Asciak v Gai Brennan

CATCHWORDS: Unfair dismissal - termination of employment - application made out of time - extensive delay - valid reasons for delay - discretion to extend time exercised.

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

CASES CITED: Lucic v Nolan and Others, Federal Court of Australia - General Division, Fitzgerald J, 1 Nov 1982, 45 ALR 411. Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139.

APPLICANT Mr D Bassett, solicitor from LEGAL REPRESENTATIVES: Liston & Clifton

RESPONDENT Mr R Locke, solicitor

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Lorraine Linda Asciak re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

Section 85 of the Industrial Relations Act 1996, request for the Commission to accept application lodged out of time.

1 On 16 December 2008, Lorraine Linda Asciak (the applicant), lodged a claim for unfair dismissal. The unfair dismissal claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW] (the Act). 2 The claim named the respondent employer as Gai Brennan. The respondent employer has more accurately been identified as Gabrielle Irene Brennan, trading as Gai Abandon Clothing, (the employer). 3 The claim was the subject of unsuccessful conciliation proceedings conducted in Tamworth on 3 February 2009. During the conciliation proceedings conducted on 3 February the issue of the late lodgement of the claim was identified as a significant impediment to resolution of the claim. 4 The applicant was unrepresented at the conciliation proceedings on 3 February and the issue of the late lodgement of the claim was a matter upon which the applicant indicated an intention to seek advice. Subsequently the applicant has been represented and has sought to have the Commission exercise the discretion provided by section 85(3) of the Act to accept the application made out of time. 5 The issue of the exercise by the Commission to accept the application made out of time was the subject of a Hearing conducted in Tamworth on 10 June 2009.

BACKGROUND 6 The applicant is a woman who was some fifty seven years of age at the time of her alleged unfair dismissal in June 2008. The precise date of the applicant's dismissal was the subject of some conjecture. The application document identified that the date of dismissal was 23 June 2008. The letter of dismissal was dated 23 June 2008 and advised that the effective date of dismissal was that day, 23 June 2008. However, the employer acknowledged that the letter of dismissal had not been provided to the applicant on 23 June 2008, and that the relevant date of dismissal may therefore have been 30 June 2008, the time at which the applicant received the letter of dismissal dated 23 June 2008.

7 The applicant worked as a Sales Assistant in the employer's retail fashion store in Armidale. The employer operates retail fashion stores in Armidale and Tamworth. The applicant had worked for the employer for nearly fifteen years. 8 It is unnecessary for the purposes of this Decision to detail the events that led to the applicant's dismissal. It is sufficient to note that the letter of dismissal dated 23 June 2008, and provided to the applicant on or about 30 June 2008 relevantly stated, "I am not willing to recognise your medical certificates ...". 9 In a period shortly before 30 June 2008, the employment relationship had become strained and the applicant had taken a period of leave and she was absent from work on sick leave at the time when she was dismissed. The applicant filed the claim for unfair dismissal on 16 December 2008, therefore the claim was made either one hundred and fifty five (155) days or one hundred and forty eight (148) days beyond the prescribed time limit depending upon whether the date of dismissal is recognised to be either 23 June or 30 June 2008. THE HEARING ON THE EXTENSION OF TIME 10 Mr D Bassett, solicitor, appeared for the applicant at the Hearing on the extension of time. Mr Bassett called the applicant to give witness evidence in support of two affidavits that she had sworn in respect of these proceedings. In addition Mr Bassett called the applicant's husband, Mr Constantine Asciak, who also gave evidence in support of an affidavit that he had sworn in this matter. The applicant and her husband were cross-examined during the Hearing.

11 The employer was represented by Mr R Locke, solicitor. Mr Locke tendered a total of five affidavits on behalf of the employer. The affidavits tendered by Mr Locke were admitted without objection but subject to the deponents being available for cross-examination if further proceedings regarding the substantive issues relating to the claim were subsequently tested. 12 The respective representatives broadly agreed that the issues relevant to the extension of time question were matters that related to the activities of the applicant and others in the period after dismissal and up until the date of lodgement of the claim. This evidentiary material was almost exclusively contained within the evidence provided by the applicant and her husband. 13 Mr Bassett urged the Commission to accept the application lodged out of time on the basis that the evidence provided by the applicant and her husband established that there was a valid reason for the delay in making the application. Mr Bassett submitted that the reason for the delay was based upon the applicant and her husband believing that the dismissal as advised by way of the correspondence dated 23 June 2008, was invalid and therefore the applicant had not been dismissed either on 23 June, the date of the correspondence, or 30 June, the date of receiving that correspondence. Mr Bassett referred to the Full Bench Decision in Hurrell and Queensland Cotton Corporation Limited. Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139. 14 Mr Locke submitted that the Commission should not accept the application that had been made considerably out of time. Mr Locke said that the reason for the delay was difficult to understand and did not represent a proper reason that should persuade the Commission to exercise the discretion to extend time.

