpaid leave. This was denied by Mr Sheridan.

The applicant then left Australia apparently under the impression that his leave would be approved on 21 March 1996.

On 3 April 1996, some two days after the proposed commencement date of the applicant's leave, the National General Manager - Networks refused the application for 12 months leave and directed that the applicant be offered three months leave.

Communications between the applicant and the respondent became difficult after his departure overseas. There was an exchange of correspondence between Telstra and the applicant regarding Telstra's decision to only grant three months unpaid leave.

On 30 September 1996 the applicant received a letter from Telstra, dated 13 September 1996 advising that as he had failed to return to work on 1 July 1996 he was deemed to have resigned as of 13 September 1996. The applicant replied to this letter restating his belief that he had been granted 12 months unpaid leave.

The applicant returned to Australia in early December 1996. Some time prior to 18 December he sought advice from his union, the CPSU, and at the union's suggestion, he subsequently sought legal advice. Between 18 and 20 December the applicant spoke to Mr Lunt, a solicitor with Slater and Gordon, and on 24 December he received a message from Mr Lunt suggesting that he file an unfair dismissal claim against Telstra. The applicant stated that he did not understand what was involved in taking the action suggested.

On 6 January 1997 the applicant contacted the solicitor's office but Mr Lunt was on holidays. On 7 January Mr Lunt's secretary rang the applicant and told him that Mr Lunt had been contacted and had advised that he should lodge an application for relief in respect of the termination of his employment as soon as possible. On 10 January 1997 the applicant filed an application for relief pursuant to s.170CE(1) of the Act.

Section 170CE(7) requires that an application for relief in respect of termination of employment be lodged within 21 days after the day on which the termination took effect.

The termination in this case took effect on 13 September 1996 and hence the application was out of time by almost four months.

Section 170CE(8) provides that an application that is lodged out of time may be accepted if "the Commission considers that it would be unfair not to do so".

On 26 March 1997 Commissioner Deegan heard submissions from the parties on the question of whether the application for relief should be accepted pursuant to s.170CE(8). On 21 April 1997 the Commissioner issued the decision which is the subject of this appeal. The Commissioner decided that it would be unfair to the applicant if the application was not accepted. In the course of her decision Commissioner Deegan said:

Submissions on Appeal

On appeal Mr Gardner, on behalf of the appellant, submitted that in exercising her discretion Commissioner Deegan had failed to give appropriate weight to a number of factors in reaching her decision. Four particular factors were identified.

1. The Commissioner failed to give sufficient weight to evidence that the applicant had corresponded with the respondent throughout his absence overseas.

In the course of her decision the Commissioner found that `Communications between the applicant and respondent became difficult after his departure overseas' [print P0295 at 1].

The evidence before the Commission at first instance included an affidavit of Mr Kornicki (Exhibit A1) and an affidavit of Mr Sheridan, an employee of Telstra (Exhibit R1). It was argued that both affidavits showed that regular communication took place between the parties from May to September 1996. It was submitted that Mr Kornicki was able to communicate with Telstra during this period and if communication was difficult it was due to Mr Kornicki being in Saudi Arabia and not advising his employer of a contact address except through his daughter who resided in Melbourne. In this regard the applicant had instructed the respondent where correspondence could be sent [see Exhibit CK5] and it was argued that any difficulties that arose were a consequence of the applicant failing to provide details as to where he was working in Saudi Arabia.

In summary it was put that the Commissioner should not have given significant weight to the fact that Mr Kornicki was overseas and that communications between the parties were, allegedly, difficult until 6 December 1996. Further, the Commissioner should have given weight to the evidence that the parties continued to correspond during the period Mr Kornicki was overseas.

2. Failure to seek advice or act on advice : Delay between 6 December and 18 December 1996.

Telstra submitted that the Commissioner erred in failing to give sufficient weight to the fact that despite Mr Kornicki returning to Australia on 6 December 1996 he failed to seek advice or challenge his termination until some time around 18 December. While the Commissioner accepted Mr Kornicki's evidence that he visited Telstra and left messages for Mr Sheridan and Mr Watson during December 1996 this evidence was contrary to the affidavit evidence of Mr Sheridan.

It was also argued that even if the Commissioner accepted that Mr Kornicki attempted to contact his employer after his return to Australia, no formal steps were taken to challenge his termination before he sought advice around 18 December 1996. On this basis it was submitted that there was no acceptable reason for the delay of almost two weeks before seeking advice.

