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Workplace Relations Act 1996
s.45 appeal against decision [PR961389] and order [PR962012]
issued by Commissioner Roberts on 30 August 2005

A Poulton

s.170CE application for relief in respect of termination of employment

A Poulton


Rail Infrastructure Corporation







Appeal against decision and order - termination of employment - extension of time.


[1] This is an appeal against a decision and order of Commissioner Roberts, in PR961389 and PR962012 respectively, in which the Commissioner refused an application to accept an application by Mr A Poulton under s.170CE of the Workplace Relations Act 1996 (the Act) lodged out of time. The application related to the termination of Mr Poulton’s employment by Rail Infrastructure Corporation (RIC).


[2] The salient facts are as follows:

The Decision of Commissioner Roberts

[3] In PR961389, Commissioner Roberts set out the background, 7 recorded in a condensed form above. He then set out the relevant legislative framework.8 The Commissioner then applied the principles arising from Brodie-Hanns v MTV Publishing Limited (Brodie-Hanns)9 to the circumstances of Mr Poulton’s case.

[4] The Commissioner found that:

[5] In respect of the explanation of the delay, the Commissioner decided:

[6] Commissioner Roberts ultimately found:

The Appeal

[7] The appellant raised a number of grounds of appeal:

[8] The appellant sought to amend the appeal grounds to add additional grounds.

[9] The amendment of the appeal grounds was opposed by RIC in respect of the representational error issue but acceded to in respect of the other additional grounds. In the course of the hearing on 29 November 2005, we granted leave to amend the application in all respects. We did so on the basis that the fact of representational error featured in the reasoning of Commissioner Roberts, 17 although an explanation for the delay involving representational error was not argued by Mr Poulton’s representative.

[10] In the event, it has not been necessary to consider the additional grounds relating to representational error for the purpose of considering leave to appeal, determining the appeal or determining whether Mr Poulton’s application ought be accepted late on our rehearing.

Approach to the Appeal

[11] The nature of an appeal under s.45 of the Act was considered by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission18 In a joint judgement, Gleeson CJ, Gaudron and Hayne JJ held that:

[12] Their Honours subsequently continued:


Application to admit new evidence

[13] Mr Poulton sought to introduce new evidence, an affidavit by him in the form of a chronology of actions in respect of the applications made by him or on his behalf. In the particular circumstances of the case, we decided that it was appropriate to take into account that additional material in order to ensure that there is not a miscarriage of justice in these proceedings. We have not considered the new evidence in considering leave to appeal and in determining the appeal. We have had regard to the new evidence, as relevant, in the rehearing, although it has not been necessary to consider the evidence as it relates to the additional ground of representational error.

Leave to appeal

[14] In our view, the appellant has established an arguable case that Commissioner Roberts erred:

[15] In our view, when taken together as representing the Commissioner’s line of reasoning, these findings constitute a material consideration in the Commissioner’s reasoning and do materially affect his ultimate decision to dismiss Mr Poulton’s application. Accordingly, we grant leave to appeal.

Section 170HB matters

[16] In his decision Commissioner Roberts found that “There was nothing to stop him continuing his first application to this Commission in May 2004” 24 and “Any problems arising from s.170HB of the Act could have been cured by discontinuing the still extant NSW IRC proceeding.”25

Determination of the appeal

Section 170HB of the Act provides that:

[17] In our view, Commissioner Roberts misconstrued the effect of s.170HB of the Act in finding that, in the face of the prior application to the NSW IRC, there was nothing to stop Mr Poulton continuing his first application in the AIRC and that any problems arising from s.170HB of the Act could have been cured by discontinuing the proceeding in the NSW IRC. This was conceded by RIC in the appeal, 26 but it argued that this finding was not essential to the Commissioner’s final decision.

[18] The effect of s.170HB of the Act is to render invalid any application under s.170CE of the Act if the circumstances described in s.170HB(1) pertain, as they did in this case. Section 170HB(2) makes it clear that a s.170CE application may be made if the other proceedings have been discontinued or dismissed for want of jurisdiction. It does not provide a means of making valid an application already made in the circumstances of s.170HB(1), through discontinuing the other proceedings.

[19] The reasoning of Commissioner Roberts, based on the misconception that Mr Poulton had an option of discontinuing his application in the NSW IRC and progressing his first application in the AIRC, was a material issue in his reasoning process which led the Commissioner to conclude that there was no “reasonable reason as to the delay” 27 and ultimately to refuse Mr Poulton’s application for an extension of time under s.170CE(7) of the Act. In this respect we do not accept that the error was immaterial to the Commissioner’s final decision. Accordingly, we are satisfied that the appeal should succeed and the decision and order of Commissioner Roberts should be quashed.

