Barataud v Chipperfield

APPELLANT PARTIES: Shane Dowling RESPONDENT Cardcall Pty Ltd

Appeal - application for leave to appeal - application to extend time to appeal - unfair dismissal - applicant's misconduct - unfair dismissal application dismissed - ex tempore decision of Commissioner at first instance - reasons for delay in bringing appeal - lack of financial resources - lack of legal knowledge - delay in receipt of written copy of decision - stress and mental exhaustion - allegations of breaches of Occupational Health and Safety Act - errors of Commissioner at first instance - improper procedures - allegations of contempt, bribery, improper conduct and dishonesty - public interest - prospects of success - requirements of justice - principles considered. CATCHWORDS: Held, no evidence of lack of financial resources, lack of legal knowledge, stress or mental exhaustion - delay in receipt of written copy of decision irrelevant - further delay of 46 days - length of delay significant - no evidence to support wild and scandalous accusations - little likelihood appeal would succeed - Commissioner's decision open on the evidence - doubt whether leave to appeal would be granted - no injustice to the parties - application to extend time to appeal refused - application dismissed.

LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Barataud v Chipperfield [2006] NSWIRComm 131 CASES CITED: Bon McArthur Transport Pty Ltd t/as McArthur Express and Hanbury Investments Pty Ltd [2004] NSWIRComm 55 Cavacuitti and Anor v Toyota Motor Corporation Ltd [2002] NSWIRComm 341 Knowles v Anglican Church No 2 (1999) 95 IR 380

APPELLANT Mr S Dowling in person, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr T Bors of counsel instructed by Hassett Dixon Solicitors and Attorneys

• 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No IRC06/2029 Shane Dowling and Cardcall Pty Ltd Application by Shane Dowling to extend time to appeal and leave to appeal against a decision of Commissioner Cambridge given on 1.2.2006 in matter no. IRC2586 of 2005

1 This decision arises from an application, pursuant to s189(1) of the Industrial Relations Act 1996 ('the Act') filed by Shane Dowling ('the appellant') seeking an extension of time in which to appeal a decision of Cambridge C, given ex tempore on 1 February 2006 in matter IRC2586 of 2005. On 28 March 2006, the appellant filed an application for leave to appeal and appeal, pursuant to ss 187 and 188 of the Act together with the application for an extension of time. This later application came before me for hearing on 7 April 2006 with the appellant representing himself and Mr T Bors of counsel appearing for the respondent, Cardcall Pty Ltd. 2 Section 189(1) is expressed as follows:

An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.

3 It is to be observed that the appeal was lodged 55 days after the Commissioner's decision. However, one element of the appellant's complaint was that he did not receive a copy of the decision until 10 February 2006. I note that the appellant was present when the Commissioner delivered his decision on 1 February and which was recorded in the transcript as follows: The unfair dismissal claim. The applicant was dismissed on 16 May 2005 because contrary to clear instruction from the employer, he sent an e-mail to a large number of the employer's customers, the effect of which was unequivocally harmful to the employer's business interests. Although the applicant had some reasonable basis for complaint about an occupational health and safety issue, this complaint did not entitle the applicant to deliberately damage the employer's business by circulation of the offending e-mail. The applicant had knowledge of and access to other proper channels for raising occupational health and safety concerns. Indeed the employer invited the applicant to pursue his occupational health and safety complaint with the relevant government authorities. The statement and interim orders of this Commission as issued in this matter on 25 August 2005 would have been unnecessary had the applicant devoted his energies to constructing a documentary report to inter alia WorkCover New South Wales, rather than the e-mail that he understood would precipitate his dismissal. The actions of the applicant in sending the e-mail to customers represented an act of gross misconduct which in the circumstances of this case, cannot be justified by any associated legitimate occupational health and safety complaint. Rather than protect the health and safety of others, the applicant's actions only served to deflect attention away from the elevated concentrations of solvents in the promotional flags and focus upon his misconduct instead. The simple, logical alternative would have been to have made a documentary report to the appropriate agencies so as to hasten a comprehensive analysis of the solvent and flag issue. Consequently, the Commission finds that the applicant deliberately engaged in serious misconduct aimed at damaging the employer's business. Therefore dismissal of the applicant was not harsh, unjust or unreasonable. The dismissal of the applicant was for proper substantive reasons and without significant procedural defect that would provide any basis for the Commission to disturb the employer's decision to dismiss the applicant. Therefore the applicant's claim has not been made out.

