Citation : [2004] WAIRC 11217

Industrial law - Effect of non-compliance with time limit in s 29(2) of the Industrial Relations Act - No application for, or acceptance of, referral under s 29(3) - Whether can accept referral nunc pro tunc - Whether waiver can apply - Whether denial of natural justice

Industrial Relations Act 1979 (WA), s 7, s 23(1), s 23A, s 26(3), s 27, s 29(1), s 29(2), s 29(3), s 44, s 90(3a)

Industrial Relations Commission Regulations 1985 (WA), reg 21B

Interpretation Act 1984 (WA)

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618

Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265

Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161

E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107

Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114

Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828

Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547

Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v McNeil [1922] HCA 33; (1922) 31 CLR 76

Re Monger; Ex parte Cross [2004] WASCA 176

Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955

Westrail v Durham (1994) 74 WAIG 1882

Yong Jung Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Arpad Security Agency Pty Ltd v FMWUA (WA Branch) (1989) 69 WAIG 1287

Australasian Society of Engineers, Molders and Foundry Workers v SECWA (1990) 71 WAIG 315

Australian Iron and Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471

Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Como Investments Pty Ltd v Federated Liquor and Allied Industries Employees' Union of Australia (Western Australian Branch), Union of Workers & Ors (1989) 69 WAIG 1004

Crown v McNeil [1922] HCA 33; (1922) 31 CLR 76

General Motors Holdens Ltd v Di Fazio [1979] HCA 43; (1970) 141 CLR 659

Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Lubovsky v Snelling (1944) KB 44

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Mayes v Mayes [1971] 1 WLR 679

Mobil Oil Australia Pty Ltd v Federal Commission of Taxation [1963] HCA 41; (1963) 113 CLR 475

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Re Coldham & Ors; Ex parte BLF [1986] HCA 87; (1985) 64 ALR 215

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors (1986) 66 WAIG 1553

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors (1993) 73 WAIG 1993

Romeo v Asher [1991] FCA 201; (1991) 100 ALR 515

Russell v Duke or Norfolk [1949] 1 All ER 109

SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760

Sinnathamby & Ors v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

State Energy Commission of Western Australia Salaried Officer's Association v Western Australia Industrial Commission (1975) 55 WAIG 747

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

The University of Wollongong v Metawally [1984] HCA 74; (1984) 158 CLR 447

Wright v John Bagnall & Sons Ltd [1900] 2 QB 240

1 STEYTLER J (PRESIDING JUDGE): I have had the advantage of reading the judgment of McLure J. I agree with it and with her conclusion that the first ground of appeal should be upheld and that the second ground should not.

2 Like McLure J, while I find it difficult to see on what grounds the Commission would decline to accept a fresh referral under s 29(3) should it find that the referral was out of time, I consider that there is, nevertheless, good reason not to confirm the decision of the Full Bench. To do so would have the effect of confirming a decision made in proceedings in which the Commission's jurisdiction has not yet been established either by a finding that the referral was made within time or by a decision to accept a fresh referral under s 29(3).

3 Consequently, I agree that the appeal should be upheld, the orders made by the Full Bench should be set aside and the matter should be remitted to the Full Bench for a further hearing and determination in accordance with the reasons of the Court.

4 MCLURE J: The appellant is the former employer of the respondent. By a notice dated and filed in the Western Australian Industrial Relations Commission ("Commission") on 5 December 2002, the respondent referred to the Commission a claim under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) ("the Act") that she was unfairly dismissed from her employment by the appellant ("referral").

5 Section 29(2) of the Act requires that a referral of a claim to the Commission under s 29(1)(b)(i) be made "not later than 28 days after the day on which the employee's employment is terminated". The issues in this appeal are whether the respondent made her referral within the time specified in s 29(2) of the Act; if not, whether the Commission has jurisdiction to hear the claim; whether the appellant can waive compliance with the time limit; if so, whether the appellant was denied natural justice on the issue of waiver; and if the Commission did err, whether this Court should grant relief.

6 The appellant relies on two grounds of appeal. The first concerns the waiver-related issues and the second, the jurisdictional-related issues.

