Dec 1181/97 S Print P5437
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against a decision [Print P0406]
issued by Commissioner Wilks on 24 April 1997
Ian Russell
(C No. 80055 of 1997)
s.170CE application for relief re termination of employment
I. Russell
and
Darwin City Council
(U No. 80048 of 1997)
VICE PRESIDENT ROSS
DEPUTY PRESIDENT DRAKE
COMMISSIONER DEEGAN SYDNEY, 25 SEPTEMBER 1997
Appeal re extension of time
DECISION
Background
This matter concerns an appeal against a decision of Commissioner Wilks in which the Commissioner refused to accept an application under s.170CE(8) of the Workplace Relations Act 1996 (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.
Section 170CE(8) provides that an application that is lodged out of time may be accepted if "the Commissioner considers that it would be unfair not to do so".
The date on which the termination of the applicant's employment took effect was a matter of contention in the proceedings below. We will briefly set out the relevant facts before turning to the submissions on appeal.
The Darwin City Council operates an isolated children's and families Fun Bus for 40 weeks each year. The program is a mobile playgroup funded by the Northern Territory Government. The Fun Bus operates during the dry season from March to December.
The applicant was employed as the Fun Bus co-ordinator from July to December 1995 and from March to December 1996. On 25 November 1996 the applicant received a letter from Ms Diana Leeder, the Darwin City Council community services manager, in the following terms:
"Thank you for your contribution as Coordinator of the Fun Bus throughout the year.
As you are aware the Fun Bus will cease operation on Friday 13 December 1996 which allows for the final week for the year to be used to thoroughly check over and clean equipment before packing it away. This means that your current employment with Council ceases as from COB Friday 13th December 1996.
Due to current Fun Bus expenditure levels it has become necessary for Council to review the operation and make decisions on the future administration and presentation of this service to best operate within the resources available. It is anticipated that this review will include changes to job descriptions and the conditions of employment of staff employed to operate the Fun Bus.
Once this review is completed and finalised I would anticipate that we will be advertising again for staff for the Fun Bus early in February 1997. It you are interested, this is when you should reapply.
I take this opportunity to again thank you for your contribution to this community service and to wish you a safe and happy festive season."
At first instance it was submitted on behalf of the applicant that on receipt of this letter Mr Russell contacted his supervisor, Ms Margaret Reilly, who said, `Don't worry about the letter; don't worry about your job.' The substance of this conversation was denied by Ms Reilly in a statement submitted in the proceedings below. Neither Mr Russell nor Ms Reilly were cross-examined as to their respective recollections.
The applicant's position was advertised on 15 February 1997 [see Exhibit M2]. The applicant applied for the position but was unsuccessful.
The essence of the submission put on behalf of the applicant in the proceedings below was that the termination of his employment had not taken effect until he was advised in February 1997 that his application was unsuccessful.
As Mr Matarazzo put it in the proceedings below:
"Ian Russell had lodged an unfair dismissal claim within what we believe was 21 days on formally being told by Darwin City Council that he had been unsuccessful in his interview in February 1997. The issue of debate here from the ASU's point of view is that Ian lodged an unfair dismissal claim within 21 days of formally being told by Council that he no longer had a job at Darwin City Council." [Transcript 23 April 1997 at 3]
Mr Matarazzo submitted that on the basis of the assurances provided by his supervisor Mr Russell concluded that it would have been `silly' to lodge an unfair dismissal claim in circumstances where he was to attend an interview for the position from which he had been terminated [see Transcript 23 April 1997 at 5].
In reply Mr Baldwin, on behalf of the respondent, submitted that Mr Russell had been employed on a `casual basis for a fixed term' and was excluded from the operation of Division 3 of Part VIA of the Act. It was also argued that the termination of his employment took effect on 13 December 1996.
The nature of Mr Russell's employment was in dispute in the proceedings below. Mr Russell contended that he had been employed on a part-time basis pursuant to the Municipal Officers' (NT) Award. In this regard the relevant award provides, in effect, that employees may only be engaged on a casual basis for 800 hours per calendar year. Mr Russell was employed for in excess of 800 hours in calendar year 1996.
Mr Russell's original letter of appointment is in the following terms:
"POSITION OF FUN BUS CO-ORDINATOR
I have pleasure in advising that your application for the abovementioned position has been successful. I am pleased to offer the appointment to you.