CONSIDERATION 15 Unfair dismissal applications must be made not later than twenty one days after the dismissal of the employee. Section 85(1) of the Act fixes this time by which an unfair dismissal application must be made. 16 However, section 85(3) of the Act allows the Commission to accept an application that was made out of time if the Commission considers that there is sufficient reason to do so, having regard to particular factors that are set out in sub-sections (a), (b) and (c). There are five distinct factors which can be identified within paragraphs (a), (b) and (c) of section 85(3) of the Act. These five factors represent the primary issues for consideration in any case involving the exercise of the discretion to extend time.

The Length Of Delay 17 The length of delay in this instance was considerable. The claim was filed either one hundred and fifty five (155) days or one hundred and forty eight (148) days out of time depending upon the date of dismissal. It appeared that the employer conceded that the dismissal could not have been effected earlier than 30 June 2008, despite the letter of dismissal having been dated 23 June 2008. Even with this concession the application would be one hundred and forty eight (148) days beyond the twenty one day time limit. This is a period of more than seven times the prescribed time limit of twenty one days. This is a significant period of time and therefore the reason for the delay must be carefully considered if it is ultimately to provide sufficient basis to extend time.

Reason For Delay 18 The evidence established that the applicant and her husband, who was advising her generally in employment issues, were aware of the capacity to make an unfair dismissal claim and that such a claim had to be made within twenty one days after dismissal. The applicant and her husband had made contact with the New South Wales Office of Industrial Relations (OIR) regarding an issue of a dispute over the applicant's entitlements to leave, and this contact had been made before the applicant had been advised of her dismissal. 19 Unfortunately, the evidence established that the applicant and her husband were advised by staff of the OIR that if the applicant made an unfair dismissal claim the OIR would not continue to pursue it's investigation into the dispute regarding the applicant's leave and other entitlements. This unusual and somewhat perplexing advice was confirmed in correspondence dated 28 January 2009, from the OIR which relevantly stated: "I understand that you have lodged an Unfair Dismissal claim which is listed for early February 2009. I advise the [sic] Office of Industrial Relations will not be proceeding with matters relating to termination until the Unfair Dismissal claim is finalised, and then only if there are still matters pending relating to your industrial complaint." Exhibit 3 - Annexure "C".

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.

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.

Hardships/Prejudice To The Employer 29 The employer did not advance a case that the extension of time would necessarily provide for hardship beyond the obvious requirement to have to meet the claim. In particular the applicant did not seek reinstatement or re-employment and therefore the potential outcome of the claim was limited to monetary compensation.

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.

Potential Outcome 34 One further factor relevant to the consideration in respect to the granting of an extension of time involves potential for success of the matter generally. The present matter clearly requires inclusion of this consideration. 35 The letter of dismissal advised, inter alia, that the employer would not recognise the applicant's medical certificates. Although there may be some circumstances when an employer may be able to legitimately reject medical certificates as providing basis for absence due to sickness, such circumstances would be unusual and possibly involve the obviously fraudulent nature of the particular certificate. Consequently there would seem to be some strength to a claim for unfair dismissal in circumstances where the dismissal was in part established upon the employer's refusal to recognise what would appear to be valid medical certificates justifying the employee's absence from the workplace due to sickness. CONCLUSION 36 The question of the granting of any extension of time is often referred to as a balancing of the interests of justice. It must be stressed that time limitations are set for good and obvious reasons. Therefore any applicant seeking to have the discretion to extend time exercised in their favour must logically bear a significant onus. 37 There is extensive authority upon which the onus to extend time has been established. Although dealing with different legislation, the approach adopted by Fitzgerald J in the case of Lucic v Nolan and Others is relevant to the exercise of the discretion provided under section 85(3) of the Act. The following extract from the Judgement of Fitzgerald J in that case is relevant:

"Where specific periods are fixed, they are quite short. That carries obvious implications. However the time limits are not absolute. In this case, as in other matters arising under the Act, eg in respect of the relief which may be granted under s16 the court is given a discretion. None the less, it must, in my opinion, be accepted that it has deliberately made the prima facie rule that proceedings not commenced in time should not be entertained." Lucic v Nolan and Others , Federal Court of Australia - General Division, [Fitzgerald J], 45ALR 411 @ 416.

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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