Appeal - termination of employment - extension of time - adequacy of reasons - fact of unsuccessful conciliation irrelevant consideration - undesirable to resolve contested matters of fact involving issues of credit on the basis of submissions from the bar table without hearing evidence from the witnesses on which the parties rely.

[1] This is an application for leave to appeal, and if leave is granted, an appeal against a decision in transcript and an order [1] of Commissioner Lawson dismissing the appellant's application for relief against termination of employment.

[2] Where the subject of an appeal involves the exercise of a discretion the appellant must demonstrate an error within the principles in House v The King: [2]

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[3] The need to find error is underscored by s.685(2) of the Workplace Relations Act 1996.

[4] For reasons of administrative efficiency the Full Bench that was to hear this appeal was reconstituted. The presiding member of the Full Bench that was to hear the appeal sought submissions from the parties in relation to the impact of s.685(3) on the appeal. Section 685(3) provides:

"(3) An appeal to a Full Bench under section 120 may not be made in relation to an order under subsection 645(5) or section 646 or in relation to a decision on an extension of time application within the meaning of section 647." (emphasis added)

[5] Section 647 provides:

"647 Extension of time applications may be decided without a hearing

(a) an employee whose employment has been terminated by an employer makes an application (the extension of time application) under subsection 643(14) requesting the Commission to allow an application to be lodged under subsection 643(1) after the period of 21 days after the termination took effect; and

(b) the proposed application under subsection 643(1) is an application:

(i) on the ground referred to in paragraph 643(1)(a); or

the Commission is not required to hold a hearing in relation to the extension of time application."

[6] The power to extend time for the filing of an application for relief against termination of employment is contained within s.643(14). Section 647 does no more than authorise the Commission not to hold a hearing before determining an application for an extension of time. On the proper construction of s.685(3) the expression "a decision on an extension of time application within the meaning of section 647" is a reference to a decision on an extension of time application pursuant to s.647 not to hold a hearing. Section 685(3) does not exclude the present appeal and the respondent did not submit otherwise.

[7] The respondent conducts a farming business. The appellant was employed as a farm labourer for more than five years. The appellant's employment was terminated on 17�August 2006. The appellant filed an application for relief against termination of employment on 13�September 2006, six days out of time. The respondent filed a notice of motion to dismiss the application for relief for want of jurisdiction on the basis that the application for relief was filed out of time. However, the respondent did not object to conciliation occurring before its motion was dealt with. The Commissioner conducted conciliation of the matter on 4�December 2006 and 11 December 2006. The matter did not resolve at conciliation. On 11�December 2006 the Commission listed the respondent's jurisdictional motion for hearing on 20 December 2006.

[8] We observe that it was permissible but unnecessary for the Respondent to file its notice of motion. Subsection 643(14) provides:

"(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days."

[9] The Commission has no jurisdiction in relation to an application for relief filed beyond the 21 day period referred to in s.643(14) unless the Commission allows the requisite further period for the filing of that application. In such circumstances an applicant must persuade the Commission that time should be extended pursuant to s.643(14).

[10] Pursuant to a direction, the appellant filed an affidavit and submissions and the respondent filed an outline of submissions which attached a number of supporting documents. The Commissioner had that material before him at the hearing. No oral evidence was given at the hearing. The Commissioner received oral submissions from both parties and gave a decision in transcript at the conclusion of the hearing.

[11] The Commissioner's decision is contained in a single paragraph: [3]

"THE COMMISSIONER: All right. Well, having regard to all of the material that I have on the Commission's further [file?], having further regard to the many attempts that there has been for this matter to be resolved by face to face conciliation, having particular regard to the affidavit filed by Mr Mappas filed in the Darwin registry on 19 December and to the employer's outline of submissions and attachments also filed on 19 December 2006, I am not satisfied that Mr Mappas has made out a sufficient case in support of his extension of time application. In those circumstances the employer's jurisdictional objection to the Commission proceeding with this matter further is upheld and the result of that is that the substantive application is dismissed for not having been filed within the legislative time frame.

[12] It is well established that a failure to give adequate reasons can amount to an error which will be corrected on appeal. The relevant law was summarised by the Full Bench in Australian Education Union v Australian Principals Federation. [4] In Soulemezis v Dudley (Holdings) Pty Ltd[5] McHugh JA observed that while an obligation to give reasons may not require "lengthy or elaborate reasons... it is necessary that the essential ground or grounds upon which the decision rests should be articulated".[6]

[13] In this case the Commissioner's decision had the effect of finally disposing of the matter. Whilst the Commissioner identified the material to which he had had regard, his decision involved nothing more than stating he was "not satisfied that Mr Mappas has made out a sufficient case in support of his extension of time application". The Commissioner gave no reasons for reaching that conclusion and, as such, the Commissioner erred.

