Asciak v Gai Brennan

Asciak v Gai Brennan - [2009] NSWIRComm 1033 - NSWIRComm 2009 case summary — Zoe

[18]

20 The OIR reiterated it's approach in email correspondence from the relevant officer wherein it was stated, inter alia, "When I became aware of an unfair dismissal application it was not appropriate, within OIR guidelines, to proceed with matters relating to dismissal/termination until that process had reached conclusion." Exhibit 4. 21 Consequently the first reason for the delay in making the application was the advice from the OIR. The applicant was clearly dissuaded from lodging an application because the OIR would then cease investigation and other work into the applicant's disputed entitlements matters. 22 The second and related factor that established the reason for the delay in making the application involved the applicant's belief that the dismissal by way of the letter of 23 June 2008, was invalid and therefore the applicant could treat her employment to have remained on foot. The evidence strongly supported the genuine, but somewhat mistaken belief, that the applicant's employment continued after 30 June 2008. For instance, when the applicant completed an OIR complaint form on 17 July 2008, in answer to a question "Are you still working for this employer?" she circled the answer "yes" and in the related comments area she wrote the words "on leave". Exhibit 1 - Annexure J. 23 There was further evidence that the applicant and her husband genuinely believed that the applicant remained employed notwithstanding the letter of dismissal dated 23 June 2008. The applicant's husband wrote to the employer on 10 September 2008, inquiring as to why there had been no regular payment of wages made to the applicant. Further, on 8 November 2008, the applicant in a response to a request from OIR stated "I believe I have not been terminated as yet!" Exhibit 1 - Annexure R. 24 Therefore in a period of several months after the dismissal, the applicant and her husband genuinely believed that the applicant had not been dismissed and remained employed although without receiving pay. The applicant's husband gave further evidence that he had calculated a period of leave from 30 June which he thought would operate so that any unfair dismissal claim would not need to be filed until within twenty one days after the expiration of that period of leave. These calculations took the period that the applicant mistakenly believed would apply to the lodgement of an unfair dismissal claim until about 21 December 2008.

[19]

25 In summary therefore there are three primary components which provide the explanation for the delay in making the application. Firstly, the applicant was advised that the OIR would cease it's investigation into related entitlements questions if an unfair dismissal claim was made. Secondly, because of certain aspects relating to the dismissal including its apparent retrospective operation, and that the applicant's medical certificates were rejected, the applicant genuinely believe that the dismissal was invalid, such that she remained an employee of the employer despite the letter of dismissal. Thirdly, the applicant and her husband had calculated a period beyond the apparent dismissal date which would encompass the (disputed) leave entitlement of the applicant, and that only after the expiration of this period would they then be subject to the operation of the time limit for making an unfair dismissal claim. 26 A careful evaluation of the evidence that supports the three primary factors which established the reason for the delay in making the application leads to both an understandable and plausible basis for what was a mistaken belief. Although the reason for the delay would at first instance be difficult to believe, the evidence has provided confirmation of the genuine belief of the applicant and her husband and the somewhat unhelpful advice provided by the OIR. Hardship To The Applicant 27 It would seem that there would always be some hardship that would be experienced by an applicant that was denied an opportunity to make an unfair dismissal claim, albeit out of time. In addition to the usual hardships that would follow from any dismissal, the applicant, has raised related entitlements claims which despite earlier advice of the OIR, have now apparently been concluded broadly in the employer's favour. Given that the advice provided by the OIR must on any objective view, be considered to have been regrettable, it would seem that some question would remain as to the accuracy and veracity of the apparent determination by the OIR of the related entitlements questions. 28 Consequently there would seem to be some unusual injustice or hardship visited upon the applicant if the advice and "assistance" provided by the OIR contributed significantly to the delay in making the unfair dismissal claim and thus operated to both deprive the applicant of an opportunity to have an unfair dismissal claim determined, and also rejected the entitlements claim.

