Ace Business Brokers Pty Ltd v Phillips-Treby [2009] NSWIRComm 40 | Case summary

1 This is an application for leave to appeal and appeal against a decision of Connor C granting an application to lodge an out-of-time claim for reinstatement pursuant to s 85(1) of the Industrial Relations Act 1996 ("the Act"), following the alleged unfair dismissal of Ms Judith Anne Bond ("the respondent") by the Director-General of Education and Training ("the appellant"): Bond v. Director-General of Education and Training [2008] NSWIRComm 1131, 2 Connor C commenced his decision by setting out the background to the application at [1] as follows: Mrs Judith Bond was employed as a primary school teacher by the Department of Education and Training. She commenced duty in early 1969 but resigned in the middle of 1970 at which time approval was given for her to teach casually and she did so. On Monday, 4 June, 2007 she was informed by the Department that certain allegations concerning her sexual (sic) misconduct had been made by her son and they were being investigated. She was placed temporarily on the list of teachers - "Not To Be Employed" [NTBE] - proscribing her continued employment as a teacher and she was not to be employed as a teacher pending the outcome of those investigations... 3 The appellant denied she was guilty of any wrongdoing, however, the Department determined that five of the six allegations against the appellant were sustained. On 21 September 2007, the appellant was informed, through her solicitor, that consideration was being given by the Department to the permanent withdrawal of her teaching approval and her permanent retention on the "Not to be Employed" list ("NTBE"). In light of the conclusions that the Department reached, it was under an obligation to notify the Commission for Children and Young People ("CCYP") of the allegations against the appellant. The effect of this notification was that the respondent received a Category 1 employee classification from the CCYP, which placed her in a position that she was unable to be engaged in employment involving children. 4 On 22 November 2007, the respondent wrote to the Department seeking clarification as to whether she had been dismissed or not and seeking a review of the investigation, observing that she had worked in the Education Departments in New South Wales, South Australia and Victoria, on and off, for 42 years and had never had any misconduct allegations, nor any adverse report made against her. The Department refused her request for a further review, advising that she could approach the Ombudsman or take action before the Administrative Decisions Tribunal ("ADT"). 5 On 12 December 2007, the respondent was informed by the Department that her approval to teach had been withdrawn and her name was to be retained on the NTBE list. Subsequently, the Department agreed for an independent review into the respondent's employment status. The respondent was informed that the independent review was unsuccessful and that no further consideration would be given to any request for a review of her employment status. The respondent wrote to the CCYP and the Ombudsman and on 29 May 2008, lodged an application with the ADT. She was subsequently informed by her solicitor that, since she had not been charged with any criminal offence, the ADT did not have jurisdiction to determine her application. It was subsequently discontinued on 4 June 2008. 6 On 1 July 2008, the respondent contended that she became aware of her rights under Pt 6, ch 2 of the Act and on that date she lodged an application seeking reinstatement or, in the alternative, monetary compensation. 7 After considering these matters, the Commissioner commenced his conclusion, stating at [18]: Mr Flannigan has primarily argued that, in fact, Mrs Bond's Part 6 application is beyond jurisdiction. He asserts, whilst she has been placed on the NTBE list and has been classified as Category 1 by the CCYP, she has not actually been dismissed. However, the fact remains that whilst she remains on the NTBE list and is classed as Category 1, she will not be engaged as a casual teacher by the Department and she has not been since Monday, 4 June, 2007 when she was informed that she was to be placed on the NTBE list pending further investigation of the allegations against her. Mr Flannigan conceded that it was open to argue that Mrs Bond had been constructively dismissed but it seems to me that the actions of the Department were tantamount to a dismissal of Mrs Bond effective from Wednesday, 12 December, 2008 when her permanent placement on the NTBE list was confirmed to her. 8 The Commissioner then discussed the applicant's evidence as to when she became aware of her rights under the Act, the significance of aborted proceedings in the ADT and the fact that the respondent was under no obligation to inform the applicant of her rights under Pt 6 of the Act, observing at [22] - [23], [26] - [27]: [22] Nevertheless, the task before me in these proceedings is to determine whether it is appropriate that Mrs Bond be denied her access to the Part 6 jurisdiction to have her claims determined or, alternatively, whether the Department would be unnecessarily inconvenienced by permitting her Part 6 application to go forward to hearing. As I see the position, in exercising my discretion under S.85(3) it remains essentially a question of determining where the balance of convenience lays for the parties [ Griffith Ex-Services Club Limited v. Federated Liquor and Allied Industries Employees' Union of Australia (1993) 51 IR 186 at p.191]. As I indicated in Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 at p.101: "...In my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)…" [23] In my opinion, the balance of convenience favours Mrs Bond in this case and I consider I should permit her Part 6 application to go forward to hearing. She will certainly be prejudiced if her Part 6 application was aborted without his being given the opportunity available to her by virtue of Part 6 to defend herself from the serious allegations made against her, which have deprived her of work which she has performed for 42 years. By comparison, the inconvenience to the Department would be minimum, in my opinion. ... [26] I note in that respect the comments of the Full Bench of the Commission ( Wright J - President, Walton J - Vice President and McKenna C) in Hurrell v. Queensland Cotton Corporation Limited (at pp.151 and 152): "...In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospect of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a 'sufficient reason' has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits. Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion... Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary consideration: Sebastian v. Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at pp.193 to 194. It should be emphasized, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature..." Whether to proceed with her Part 6 application must remain essentially a matter for Mrs Bond and those persons who give her legal advice. I do not believe that it should deprive her of the additional right she has by virtue of Part 6.

