AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
[PR920841] issued by Commissioner Eames on 2 August 2002
D La Rosa
(C2002/4142)
s.170CE application for relief in respect of termination of employment
D La Rosa
and
Motor One Group Pty Ltd
(U2001/8369)
SENIOR DEPUTY PRESIDENT WATSON |
|
SENIOR DEPUTY PRESIDENT KAUFMAN |
|
COMMISSIONER FOGGO |
MELBOURNE, 12 NOVEMBER 2002 |
Appeal - termination of employment - extension of time to lodge election to proceed to arbitration.
DECISION
[1] This is an appeal, for which leave is required, by Mr. D La Rosa (the appellant) against an extemporaneous decision given by Commissioner Eames in Melbourne on 26 July 2002. It was followed by a formal decision issued in Darwin on 2 August 2002 in PR920841. The Commissioner declined, pursuant to the discretion available to him under s.170CFA(8)http://www.airc.gov.au/wrasections/s170CFA.html of the Act to extend the seven day time limit for the lodging of an election to proceed to arbitration imposed by s.170CFA(6).
[2] Section 170CFA(8) provides:
"The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7)."
The conciliation conference in relation to the appellant's application was held before Commissioner Tolley on 12 March 2002 and a s.170CF(2) certificate was issued on 18 March 2002, and forwarded on that date by facsimile to the appellant's representative, Lennon Settle Solicitors, and to Motor One Group Pty Ltd (the respondent).
[3] No separate copy of the Certificate was sent directly to the appellant. The election to proceed to arbitration was lodged on 19 April 2002, 24 days beyond the time period required by s.170CFA(6).
[4] A file note completed by the Associate to Commissioner Tolley, Ms. Glennon, records:
· 3 April 2002: a telephone call by her to Lennon Settle in relation to the non-return of a Notice of Election in which she was advised that she needed to speak to Pat Lennon, who was not available at the time. A return telephone number was left by Ms. Glennon;
· 15 April 2002: in the absence of a response, a further telephone call was made by her to Lennon Settle in which she asked to speak to Pat Lennon, who was not available at the time. A return telephone number was again left by Ms. Glennon;
· 17 April 2002: Pat Lennon returned Ms. Glennon's call whilst she was unavailable and left a message. Ms. Glennon returned the call later that day but Mr. Lennon was not available;
· 18 April 2002: Ms. Glennon received a letter from Lennon Settle confirming that the matter was not settled and a certificate was anticipated. The letter sought advice as to the progress of the matter in the absence of further communications. Ms. Glennon rang Pat Lennon advising him of the transmission of the Certificate, and other related documents, by facsimile on 18 March 2002 confirmed by facsimile receipt. Mr. Lennon was adamant that he had not received the papers;
· 18 April 2002: Ms. Glennon again sent the Certificate, by facsimile transmission, to Lennon Settle;
· 19 April 2002: Ms. Glennon received the Notice of Election by facsimile transmission.
[5] At the hearing before Commissioner Eames, the respondent was represented by Mr. N Harrington of counsel. He tendered an affidavit sworn by Ms. F Lewandowski, an articled clerk employed by the respondent's solicitors, which dealt with an inspection by her of the Commission file on 17 July 2002, attesting that the file contained facsimiles, and facsimile receipt, dated 18 March 2002 and 18 April 2002, to Lennon Settle and the file note of Ms. Glennon. Each of the documents referred to was attached.
[6] The appellant was represented by a partner of Lennon Settle, other than Mr. Lennon, but tendered affidavits sworn by Mr. Lennon on 18 and 19 July 2002, attesting that:
· he attended the 12 March 2002 conciliation conference;
· he caused the 16 April 2002 letter, said in the file note of Ms. Glennon to have been received by her on 18 April 2002 to be sent to the Commission;
· he telephoned the Commission on 18 April 2002 in which he indicated no certificate had been received in his office;
· he received a facsimile from Ms. Glennon on 18 April 2002, containing the Certificate;
· on 19 April 2002, he forwarded the 19 April 2002 letter, attaching a Notice of Election to Ms. Glennon;
· he believed the appellant ought not be precluded from pursuing his claim, given the provisions of s. 170CFA(8) ; and
· inspection of the appellant's file within Lennon Settle revealed no contact between Ms. Glennon and the firm between 3 April and 17 April 2002, or receipt of the 18 March 2002 facsimile.