7 The appellant carried on the business of mining at its Mount Pleasant mine at Kalgoorlie. The respondent was employed by the appellant as an underground technician. She performed shiftwork. At some time before

July 2002 the respondent went on parental leave. Prior to her scheduled return to work, the appellant decided to replace underground technicians with geologists and to make the position of underground technician redundant. The appellant and the respondent exchanged communications concerning alternative positions for the respondent. It is not in dispute that in November 2002 the respondent's employment with the appellant terminated. If termination occurred before 7 November 2002, the respondent had failed to comply with the time limit in s 29(2) of the Act.

8 At first instance, Commissioner Gregor found that the respondent had not been dismissed but had resigned from her employment and, therefore, the Commission had no jurisdiction. He dismissed the claim. Although the appellant did not in its notice of answer and counter-proposal raise non-compliance with the time limit, it did so in oral submissions. However, the Commissioner did not rule on the question because of his finding on dismissal.

9 The respondent appealed to the Full Bench. The Full Bench upheld the appeal, finding that the appellant had dismissed the respondent and that the dismissal was unfair. It remitted the matter to the

Commissioner to determine quantum. The President gave detailed reasons for decision with which Chief Commissioner Coleman and Commissioner Harrison agreed. The President dealt with the appellant's submission concerning the respondent's failure to refer the claim to the Commission within time as follows (at [123]):

"[The appellant] waived any right to oppose the matter being heard out of time because it was subject to a limitation period, and for the reasons which I have set out in Hanssen Pty Ltd v CFMEU (unreported) (2004 WAIRC 10828), delivered 8 March 2004, (FB) in relation to periods of limitation under s 29(3) of the Act."

10 I infer the reference to s 29(3) is intended to be a reference to s 29(2) of the Act.

Construction of s 29(2) and Consequences of Failure to Comply

11 The referral was made pursuant to s 29(1)(b)(i) of the Act which materially provides:

"An industrial matter may be referred to the Commission -

...

(b) in the case of a claim by an employee -

(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or

(ii) ...

by the employee."

12 Sections 29(2) and (3) are central to the determination of this appeal. They provide:

"(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee's employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so."

13 Subsection (2) was materially amended and subs (3) added by the Labour Relations Reform Act 2002 (WA) ("Amendment Act") which came into operation on 8 July 2002.

14 Prior to the amendments made to s 29 by the Amendment Act, s 29(2) provided that a referral "cannot be made more than 28 days after the day on which the employee's employment terminated". Section 29(2) in that form was inserted into the Act by the Industrial Relations Amendment Act 1993 (WA).

15 The scheme of the Act for the conferral of jurisdiction on the Commission has not materially altered since the introduction in 1993 of the time limit in s 29(2) of the Act. Section 23(1) provides that "Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter".

16 Industrial matter is defined in s 7 to mean any matter affecting or relating to the work, privileges, rights or duties of employers or employees in any industry or of any employer or employee therein, including, inter alia, "... the dismissal of or refusal to employ any person or class of persons therein": s 7(c). The scope of par (c) is narrowed by the opening words of s 7 which have been interpreted to require that, at the time of the application, the relationship of employer or employee actually exist or is expected to come into existence: Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20.

17 Under s 29(1)(a), an employer with a sufficient interest in an industrial matter, an organisation in which persons to whom the industrial matter relates are eligible to be members or the Minister can refer an industrial matter to the Commission. Under s 29(1)(b) and (2), an employee's rights are, by comparison, very significantly restricted both in relation to subject matter and time.

18 The Commission has power to make orders on unfair dismissal claims pursuant to ss 23A and 44 (the compulsory conference power) of the Act. Finally, before and since the introduction in 1993 of the time limit in s 29(2), the Commission has had general power by s 27(1)(n) of the Act to extend any prescribed time. That section materially provides:

"Except as otherwise provided in this Act, the Commission may, in relation to any matter before it -

(n) extend any prescribed time or any time fixed by an order of the Commission".

19 Under the Interpretation Act 1984 (WA), "prescribed" means prescribed by or under the written law in which the word occurs.

20 In a series of decisions the Commission and Full Bench, relying on the plainly prohibitive language in the former s 29(2), held that compliance with the time limit was an essential condition of the right to refer to the Commission an unfair dismissal claim and failure to comply rendered proceedings a nullity: Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955 at 955 - 956; Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547 at 3549 - 3550; E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107 at 1017 - 1018; Westrail v Durham (1994) 74 WAIG 1882.