Consequently, the matter is dismissed and the proceedings are accordingly adjourned. 4 In addition to the complaint about not receiving a copy of the Commissioner's decision until 10 February, the appellant gave three other reasons why he could not file his appeal within time:

3. Stress and mental exhaustion. 5 Although I agree with Mr Bors that there was little or no evidence to support these reasons, it would appear that the appellant regarded his dismissal as being unfair, in that he claims to have been "sacked for warning people of a health and safety danger". This danger was said to be elevated concentrations of solvents in plastic promotional flags issued by the respondent. In these circumstances, he put that there were clear public interest considerations in the extension of time being granted in order that his appeal might be determined. SUBMISSIONS

6 The appellant, in representing himself, referred to an earlier statement and interim orders of the Commissioner on 25 August 2005 in which it was said: 11] It was therefore disconcerting to discover during evidence provided on 18 August from CardCall managers, that no advice had been issued to CardCall employees and/or customers about the potential hazards that may be presented by elevated concentrations of solvents in the plastic promotional flags. At very least, in such circumstances, an employer should have provided its employees with information about the issue of elevated concentrations of solvents in the flags and implemented further investigation into the safe handling protocol for flags that have elevated concentrations of solvents such as Cyclohexanone and Isophorone. 12] Consequently the Commission has decided to Order that CardCall take all reasonable action to properly address the health and safety concern presented by elevated concentrations of solvents in plastic promotional flags. The making of such Orders is in no way determinative or indicative of the primary determination of this unfair dismissal claim. These Orders are of an interim nature and in no way whatsoever determine the substantive question regarding the alleged unfair dismissal of the applicant. ORDERS

1. The Commission Orders, pursuant to sections 89(8) and 162(2)(i) of the Industrial Relations Act 1996 [NSW], that CardCall take all reasonable action to properly address the health and safety concern presented by elevated concentrations of solvents in plastic promotional flags used and distributed by CardCall. Such action shall include but not be limited to;