[14] The Commissioner stated that he "had regard to the many attempts that there has been for this matter to be resolved by face to face conciliation". There is an indication in the transcript that the Commissioner regarded the failure of the matter to resolve in conciliation as a matter that was adverse to the appellant. [7] The relevant considerations governing the discretion to extend time for the filing of an application for relief against termination of employment are those set out by Marshall J in Brodie-Hanns v MTV Publishing Limited.[8] The fact of attempts to resolve the matter by conciliation is an irrelevant consideration in determining whether to extend time pursuant to s.643(14). The Commissioner erred in having regard to that matter.

[15] The appellant made a submission to the effect that the Commissioner's comments in relation to conciliation, amongst other things, gave rise to an apprehension of bias. It is unnecessary to determine whether there is substance in that submission. There is no basis whatever in the material before us for supposing that the Commissioner was affected by actual bias. It was open to the appellant to ask the Commissioner to disqualify himself on the basis of an apprehension of bias. No such application or request was made. In the absence of such an application or request there was no error involved in the Commissioner dealing with respondent's motion.

[16] The appellant also submitted that there was a denial of procedural fairness. That submission relates to the appellant's contention that he was prejudiced by not seeing the respondent's submissions until a short time before the commencement of the hearing on 20�December 2006.

[17] On 11 December 2006 a notice of listing was sent to the parties for the hearing of the respondent's motion on 20 December 2006. The notice of listing contained the following "Directions":

"Parties are to file (in the registry of the AIRC) and served upon each other full written submissions, witness statements and other documents to be relied upon by C.O.B. on Tuesday 19 December 2006."

[18] The appellant filed and served an affidavit and submissions in accordance with this direction. The respondent filed an outline of submission and various documents. The appellant claimed that he had not been served in accordance with the direction. The appellant had given two post office boxes, one at Parap and one at Darwin River, as addresses for the service of documents. The appellant claims that he checked both post office boxes on 19�December and again on the morning of 20 December 2006 on his way to the Commission but did not receive the respondent's submissions. The respondent relied upon a statutory declaration of Ms Rona Mahoney to the effect that she had delivered two copies of the respondent's submissions, one addressed to the Darwin River post office box and one addressed to the Parap post office box, to the counter at the Darwin River post office at 3pm on 19 December 2006. The appellant relied on date annotations on the relevant envelopes which he said demonstrated that the two envelopes were not delivered until 20 December and 21 December respectively.

[19] We accept that the appellant checked his two post office boxes on 19 and 20�December 2006 and that the submissions had not been delivered into those post office boxes at that time. We also accept that Ms Mahoney delivered the two copies of the submissions as described in her statutory declaration and that by doing this the respondent had acted in a way that it reasonably considered would result in compliance with the direction. In particular, it was reasonable for the respondent to suppose that the envelope addressed to the appellant's Darwin River post office box at least would be delivered to that box forthwith by Australia Post. The proper inference is that, for whatever reason, there was a delay by Australia Post in delivering that envelope to the appellant's post office box. In any event, there was no culpable non-compliance on the part of the respondent.

[20] Although the appellant complained about being prejudiced by not having had a sufficient opportunity to consider the respondent's submissions and associated documents he did not ask for an adjournment. Given the errors we have already identified, it is unnecessary to consider whether the undoubted obligation on the Commissioner to accord procedural fairness to the parties required him to offer an adjournment to an unrepresented party such as the appellant who was protesting that he was prejudiced by not having received submissions in accordance with the direction but who was unlikely to appreciate the proper response to that circumstance was to apply for an adjournment.

[21] On the basis of the errors we have identified we grant leave to appeal. Leave to appeal having been granted the appeal proceeds by way of a rehearing on the "evidence" before the Commissioner and such further evidence as is admitted pursuant to s.120(6).

[22] The appellant filed a "supplementary" affidavit in the appeal. He was represented by a solicitor from the Darwin Community Legal Service who candidly acknowledged that he was constrained by a lack of familiarity with the Commission's processes and jurisprudence and because he had only come into the appeal the day before. He asked that the appellant be allowed to make a submission personally in relation to various matters. We allowed the appellant to make that submission personally. The supplementary affidavit and the submission made personally by the appellant contained some assertions of fact that were not before the Commissioner. We noted that this Full Bench could not act upon such material unless it was admitted as fresh evidence pursuant to s.120(6).

