Dec 1413/00 M Print T3496
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision of O'Connor C on 25 July 2000
Beverly Jean Burns
Aboriginal Legal Service of Western Australia (Inc.)
(C No. 60611 of 2000)
s.170CE application for relief in respect of termination of employment
Beverley Jean Burns
Aboriginal Legal Service of Western Australia (Inc.)
(U No. 60173 of 2000)
SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER GREGOR MELBOURNE, 21 NOVEMBER 2000
Termination of employment - extension of time
 This matter arises out of an application by Beverley Jean Burns (the appellant), pursuant to s.170CE(1) of the Workplace Relations Act 1996 (the WR Act) for relief in respect to the termination of her employment by the Aboriginal Legal Service of Western Australia (Inc.) (the respondent).
 The factual background to the matter is not disputed. It is largely set out in two affidavits of Mary Reynolds, a law clerk employed with the law firm of Kott Gunning, the solicitors acting for the appellant at the time of the proceedings at first instance. Although those affidavits were not marked as exhibits in those proceedings, the parties and the Commission at first instance appear to have proceeded on the basis of the facts as set out in those affidavits.
 The appellant commenced employment with the respondent in July 1996. On Wednesday, 19 April 2000, a letter dated 18 April 2000 and signed by the respondent's Chief Executive Officer was delivered to the appellant's home address by courier. At that time, the appellant was on annual leave and was holidaying outside the State of Western Australia.
 The letter contained the following statement:
Taking into account your refusal to attend court after being directed on three (3) occasions I have decided that your employment with the Aboriginal Legal Service of Western Australia (Inc) will be terminated with immediate effect and your last day of work will be last Friday 14 April 2000.
 In the absence of the appellant from her home address, her family opened the letter and read its contents to her over the telephone. On Thursday, 20 April 2000, the appellant telephoned the respondent's Chief Executive Officer to discuss the termination.
 On or about Wednesday, 26 April 2000, the appellant contacted the law firm of Kott Gunning and made an appointment with Ms Reynolds for Friday, 28 April 2000. At that appointment, the appellant made it clear to Ms Reynolds that she wished to contest the termination of her employment and sought advice as to the worth of pursuing a case.
 In a telephone conversation a few days later, Ms Reynolds encouraged the appellant to pursue the possibility of an internal review of the termination under the terms of her contract of employment. The appellant then contacted the respondent and sought the convening of a Disciplinary Review Committee. By letter received by the appellant on Tuesday, 2 May 2000, the respondent advised her that a Disciplinary Review Committee could not be convened because she was no longer employed by the respondent.
 At a further meeting on Friday, 5 May 2000, the appellant instructed Ms Reynolds to make an application for relief in relation to the termination. On the following working day, Monday, 8 May 2000, an application was lodged on behalf of the appellant by her solicitors in the Western Australian Industrial Relations Commission (the WAIRC).
 On Thursday, 25 May 2000, the appellant's solicitors received the respondent's Notice of Answer and Counter Proposal in which the respondent raised an objection that, as the certified agreement referred to in the application came within the jurisdiction of the WR Act, the WAIRC did not have jurisdiction to hear the application. Ms Reynolds immediately spoke to her principal at Kott Gunning and was instructed to draft a letter to the appellant advising her of the objection and recommending that she file a fresh application in this Commission. After the principal had settled the letter, it was sent to the appellant on Monday, 29 May 2000. At the same time, Ms Reynolds was advised by her principal to hold the WAIRC application in abeyance whilst considering the issue of how to proceed with the application in this Federal Commission.
 On the following day, Tuesday, 30 May 2000, Ms Reynolds telephoned the appellant to confirm the information in the letter. The appellant gave Ms Reynolds verbal instructions to file an application in this Commission. She did not give Ms Reynolds any instructions with respect to the application in the WAIRC.
 Apparently, at about this time, advice was sought by Ms Reynolds and her principal from the firm's in-house counsel, Laurie James, with respect to how to proceed the application in this Commission and how to deal with the WAIRC application. It was not, however, until Monday, 12 June 2000 that Mr James advised that the most appropriate course of action would be to discontinue the WAIRC application and file an application for relief in this Commission. Upon receipt of that advice, Ms Reynolds telephoned the appellant and received her instructions to discontinue the WAIRC application. Ms Reynolds was, at the time, of the belief that it was a requirement of filing an application in this Commission that any application filed in any other jurisdiction be discontinued or struck out for want of jurisdiction.
 On the following day, Tuesday, 13 June 2000, Ms Reynolds, on behalf of the appellant, discontinued the application in the WAIRC Commission and filed an application in this Commission.
The decision subject to appeal
 The reason for the termination of the appellant's employment given in the letter of termination was wilful disobedience of a lawful direction said to have been constituted by the appellant's refusal to attend duty at a Magistrates Court. The appellant's contention was that, in so far as she had refused any such direction, there were reasons that justified her doing so.