21 Thus, the prevailing view was that under the former s 29(2) referral within 28 days was an essential preliminary to the exercise of the Commission's power or authority and went to the jurisdiction of the Commission (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 389).

22 There is also authority that the general provision giving the Commission the power to extend time did not apply to the time limit in the former s 29(2), either because the Act otherwise provided in s 29(2) or because the general power does not apply to extend the jurisdiction of the Commission but, rather, gives it power incidental to the exercise of its established jurisdiction: E J Richardson v Cecil Bros Pty Ltd (supra) at 1017 - 1018.

23 It appears this Court was never called on to rule on the proper construction of s 29(2) before it was amended. There is authority in this Court that s 29(1)(b) does not expand the Commission's jurisdiction: Coles Myer Ltd (supra). However, it does not follow from the reasoning or result in that case that the time limit in s 29(2) is procedural rather than substantive and jurisdictional. Section 23 is to be read subject to the Act. The language of the former s 29(2) was peremptory and prohibitive. Further, the legislature clearly intended to treat employees differently from other applicants. In my view, the conclusion that compliance with the time limit in the former s 29(2) was an essential condition of the right and the Commission did not have power to extend time was correct. It is consistent with the approach and analysis taken by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265.

24 It was in the context of the decisions to which I have referred that the legislature acted to ameliorate the position. In the second reading speech for the Amendment Act, the relevant Minister said:

"The present 28-day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly, the commission will have the ability to hear claims lodged out of time if it considers it would be unfair not to do so."

25 The first sentence is an acknowledgment of the decisions to the effect that the time limit was jurisdictional and could not be extended. The central question is whether in enacting s 29(2) and (3) in their current form the legislature intended to change the character of the time limit from one which forms part of a statutory right (and thus is substantive and, in context, jurisdictional) to one which is merely procedural and only bars the remedy. In construing the legislation, regard must be had to the consequences that flow from its characterisation.

26 The appellant contends that the Commission has jurisdiction to hear a referral by an employee of an unfair dismissal claim only if the referral is made within the prescribed time or at a later time if the referral is accepted by the Commission after making a finding that it would be unfair not to accept the referral. The consequences if the referral is not made within time or the Commission does not accept the referral under subs (3) are that the proceedings would be a nullity; the conditions (being, in effect, conditions precedent to the exercise of jurisdiction) cannot be waived, even if they are imposed for the benefit of the party said to have waived it; and the proceedings cannot be subsequently validated with retrospective effect, that is, on a nunc pro tunc basis: Commonwealth v Verwayen (1990) 170 CLR 394 at 422 - 428; Re Monger; Ex parte Cross [2004] WASCA 176 at [178].

27 On the other hand, if the requirements in subs (2) and (3) are procedural, the proceedings would not be a nullity, the requirements could be waived and the proceedings validated subsequently on a nunc pro tunc basis: Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114; Re Monger; Ex parte Cross (supra) at [165].

28 There are strong indications that compliance with subs (2) or (3) constitute an essential preliminary to the exercise of the Commission's jurisdiction. Firstly, if the legislature intended to alter the character of the time limit in subs (2) from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply, in which event subs (3) would be unnecessary. Secondly, subs (3) gives the Commission an entitlement to "accept a referral", which language is indicative of an extension to the Commission's jurisdiction rather than the exercise of a power in relation to a matter already within jurisdiction. Thirdly, there is nothing in the second reading speech to the Amendment Act to suggest the legislature intended to alter the existing character of the time limit as a condition of the exercise of the right but merely to increase the flexibility of its application.

29 Although the language in subs (2) changes from prohibitive (a referral cannot be made) to positive (a referral is to be made within the time limit), I do not regard this as an unequivocal indicator of a contrary intention. The change in language in subs (2) is consistent with the addition of the alternative means of obtaining jurisdiction introduced in subs (3). The decision of Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828 relied on by the President does not relate to s 29(2) and (3) of the Act and is clearly distinguishable.

30 For these reasons I conclude that, on the proper construction of s 29(2) and (3) of the Act, the Commission has jurisdiction to hear an unfair dismissal claim under s 29(1)(b)(i) only if the referral is made not later than 28 days after the day on which the employee's employment is terminated or if the Commission accepts a referral under s 29(3) of the Act.