[23] The appellant was sworn and gave evidence adopting as the truth the matters asserted by him in the submission made personally from the bar table. We indicated that we would receive what had been said as evidence provisionally and subsequently determine whether to finally admit it pursuant to s.120(6). The respondent was given an opportunity to cross-examine the appellant generally.

[24] We have decided to admit that evidence pursuant to s.120(6).

[25] No oral evidence was given before the Commissioner. The Commissioner proceeded on the basis that the affidavit of the appellant, together with the written submissions and other documents of the parties were before him, and then simply received oral submissions from the appellant and the respondent's representative.

[26] The Commission is not bound by the rules of evidence [9] and it is well established that the Commission can act on uncontested submissions from the bar table.[10] However, on the central issue of whether there was an acceptable explanation for the appellant's delay in filing his application for relief, the submissions of both parties were contested. Strictly speaking, the affidavit of the appellant at first instance (in respect of which there was no cross-examination) and the documents annexed to the respondent's submissions were the only "evidence" on which the Commissioner could act on that central issue. The respondent challenged the explanation advanced by the appellant in his affidavit, including on bases going to the appellant's credibility, but without those matters having been put to the appellant in cross-examination. For the purposes of the rehearing that this Full Bench must now conduct, that is an unsatisfactory state of affairs. The appellant should have an opportunity to respond, through sworn evidence, to the attacks on the matters in his affidavit in cross-examination by the respondent. Final reception of the evidence admitted provisionally addresses that issue. In the circumstances we think the interests of justice require that we admit finally the evidence provisionally received during the hearing of the appeal and we do so. It was remiss of us not to formally mark the various documents relied upon during the hearing of the appeal. We have marked those documents and sent an exhibit list to each of the parties.

[27] For the reasons explained by the Full Bench in Kyvelos v Champion Socks Ltd [11], the Commission will rarely hear evidence on contested issues of fact for the purposes of assessing the merits of the substantive application for relief on an extension of time hearing.[12] To the extent that the other criteria in Brodie-Hans (including the adequacy of the applicant's explanation for the delay in his or her application) turn on contested matters of fact, it is, at the very least, undesirable for the Commission to resolve contested matters of fact involving issues of credit on the basis of documents and submissions alone and without hearing oral evidence from the witnesses on which the parties seek to rely. This case demonstrates the desirability, in cases where such facts are contested, of explicitly separating the reception of evidence from final submissions and receiving final submissions only after the evidence relied on by the parties has been identified and received.

[28] The issue on the rehearing is whether on the "evidence" before the Commissioner and the evidence admitted on the appeal pursuant to s.120(6), we should extend the time for the filing of the appellant's application for relief pursuant to s.643(14).

[29] The principles governing the discretion to extend time are those set out by Marshall J in Brodie-Hanns v MTV Publishing Limited: [13]

"1. Special Circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."

[30] The appellant's employment was terminated on 17 August 2006. The 21 day period for the filing of an application for relief against termination of employment expired on 7�September 2006. The appellant filed his application for relief on 13 September 2006, that is, six days out of time.

[31] In a letter dated 4 September 2006 to the Department of Employment and Workplace Relations the appellant complained that his termination was unlawful and asked the Department to prosecute the respondent. The letter also states:

"I am not sure whether my dismissal was also unfair, and to protect my interests I also intend to lodge an unfair dismissal application with the Australian Industrial Relations Commission. Belatedly, I have been advised that I have to do this within 21�days of my unfair dismissal and will have trouble meeting this timeframe but will do my utmost."

[32] The appellant gave evidence that he was unable to recall the precise time when he was advised of the 21 time limit. Nevertheless, the fact remains that the appellant was aware of the 21 day time limit no later than three days prior to the expiry of that period and potentially much earlier.

[33] In summary, in explaining the delay in filing his application for relief the appellant relied upon:

• the time demands involved in meeting Centrelink requirements associated with qualifying for unemployment benefits;

• the effect of depression that he suffered following his termination;

• practical difficulties with preparing documents arising from the relative remoteness of his place of residence and not owning a computer;

• his ignorance of relevant law and procedures and delays in obtaining advice on this matter;

• his involvement in fighting bush fires in his locality over 3 days in the period between 7 September 2006 and 13 September 2006.

[34] We accept that the appellant was required by Centrelink to submit multiple job applications and that this necessarily involved a significant time burden for somebody living in a town like Parap.

[35] The appellant relied upon a medical certificate dated 6 October 2006 from a Dr Crompton in support of the appellant's contention that he suffered from depression following his termination. That certificate is on a Centrelink standard form of medical certificate. It records a diagnosis of "Depression" with symptoms being "apathy, insomnia, poor concentration, flat mood". It records the date of onset as 17 August 2006 (ie. the date of the termination of the appellant's employment) and states that the appellant was unfit for work during the period 17 August 2006 to 6 October 2006. The document also records that the appellant was Dr Crompton's patient from 14 September 2006 (ie. the day after the application for relief was filed).