3. Failure to take steps between 18 December 1996 and 10 January 1997.

Telstra submitted that the Commissioner erred in failing to give weight to the fact that even after Mr Kornicki sought advice from his union around 18 December 1996, no steps were taken to challenge the termination until 10 January 1997.

It was also argued that the Commissioner erred in giving weight to the fact that the applicant's solicitor was not available over the Christmas holiday period. This aspect of the Commissioner's decision was said to be inconsistent with Williams v. Mitchell Shire Council [print N9222] in which Commissioner Whelan decided that the closure of the office of the applicant's solicitor during the holiday period did not provide an acceptable explanation for a delay in lodging an application.

Reference was also made to the proposition that `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' [see Marshall J in Coyne v. Ansett Transport Industries (unreported WI 1956/1996, 9 May 1996; accepted on appeal by Wilcox CJ, Ryan and Madgwick JJ, WI 1203 of 1996, 24 September 1996]. It was submitted that similar principles should be applied in this case. It was argued that the fact that Mr Kornicki was not aware of his rights does not necessarily mean that an extension of time should be granted. Further Mr Kornicki delayed taking steps to make himself aware of his rights and his continued failure to take action to challenge his termination should not be excused by his lack of knowledge about his rights or delays on behalf of his solicitor.

Telstra also submitted that it was inappropriate to give weight to any confusion associated with the introduction of the new legislative provisions as Mr Kornicki received written notice of his termination at the latest on 30 September 1996, some four months prior to the legislative changes.

4. The Commissioner failed to give sufficient weight to the evidence that the applicant undertook work for another employer during his period of unpaid leave.

Telstra submitted that the Commissioner failed to give sufficient weight to the fact that Mr Kornicki indicated on his leave form that he would not engage in work for another employer without the consent of Telstra and then took active steps to seek employment without the knowledge or consent of his employer.

In reply to the arguments advanced by the appellant Mr Staindl, on behalf of the respondent, submitted, among other things, that leave to appeal should be refused for two reasons:

· the Commissioner's decision was based on an exercise of discretion plainly open to her; and

· the decision was an interlocutory one which does not finally dispose of the matter.

In relation to the factors identified by the appellant Mr Staindl advanced four points.

First, the applicant's absence overseas was not the sole reason for the Commissioner's decision to accept the application. At p.5 of the decision the Commissioner identified four factors which had been taken into account in arriving at her decision:

It cannot be said that the applicant's absence overseas was irrelevant as such absence meant that he was unable to examine his personnel file and there were delays in communication. It is also apparent from the Commissioner's reference to the applicant having received such correspondence that she was aware that the parties had corresponded while the applicant was overseas.

Second, in relation to the delay between the applicant returning to Australia on 6 December and seeking advice on 18 December the Commissioner took account of the applicant's actions following his return and at p.5 of the decision states:

The applicant needed to view his personnel file to try and establish what had happened to the 12 months leave that he believed he had been given in March 1996. He then approached his Union and then a solicitor.

Third, the delay between 18 December 1996 and 24 December 1996 is dealt with at p.2 of the Commissioner's decision as follows:

It was open to the Commissioner to find that there was an acceptable reason for the delay in filing the application.

Finally, in relation to the appellant's argument with respect to the weight to be given to questions of merit it is wrong to assert that all aspects of the merits of a claim should be given equal weight in determining such an application.

Mr Staindl also submitted that there was no written notice of termination in this case and accordingly up until the legislative amendments which took effect on 1 January 1997 there was no prescribed time within which Mr Kornicki had to lodge his application for relief. It was argued that written notice must be either contemporaneous with or in advance of the termination [see W.J. Pretty v. J.A.L. Filter Services Pty Ltd, print P1843].

Relevant Principles

The principles applicable to the exercise of the Commission's discretion under s.170CE(8) were the subject of debate in these proceedings and before Commissioner Deegan at first instance. Before turning to the current provision it is important that it be understood in its historical context. In this regard s.170EA of the former Industrial Relations Act 1988 stated, among other things:

Prior to the amendments made to the former Act as a result of the Industrial Relations and Other Legislation Reform Act 1995 (the 1995 Amendment Act) the discretion to extend the time period within which an application for relief had to be lodged was exercised by the Industrial Relations Court of Australia (the IR Court). As a consequence of the 1995 Amendment Act this discretion came to be exercised by the Commission.