 The matter came on before Commissioner O'Connor on 24 July 2000 by way of a hearing of an application for an extension of time for the lodging of the application in this Commission. Against the background as outlined above, the Commissioner, on 25 July 2000, issued a decision refusing the application.1
 In reaching that decision, the Commissioner referred to the "principles" set out in the decision in Telstra-Network Technology Group v Kornicki (Kornicki)2. In respect to the issue of "acceptable reason for the delay" in lodging the application, he noted that the explanation given was "representative error". Having referred to the evidence of Ms Reynolds, he went on to deal with the issues of representative error and the merits of the appellant's substantive application as follows:
 Ms Burns herself is a legal officer and had worked for the ALS for almost 4 years. There is no evidence that she instructed her representatives that her conditions of employment were bound by a federal agreement, nor that she had given instructions to her representative to file with the AIRC. Be that as it may, the Commission cannot accept the sheer indifference to legislative requirements of required time frames, in that it took Kott Gunning (the Applicant's representative law firm) a further 19 days after they had been alerted to their error by the ALS, to determine that remedy correctly lay in this jurisdiction. The date that they became aware of the mistake, the 25th of May, was already two weeks out of time for the Federal jurisdiction. The period of a further 19 days cannot be attributed to representative error as much as to indifference.
 In determining the merits of the substantive application prima facie, there is nothing in the applicant's contention that the termination was harsh, unjust or unreasonable, so as to convince the Commission in the first instance that there is enough merit that one should dispense with the legislative requirements and disregard the time frame. Had the application been filed by the solicitor for the Applicant immediately upon being advised of their jurisdictional error, the Commission may well have been persuaded to waive the time requirement due to representative error. However, the delay of a further 19 days after the 25th of May 2000 before lodgment (sic) with the AIRC is in my view, fatal.
 I find that there is no reasonable explanation for the delay and therefore dismiss the application.
 In accordance with directions issued by this Full Bench, the parties filed written submissions. The appeal was listed before us on 24 October 2000 for the purposes of short oral argument and to permit the parties to answer any questions from the Commission. At the conclusion of that hearing, we reserved our decision. In reaching our decision, we have fully considered both the written and oral submissions and all the material that was before the Commissioner.
The grounds of appeal
 The grounds of the appeal relied upon by the appellant are essentially that the Commissioner erred in failing to accept that there was an acceptable explanation for the delay in the lodging of the substantive application based upon representative error and in concluding that there was insufficient merit in the substantive application.
 It is not suggested that the power to accept an application for relief under s.170CE of the WR Act that is lodged out of time clearly involves other than the exercise of a discretionary power. Indeed, in Kornicki, the Full Bench described the nature of the discretion conferred by s.170CE(8) of the WR Act as "broad" and went on to state that -
... the question of whether or not an application for an extension of time should be granted in a particular case will largely be a matter of impression and judgment of the Commission member at first instance. It follows that such decisions would only rarely be overturned on appeal.
 That is not to say, however, that such decisions may never be successfully challenged on appeal. The relevant principles to be applied in the determination of an appeal against the exercise of a discretionary power are broadly those which were enunciated by the High Court in House v. The King3.
 It is now well established that the principles to be applied in the exercise of the discretion conferred by s.170CE(8) are set out in Kornicki.4 Those principles should not, however be confused with the guidelines also set out in that decision for the purpose of assisting in the determination of one of those principles.
 The principles are as follows -
· that, prima facie, there should be compliance with the relevant legislative time limit,
· that, it is for the applicant to persuade the Commission to exercise its discretion to extend such time limit, and
· that the central consideration in determining whether or not such discretion should be exercised in favour of the applicant is whether it would be unfair to the applicant not to extend the time limit.
 The guidelines then set out in that decision are for the purpose of assisting in the determination of this last principle. As is emphasised in Kornicki, these are guidelines only. They are, therefore, not conditions precedent to the exercise of the relevant discretion and do not detract from the central consideration which is whether it would be unfair to the applicant not to extend the time limit.
Acceptable explanation for delay
 Representative error as a reason for granting an extension of time was considered by a Full Bench of the Commission in Clarke v Ringwood Private Hospital (Clarke).5 It is clear that representative error may, depending upon the circumstances, be a sufficient reason to grant such an extension. It is equally clear that, where a delay in lodging an application is due solely or significantly to the inactivity or carelessness of an applicant's representative and not to the conduct of the applicant, it would be unfair to the applicant not to extend the time limit.
 As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant's home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.
 It is apparent from the undisputed facts that the appellant was at all relevant times seeking to contest the termination of her employment. The termination was brought to her attention whilst she was on annual leave and absent from the State of Western Australia. On the day after she became aware of the termination, she sought to discuss the matter with the respondent. In the circumstances, in our view, within a reasonable time thereafter, she sought legal advice and assistance and instructed her then solicitors to lodge proceedings for relief.