31 Under reg 21B of the Industrial Relations Commission Regulations 1985 (WA), a referral by an employee under s 29(1)(b)(i) that is outside the time prescribed in s 29(2) is required to have attached a statement from the applicant setting out the facts upon which the applicant relies to show why it would be unfair for the Commission not to accept the referral. The respondent in this case did not attach such a statement or otherwise move the Commission to accept the reference under s 29(3) of the Act. The remaining question is whether the referral was made within time.

32 Commissioner Gregor found that the respondent resigned and did so in her letter of "7 November 2002". As far as I am able to ascertain, there is no relevant letter of 7 November 2002. The Commissioner must have intended to refer to the respondent's letter of 5 November 2002 referred to below. However, as noted earlier, the Commissioner did not rule on whether the referral was made within time or make a finding as to the relevant termination date.

33 Further, the Full Bench did not make an express finding on whether the referral was made within the time limit in s 29(2) of the Act. The appellant contends the Full Bench made an implied finding that the reference was out of time. It is necessary to refer to further factual background to put the reasons in their proper context.

34 The appellant had offered the respondent alternative positions, including that of database technician at Kundana on a day-shift basis. Although that position involved a directly comparable hourly wage rate, the package was worth about 12 per cent less than her previous position because of a reduction in working hours. The appellant provided to the respondent a letter of offer dated 29 October 2002 relating to the database position at Kundana. The offer was said to remain valid for a week and if a signed acceptance was not received within that period, it would lapse. After receipt of the letter, the respondent orally advised the appellant that she was not going to accept the offer. By letter dated 5 November 2002, the respondent wrote to the appellant in the following terms:

"As per our phone discussion today, I am writing to give notice that I will not be returning to work as planned on the 7th November due to the pay difference for the proposed position of Data Base Tech at Kundana."

35 By a letter dated 5 November 2002, the appellant wrote to the respondent setting out the background and concluded with the following:

"The option of redundancy was then discussed. As advised, a draft calculation of your entitlements under our Redundancy Policy is attached for your perusal. This has been made effective as of 7 November 2002, as advised in your letter to us of 5 November 2002.

Could you please peruse the attachment and advise your acceptance or otherwise ...".

36 The draft calculation of the respondent's entitlements referred to in the appellant's letter was before the Full Bench and relied on by the respondent in this appeal. That document shows the date of commencement of employment and a date of termination which appear to be for the purpose of calculating the redundancy figure. The date of termination is stated to be 7/11/2002. After nominating that she wanted her entitlement paid as cash, the respondent signed the calculation sheet which appears to be dated 21 November 2002. At the bottom of this calculation sheet the respondent recorded her position acceptance in the following terms:

"I have not chosen to be made redundant from the position of U/G Geo-tech. I have only 'not' accepted the positions offered upon my return from maternity leave as I did not see them as being in any way comparable with my original position."

37 The Full Bench concluded that the appellant had acted in breach of its contractual obligation in offering the respondent a position which paid her less than she was earning previously.

38 The appellant contended that the Full Bench found that the respondent's employment terminated on 5 November 2002 and relies on the following statements in the President's reasons (at [114] and [116]):

"... her advice in writing that she would not come to work and to that position was the rejection of the position determined in breach of the terms of Aurion's own contractual obligation to Ms Bilos. ... There was no resignation. Ms Bilos was entitled to reject it.

...

In my opinion, there was a serious and deliberate breach of the contract of employment and then an attempt to persuade her to take a position offered contrary to and in breach of the contract. The failure to offer a position equal in pay was a repudiation of the contract, which repudiation she accepted."

39 There is nothing in these paragraphs to support an unequivocal finding of when the respondent's employment with the appellant terminated.

"She was forced to choose retrenchment or an offer made in breach of her own contract, which contained a 12% reduction in salary. In other words, she was being forced to accept Aurion's wrongful act or dismissal."

41 I infer the President was referring to the appellant's letter dated 5 November 2002 enclosing the redundancy calculation. There is no finding as to when the respondent received that letter or signed the redundancy form and accepted the redundancy.

42 The appellant placed considerable reliance on the President's reasons in respect of waiver set out earlier. I do not interpret the conclusion on waiver as predicated on an implied finding that the respondent's employment terminated before 7 November 2002. It goes no further than indicating that the appellant had waived any right it might have to argue that the referral was lodged out of time.