[7] Neither Mr. Lennon nor the appellant attended the hearing before Commissioner Eames on 26 July 2002.
[8] Of the "Kornicki" guidelines [Telstra - Network Technology v Kornicki, unreported AIRC, Print P3168] the issue of merit was not pressed, prejudice to the respondent was not argued and action to contest the termination does not arise in the context of a late Notice of Election [Davidson v Aboriginal and Islander Child Care Agency (Davidson) unreported, AIRC, Print Q0784]. Accordingly, the hearing at first instance focused entirely on whether there was an acceptable reason for the late filing of the appellant's Notice of Election.
[9] The appellant's case at first instance relied on the non-receipt of the Certificate issued by Commissioner Tolley as explaining the failure to lodge a Notice of Election in time. The appellant raised no issue of representative error. Indeed it was put that "my client and his solicitors have litigated the matter diligently and with utmost keenness", ..."There is no suggestion of any error on the part of Mr. Lennon or Ms. Kim Anderson (another solicitor from Lennon Settle involved in the conduct of the appellant's application)" and "it is my submission that the solicitor has deposed to not receiving the facsimile, that he took active steps to contact the Commission by telephone and fax in relation to the non-receipt of that document (the Certificate)." [PN127]
[10] The respondent relied on the Commission records to submit that the Certificate had been forwarded to Lennon Settle and the non-receipt of a Notice of Election had been followed up by the Associate to Commissioner Tolley. The reason for the late filing of the Notice of Election was characterised as a representative error. It was contended that in the absence of any evidence as to the actions of the appellant, it could not be found that the appellant was blameless in the delay.
[11] As the proceedings unfolded before Commissioner Eames, it became apparent that the content of the affidavit sworn by Mr. Lennon were challenged. Mr. Mazzeo, who appeared for the appellant, succeeded, over objection, in having the affidavit admitted into evidence despite the deponent not being available for cross-examination. However, he sought an adjournment in order that Mr. Lennon could be made available for cross-examination "if my client would suffer any prejudice as a result of him not being here ...". He also requested the adjournment in order that Ms. Glennon be made available for cross-examination in relation to her file note and so that instructions could be obtained in relation to the matters in the Commission file referred to in the affidavit of Ms. Lewandowski. Commissioner Eames refused the adjournment.
[12] In his decision the Commissioner:
· set out the task before him: to determine whether or not to exercise his discretion pursuant to section 170CFA(8) of the Act, to accept an election that is lodged out of time;
· said it was unfortunate, in the extreme, that neither Mr. Lennon nor the appellant was present in the proceedings to provide an explanation for the delay;
· noted, from the Commission file, the file note prepared by Ms. Glennon and the status report for a facsimile transmission made on 18 March indicating the transmission of the Certificate to Lennon Settle;
· was satisfied, based on that evidence, that the Certificate was sent at that time.
He found:
"Whether in fact it was seen, or passed on to Mr. Lennon, I don't know, but, certainly, there was no election made until some 24 days after the conciliation conference, and no satisfactory explanation for the delay, in my view."
[13] The Commissioner concluded:
"The Applicant bears the onus to provide the basis for the Commission exercising its discretion and granting an extension of time. In my view, it is not plausible that the solicitor's office received all other fax material that was sent by the Commission to their office, other than the certificate and the election papers.
As I have indicated I accept Ms Glennon's file note as being an accurate description of what has occurred.
In this case representative error has occurred, and the failure of Mr. Lennon and Mr. La Rosa to appear in these proceedings, does not assist the Commission in coming to a view that it should exercise its discretion. I have no evidence from Mr. La Rosa, whose application for an extension this is, of any reasons why in his case, I should exercise the Commission's discretion. The applications must be lodged no later than seven days after the issue of the certificate of the Commission, I emphasis (sic) the word must. That is clearly set out in section 170CFA(6) of the Act. The circumstances presented to the Commission do not persuade me that the Commission should exercise its discretion in this case and allow for the late lodgment. That is unfortunate for Mr. La Rosa and flows, to a fairly large degree, from the error that was made by the solicitors who were representing him, I believe.
I have got no evidence that Mr. La Rosa pursued this matter after the conciliation conference. In all of those circumstances, the matter will be struck out."
