it was listed on 8 June. Again one would have thought alarm bells would have gone off in the applicant's mind when she read that the application had clearly been filed out-of-time as the question at 33 on whether the application had been filed out of time had the "yes" box marked and a reason for out-of-time filing (moving to New Zealand) was given. If she was e-mailed the application she clearly would not have seen the Registry stamp of the filing date. However, she should have been aware at that time that the application was filed out of time, yet made no attempt to contact her Solicitor to query this. She indicated in her affidavit that she was aware of the 21 day time limit yet maintained she was not told about the claim being out-of-time until 24 June when Mr Manning rang her and also told her she'd need to provide an affidavit as the matter was going to a hearing.
129 This clearly does not accord with Mr Manning's evidence that he phoned her about this on 8 June straight after the proceedings. I find it beyond belief that Ms Green did not refer to his phone call on that date in an affidavit she swore on 29 June. The hearing of 8 August as actually set on 8 June at the conclusion of the conciliation proceedings - this information does not appear to have been conveyed to her even on Mr Manning's evidence - he said he told her it would have to go to a hearing. The actual evidence of the applicant on this issue would have been particularly important, as would her evidence about the issues of the e-mails and facsimiles, yet no reference at all is made of any of that in her affidavit.
130 Clearly Mr Manning, in discussing her affidavit evidence, did not properly advise her of her need to establish what she had done to ensure her claim was prosecuted.
131 She did indeed give clear instruction on 5 March to commence a claim and was aware the first step was the sending of a letter to the respondent. She was aware on 19 March that the respondent had responded rejecting the settlement offer and that the claim would therefore have to proceed. If a s she says she was aware of the 21 day limit she would have known that at 19 March (a Friday) that the claim would have had to have been lodged by the following Wednesday, 24 March.
132 Whilst she makes two subsequent queries about how her claim is going, the lack of positive response and the request for further information as said earlier should have started the alarm bells ringing.
133 There is clear apathy and lack of diligence on the part of the applicant in pursuing her claim. Whilst her absence on 8 June could possibly have been excused on the basis that she had re-located to New Zealand and commenced a new job her failure to be present at the hearing of her out-of-time claim cannot so readily be excused. The time and costs of flights to New Zealand compare favourably with similar flights to Hobart or Adelaide or to a slightly lesser extent Brisbane. Both Mr Broadbent and the Company representative flew down from Brisbane for both the Conciliation proceedings and the hearing on 5 August. Ms Green was employed in a senior position in a well paying job in New Zealand, her position was hardly that of say a low paid wages employee who had had to move interstate to find work and could not afford to make the trip to Sydney.
134 I also have to say that the case run by her Solicitors was also less than she had a right to expect. Mr Manning's affidavit had an extremely obvious but incorrect date that was corrected in oral evidence. He had also in fact left blank the date in June when he rang her - this also was supplied in oral evidence.
135 It was also abundantly apparent that he had not taken the time to thoroughly go through her file, put documents in order or consider the implications of the various documents and their timing. The Commission had to point out to him that the website print out he placed reliance on for Rosa Calandra being aware the application had to be filed by 24 March (and therefore her fault for not doing so) was not actually printed out until 14 April. That was obvious on a first glance at the document by the Commission.
136 The inconsistencies between Mr Manning's affidavit and Ms Green's are significant. There was also a failure to have Rosa Calandra present for cross-examination and therefore her witness statement was excluded. Whilst he said she was available, as it became clear representative error was accepted by both parties, her evidence became less significant overall.
137 It is abundantly clear from the evidence that representative error exists in relation to the filing of the claim outside the 21 day limit.
138 Sams D.P. in Kent Gorrell v Uwatec Pty Ltd (unreported) 5 July 1999 IRC1700/99 cites the relevant cases on this issue. Martin v The Nominal Defendant Walsh J. 1957 W.N. at 123; D.S. Williams & Safeway - Bairnsdale AIRC Dec.587/97 M Print P1433; D Clark v Ringwood Private Hospital AIRC Dec 1159/97 S OPrint P5279 & Sebastian v Roads & Traffic Authority 1995 62 IR 190.
139 Sams D.P. re-affirmed the findings he had made in Uwatec in Bimalananda Maity v Express Publications Pty Ltd (2001) NSW IR Comm 169.
140 Similarly applying the principles enunciated in those cases I find that there was clearly representative error on the part of the applicant's legal representative.
141 However in Uwatec Sams D.P. was examining the conduct of the applicant and found that the failure to file within time rested on the applicant for the reasons outlined. He also made the following relevant observations at page 17 in relation to the hardship visited on the applicant if the claim were not allowed.
"There is no doubt that every dismissal of employment bring with it some degree of hardship, either person, emotional or financial. The applicant is not "Robinson Crusoe" in this respect. In my view, s.85(3)(b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing varying degrees of hardship, nevertheless, are able to file within time (see Thomas v Repco Auto Tech)."
142 The applicant gained a well-paid job in her field of expertise when she moved to New Zealand in early April some one month after her termination and indeed before the application was filed.
143 Mr Broadbent makes a valid point that even if the applicant were ultimately successful on the merits any order as to compensation would have to take into account her length of service of some 10½ months, the short period out of work and that she had gained alternate employment albeit at a lesser rate (even given the NZ/Aust exchange rate). Even taking the case at its highest merits she could not have realistic expectations anywhere near the six months claimed.
144 There was no conduct on the part of the respondent that in anyway contributed to the delay. There was a prompt letter of termination in clear terms. There was a prompt and unequivocal response to Mr Manning's letter of 8 March.
145 Whilst I am able to find without difficulty that there was clear representative error in causing the out-of-time application applying Uwatec I have had some difficulty in assessing the applicant's role in the issue and whether she has discharged her responsibilities not only in pursuing her claim but in discharging the necessary burden of proof for the Commission to exercise its discretion.
146 That difficulty clearly arises from the evidence, both the conflicting evidence on the one hand and a lack of certain clear evidence on the other. Whilst there is evidence of contact from her enquiring as to her claim that does not come until after the 21 day limit is reached and the absence of any response does not result in any action on her part to ensure her claim has in fact been filed. When there is a response the nature of that response should have alerted her to the problem. She should also have been aware that her application had been filed out of time and the reasons given when she received a copy by e-mail. One wonders if she even bothered to read it. If she had she would surely have contacted her solicitors straight away to discuss that issue.
147 I am also concerned at the applicant's nonchalance in not appearing for the hearing and in not giving a more detailed affidavit. She had the option made available of subsequently either appearing in person on a further date or giving evidence by Video Conferencing. She took up neither option. Instead she has chosen to rely on the evidence filed and accepted.
148 Based on that evidence I am not satisfied that the applicant did take all steps necessary to ensure her claim was filed within the 21 days. She was clearly a person of intelligence, knowledge and experience who should have done more if she was genuinely interested in pursuing a claim against the respondent. She failed to do that.
149 I therefore decline to exercise my discretion pursuant to S.85(3). The application is therefore dismissed.