Dec 1277/00 M Print T2277


Workplace Relations Act 1996
s.45 appeal against decision
given by Commissioner Lewin on 20 April 2000

M Stevenson-Helmer
(C No. 33500 of 2000)

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

M Stevenson-Helmer


Epworth Hospital
(U No. 30561 of 2000)







Termination of employment - extension of time to appeal.


[1] The matter before us is an appeal by Mr Stevenson-Helmer against a decision by Commissioner Lewin given in transcript on 20 April 2000. The Commissioner subsequently published reasons for his decision on 17 May 2000.1 The decision subject to appeal dealt with a jurisdictional point raised against Mr Stevenson-Helmer's s.170CE application for relief in respect of the termination of his employment by Epworth Hospital. Commissioner Lewin accepted the hospital's contention that Mr Stevenson-Helmer was excluded from the Commission's jurisdiction by s.170CC of the Workplace Relations Act 1996 (the WR Act) and Regulation 30B(3) of the Workplace Relations Regulations, because at the time his employment was terminated Mr Stevenson-Helmer was a "casual employee engaged for a short period."

[2] The appeal was lodged on 14 June 2000. Rule 11(2)(a) of the Commission's rules provides that an appeal must be instituted "before the end of 21 days after the date of the . . . decision appealed against". The appeal was lodged outside of the prescribed time period.

[3] Rule 11(2)(c) confers power on a Full Bench to extend time. In Re: Metro Meat Ltd Orange Interim Award 1987 the Commission made the following general observations about the exercise of such power:

[4] We agree with the above observation. In our view the time limits in relation to the institution of appeals must be treated seriously and should only be extended where there are good reasons for doing so.3 The appellant bears the onus of persuading the Commission to extend the 21 day period prescribed in Rule 11(2). In Fox v Kangan TAFE the Commission summarised the factors which may be relevant to the exercise of the discretion in the following terms:

[5] We have had regard to the factors set out above in determining the matter before us. The grounds advanced in support of the appellant's application for an extension of time for instituting the appeal are set out in the application, in these terms:

[6] There are two limbs to the appellant's argument in support of the extension of time:

[7] As to the first matter it is clear that the appellant represented himself in the proceedings before Commissioner Lewin. But it is also apparent that he had access to legal advice. The respondent addressed this issue in these terms:

[8] The appellant made no reply to this aspect of the respondent's submissions.

[9] In relation to the second point Rule 46 states:

[10] During the course of the appeal proceedings Mr Shaw, counsel appearing for the appellant, conceded that no request for reasons had been made in accordance with Rule 46.6

[11] The appellant says that he believed that the Commissioner would provide his written reasons within 7 days of the hearing on 20 April 2000. The basis for the appellant's belief is not stated. The transcript of the proceedings at first instance provide no warrant for such a belief. The Commissioner simply said that he would publish the reasons for his decision in an edited and expanded form "in due course" and provide them directly to the parties.7 There is no suggestion that the reasons would be provided within a specified time.

[12] We also note that no explanation is provided for the delay between the receipt of the Commissioner's written reasons by the appellant's solicitors, on 19 May 2000, and the institution of the appeal on 14 June 2000.

[13] In our view the appellant has failed to establish a satisfactory reason for the delay in instituting the appeal.

[14] We have also had regard to the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended. The length of delay is considerable. The 21 day period prescribed in Rule 11(2)(a) expired on 12 May 2000. The appeal was lodged on 14 June 2000, some 33 days out of time.

[15] In relation to the nature of the grounds of appeal and the likelihood of success, the grounds advanced are arguable, but far from compelling.

[16] Having regard to all of the circumstances we have decided to refuse the application to extend the time for the institution of the appeal. The appeal will be struck out.



Printed by authority of the Commonwealth Government Printer

<Price code B>

1 Print S6150.

2 Unreported Print J1669, 1 March 1990 per Munro J, MacBean SDP and Grimshaw C at p.2.

3 Bremmer v Lababidi, unreported Print S7292, 21 June 2000 per Polites SDP, Williams SDP and Lewin C.

4 Unreported Print S0253, 25 October 1999 per Giudice J, McIntyre VP and Redmond C at paragraph 36.

5 Respondent's written submissions, Exhibit R1 at paragraph 5.

6 See transcript, 13 September 2000 at paragraph 6-14.

7 Transcript, 20 April 2000, p.33 at lines 14-15.