 Those instructions were, in our view, given within the prescribed time period. They were given at the latest on 5 May 2000. Even if it could be said that the termination was effected as from 14 April 2000, the time for the lodging of an application in this Commission did not expire until 5 May 2000. As we have stated, however, we consider that the better view is that the termination did not take effect until it was communicated to her, i.e., at the earliest, 19 April 2000. If that view is correct, the appellant had until 10 May 2000 to lodge an application and instructions to commence proceeding were given well before that date. Indeed, even though they filed in the wrong jurisdiction, her then solicitors did in fact file an application before that date.
 The fact that her then solicitors filed an application in the wrong jurisdiction was not due to any error or indifference on her part. Despite that fact that she was employed by the respondent as a legal officer, she was entitled to rely upon the professional expertise of her then solicitors and expect that they would lodge the application in the proper jurisdiction. When her then solicitors' error was brought to her attention, she immediately gave instructions for proceedings to be commenced in this Commission. Her then solicitors' failure to act immediately upon those instructions was no fault of hers.
 In our view, the Commissioner in his decision was quite correct to categorise the conduct of the appellant's then solicitors as "sheer indifference to legislative requirements of legislative time frames". Indeed, such language may well be considered mild in all the circumstances. The Commissioner has then sought to make a distinction between "indifference" and "representative error". Representative error, however, is not limited to mistakes made by a representative. The concept encompasses inactivity of a representative or the failure of a representative to act expeditiously. To the extent that the Commissioner sought to make this distinction, he was in error.
 Further, the "indifference" in this case was clearly, on the facts before the Commissioner, not that of the appellant. The delay in the lodging of the application was clearly due to the conduct and/or inactivity of the solicitors and not that of the appellant. The Commissioner has visited the "indifference" of the solicitors upon the appellant without due consideration of the appellant's conduct in originally clearly instructing her solicitors to proceed with an application for relief and in subsequently clearly instructing that an application be filed in this Commission. In doing so, the Commissioner was in error in failing to properly apply the principles set out in Clarke. He appears to have accepted, correctly in our view, that the conduct of the appellant's then solicitors was either the sole or a significant factor in the delay in the lodging of the application. Having accepted that fact, the inevitable conclusion should have been that the delay was due to representative error. The Commissioner's failure to reach that conclusion means that he has failed to give consideration to a relevant and material matter, namely the solicitors' delay.
Merit of the substantive application
 We do not consider that the Commissioner based his decision other than on a conclusion that there was not an acceptable explanation for the delay in the lodging of the application. The reference in paragraph  of his decision to the merits of the substantial application is no more than a reference to a factor that he took into account in determining whether the substantive application was of such merit as would justify allowing the matter to proceed despite the absence of an acceptable explanation for the delay.
 If, however, that analysis of his reasoning is incorrect, and one of the Commissioner's reasons for refusing to grant an extension of time was a conclusion that the substantive application was of insufficient merit, then such conclusion cannot be said to be consistent with the guidelines in Kornicki. The guideline dealing with merit in Kornicki provides clearly that, if the substantive application has no merit, then it would not be unfair to refuse to grant an extension of time. It is sufficient that an applicant establish that the substantive application is not without merit. Where there are relevant evidentiary matters in dispute, the applicant would ordinarily be found to have established that the substantive application is not without merit.
 For the above reasons, we think that the Commissioner's approach to the question of acceptable explanation for delay in lodging the application involves an error of the type described in House v The King. Further, if we are wrong in our analysis of his reference to the merits of the substantive application, his approach to the question of merit also involves such an error. We, therefore, grant leave to appeal, uphold the appeal and quash the Commissioner's decision to dismiss the application.
 We consider it appropriate that we now determine the matter on the basis of the material before the Commissioner. We consider that the appellant has produced an acceptable explanation for delay based upon representative error, that the substantive application is not without merit, that the applicant has at all relevant time actively contested the termination and that there has been no prejudice to the respondent caused by the delay in lodging the application. In all the circumstances, therefore, we consider that it would be unfair to the appellant not to extend the relevant time limit.
 Accordingly, pursuant to s.170CE(8) of the WR Act, the application for an extension of time is granted. The substantive application will now be referred to the Registry for allocation for conciliation.
BY THE COMMISSION:
D. Baruffi for Beverley Jean Burns.
M. Cuomo for Aboriginal Legal Service of Western Australia (Inc.)
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1 Print S8525.
2 Print P3168, 22 July 1997 (Ross VP, Watson SDP and Gay C).
3 (1936) 55 CLR 499, at 504-505. See also Norbis v Norbis (1986) 161 CLR 513.
4 Print P3168, 22 July 1997 (Ross VP, Watson SDP and Gay C).
5 Clark v Ringwood Private Hospital (1997) 74 IR 413.