The principles applied by both the IR Court and the Commission in determining whether or not an extension of time should be granted pursuant to s.170EA(3) were those set out in the judgment of Wilcox J (as he then was) in Hunter Valley Developments Pty Ltd v. Cohen (1984) 58 ALR 305 at 310-311. Those principles were conveniently summarised by Marshall J in Brodie-Hanns v. MTV Publishing Limited (1995) 67 IR 298 at 299, in the following terms:

[Cf: Coyne v. Ansett Transport Industries WI1203 of 1996, 24 September 1996 per Wilcox CJ, Ryan and Madgwick JJ; Giulio Avian v. Kleenmaid Pty Ltd print N2848, 28 June 1996 per Williams DP, Maher DP and Smith C.]

While the Brodie-Hanns statement has generally been accepted there is authority for the view that it may have been easier for an applicant to persuade the Commission to grant an extension of time under s.170EA(3)(b) than a strict application of the Hunter Valley principles would suggest.

In Coker-Godson v. National Dairies Limited [unreported, IR Court, 22 August 1994], Keely J stated at 6-7 that:

Further, in Turner v. K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412 at 418, Beazley J made the following observation after referring to the passage from the judgment of Keely J set out above:

In Dix v. Crimes Compensation Tribunal [1993] 1 VR 297 the Victorian Supreme Court declined to follow the judgment of Wilcox J in Hunter Valley Developments. In particular Brooking J, with whom Fullagar and Tadgell JJ agreed, said at 302:

In relation to the current position s.170CE of the Act relevantly provides:

The objects of Division 3 of Part VIA of the Act may also be relevant to a consideration of the principles applicable to the exercise of the Commission's discretion under s.170CE(8). In this regard s.170CA states:

There are four points of difference between the former s.170EA(3) and the current ss170CE(7) and (8):

s under s.170CE(7) the time period for the lodgment of applications for relief operates from when the termination took effect. The former s.170EA(3)(a) provided that the time period operated from when the employee received written notice of termination;

s under s.170CE(7) the time period applies in all cases whereas the former s.170EA(3)(b) provided that the time period only applied in circumstances where the termination had been effected by written notice;

s under s.170CE(7) an application for relief is to be lodged within 21 days of the termination taking effect whereas the former s.170EA(3)(a) provided that an application had to be lodged within 14 days after the employee received written notice of the termination; and

s the language used to describe the Commission's power to extend the time within which an application for relief may be lodged has changed. The former s.170EA(3)(b) provided that an application could be lodged `within such further period as the Commission allows on an application made during or after those 14 days'. Section 170CE(8) provides that the Commission `may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so'.

In enacting s.170CE(8) Parliament has clearly chosen to use different language to that which appeared in the former s.170EA(3)(b). In particular the words `if the Commission considers that it would be unfair not to do so' suggest that considerations of fairness towards an applicant are central to the exercise of the discretion.

The fact that there is a difference in the language used in s.170CE(8) as compared to the former s.170EA(3)(b) is indicative of a legislative intention that a different approach be taken to the exercise of the discretion. In Bridge v. Mattis (1953) 52 AR (NSW) 49 at 56-57 the NSW Industrial Commission approved of a statement by the Canadian Supreme Court in The City of Ottowa v. Hunter that:

The Commission added that this statement was equally applicable to an amendment of a statute whether by way of addition, alteration or withdrawal of words. [Cf: Amalgamated Wireless (A'sia) Ltd v. Philpott (1961) 110 CLR 617; Wellbridge v. Jackson [1990] VR 689 at 693.]

We agree with Mr Staindl's submission that s.170CE(8) is intended to convey an approach to the exercise of the Commission's discretion which is more generous to applicants than that which prevailed under the former s.170EA(3)(b).

The prima facie position is that the legislative time limit should be complied with and an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise the discretion in s.170CE(8) in their favour.

The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extend the time limit. We note that such a consideration necessarily involves the exercise of a general discretion. The following guidelines may assist in determining whether it would be unfair not to grant an application to extend time:

A.. Primary consideration should be given to two factors:

B. Depending on the circumstances of a particular case the provision of a `fair go all round' may also allow regard to be had to the following considerations:

We note however that these considerations are very much secondary in nature and are, of themselves, unlikely to be determinative of an application.

We emphasise that the matters set out above are guidelines only. In taking into account any of the factors identified the Commission will be cognisant of the prima facie position that the legislative time limit be complied with and in deciding whether to accept a late application the central consideration is whether it would be unfair to the applicant not to accept the application.

Given the broad nature of the discretion in s.170CE(8) the question of whether or not an application for an extension of time should be granted in a particular case will largely be a matter for the impression and judgment of the Commission member at first instance. It follows that such decisions would only rarely be overturned on appeal.