(ii) arriving at any conclusion regarding the utility in granting the application when the respondent's name remained upon the category 1 listing of reportable conduct at the CCYC. Submissions on behalf of the Respondent 10 Mr MD Broun QC, who appeared for the respondent, submitted that the appellant's view that the statutory time limit under s 85(1) of the Act is relevant to the application by the respondent under Pt 6, is misconceived because the appellant had not, by the date the respondent filed her application for unfair dismissal actually terminated her employment, nor had she tendered her resignation. Accordingly, the respondent was not late in her application. The Commissioner then properly determined that the respondent had in fact been constructively dismissed. It was submitted that where it is necessary for the Commission to determine whether there has been a dismissal, the time limit in s 85(1) does not, and could not, commence to run until the date the Commission hands down its decision in the affirmative. In the alternative, it was submitted, all of the factors which the Commissioner found were "sufficient reason" to accept the criteria under s 85 were made out. 11 Senior counsel contended that the hardship to the respondent, consequent upon a failure to grant an extension of time and the opportunity to argue her case, will most likely result in the respondent being unable to obtain equivalent employment with any other employer because of the effect of the mandatory reporting obligations and background checking requirements under the CCYP Act. 12 Mr Broun further submitted that the Commissioner had these greater considerations in mind when he ruled on the issue of prejudice. Senior counsel submitted that it was notable that no document in the appeal papers and no submissions made by counsel for the appellant actually specifies the date on which it is alleged that the time limit of 21 days began to run. The correspondence makes it clear that the appellant never actually dismissed the respondent. 13 Mr Broun contended that there was no failure to provide due process on either of the grounds suggested by the appellant. Senior counsel submitted that the appellant did not, at any stage, ask the Commissioner to put the respondent into the witness box to be cross-examined on her affidavit, or to call evidence from subpoenaed witnesses (who were present in Court to answer subpoenas). It was submitted that the Commissioner did afford the appellant an opportunity to put further matters on the record in very broad terms; certainly broad enough to include witness testimony, further explanation and further submissions. The respondent accepted that the appellant had the responsibility for creating the category 1 classification of the respondent. However, it submitted it also has an obligation under the CCYC guidelines to withdraw the disclosure or report if the Commission finds that the allegations on which the classification were based were in error. In these circumstances, the involvement of the CCYC disappears. Principles 14 The law applicable to applications such as the present is well settled. As the Full Bench observed in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [15]: [12] ... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgment of applications beyond the 21 days prescribed in s 246(2) . The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 256(4)(a) to (d) . It is not appropriate to formulate any definition of what constitutes a sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258 . In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act . In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgment, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. Consideration 15 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, nor when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 16 It is also well settled "some issue of real significance in the interests of justice will need to be identified for such an application to succeed". (See Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 at [4]). If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]). 17 The complaint in this case is essentially three-fold. First, a failure to apply the appropriate test; secondly, a failure to give due weight to relevant considerations and thirdly, the Commissioner failed to provide due process to the appellant. 18 We are satisfied this is a case where leave to appeal may not properly be granted, given the provisions of s 188 of the Act. It provides: (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 19 The primary contention by the appellant was that the Commissioner misdirected himself as to the appropriate test to apply in the exercise of his discretion to extend the limitation period. 20 The provisions relevant to the time for making applications under Ch 2 Pt 6 (unfair dismissals) of the Act are set out at s 85, which relevantly provides: Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. ... (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 21 The appellant relied particularly upon the comments of the Commissioner at [22] where the Commissioner stated: ... As I see the position, in exercising my discretion under S.85(3) it remains essentially a question of determining where the balance of convenience lays for the parties... 22 In adopting this approach, the appellant submitted that the Commissioner applied the wrong test and fell into error. However, the Commissioner went on at [22] to refer to his decision in Parker v Capitol Painters Pty Limited (1996) 68 IR 100 at 101 where he said: ...In my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)… 23 In our view, the Commissioner's decision disclosed a multi-factor approach in reaching the discretionary decision to accept the late application. Connor C emphasised that the respondent would be prejudiced if her application was not permitted to proceed and the respondent be given an opportunity to defend herself from the serious allegations made against her, which have deprived her of work which she has performed for 42 years. Secondly, the Commissioner considered the delay and her ignorance of the law and thirdly, that the application would provide a forum for her to clear her name. The Commissioner took into account these issues in reaching his conclusion that he should exercise his discretion to grant the extension of time. Such matters, in our view, give answer to the question whether there was sufficient reason for the extension of time. 24 We are unable to agree with the appellant's submission that the Commissioner took into account irrelevant considerations. To the extent that the Commissioner referred to the application providing a forum to clear the appellant's name, this was only one of a number of matters taken into account by the Commissioner in considering the question of hardship. Furthermore, we can find no error or any basis in the appellant's complaint that there was any failure on the part of the Commissioner to provide the appellant due process. 25 The appellant conceded that the respondent had not been dismissed, nor has the respondent tendered her resignation. Section 85(1) relevantly provides that "an application made under [Pt 6 of the Act] must be made not later than 21 days after the dismissal of the employee". 26 Connor C correctly, in our view, found that the respondent had been constructively dismissed because her ability to teach in the Department was withdrawn. We do not have to decide to what extent the jurisdictional question (time limitation) involved the appellant not providing work to the respondent. However, when Connor C considered the application for an extension of time, he was mindful that the respondent had not been provided with work since 4 June 2007. Connor C considered the application should be granted. Justice required the extension of time as the Department refused to allocate work to the respondent, but declined to inform her she was dismissed. 27 The appellant's decision gives rise to complicated legal issues that explain the respondent's delay. A question of justice arises in respect of how employees should be treated in these circumstances. The particular factors raised by the respondent which Connor C had to consider result in an overwhelming case for the granting of an extension of time. 28 The application for leave to appeal should be refused. The appeal is dismissed. Orders accordingly are made.

Ace Business Brokers Pty Ltd v Phillips-Treby

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