Paragraph 24 matters

[20] In paragraph 26 of his decision, Commissioner Roberts found that:

[21] We are satisfied that the Commissioner erred in finding that Mr Poulton had legal representation prior to lodging his application in the NSW IRC. There was no evidence before him to support such a finding.

[22] Further, the Commissioner’s finding that it should have been clear to Mr Poulton that he did “not have the right to bring an action for relief concerning termination of employment to the NSW IRC” having regard to the NSW Act and the relevant NSW IRC forms was not available to him on the evidence.

[23] The NSW IRC form for an application for relief in respect of unfair termination (Form 7A 28) contains a “Special Note For Applicants” advising that not all employees can make application to the NSW IRC and identifies as ineligible to make an application “an employee under a Federal Award entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable”. We do not accept that his note would make it quite clear to a person such as Mr Poulton, acting without legal advice, that he was excluded from bringing an application to the NSW IRC. He was employed subject to a State award and a Federal agreement. The Special Note, in itself, does not provide the clarity suggested by Commissioner Roberts.

[24] Further, we think the Commissioner erred in finding that the NSW Act makes it clear that a person in Mr Poulton’s situation does not have the right to bring an action for relief concerning termination of employment to the NSW IRC. In our view, such a conclusion was not reasonably open to the Commissioner having regard to the terms of the NSW Act 29 and the 31 May 2005 decision of Commissioner Murphy30 of the NSW IRC. The issue of access to the NSW IRC in the circumstances of Mr Poulton’s employment was not at all clear, as a reading of Commissioner Murphy’s decision readily discloses. The Commissioner was not satisfied that Mr Poulton was covered by a Federal award31 but he ultimately rejected the subsequent argument advanced by Mr Poulton’s representative that s.83(1A) of the NSW Act32 had the effect of broadly providing access to the NSW unfair dismissal system to NSW public sector employees covered by Federal awards. Whilst that argument was ultimately rejected by the Commissioner, he found it to be “an arguable proposition”.33 Commissioner Murphy ultimately determined the effect of s.83(1A) of the NSW Act by reference to a clear intent evident in the Minister’s second reading speech, in light of an arguable ambiguity in the terms of the legislation. For Mr Poulton, a plumber by training, with no evident expertise in industrial relations or legal training, uncertainty as to the appropriate jurisdiction in which to file an application for relief in respect of his employment was understandable, if not inevitable.

[25] These errors, as highlighted above, formed the cumulative steps in the Commissioner’s reasoning that led him to his ultimate conclusion.

Determination of the appeal

[26] We find that the Commissioner erred in respect of both the s.170HB and Paragraph 24 matters. We are satisfied that both errors materially affect his ultimate decision to dismiss Mr Poulton’s application. We uphold the appeal on that basis. In that circumstance, it is not necessary to determine the other grounds of appeal.

Disposition of the appeal

[27] Given our finding of error, we uphold the appeal and quash the decision and order of Commissioner Roberts in PR961389 and PR962012, respectively.

[28] We considered remitting the matter to Commissioner Roberts, but to avoid further delay in the resolution of the extension of time issue, and the ancillary arguments concerning s.170HBA of the Act and estoppel, we have decided to rehear and determine the matter ourselves.


[29] It is necessary to determine:

[30] Section 170CE(7) of the Act provides:

[31] The following Note appears under subsection 170CE(7A):

[32] Marshall J in Brodie-Hanns set out those principles as follows:

Explanation of the delay


[33] From the evidence, we find:


Explanation of the delay

[34] There is no doubt that the delay in lodging the second application was of an extraordinarily lengthy duration. The set of circumstances recorded above provide the context in which we must decide whether there was an acceptable reason for the late lodgement by Mr Poulton of his current application.

[35] We think that the circumstances set out above do disclose an acceptable explanation for the delay by Mr Poulton in filing his current application.

[36] That explanation has its genesis in the understandable uncertainty as to the jurisdiction in which Mr Poulton was entitled to bring an application, in circumstances where he unsuccessfully sought clarification from both the RIC and his union before lodging his application and, in the absence of advice, he lodged his application in the NSW IRC believing he was entitled to do so. Given the uncertainty as to his legal right to bring the NSW claim, Mr Poulton’s action in doing so was not unreasonable.

[37] We find that uncertainty as to the jurisdiction in which Mr Poulton was entitled to bring an application was understandable because the issue of identification of the relevant award required an assessment of the interaction of a Federal certified agreement with awards specified within the agreement and the effect, if any, of a Memorandum of Agreement associated with the agreement. The issue of access to the NSW IRC in the circumstances of Mr Poulton’s employment was difficult, as is evident from the decision of Commissioner Murphy. Commissioner Murphy was not satisfied that Mr Poulton was covered by a Federal award 51 and found that the subsequent argument concerning s.83(1A) of the NSW Act52 was not made out, but was “an arguable proposition”.53 For a layperson, Mr Poulton, without any effective advice at that time, uncertainty as to the appropriate jurisdiction in which to file an application for relief in respect of his employment was understandable. In our view, the “Special Note For Applicants” in the NSW IRC form and the identification of the Agreement by the RIC in its appearance form would do nothing to remove that uncertainty.