Decision

Section 45(2) of the Act provides that a Full Bench shall grant leave to appeal `if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted'.

Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted. In this regard the precedent or flow on implications of the decision under appeal are an important consideration.

In order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal. As noted in Corporation of the Catholic Archdiocese of Brisbane v. Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union, [Print K7698, 19 May 1993, per Moore VP, Keogh SDP and Bacon C]:

The appellant identified a number of areas in regard to which it was asserted that the Commissioner had failed to give appropriate weight in reaching her decision. Contrary to the appellant's submissions we are satisfied that the conclusion reached by Commissioner Deegan was reasonably open on the material before her and that her decision discloses no error of principle warranting correction on appeal.

In particular we note the following points:

1. Re: evidence that the parties had corresponded - the Commissioner was aware that the parties had corresponded while the applicant was overseas. This is apparent from her reference to the exchange of correspondence between the parties at pp.1-2 of her decision. It is also apparent that there was a considerable delay between the dispatch and receipt of the correspondence sent. In our view the Commissioner was entitled to form the view that communications between the parties `became difficult' after the applicant's departure overseas and was entitled to take that fact into account in arriving at her decision.

2. Re: delays between 6 and 18 December 1996 - it is apparent from Mr Kornicki's affidavit that he was not idle during this period. On his return to Australia he searched his personnel file to try and establish what had happened to the 12 months leave he thought he had been given in March 1996. He then approached his Union and then a solicitor. The Commissioner was entitled to form the view that the reasons given for the delay between 6 and 18 December were acceptable.

3. Re: delay between 18 December 1996 and 10 January 1997 - having regard to the more generous approach to be applied under s.170CE(8) than was the case under the former s.170EA(3)(b) the Commissioner was entitled to give weight to the fact that the applicant's solicitor was not available over the Christmas holiday period. The circumstances before the Commissioner were distinguishable from those in Williams v. Mitchell Shire Council.

4. Re: applicant undertaking work for another employer during his leave - this factor was said to be relevant to the Commissioner's consideration of the merits. As we have indicated above the determination of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. Such an approach was adopted by the Commissioner in her decision, at p.5 she notes:

Given the absence of demonstrable error in the exercise of discretion at first instance we are of the opinion that the matter is not of such importance that, in the public interest, leave to appeal should be granted.

We refuse leave to appeal and dismiss the appeal.

BY THE COMMISSION:

VICE PRESIDENT

Appearances:

C. Gardner for Telstra-Network Technology Group.

D. Staindl for C. Kornicki.

Hearing details:

1997.

Melbourne:

July 9.

Decision Summary

   

Termination of employment - unfair dismissal - unlawful termination - extension of time - appeal - appeal against the granting of an extension of time - applicant (employer) submitted that the Commissioner had failed to give weight to a number of factors - principles in Hunter Valley Developments Pty Ltd v Cohen and Brodie-Hanns v MTV Publishing Limited considered - differences between former s.170EA and current s.170CE outlined - indicative of a legislative intention that a different approach be taken - Commission agreed with submission that s.170CE(8) is intended to convey an approach to the exercise of the Commission's discretion which is more generous to applicants than previously - Commission established guidelines for exercise of the discretion - primary consideration to be given to two factors - (1) is there an acceptable explanation for the delay? - while the existence of an acceptable explanation is relevant it is not a condition precedent to the exercise of the discretion - (2) the merits of the substantive application - if application has no merit not unfair to refuse to extend time - does not require detailed analysis of substantive merits - sufficient for applicant to establish it is not without merit - in addition depending on the circumstances provision of a `fair go all round' may allow regard to the following very much secondary considerations - whether applicant contested the termination before lodging application - prejudice to the respondent caused by the delay - Commission emphasised the above as guidelines only - prima facie position that legislative time limit be complied with - central consideration is whether it would be unfair to the applicant not to accept the application - broad nature of discretion largely a matter for the member at first instance - conclusion reached was reasonably open and decision exposes no error of principle - matter not of such importance that in the public interest leave to appeal be granted - leave to appeal refused and appeal dismissed

s.45 appeal by Telstra-Network Technology Group against a decision [Print P0295] issued by Commissioner Deegan on 21 April 1997

C No 32906 of 1997

Print P3168

Ross VP

Watson SDP

Gay C

Sydney

22 July 1997

Printed by Authority by the Commonwealth Government Printer

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