[21]

The Conduct Of The Employer 30 Sub-section (c) of section 85 of the Act refers to the conduct of the employer relating to the dismissal as an issue that should be included in any consideration of the exercise of the discretion to extend time. The extent to which this provision could involve an analysis of the conduct of the employer in respect to the basis and action for dismissal must be somewhat limited. This factor could not represent a de facto determination of the merits of the substantive claim. However, if there were particular aspects of the conduct of the employer that were undeniably existent or which might have connection with the reason that gives rise to the delay in making the application, then that conduct would be a relevant consideration. It would be particularly important if there was conduct of the employer after the dismissal which might relate to the application being lodged out of time. For instance, if after the dismissal the employer took steps to replace an employee who was dismissed for alleged redundancy, that conduct of the employer would have an obvious connection with any consideration to extend time. 31 In this matter there are two particular aspects that involve the conduct of the employer as it related to the period between dismissal and the late lodgement of the claim. Firstly, the apparent retrospective operation of the letter of dismissal together with the rejection of the applicant's medical certificates was the direct cause for the applicant mistakenly believing that the dismissal was null and void and that the employment continued. 32 Secondly, in the period following the dismissal the employer was engaged on various occasions in communications with the applicant and the OIR regarding matters relating to the dismissal. At no stage in these communications did the employer provide proper clarification of the issue of any apparent continuation of the employment beyond 30 June 2008. In particular the employer did not reply to the correspondence from the applicant's husband of 10 September wherein he sought rectification for ongoing payment of wages to his wife. In response to that correspondence, it would have been a simple matter for the employer to provide a further letter clarifying the dismissal of the applicant. 33 It would seem therefore that given the ongoing agitation of various employment related issues including the clear assertion that the applicant continued in employment at least up until September of 2008, the employer would not have been totally surprised when it received the unfair dismissal application. It is further relevant to note that in the Employer's Reply, although the employer clearly indicated an objection to the extension of time, the issue of late lodgement was not the subject of any further elaboration.

[24]

38 The challenge to establish sufficient reason for the exercise of the discretion to extend time should not be underestimated. The applicant therefore commences with a significant but not insurmountable hurdle which must be overcome. 39 The length of the delay adds height to the hurdle almost in an exponential relationship. That is, the further that the delay extends, the more difficult it will become to obtain the discretion to extend time. In the present matter the delay is at least one hundred and forty eight (148) days or about seven times the prescribed limit. However the evidence that has been provided for the reason for that delay could be described as exceptional. 40 The evidence for the reason for the delay is plausible and logical albeit, at first instance, difficult to believe. The most unusual aspect of the reason for the delay involved the regrettable position adopted by the OIR. Just why the OIR would apparently as a matter of established "guidelines", not proceed to assist the applicant if she filed an unfair dismissal claim should probably be the subject of separate inquiry by way of that agency's internal protocols. 41 Unfortunately in this instance the OIR advice was a significant contributing factor for the late lodgement of the unfair dismissal claim. In addition the evidence has properly supported the applicant's genuine but mistaken belief that the dismissal by way of letter dated 23 June 2008, was null and void and that the employment continued beyond that time. 42 Consequently valid reason for the delay has been established. 43 Further, a considerable injustice may be perpetrated if the applicant was denied an opportunity for determination of her claim for unfair dismissal. There was no evidence of extensive or unusual hardship that would be caused to the employer if the application was accepted out of time. The evidence has also established substantial prospects for success of the claim, although no conclusive determination could or should be made at this time. 44 In conclusion therefore the interests of justice will be best served if the applicant is given an opportunity to have this matter heard and determined. There is therefore sufficient reason to exercise the discretion provided by section 85(3) of the Act. The application is accepted notwithstanding that it was made beyond the statutory time limit. 45 The Commission therefore accepts the application that has been made out of time and further proceedings in this matter will be scheduled upon written request of the applicant within twenty one days from the date of this Decision.

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