[14] The appellant and the respondent sought to have admitted into the appeal further evidence, not put before Commissioner Eames in the hearing below. There was no objection by the appellant to the admission of the material but the respondent opposed the admission of the additional material proposed by the appellant. Section 45(6) provides that the Commission may admit further evidence for the purpose of an appeal. In a preliminary ruling during the appeal hearing, we declined to accept any of the further material. We declined to admit new material, not put to Commissioner Eames, on the basis that it was available at the time of the hearing before the Commissioner and the material was sought to be adduced to rectify deficiencies in the cases of the parties at first instance. There are sound public policy reasons for not permitting the parties to use appeal proceedings for this reason [see Mann v State Rail Authority, unreported, AIRC, Print Q0114].
[15] The appellant advanced three principal issues for determination in the appeal:
1. whether the appellant should be penalised for representative error;
2. whether the failure of the appellant, Mr. La Rosa, to give evidence was a matter that ought to have been taken into consideration; and
3. whether the Commissioner ought to have granted an adjournment to enable Mr. Lennon to give evidence.
[16] Standing to appeal to a Full Bench of the Commission in relation to matters arising under Part VIA of the Act derives from s.170JF. That section also stipulates that appeals under subdivision B of Division 3 of Part VIA may be instituted on one ground only. The provisions of s.170JF are as follows:
"170JF(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation under this Part.
170JF(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."
[17] The High Court of Australia considered the nature of an appeal under s.45 of the Act in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [74 ALJR 1348] (Coal & Allied). Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said:
"Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45."
[18] The nature of the error that is necessary for a Full Bench review of a discretionary decision of the kind here under consideration was re-stated in Coal & Allied in the following way:
"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ]"
[19] In the present appeal, it is contended that Commissioner Eames erred in the exercise of the discretion within s.170CFA(8). The test for leave to appeal in such cases was recently considered in Carole Ann Barrick v Qantas Flight Catering Limited [PR913634PR913634]:
"The effect of those cases is that, leave to appeal having been sought on the basis of an alleged error in the decisional process, a Full Bench will need to consider whether it is `seriously arguable' that the decision subject to review was wrong on the point taken, and that any such order was of a kind that causes the decision to be attended with sufficient doubt to warrant its being reconsidered, or that substantial injustice would result if leave were refused. Subsection 45(2) supplies a distinct test for the Commission to apply when determining whether to grant leave to appeal in a particular case on the ground of importance in the public interest."
We apply that approach in determining the application for leave to appeal in this case.
[20] It should be noted that whilst the appellant focused in the appeal on alleged errors of the Commissioner in dealing with the explanation of representative error, the appellant did not advance an explanation of representative error in the proceedings before Commissioner Eames. As noted above, the appellant, at first instance, relied upon the non-receipt of the Certificate of Commissioner Tolley to explain the late lodgment of the Notice of Election. However, given the finding of the Commissioner that the Certificate had been transmitted to the offices of the appellant's solicitors, the approach on appeal was unexceptional.
[21] Commissioner Eames found on the material before him, the affidavits of Mr. Lennon and Ms. Lewandowski (and the material on the Commission file referred to in it) that: "In this case representative error has occurred". In our view, he was entitled to do so. The facsimile receipt, the successful receipt of all prior materials sent to Lennon Settle by facsimile and the file note of Ms. Glennon supported a conclusion that the Certificate was successfully transmitted to Lennon Settle and that the delay in lodging the Notice of Election arose from representative error. That does not mean that Mr. Lennon was untruthful. Representative error will have occurred even if the facsimile transmission had not been conveyed to Mr. Lennon due to some procedural or other failure in his office.
[22] A Full Bench in Clark v Ringwood Private Hospital (Clarke) [74 IR 413] dealt extensively with the issue of representative error as an explanation of late lodgment of a s.170CE application. A Full Bench in Davidson summarised the general propositions in Clarke as follows:
"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."
[23] The Full Bench noted that "(w)hile the above observations were made in the context of the exercise of the discretion under s.170CE(8) (as it then was), they apply with equal force to s.170CFA(8)."