43 There is no express or implied finding below as to the relevant termination date. It is not suggested that this Court can or should make a finding on that issue. In the absence of a finding, this Court cannot uphold the appellant's second ground of appeal that the Full Bench should have found that the Commission did not have jurisdiction because the referral was made out of time.

44 The appellant contended both at first instance and in the appeal to the Full Bench that the referral to the Commission was made out of time and consequently the Commission lacked jurisdiction. At no material time was the question of waiver raised by the respondent before the Commission or the Full Bench. Further, the Full Bench did not, before deciding the matter, notify the parties of its intention to rely on waiver and afford the parties the opportunity to be heard. That failure constitutes a breach by the Full Bench of the principles of natural justice which are reflected in s 26(3) of the Act which provides:

"Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information."

45 Thus, the Full Bench erred in failing to give the appellant the opportunity to be heard on waiver. Further, for the reasons already given, the Full Bench also erred in concluding that the time limit in s 29(2) was capable of being waived. Accordingly, I would uphold the first ground of appeal.

46 The respondent contends that even if a ground of appeal is made out, this Court should confirm the decision of the Full Bench because no injustice has been suffered by the appellant. Section 90(3a) materially provides:

"If any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant ... the Court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so."

47 There is merit in the respondent's contention that no injustice has been suffered by the appellant. Even if the referral was out of time (by two days at most), it is open to the Commission to accept a fresh referral by the appellant under s 29(3). It is difficult to see on what grounds the Commission would decline to accept a fresh referral to the Commission. The appellant was unable to identify any grounds which would prevent the Commission making a finding that it would be unfair not to accept the referral. If the Commission were to accept the reference, it is to be expected that, subject to giving the parties the opportunity to be heard, the Commission could by appropriate orders rely on the process, evidence and reasons in the proceedings under appeal.

48 However, there is a good reason not to confirm the decision of the Full Bench. In the absence of a finding that the referral was made within

time, the question of jurisdiction remains alive. Unless confirmation by this Court of the Full Bench decision under s 90(3a) cures any jurisdictional deficiency, the jurisdictional question could arise in a collateral way in future steps in, or connected with, the proceedings. I doubt the legislature intended this Court to have the power to confirm a decision made in proceedings which were beyond the jurisdiction of the Commission. However, as the matter was not the subject of submissions, it is inappropriate to determine the question. In any event, absence of proven jurisdiction in the circumstances of this case is a good reason not to confirm the Full Bench's decision.

49 Accordingly, I would uphold the appeal, set aside the orders made by the Full Bench and remit the matter to the Full Bench for further hearing and determination in accordance with these reasons.

50 EM HEENAN J: The jurisdiction of the Industrial Commission to deal with a claim by a former employee for relief under the Act on the grounds of alleged harsh, oppressive or unfair dismissal is found in its general jurisdiction conferred by s 23(1) of the Industrial Relations Act 1979 which states that the Commission:

"has cognizance of and authority to enquire into and deal with any industrial matter".

An "industrial matter" is defined by s 7 of the Act and this definition includes, by subpar (c):

"any matter affecting or relating or pertaining to ... the dismissal of ... any person or class of persons [in any industry]".

51 By s 23(3)(h) that jurisdiction is expressly recognised but it is directed that in the exercise of that jurisdiction in relation to a claim of harsh, oppressive or unfair dismissal the Commission shall not make any order except an order authorised by s 23A, or in the case of an application under s 44, except an order authorised by that latter section or by s 23A. This jurisdiction is assumed and the particular powers made available in the exercise of that jurisdiction are set out in s 23A of the Act.

52 It follows, therefore, that a claim for relief in respect of an industrial matter concerning a claim of harsh, oppressive or unfair dismissal may come before the Commission as a result of a Commissioner summoning a person to attend a compulsory conference (s 44); or by referral of such a matter to the Commissioner by an employer with a sufficient interest, s 29(1)(a)(i), or by an organisation referred to in s 29(1)(a)(ii), or by the

Minister under s 29(1), or, by the individual employee who alleges that he or she has been harshly, oppressively or unfairly dismissed from his or her employment (s 29(1)(b)). In all these instances the Commission has jurisdiction by virtue of the fact that the claim relates to an industrial matter under s 23(1). The extent of the relief which may be granted in respect of such an industrial matter is less extensive than the relief that may be granted in the exercise of other aspects of the Commission's jurisdiction - s 23(3), because it is confined in the manner prescribed by s 23(3)(h) for those applications made under s 44 but, in other cases dealing with harsh, oppressive or unfair dismissal the Commission may not make any order except one authorised by s 23A.