(a) notification to Workcover New South Wales with formal documentary request for assistance in further scientific testing of plastic promotional flags aimed at establishing appropriate safe handling protocols, and, (b) written communication to all employees and customers who may be likely to handle plastic promotional flags advising of concerns regarding elevated concentrations of solvents in plastic promotional flags and suggesting that until conclusive safe handling protocols are established care should be exercised with the handling of the flags. In particular, the care that should be exercised with handling the flags may include the use of protective rubber gloves and/or thorough washing of hands after contact. Additionally, all persons handling the flags should avoid inhalation of fumes emitted from the flags and generally flags should only be handled in well ventilated situations. 2. The Commission Orders, pursuant to sections 89(8) and 162(2)(i) of the Industrial Relations Act 1996 [NSW], that CardCall implement the terms of paragraphs (a) and (b) of Order 1 above within 7 days after this Statement and Orders are issued and published. 7 The appellant put that the Commissioner had no option other than to make these orders, as he would be in "big trouble" if he didn't do something. The appellant said that the respondent had never handed the flags over to WorkCover and this constituted "contempt of court". Further, the respondent had never advised staff of the dangers of the flags. 8 The appellant insisted that the Commissioner had erred in two significant respects. Firstly, the Commissioner had said that he (the appellant) should have handed over all his evidence to WorkCover which he had in fact done 3 and a half months earlier. Secondly, the Commissioner had said it was not for the appellant to take responsibility for taking action in respect to the offending flags. 9 The appellant also submitted that the Commissioner gave the respondent "a lot of latitude" during the proceedings. He said the respondent had not filed a notice of appearance, or an employer's reply to the application and had filed its witness statements four days late. Further, the appellant claimed the proceedings were "severely tainted" in that a witness took instructions from another witness. In addition, the respondent's solicitor had phoned him directly, even though he knew he was legally represented at the time. The appellant further claimed that the respondent's witnesses, including the solicitor, had committed perjury during the proceedings before the Commissioner. 10 The appellant put that as he had been dismissed for warning other employees and retailers of a health and safety danger, the respondent was in clear breach of the Occupational Health and Safety Act for obstructing him in warning others of the danger posed by the flags. Notwithstanding that the Queensland Health Service had performed some testing on the flags, the appellant claimed that this had been a "dodgy" test. WorkCover had failed to act and the respondent had failed to act to comply with the Commissioner's interim orders. He believed that this matter was a "huge issue" affecting "hundreds of thousands" of people. 11 The appellant made numerous other complaints about WorkCover and its officers. He alleged it had failed to act over the issue and had told lies about him. For the respondent 12 Mr Bors identified the tests to be applied in this application for an extension of time to be granted. Firstly, an extension of time is not automatic and there must be proof of an injustice if the extension is not granted. The prospects of the success of the appeal is also a factor. Mr Bors observed that the appellant raised four reasons why an extension of time should be granted. 13 Firstly, lack of financial resources - Mr Bors said there was no evidence of the appellant's lack of financial resources and at all material times he had appeared unrepresented. 14 Secondly, lack of legal knowledge - Mr Bors observed that the appellant had demonstrated throughout these proceedings that he has the ability to research the law and understand Court procedure. There was no explanation why he hadn't been able to lodge his appeal within 21 days. 15 Thirdly, the appellant did not receive a copy of the decision until 10 February - Mr Bors said that this reason was moot as the appellant was sitting in court when the Commissioner delivered his ex tempore decision and knew exactly the outcome. 16 Fourthly, the appellant claimed stress and mental exhaustion - Mr Bors emphasised there was absolutely no evidence at all to support these claims. 17 Mr Bors submitted that the appellant had been given every opportunity to raise all the issues he wished to raise before the Commissioner. He had even sought to admit further evidence in respect to WorkCover's investigation of the matter. WorkCover had said it was not intending to take the matter any further, as there was no reason to. The appellant had claimed that this was so because WorkCover had been bribed by the respondent. 18 As to the appellant's prospects of success, Mr Bors put that the appellant had claimed that virtually every person who had been associated with this matter had either acted improperly or dishonestly. This extended to the lay witnesses, the expert witnesses, the respondent's solicitor, himself and the Commissioner. There was simply no basis for these accusations and an extension of time would be futile. CONSIDERATION

19 The principles and the authorities which have dealt with applications to extend time to appeal are usefully set out in Cavacuitti and Anor v Toyota Motor Corporation Ltd [2002] NSWIRComm 341: 40 The principles to be applied to an application to extend time to appeal are set out in WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298, a judgment which I applied in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. It has also been considered and applied by Wright J, President, in Tadic v Beslic [2001] NSWIRComm 107; NSW Teachers' Federation v NSW Office of The Board of Studies [2000] NSWIRComm 1; LEP International Pty Ltd v Caine (2000) 97 IR 35 and De Luxe Cab Company Ltd (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Ltd) v Grenside (1999) 92 IR 384. 41 In WorkCover Authority of NSW (Inspector Salmon) v Parkes Council the Full Bench of this Court summarised the relevant principles (at 299-301) as follows: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. (2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195. (3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. (4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201. (5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935. (6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) … We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6): "The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it." 42 In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated: Brady v Kennedy t/as "Sardines" (at 264). 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy t/as "Sardines" (at 264); Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601); whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [50]); whether the delay was due to an error or mistake by a legal advisor (see Brady v Kennedy t/as "Sardines" (at 269) and Skelly v Prouds Jewellers (at 6) and the prospects of the appellant succeeding in the appeal (see WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 299). However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): "The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it." 43 Accordingly, whilst I shall consider the principles agreed to by the parties and referred to earlier in the decision, in determining the application to extend time I shall ultimately be governed by the requirements of justice in this particular case.

See also Bon McArthur Transport Pty Ltd t/as McArthur Express and Hanbury Investments [2004] NSWIRComm 55 and more recently Barataud v Chipperfield [2006] NSWIRComm 131.