[24] It follows that the actions of the applicant in the s.170CE matter is a relevant consideration in determining whether, in the circumstances of a particular case, representative error satisfactorily explains late lodgment of, in this case, a Notice of Election. As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge a Notice of Election and thereafter left matters in the hands of his or her representative. The respondent relies heavily on the fact that here no evidence at all was brought by the appellant's representative as to the appellant's actions.
[25] As noted in Kornicki, "an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise the discretion (in the statute) in their favour". In the absence of any evidence from the appellant which would support a finding that he was blameless in the delay, generally the Commission would be entitled not to exercise its discretion in favour of an applicant. However, in the circumstances of this case we are of the view that Commissioner Eames erred in not extending the time for the making of the election to proceed to arbitration.
[26] We do so for the following reasons.
[27] The only issue arising from the Kornicki principles ventilated in the hearing before Commissioner Eames was whether there was an acceptable explanation for the late lodgement of the Notice of Election. The respondent did not argue that the application was lacking in merit or that it would be prejudiced by the late lodgement.
[28] Commissioner Eames admitted the affidavit of Mr. Lennon. No application was made by the respondent for an adjournment so that Mr. Lennon could be cross-examined. Mr. Lennon's affidavit evidence was uncontroverted. Nonetheless, the Commissioner found, having regard to that evidence and the material on the Commission file, that the Certificate was sent to the offices of Lennon Settle and, whatever happened with it in the solicitor's office, representative error explained the late lodgement. That finding was open to Commissioner Eames.
[29] However, as it clear from Clarke and Davidson, in considering whether representative error constitutes an acceptable explanation of the delayed lodgement of a Notice of Election in a particular case, it is necessary to consider the actions of the applicant.
[30] In doing so in the circumstances of the present matter, Commissioner Eames placed weight on the failure of the appellant to give evidence and appears to have drawn adverse inferences against the appellant. The Commissioner in finding that the delay flowed "to a fairly large degree, from the error that was made by the solicitors" [emphasis added] appears to have found that the appellant bore some responsibility for the delay.
[31] In the circumstances of the present matter, it is clear that no certificate was sent directly to the appellant. Nor was one posted to his solicitors.
[32] On the basis of the materials that had been filed on behalf of the appellant, it is clear that the Certificate did not come to the attention of Mr. Lennon until 19 July 2002 and it is reasonable to conclude that it was not brought to the attention of the appellant before that time. Although the inference was open that the appellant had sat on his hands until then, no more adverse inference was open. For example, it could not be inferred that he had instructed his solicitors that he did not wish to proceed to arbitration and had later changed his mind.
[33] The receipt of the Certificate is the trigger for the making of an election to proceed to arbitration. No criticism can be levelled at a person who does not instruct his or her representative to proceed to arbitration prior to the receipt of a notice requiring that an election be made. It is only then that the seven day time limit for making the election comes into operation.
[34] Whether or not his solicitors received the Certificate by facsimile transmission, the only reasonable inference to be drawn is that the Certificate was not drawn to the appellant's attention until after 18 April 2002 when Ms. Glennon sent it again to his solicitors. It should be remembered that Mr. Lennon's evidence was that he personally had not received the Certificate until 19 July 2002.
[35] Although some four weeks elapsed before the notice of election to proceed to arbitration was filed, in the circumstances of this case, we do not think it was reasonable to conclude that the appellant bore responsibility for the delay. Although, applying the principles in Jones v Dunkell, [(1959) 101 CLR 298], the Commissioner was entitled to infer that if the appellant had been called his evidence would not have assisted his case, he could infer no more. To the extent that he drew adverse inferences from the non-appearance of the appellant the Commissioner erred.
[36] In the absence of any submissions on behalf of the respondent that the appellant's case was without merit or that it would be prejudiced by the granting of the extension of time and in circumstances where the issuing of the Certificate was not drawn to the appellant's attention, we think the Commissioner erred in finding it would not be unfair not to do so. In those circumstances he should have found that it would be unfair not to extend the time for lodgement of the Notice of Election.
[37] Having regard to our conclusions it is not necessary to consider whether Commissioner Eames was correct in refusing the adjournment sought by the appellant.
[38] We grant leave to appeal, allow the appeal and extend the time for lodging the election to proceed to arbitration to the date upon which it was filed.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
B. Shaw of counsel for the appellant.
N. Harrington of counsel for the respondent.
Hearing details:
2002.
Melbourne:
October 14.
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