[38] Once the NSW proceedings commenced, the focus of the conciliation processes in that jurisdiction, according to the evidence of Mr Poulton, was on the disputed position as to the validity of Mr Poulton’s application in the NSW jurisdiction, involving an issue as to the application of the 2002 EBA to Mr Poulton’s employment. That issue was explored in two conciliation conferences in October 2003. At the next conciliation conference, in April 2004, the parties April 2004 agreement was concluded. In it, the parties agreed to a process to obtain a “ruling” by the AIRC to determine the application of the 2002 EBA and thereby to determine where Mr Poulton’s application should be dealt with. The parties agreed that the “dispute” would be heard in either the AIRC or NSW IRC, dependant on the ruling of the AIRC. An application was then immediately made to the AIRC by Mr Poulton, on 5 May 2004, giving effect to the agreement of the parties to obtain a ruling on the jurisdictional matters. We think the agreement of Mr Poulton and the RIC to obtain a “ruling” in respect of the jurisdictional issue and to progress Mr Poulton’s claim in the jurisdiction determined by the “ruling” is a critical element explaining the delay in lodgement of the current application in the AIRC.

[39] When the matter came before Senior Deputy President Cartwright, he raised in his 22 July 2004 statement, correctly, the application of s.170HB of the Act - in effect whether the application to the AIRC was precluded by the making of the prior application to the AIRC, in circumstances where his Honour had earlier expressed a view, again correctly, that Mr Poulton could not continue his AIRC application because he had not discontinued his NSW application and had the options of discontinuing the NSW and AIRC applications and making a new application in the AIRC or discontinuing the AIRC matter and pursuing his claim in the NSW IRC. 54 In circumstances where the parties 2004 agreement could not be given effect, since a “ruling” could not be obtained, Mr Poulton chose to discontinue his application in the AIRC and proceed in the NSW IRC, in the first instance through a determination of the jurisdictional issue. In circumstances where the ability of Mr Poulton to bring his claim in the NSW IRC was the subject of some uncertainty and the case advanced on his behalf was found to be arguable and the agreed process of obtaining a “ruling” in the AIRC was no longer available, such a course was not unreasonable.

[40] On 31 May 2005, Commissioner Murphy found that Mr Poulton was unable to bring an application to the NSW IRC. Within a week, Mr Poulton lodged a new application, the current application, in the AIRC 21 months after the termination of his employment.

[41] We think the circumstances do disclose an acceptable explanation for the delay. Our conclusions have been reached irrespective of whether or not Mr Poulton was acting on legal advice from February 2004. It is the combination of the particular set of circumstances evident in respect of Mr Poulton’s application which constitutes an acceptable explanation for the delay in the present matter. These circumstances are:

[42] Whilst all matters are determined on their own facts, and our finding as to a acceptable explanation is made on the basis of the particular circumstances recorded above, we note that there are other decisions of the Commission which have accepted as an acceptable explanation for delay, late lodgement caused by a reasonably based application in another jurisdiction, where prompt action had been taken to initiate a s.170CE application, once the absence of jurisdiction in the State tribunal has been established. 55

Action taken by the applicant

[43] We are satisfied that Mr Poulton has at all times vigorously contested his termination. The findings above demonstrate that he has taken active steps to pursue his complaint in respect of the termination of his employment.

Prejudice to the respondent

[44] We do not accept that a requirement to defend the claim per se constitutes a relevant prejudice. Any prejudice must arise from late lodgement. However, we accept that some prejudice may arise to the RIC due to the effect of the passage of time on the recollection or availability of witnesses, mitigated to some extent by access to documentary rather than oral evidence. Such a prejudice is a relevant consideration in deciding whether or not the application should be accepted out of time. We accept that the absence of prejudice to the Respondent does not in itself provide a basis to grant an extension of time.

Merits of the substantive application

[45] The question of merit is neutral in the current application.

Fairness between the applicant and other persons in a like position

[46] No particular issue of fairness as between Mr Poulton and other persons in a like position arises in this case.


[47] We have decided on balance to accept Mr Poulton’s application. We think that there is an acceptable explanation for the delay in lodgement and in circumstances where Mr Poulton has actively pursued the complaint about his termination; fairness would be best served by the acceptance of his application, notwithstanding some prejudice arising to the employer.