53 It follows, therefore, that the extent of relief which may be granted by the Commission in relation to an "industrial matter" concerning a claim for harsh, oppressive or unfair dismissal depends upon whether or not the claim comes before the Commission by virtue of a compulsory conference convened under s 44 or by a referral by any of the persons entitled to make a referral under s 29(1).

54 Under s 29(1), particular provisions apply to the case of a referral by one of the four categories of persons or entities entitled to make a referral, namely an employee because, in the case of such a referral, time limits are imposed as follows:

"29(2) Subject to subsection (3) a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee's employment is terminated;

(3) the Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so."

55 It has long been recognised that s 29 does not enlarge or diminish the general jurisdiction of the Commission to deal with any industrial matter as conferred by s 23(1) but is an express recognition that a claim for relief by an employee for an alleged harsh, oppressive or unfair dismissal is within the general jurisdiction of the Commission - Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20 and the IAC in Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161.

56 A question which arises in this case is whether or not an application referred by a former employee under s 29 seeking relief for alleged harsh, oppressive or unfair dismissal brought later than the 28 day time limit prescribed by s 29(2) of the Act is thereby beyond the jurisdiction of the Commission. Were such an industrial matter to be referred by an employer, by an organisation of employers or of employees, or by the Minister, such a time limit would not apply and the industrial matter would plainly be within the jurisdiction of the Commission.

57 Consequently, one way of formulating the question is to ask whether or not the jurisdiction of the Commission to deal with an industrial matter involving a claim of harsh, oppressive or unfair dismissal is more circumscribed if the claim is brought by the complainant employee than if it is referred to the Commission by any of the other three categories of persons or entities eligible to make a referral under s 29(1) or if it comes before the Commission as a result of a compulsory conference convened under s 44. As a matter of principle it would seem to be difficult to discern a reason why there should be a difference in the jurisdiction of the Commission depending upon the identity of the person referring the matter or whether the matter comes for consideration as a result of the initiative of the Commission itself under s 44.

58 This incongruity becomes apparent if one takes as the starting point the general jurisdiction of the Commission established under s 23(1) of the Act. If one commences the examination of the extent of jurisdiction by focusing on s 29 the perspective of the Commission as a whole is diminished and there can be a tendency to consider that s 29 is itself both the source and measure of the jurisdiction which the Commission has in relation to an employee's claim for relief for harsh, oppressive or unfair dismissal. Starting at this latter point leads more readily to a characterisation of the section of s 29 (and in particular subs 29(2)) as meaning that the time limit for the institution of a referral becomes an "integer" or element of the right created by the section so that right created can never be exercised unless in compliance with that condition - per Isaacs J in R v McNeil [1922] HCA 33; (1922) 31 CLR 76 at 101 and David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 per Gummow J at 277. However, the point of commencing the analysis of the significance of the time limit prescribed by s 29(2) at s 23(1) is to reveal that the jurisdiction of the Industrial Commission to deal with such an industrial matter is established elsewhere than in s 29(1) and, further, that the time limit is applicable only in the exercise of this general jurisdiction, when the referral is made to the Commission by an employee as opposed to referral by other eligible parties or as a result of an initiative by the Commission itself under s 44.

59 It is in this situation that this Court comes to examine whether or not compliance with the time limit prescribed by s 29(2) goes to the jurisdiction of the Commission to deal with an industrial matter involving a claim for harsh, oppressive or unfair dismissal brought by an employee, especially in circumstances where Parliament has recently amended s 29 because of an interpretation given to the former provision by decisions of the Commission which treated the then s 29(2) as meaning that referral within the 28 days was an essential preliminary to the exercise of the Commission's power or authority and one going to the jurisdiction of the Commission. When introducing the amendment to the Parliament the Honourable Minister said in his Second Reading Speech:

"The present 28 day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly the Commission will have ability to hear claims lodged out of time if it considers it would be unfair not to do so."