The terms of your appointment will be in accordance with the Child Care Industry (NT) Award 1993, the provisions of which include:
COMMENCING CLASSIFICATIONS: Classification will be at Level 1,
Commencement level
COMMENCING SALARY: $14.97 per hour plus District Allowance
COMMENCEMENT DATE: 19 July 1995
HOURS OF DUTY: Normal hours of duty are between 8.30 am
and 1.30pm - Monday to Friday
CONDITIONS:
In accordance with the Child Care Industry (NT) Award 1993, immediate membership of Council's superannuation scheme on application to the Pay Office.
Section G4 of the Award states
Council shall give preference to members of a union party to this Award and to persons who indicate that they will join a respondent union and further, that they remain members whilst so employed.
APPOINTMENT REQUIREMENTS:
Your duties will be in accordance with the attached Job Description.
Your appointment to Council will be conditional upon your compliance with the following requirements:
n a three month probationary period of service;
n pre-employment medical examination by Council's appointed Medical Officer;
It would be appreciated if you could acknowledge acceptance of the above terms and conditions by signing/dating the duplicate of this letter and returning it to the undersigned.
I congratulate you on your appointment and look forward to your service with Council."
In the proceedings below Mr Baldwin conceded that the Child Care Industry (NT) Award 1993 was not the correct award [see Transcript 23 April 1997 at 13].
On 23 April 1997 Commissioner Wilks heard submissions from the parties on the question of whether the application for relief should be accepted pursuant to s.170CE(8) and issued the following decision in transcript:
"The applicant argued that the application was not made outside the prescribed 21 day period (as set out in s170CE(7)) as he held a reasonable expectation of continuing employment.
The respondent argued that there was no arguable case because employment of the applicant was casual and for a fixed term and the application therefore fell outside of the jurisdiction of the Commission to deal with.
S170CE of the Act states:
"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 Jacqueline Brodie-Hanns v MTV Publishing Limited [VI 1725 of 1995] Marshall J stated that the principles to be applied in applications of this nature 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 was actively contested. It may favour the granting of extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's decision."
The applicant claimed that he was not aware of the termination of his employment until shortly before the application was lodged and within the 21 day period prior to lodgment.
The evidence contradicts this. He was aware that the position he occupied was to be re-advertised and he in fact re-applied for it.
Based on the applicant's previous record with the respondent it was reasonable for him to have an expectation of succeeding in being re-employed. An expectation which was unfulfilled and disappointing to the applicant. But I am not satisfied that anything said or done by the respondent could be relied on as committing it to re-employing the applicant.
I have applied the principles of Marshall J in the Brodie-Hanns Case and am of the view that no arguable case exists and I am not convinced that I should exercise discretion under s170CE(8) of the Act.
The application is dismissed."
The appellant submitted that the Commissioner erred in the following respects:
(i) finding the Appellant claimed he was not aware of the termination of his employment until shortly before the application was lodged;
(ii) disregarding the evidence of the Appellant (given by statement) as to the assurances given to him by his supervisor, Margaret Reilly, "Don't worry about the letter (of 25 November 1996), and don't worry about your job";
(iii) implicitly accepting Ms Reilly's account of that conversation (Statutory Declaration of 14 April 1997);
(iv) disregarding the evidence (albeit from the bar table unobjected to) that the Appellant had sought and followed advice of the Union at the time;
(v) failing to find that the Appellant's conduct in relying upon the assurances of Ms Reilly and the advice of his Union was not acceptable explanation of the delay in the institution of proceedings claiming unlawful termination;
(vi) finding that knowledge of the re-advertising of the position and re-application for position was in some way dispositive of the Appellant's right to relief under s.170CE of the Act;
(vii) the exercise of his discretion in that there was no evidence of or any consequent finding of any prejudice to the Respondent as might flow from the grant of the application;
(viii) failing to have regard to all the merits of the substantive application;
(ix) failing to identify the evidence upon which he relied and in failing to given reasons or any proper reasons for his decision; and
(x) failing to formally admit or reject evidence intended to be relied upon by either party.
The appellant referred to Dix v. Crimes Compensation Tribunal (1983) 1 VR 297 and Telstra-Network Technology Group v. Kornicki [print P3168, 22 July 1997]. It was submitted that the application should have been considered by reference to the principles set out in those cases.