20 As mentioned earlier, the appellant identified four reasons why the Commission should grant an extension of time for him to appeal Commissioner Cambridge's decision. I shall deal with each reason in turn and then consider the appellant's prospects of success with his appeal. 21 Lack of financial resources

The appellant produced no evidence to substantiate this claim. Even so, the appellant in both the proceedings below, and in these proceedings, was unrepresented. It could not be suggested that the litigation he has embarked upon has caused him any significant legal expenses. In any event, it is difficult to understand how a lack of financial resources would constrain or hinder an appellant from filing an appeal within the prescribed time. 22 Lack of legal knowledge

In my opinion, the appellant demonstrated that he has the capacity, will and opportunity to investigate his legal rights, initiate litigation and conduct his case as he considers appropriate. In the proceedings before the Commissioner, and indeed before me, the appellant demonstrated a single minded approach to defending his claims and putting arguments in support of them. He relied on various sections of the Occupational Health and Safety Act, the Industrial Relations Act and the Commission's Rules and cited relevant authorities. There can be no basis for him to claim a lack of legal knowledge, having regard for his conduct to date and the fact that he apparently does not seek to be legally represented at any future proceedings. 23 The appellant did not receive a copy of the Commissioner's decision until 10 February

There can be no doubt that the appellant knew precisely the outcome of his claim when the Commissioner gave his ex tempore decision on 1 February 2006. The appellant was in court at the time and would have been under no illusion as to what had occurred. The Commissioner's language is plain and unequivocal. 24 A written version of the decision would not have materially affected his capacity to have filed his appeal within time. In any event, the appellant waited a further 46 days after 10 February to file his appeal. There was simply no explanation for this ongoing delay. 25 Stress and mental exhaustion

There was no medical evidence, or any evidence at all, of this claim. Moreover, the appellant's demeanor and behaviour during the proceedings before me, indicated no outward signs of a person suffering from stress or mental exhaustion. Rather, the reverse; he was confident, forthright and enthusiastic. This claim is rejected. 26 Prospects of success I am satisfied that the appellant is a well-intentioned and highly motivated individual. However, his campaign against the alleged health and safety danger he identified during his employment has become obsessive, relentless and extreme. 27 He accused almost everyone and every Government agency involved in the matter of impropriety, dishonesty or corrupt conduct; even accusing WorkCover of accepting a bribe from the respondent to cover up the alleged health and safety danger. There was not a shred of evidence to substantiate his wild, and sometimes scandalous accusations. To allow the appellant a further forum to continue this conduct would, to my mind, constitute an injustice to the respondent and may well amount to an abuse of process. 28 Notwithstanding that the appellant identified four reasons why his appeal should be granted an extension of time, an examination of the transcript and his affidavit in support of the application reveals very little attention was paid to substantiating these reasons. Rather, he concentrated almost entirely on the alleged merits of his appeal and the alleged shortcomings or improper conduct of the respondent's legal representatives, the Commissioner and other persons and Government agencies. 29 I have seriously considered the likelihood of the appellant's appeal succeeding based on little more than wild and unsubstantiated allegations. It must surely be said that his prospects of success are very remote indeed. Moreover, the Commissioner's decision addressed squarely the reason for the appellant's dismissal and there would appear to be little dispute that he was dismissed with warnings that his conduct (not denied) would not be tolerated. Thus, in my opinion, the Commissioner's decision was reasonably open to him, on the uncontested evidence as to the appellant's misconduct. 30 Further, in my view, the Commissioner's decision was a straightforward exercise of discretion that the appellant's misconduct did not amount to a dismissal which was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act. Viewed in this way, I have real doubts as to whether the appeal raises substantial or important considerations or has wider implications for the Commission's unfair dismissal jurisdiction, such as to attract the necessary grant of leave to appeal. See Knowles v Anglican Church No 2 (1999) 95 IR 380. 31 For the aforementioned reasons, I am satisfied that the appellant has provided no reasonable explanation for filing his appeal outside the 21 day time limit and that my refusal to extend the time to appeal would not constitute an injustice to the parties. 32 Accordingly, I order that the application by Shane Dowling for an extension of time for leave to appeal and appeal in matter IRC2029 of 2006 be refused. The application is dismissed.

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