Consequently, this Court is required to consider, for the first time, whether the Act in its amended terms, on its correct interpretation, imposes the 28 day time limit as a condition which goes to the jurisdiction of the exercise of the power of the Commission.

60 I am satisfied that this time limit does not go to the jurisdiction of the Commission. There are several features of the legislation which, in my view, indicate that this is the conclusion which should be reached as a matter of interpretation.

61 First, s 29(1) does not confer jurisdiction on the Commission to grant relief in respect of an industrial matter involving a claim for harsh, oppressive or unfair dismissal. It does no more than identify the parties who may refer such an industrial matter to the Commission and, in respect of one of the four categories of parties, establishes a time limit for the making of such a referral subject to extension at the discretion of the Commission - compare the analysis of s 459P of the Corporations Law by Dawson J in Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 at 125.

62 Second, the express power of the Commission to accept a referral by an employee out of time, unless the Commission considers that it would be unfair not to do so, granted by s 29(3), means that the Commission has power to deal with such a late application at its discretion with reference to the criterion of unfairness, so that if the appellant's argument were correct, the jurisdiction of the Commission could expand or contract according to the discretionary exercise of this power - a situation which, in my view is inconsistent with prescribed and objective jurisdictional limits specified elsewhere by the Act. Third, the incongruity between a provision relating to time which applies only to one of the four categories of persons or bodies who may refer an industrial matter involving an allegation of harsh, oppressive or unfair dismissal to the Commission, when the Commission undoubtedly has jurisdiction to deal with such an industrial matter brought before it by any of the other permissible procedures, strongly suggests that the Commission has jurisdiction over such an industrial matter however and whenever it comes before it but that there is a time limit which must be observed, as a matter of procedure, when such a matter is referred by the aggrieved employee, subject to the discretionary power to accept such a referral out of time.

63 It is, of course, undoubted that the existence of a so-called jurisdictional fact is essential for the ability of a court or tribunal of limited jurisdiction to exercise its powers but, for very good reason, there is a disposition by courts not to treat matters or facts as being jurisdictional unless the intention of Parliament to ascribe that characteristic to them is clearly expressed - see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 per Dixon J at 391 which dealt expressly with the significance of a statutory time limit for the institution of proceedings.

64 Furthermore, the ability of the Commission to decline to accept late referrals under s 29(3) in the exercise of its discretion means that Parliament has granted to the Commission the ability and the responsibility, acting in the public interest, to ensure that justice is done in any particular case by accepting a late application in its discretion unless it would be unfair not to do so, while still controlling its own procedures and preventing a flood of late claims through judicious, but discriminating, enforcement of the time limit. The ability of the Commission to control its own affairs in this manner so as to avoid injustice and inconvenience is also strongly indicative of a procedural or non-jurisdictional, characterisation of the time limit and that is the presumption which, in ordinary circumstances, will generally apply: Yong Jung Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 (FCA) and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 per Brennan CJ, Dawson, Toohey and Gummow JJ at 635.

65 As I consider that the Commission had the jurisdiction to hear and determine this referral by the respondent, notwithstanding that it may have been a late referral I consider that the appellant's ground of appeal (2(a)) challenging the jurisdiction of the Commission under s 90(1)(a) of the Act must be dismissed.

66 There was no express finding by the learned Commissioner who originally dealt with this application that the referral was late. Gregor C dealt with the matter by dismissing the application on the ground that the appellant had resigned from her employment so that there had never been a dismissal. Had this not occurred it would have been necessary for the learned Commissioner to deal with the question of when the alleged dismissal took place and, as McLure J has pointed out, Gregor C appears to have been disposed to treat the termination of employment as occurring as a resignation by the despatch, or perhaps the receipt, of the appellant's letter of 5 November 2002. However, there was other evidence indicating that the termination of employment was treated by both parties as taking effect upon 7 November 2002. If the latter date was the date of termination then the referral to the Commission was within the 28 day time limit prescribed by s 29(2) and no question of the exercise of the discretion to accept a late referral by the Commission under s 29(3) arose.

