Dec 1277/00 M Print T2277
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
given by Commissioner Lewin on 20 April 2000
(C No. 33500 of 2000)
s.170CE application for relief in respect of termination of employment
(U No. 30561 of 2000)
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT ACTON
MELBOURNE, 19 OCTOBER 2000
Termination of employment - extension of time to appeal.
 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."
 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.
 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:
"The Commission has a discretion to extend the time prescribed for instituting an appeal when it considers that such an extension would be desirable. We do not seek to codify, and it may be undesirable to constrain, the grounds upon which the Commission will exercise its discretion. However, we take as the starting point that it is for the appellant applicants to satisfy the Commission that an extension of time would be desirable. . . .
We are reluctant to accept that a time limit of this kind should be open to extension as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal. The parties appearing before the Commission have an obligation to acquaint themselves with such limits."2
 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:
"The cases show that, in exercising the discretion in rule 11(2)(c), the Commission should take into account whether there is a satisfactory reason for the delay, 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: Meat and Allied Trades Federation v AMIEU (1990) 35 IR 25 at p.26; The National Rail Enterprise Agreement 1993, 1 December 1993 [Print L0238 at pp. 11-12]; Shop Distributive and Allied Employees Association v OPSM Pty Ltd, 2 July 1998 [Print Q2858]; Section 109 Reviews Decision, 12 March 1999 [Print R2700 paragraphs 17-24]. Any prejudice the respondent might suffer if time were extended because of developments after the time for lodgment had expired would also be relevant."4
 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:
"1. The Applicant, Michael Stevenson-Helmer, was unrepresented at the hearing of 20 April 2000 ("hearing"), in a matter involving an unlawful termination of his employment with and by the Respondent.
2. At the hearing, Commissioner Lewin ("Commissioner") delivered his reasons for decision on an ex tempore basis.
3. The Applicant asked for written reasons for the decision to be prepared and provided to him.
4. The Commissioner foreshadowed at the hearing that such written reasons would be provided.
5. The Applicant believed that the Commissioner would provide written reasons for his decision within 7 days of the conclusion of the hearing, such that an appeal to the Full Bench of the Australian Industrial Relations Commission ("Full Bench") under Section 45(1) of the Workplace Relations Act 1996 ("Act"), could be initiated.
6. Further and in the alternative, the Applicant believed that the Commissioner would provide written reasons for the decision within a period of time that would allow for an appeal to the Full Bench to be instituted in any event.
7. Solicitors for the Applicant, upon being made aware of the Applicant's circumstances, sought that written reasons for the decision be provided by the Commissioner.
On 15 May 2000, Solicitors for the Applicant made telephone contact with the Commissioner, who was informed that the Applicant was seeking an appeal to the Full Bench and that written reasons for his decision were required and had not been received by the Applicant.
The Commissioner undertook to prepare and provide written reasons for his decision as a matter of priority, given that the Applicant was seeking to appeal to the Full Bench.
8. Written reasons for the decision of the Commissioner, dated 17 May 2000, were received by the Applicant and Solicitors for the Applicant on 19 May 2000.
9. It is submitted that the actions of the Commissioner referred to in Particulars of Paragraph 7 of this Application, above, constitute a Relief from Rules under Rule 6 of the Australian Industrial Relations Commission Rules 1998 ("Rules"), to the effect that Rule 11(2)(a) and Rule 46 of the Rules no longer required adherence to.
10. Further and in the alternative, the acceptance by the Commission of this Application under Rule 11(2)(c) of the Rules would be so as to ameliorate the consequences faced by an Applicant who was unrepresented at the hearing and who might otherwise be disadvantaged by the later than expected production of the Commissioner's written reasons for decision.
11. Further and in the alternative, the acceptance by the Commission of this application under Rule 11(2)(c) of the Rules would be so as to uphold the Principal Object of the Act, as specified under Section 3 of the Act."
 There are two limbs to the appellant's argument in support of the extension of time:
_ he was unrepresented in the proceedings at first instance; and
_ he was awaiting the Commissioner's reasons for decision before instituting the appeal.
 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:
"The Commission will note that the application under s.170CE(1) in paragraphs 15 to 18 identify the appellant's Solicitor as his representative, and notwithstanding that he did not indicate that notices be sent to his Solicitor in paragraph 19, it appears that notification of the hearing on 20 April, 2000 was forwarded to his Solicitor. Moreover, in a written reply dated 17 April, 2000, to the respondent's request for consent to an adjournment of that hearing, directed to the appellant's Solicitor, the respondent was informed that `the worker shall be attending the Tribunal on the 20 April, 2000 in pursuant of his application.'"5
 The appellant made no reply to this aspect of the respondent's submissions.
 In relation to the second point Rule 46 states:
"46. Reasons for decision
(1) If the Commission makes a decision under Subdivision B of Division 3 of Part VIA of the Act, a party to the proceedings may request, in writing, the member of the Commission who made the decision to give to the party a statement of the reasons for the decision.
(2) A request for a statement of reasons must be made before the end of 7 days after the date of the decision."
 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
 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.
 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.
 In our view the appellant has failed to establish a satisfactory reason for the delay in instituting the appeal.
 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.
 In relation to the nature of the grounds of appeal and the likelihood of success, the grounds advanced are arguable, but far from compelling.
 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.
BY THE COMMISSION:
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.