Section 170HBA

[48] The application under consideration is Mr Poulton’s second application. In this circumstance the application is subject to the provisions of s.170HBA of the Act. Section 170HBA provides:

[49] The provision identifies circumstances in which a second application under s.170CE can be made. In our view, Mr Poulton’s second application should be permitted on the second basis identified - “the Commission considers that it would be fair to accept the second application”. Given the particular circumstances identified above, in relation to the extension of time application, we consider that it would be fair to accept the second application.


[50] RIC contended that Mr Poulton’s second application was an abuse of process, which should be estopped by the Commission. It submitted that it would be manifestly unfair to allow the applicant to again raise matters, which could and should have been resolved at the time of the first application. It relied on the proposition that a person may be prevented by the doctrine of abuse from re-litigating questions that have already been decided, or could have been already decided. 56

[51] We are not satisfied that the circumstances of this case disclose an abuse of process by Mr Poulton. The circumstances disclose neither that Mr Poulton’s application is motivated by ulterior motives, nor that he is seeking to re-litigate matters already determined. Mr Poulton simply seeks a resolution or determination of his application for relief in respect of the alleged harsh, unjust or unreasonable termination of his employment, in circumstances where the jurisdictional question as to where his application may be brought has been the only matter litigated to date. As is evident from our decision above, the circumstances involve concerted attempts by Mr Poulton to press his claim of unfair termination where multiple proceedings have arisen from an understandable uncertainty in Mr Poulton’s mind as to the correct forum in which to agitate his complaint. Further, as found above, having initially filed an application in the NSW IRC, Mr Poulton’s initial application to the AIRC was invalid and, having first commenced the NSW application, he had no capacity to have the jurisdictional issues in the current hearing heard and determined in relation to the first application.

[52] An order accepting the application late, under s.170CE(7) of the Act, and as a second application under s.170HBA will be issued in PR966973. The file will be referred to Registry for allocation to a Member for conciliation.




T Saunders, of counsel, for the appellant.

R Crow, of counsel, and later A Britt , of counsel, for the respondent.

Hearing details:

November 29;
December 14.

 1  AG818106  PR960489.

 2   Exhibit R2.

 3   See attachment BS 20 to Exhibit Nand 2 in Matter U2005/3918.

 4   PR961389 at para 8.

 5   ibid., at para 9.

 6   Anthony Poulton v Rail Infrastructure Corporation [2005] NSWIRComm 1081 (Murphy C, 31 May 2005).

 7   PR961389 at paras 3-13.

 8   ibid., at paras 14-17.

 9   (1995) 67 IR 298 at p. 299.

 10   PR961389 at para 20.

 11   ibid., at para 21.

 12   ibid., at para 22.

 13   ibid., at para 23.

 14   ibid., at paras 18-19.

 15   ibid., at paras 24-27.

 16   NSWIRComm 1081, at para 88.

 17   PR961389 at paras 18 and 24.

 18   (2000) 203 CLR 194.

 19   ibid., at para 17.

 20   ibid., at para 21.

 21   PR961389 at para 26.

 22   ibid., at para 26.

 23   ibid., at para 24.

 24   ibid., at para 26.

 25   ibid., at para 26.

 26   Exhibit R1 at para 21.

 27   PR961389 at para 26.

 28   Appeal Book, Tab 4, p. 43.

 29   Industrial Relations Act 1996 (NSW).

 30   NSWIRComm 1081.

 31   ibid., at para 71.

 32   Application to Federal award employees.

 33   NSWIRComm 1081, at para 88.

 34   (1995) 67 IR 298 at p. 299.

 35   Exhibit A2 at para 9.

 36   Affidavit of Brad Scutella, marked page 43 in the Appeal Book.

 37   ibid., marked page 55 in the Appeal Book.

 38   ibid., marked page 58 in the Appeal Book.

 39   Exhibit A2 at para 11.

 40   ibid., at para 13.

 41   ibid., at paras 14-17.

 42   ibid., at para 19.

 43   ibid., at paras 18, 20 and 21.

 44   ibid., at paras 21-23.

 45   Exhibit R2.

 46   Exhibit A2 at para 25.

 47   ibid., at para 26.

 48   ibid., at para 27.

 49   ibid., at para 28.

 50   NSWIRComm 1081.

 51   ibid., at para 71.

 52   Application to Federal award employees.

 53   NSWIRComm 1081, at para 88.

 54   Exhibit A2 at para 27.

 55   Nikulin v The University of Newcastle, Print Q0800, Vawser v Marmion Village Pharmacy, Print R0603, and Scott v Rockmans Stores Pty Limited, Print Q8915. See also, Mathieson v Downer Connect P/L t/as Lucas Downer Joint Venture, PR930942, at para 12.

 56   R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256.

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