[36] The respondent did not object to the Commissioner receiving the medical certificate. Rather the respondent challenged the weight that should be attached to it and, on one view, challenged its bona fides. Specifically, on the appeal the respondent:

• questioned how the medical certificate could properly explain the delay in filing the application when the doctor had not seen the appellant for the first time until 14 September 2006 and had not issued the certificate until 6 October 2006; and

• argued the medical certificate was for Centrelink (unemployment) purposes and therefore could not properly be relied upon.

[37] The appellant gave evidence, which we accept, that he told the doctor what had happened to him and his symptoms and that he did not ask the doctor to specify the date of onset or the period of unfitness for work referred to in the report. We can see no basis for doing other than accepting the medical certificate at face value. It is evidence that the appellant was suffering from depression from the date of his termination and throughout the period leading up to the date on which the application for relief was filed. The fact that the certificate was prepared for use by Centrelink is no basis to impugn the bona fides of the certificate.

[38] The distance of the appellant's residence from Darwin and the fact that he does not own a computer would, in the nature of things, increase the time and effort involved in preparing an application for relief.

[39] It is clear that the appellant lacked the funds to engage solicitors to attend to the preparation of his application for relief in a timely fashion and that he needed to seek advice and assistance elsewhere. However, it is tolerably clear that the appellant was able to obtain at least some relevant advice prior to the expiry of the 21 day period.

[40] We accept the appellant's evidence that for three of the six days in question the town where he lives was threatened by bush fires and he was involved in fighting those fires and that this reason provides a satisfactory explanation for half the period in question.

[41] We are satisfied that these circumstances in combination constitute a satisfactory explanation for the appellant's delay in filing his application for relief that, subject to the other considerations referred to in Brodie-Hans, make it equitable to extend time.

[42] The appellant did not contest the termination directly with the respondent until he filed his application for relief. However, the appellant did contest the lawfulness of the termination by complaining to the Department of Workplace Relations before the expiry of the statutory period for the filing of an application for relief against termination of employment.

[43] The respondent can point to no relevant prejudice that it will suffer as a result of the appellant's delay in filing his application for relief.

[44] The appellant claims that his termination was for a prohibited reason. In particular he claims that he had complained to the Department of Employment and Workplace Relations about the wages being paid by the respondent, that he had brought to the attention of the respondent advice from the Department that the respondent was obliged to pay wages that were no less than the Federal Minimum Wage and that he was terminated within hours of a discussion with the owner of the respondent in which he insisted that the respondent comply with the Department's advice. The respondent contends that the termination of the appellant's employment had nothing to do with any complaint by the appellant to the Department but was due to a downturn in the business of the respondent caused by a number of factors including damage arising from a cyclone. It is not possible to determine the merits of the substantive application without a full hearing. Certainly, it is not open to this Full Bench to conclude, in the absence of such a hearing, that the merits of the appellant's substantive application are sufficiently poor that this should weight materially against exercising the discretion to extend time in favour of the appellant.

[45] Consideration of fairness as between the appellant and other persons in a like position do not arise in this matter.

[46] In all the circumstances we positively satisfied that the prescribed period should be extended. On balance we are satisfied that there is an acceptable explanation of the delay of six�days in filing the application for relief which makes it equitable to grant an extension of time. The period of the extension is short. There is no relevant prejudice to the respondent and the other factors referred to in Brodie-Hans do not weigh against the granting of an extension of time.

[47] We allow the appeal and quash the decision order of the Commission. Pursuant to s.643(14) we extend the time for the filing of the appellant's application for relief to 13�September 2006. Formal orders to this effect will issue in conjunction with this decision.

[2] [1936] HCA 40; (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ

[4] PR973525 (Lawler VP, Kaufman SDP and Smith C, 26 September 2006) at paras [144]ff

[5] (1987) 10 NSWLR 247

[6] (1987) 10 NSWLR 247 at p 280

[9] Section 110(1)(b) of the Workplace Relations Act 1996

[10] R v Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 at 243 (Barwick CJ) and 252 (Menzies J); Re Furnishing Trades Award 1991/2 CAR 178, Print J6764, 18 February 1991 (Ludeke J, Marsh SDP and McDonald C); MM Cable (a division of Metal Manufactures Limited) v Zammit Print PR922818)

[11] Print T2421 (Giudice J, Acton SDP and Gay C, 10 November 2000)

[12] Print T2421 at paras [14] - [15]

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