It was argued that it may be appropriate for the matter to be remitted to a single member of the Commission in view of the fact that the relevant witnesses had not been subjected to cross examination in the proceedings below and there were insufficient findings of fact upon which the Appeal Bench could reach its own decision on the application.
In reply it was submitted that the appeal should be rejected on the basis that:
(i) there has been no error in the Commissioner's exercise of his discretion and therefore no error in law;
(ii) the original decision based on evidence available to the Commissioner was correct and in the circumstances was the only reasonable decision available to him.
(iii) the applicant has failed to prove that it is in the public interest to grant the appeal."
The respondent submitted, among other things, that in following Hunter Valley Developments Pty Ltd & Ors v. Cohen (1984) 3 FCR 344 and applying it with reference to Brodie-Hanns v. MTV Publishing the Commissioner correctly applied the law as it stood at that time and the decision was reasonably open on the material before him.
It is apparent from his reasons for decision that the Commissioner applied the principles set out in Brodie-Hanns v MTV Publishing Limited to the determination of the matter before him.
The approach to be taken to the exercise of the Commission's discretion under s.170CE(8) was considered by a Full Bench of the Commission in Kornicki v Telstra-Network Technology Group [print P3168, 22 July 1997].
The decision in Kornicki makes it clear 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 Brodie-Hanns principles are not applicable to the exercise of the Commission's discretion under s.170CE(8).
The Commissioner's decision was handed down before the decision of the Full Bench in Kornicki v Telstra-Network Technology Group.
In applying the Brodie-Hanns principles to the matter before him the Commissioner fell into error as a more generous approach now applies to s.170CE(8) applications. The Commissioner's decision does not disclose that he applied the more liberal approach now applicable to the exercise of the discretion in question.
No fault is ascribed to the Commissioner in this regard as he clearly could not have taken the Kornicki decision into account as it had not been handed down at the time he issued his decision.
We are satisfied that the Commissioner erred in that he applied the wrong principles to the determination of the matter before him.
In this regard the respondent referred to Kornicki and argued that the Commission should be reluctant to overturn a decision of a member pursuant to s.170CE(8) as such decision is largely `a matter for the impression and judgment of the Commission member at first instance'. We agree with the proposition that where the guidelines established in Kornicki are properly taken into account it would be rare for such decisions to be disturbed on appeal. But that is not what happened in that case. As we have noted, the decision subject to appeal does not disclose that the more liberal approach now applicable to extension of time applications was in fact applied in this case.
We grant leave to appeal and uphold the appeal.
We have decided that in view of the limited material put in the proceedings below the most appropriate approach to take is to remit this matter to Deputy President Drake for rehearing having regard to the decision in Kornicki v Telstra-Network Technology Group. In this regard we note that in Kornicki the Commission made the following observations regarding the relevance of the merit of the substantive application in determining whether it would be unfair not to accept an out of time application:
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasize that a consideration of the merits of the substantive application for relief in the context 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." [Print P3168 at p11]
Where there are conflicting assertions as to factual issues going to merit it would be generally unreasonable to conclude that an application is without merit in the absence of sworn evidence and the provision of an opportunity to cross examine relevant witnesses.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
J Waters, of counsel, for I. Russell.
M. Baldwin for Darwin City Council.
Hearing details:
1997.
Darwin:
July 29.
Decision Summary
Termination of employment - unfair dismissal - unlawful termination - appeal - extension of time - review of positions - letter invited applicant to re-apply for position when advertised - submitted that 21 days period for lodging application commenced from date of notification of unsuccessful application for advertised position - Brodie-Hanns principles are not applicable to exercise of discretion under s170CE(8) - leave to appeal granted - appeal upheld - matter remitted to Drake DP - evidence - observation made that unreasonable to conclude an application is without merit in the absence of sworn evidence and an opportunity to cross-examine relevant witnesses | ||||
s45 appeal by Ian Russell against a decision issued by Wilks C on 24 April 1997 | ||||
C No. 80055 of 1997 |
Print P5437 | |||
Ross VP Drake DP Deegan C |
Sydney |
25 September 1997 | ||
Printed by Authority by the Commonwealth Government Printer
<Price Code C>
** end of text **