67 It is not entirely clear from the reasons for decision of the Full Bench when the harsh, oppressive or unfair dismissal which it found to have occurred actually took place. In his reasons for decision, the learned President his Honour Judge Sharkey, concluded that the despatch or receipt of the letter of 5 November 2002 did not constitute a resignation but rather was a statement by the respondent that she would not accept an offer of alternative employment which the appellant, in breach of contract, was requiring her to accept. This led to a termination of the respondent's right to work for the appellant, which she accepted, thus effecting, in the determination of the Full Bench, a harsh, oppressive or unfair dismissal. All the documentary evidence was to the effect that the termination of employment took effect on 7 November 2002 but there was no express finding by the Full Bench to that effect.

68 Despite the absence of any finding in the Commission as to the date upon which the respondent's employment was terminated, the appellant's list of the respondent's financial entitlements expressly shows the date of termination as 7 November 2002. There being no other evidence before the Commission about the date of termination, I consider that there is a very strong implication that the Full Bench treated the termination as having taken effect on that date. As already stated, in that case, the referral under s 29(1) was within the 28 day time limit.

69 However, the learned President went on to address the appellant's submission that there was a late referral under s 29(1) at [123] of his Honour's reasons and observed that the appellant had waived any right to oppose the matter being heard out of time. Objection is taken on this appeal that there was no such waiver and that, in any event, there has been a denial of natural justice because none of the parties, and in particular, the appellant was heard in the Full Bench on the issue of waiver, as should have occurred for the appellant to have received natural justice and for the Full Bench to have complied with the obligations cast upon it by s 26(3) of the Act.

70 There is no doubt that if the issue of waiver was material to the determination of the Full Bench notice of that issue should have been given to parties and each of them allowed an opportunity of being heard in relation to that particular issue. This was not done and there was, therefore, a breach of the requirements of natural justice which could lead to this ground of appeal being upheld. However, having regard to the implicit finding by the Full Bench that the termination of employment occurred on 7 November 2002 and to my conclusion that non-compliance with the 28 day time limit prescribed by s 29(2) does not go to the jurisdiction of the Commission it becomes necessary to consider whether or not this Court should confirm the decision of the Full Bench which is the subject of this appeal if it is satisfied that no injustice has been suffered by the appellant - s 90(3a).

71 It is not for this Court to make any findings of fact. Consequently, if there is any doubt that the termination of the respondent's employment by the appellant took place on 7 November 2002 it will be necessary for the Commission, and not this Court, to make a finding as to when that termination did occur or when it probably occurred. If the finding is that the termination occurred on or after 7 February 2002 then no question about a late referral by the respondent of this industrial matter to the Commission under s 29(1)(b) will arise, nor will there be any need for the Commission to consider whether or not it should accept a referral out of time pursuant to its powers under s 29(3). On the other hand, if the Commission were to find that the termination of employment occurred or probably occurred before 7 November 2002 and so the referral to the Commission by the respondent was late, it will be necessary for the Commission to consider whether or not it should accept the late referral in the exercise of its powers under s 29(3). Because, in my view, compliance with that time limit does not go to jurisdiction there is no reason why such an application to accept a referral out of time could not be dealt with if it were to be made by the respondent in the present proceedings and, if allowed, have retrospective effect - Emanuele v Australian Securities Commission (supra). Furthermore, this would seem to be the preferable course consistently with the imperative directed by s 26(1)(a).

72 Whichever way one looks at the position, however, if the original referral by the respondent was late there must be some possibility that, in the exercise of its discretion, the Commission might refuse to accept it. A decision to accept or reject a late application could only be made by the Commission. While the indications are very strong that, in the present case, the circumstances favour the acceptance of a late referral (if there was one) I do not consider that this Court can be satisfied that no injustice has been suffered by the appellant, within the meaning of s 90(3a) without, in effect, determining a question of whether or not the putative late referral should be accepted.

73 In these circumstances, I consider that because there has been no clear finding by the Full Bench as to when this termination of employment occurred it is necessary to allow the appeal, to set aside the decision of the Full Bench but then to remit the matter to the Full Bench under s 90(3) in order for the Full Bench to determine when the termination of employment took effect and, if necessary, either itself, or by remission of the case to the Commission under s 49(5)(c) to determine whether any late referral by the respondent under s 29(1), if that in fact occurred, should nevertheless be accepted pursuant to the powers of the Commission under s 29(3).

• Background
• Construction of s 29(2) and Consequences of Failure to Comply
• Whether Referral Made in Time
• Waiver and Natural Justice
• Disposition of the Appeal