Bonaccorso v General Forest Tree Surgeons

AWARD: Local Government (State) Award 330 IG 744

HEARING DATES: 11/25/2003; 03/04/2004 DATE OF JUDGMENT: 05/26/2004

APPLICANT Ms N Alameddine, Agent Employment Help Services LEGAL REPRESENTATIVES: RESPONDENT Mr B Swebeck Swebeck Legal

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 26 May 2004 Matter No IRC03/5096 Sam Zerafa and Fairfield City Council Application by Sam Zerafa re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm

1 Mr Sam Zerafa ('the applicant') claimed that he was forced to resign from his position as a garbage collector for Fairfield City Council ('the respondent') on 17 July 2003. The applicant had worked for the respondent for nineteen years and resigned in circumstances surrounding an investigation of a number of Council's employees, concerning the misuse of fuel cards and unauthorised garbage collection. I note that following the investigation, at least three other employees resigned around the same time as the applicant.

2 The applicant was employed under the terms and conditions of the Local Government (State) Award 330 IG 744 and a locally negotiated enterprise agreement. At the time of his resignation, and for a short time thereafter, he was represented by his Union - the United Services Union.

3 The applicant claimed that he became frustrated with the Union, in that he believed that an unfair dismissal claim should have been lodged on his behalf. He said the Union did not do so and he was being "mucked around" by officers of the Union. He said that, for some time, he was not informed of the Union's decision not to represent him. As a result the applicant had contacted an agent, Employment Help Services ('EHS') and instructed it to lodge his claim, pursuant to s84 of the Industrial Relations Act 1996 ('the Act'). The application was eventually filed on 11 September 2003. The date of the applicant's first contact with EHS became the subject of argument in the proceedings, particularly in the context of the application having been filed outside the 21 day time limit prescribed by s85(1) of the Act. I shall return to this matter later.

4 It is to be observed that the s84 application was lodged 56 days after the applicant's resignation, thereby placing it 35 days outside the statutory 21 day time limit. For the claim to proceed to determination requires the Commission to exercise its discretion, pursuant to s85(3) of the Act such as to accept the application outside the prescribed legislative time limit.

5 By consent of the parties this decision deals only with this interlocutory matter. It is to be noted however, that the circumstances surrounding the applicant's resignation and his complaints against the Union were said to be the reasons for his failure to file the application within 21 days.

6 For the purposes of this decision however, it is not strictly necessary to make findings as to whether the applicant was forced to resign (constructively dismissed) or to make findings as to the applicant's alleged misconduct. That being said, a consideration arises as to whether, as a matter of discretion, pursuant to s85(3) of the Act, a conclusion can be made as to the applicant's prospects of success with his substantive claim. See Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139. I intend to do so later in this decision.

7 The present application was first listed before the Commission for conciliation and directions on 8 October 2003. Following unsuccessful conciliation conferences, I formed the view that the claim could not be settled (s87 of the Act) and listed the matter for interlocutory hearing. Affidavit evidence was filed by the applicant and Mr Ross Smith, Manager of Waste Services, Fairfield City Council. Two short statements in support of the applicant's case were tendered from Mr Bobby Dunn (a fellow employee) and Mr Tommy Brown (Union delegate). The respondent summonsed three Union officials to give evidence - Mr Alan Dickson, Organiser; Ms Maria Wilson, Industrial Officer and Mr James Stubbs, Metropolitan Manager. During Mr Stubbs' evidence, the Commission directed that Mr Jake Boghossian from EHS file an affidavit as to his knowledge of the matter; in particular when the applicant had first contacted him.

8 The applicant's letter of resignation was expressed as follows: 17.7.03 TO WHOM IT MAY CONCERN I Sam Zerafa hereby wish to resign from Fairfield City Council as from Thursday 17.7.03. It is with great regret that I do this and here by wish to thank Council for there (sic) support over the years I have been here. signed SAMMY ZERAFA

9 The applicant claimed he was forced to resign and had told Mr Smith he did so because of the pressure of the allegations made against him. The applicant deposed to the following sequence of events after his resignation.

18 July - The applicant contacted the Union delegate (Mr Brown) and said he wanted to pursue an unfair dismissal claim. A work colleague (Mr Dunn) told him to contact the Union solicitor. The applicant attempted to contact Maria Wilson, but was unsuccessful. 19 & 20 July - The applicant spoke to Mr Dunn about how to deal with the matter. 22 July - The applicant attempted to call Maria Wilson, but was told she was not in. The applicant spoke to Mr Dickson who told him that the Union needed the minutes of the disciplinary meeting before lodging a claim. Mr Dickson informed the applicant he had 21 days to lodge a claim and he should call Mr Smith (at the Council) to obtain the minutes. The applicant called Mr Smith, who promised to post him the minutes. 25 July - When he had not received the minutes, the applicant inquired again of Mr Smith. The applicant called Mr Dickson again, who told him to let him know when he received the minutes. 29 July - The minutes were received (post dated the same day) and the applicant phoned Mr Dickson and told him he would leave the document with Mr Brown at the Council depot. 1 August - The applicant phoned Mr Dickson, who confirmed he had the minutes and that he would commence the unfair dismissal claim. 5 August - The applicant phoned Mr Dickson, who told him that the Union did not think he had a good case because he had resigned. The applicant said he told Mr Dickson he wanted the claim to be lodged anyway. 6 August - The applicant phoned Ms Wilson and explained his case. He said she told him he had a good case in that he was pressured to resign. Ms Wilson told the applicant to contact Mr Stubbs. 7 August - The applicant called Mr Stubbs who indicated he would speak to Mr Dickson. 8 August - Mr Stubbs informed the applicant that the Union would not take his case. He asked Mr Stubbs to see if the Union would reconsider. The applicant phoned Mr Dunn to " whinge " about being mucked around by the Union. Mr Dunn told him to get his own solicitor. The applicant also spoke to Ms Wilson who became angry and told him to contact Mr Dickson or Mr Stubbs. The applicant spoke to Mr Dunn about Ms Wilson's conduct. 11 August - The applicant said he called both Mr Stubbs and Mr Dickson, but he could not recall the details of either conversation. 3 September - The applicant rang EHS. 13, 14, 17, 19 August & 5 September - The applicant said he spoke to the union delegate " Mario " about his claim and was advised to see a lawyer. 6 September - The applicant met with Mr J Boghossian from EHS.

10 Attached to the applicant's affidavit were various phone records which identified the calls he made to the Union officials, Union delegates and EHS.

11 In his statement, Mr Tom Brown said that he gave Mr Dickson the minutes of the disciplinary meeting and requested the Union launch an unfair dismissal claim.

12 Mr Bob Dunn's statement was that he had spoken on many occasions to the applicant who had become increasingly frustrated with the Union. Mr Dunn had told him to see his own solicitor.

13 It was the applicant's evidence that he spoke to EHS twice in the week before 6 September and attended their office on Saturday, 6 September. When asked what he had done between 8 August (when Mr Dunn told him to get a solicitor) and 6 September, he said he was waiting around to see what was going to happen. He claimed to have made numerous calls to the Union. However, he agreed his last contact with Mr Dickson was on 11 August.

14 The applicant denied Mr Smith's version of the conversation with him on 17 July. He denied asking for a reference and claimed he told Mr Smith he was forced to resign. In oral evidence, the applicant confirmed that he had received payment for untaken sick leave when he resigned.

15 The applicant was asked why he told Mr Dunn on 18 July (one day after he resigned), that he wasn't getting the service (from the Union) he required. He agreed that he had not spoken to anyone from the Union at this stage. He conceded that he didn't know who was meant to call him on 19 and 20 July when he complained to Mr Dunn that no one from the Union was calling him. He agreed that, at this time, he had spoken to no one from the Union.

16 The applicant denied that Mr Dickson (who had attended two earlier meetings with the applicant) had told him on 22 July and 1 August that the Union would not run his case.

17 The applicant denied Mr Smith's recollection of the conversation with him on 22 July concerning the minutes of the disciplinary meeting. The applicant claimed that he didn't know when the 21 days expired. However, he believed it was from the time when he received the minutes. In re examination, the applicant said he was "relaxed" when the minutes were with the Union because he believed that his claim would then be lodged. He claimed that no one told him that the Union would not do so. He said no one ever returned his calls, so he began calling "Mario."

18 The applicant denied Ms Wilson's version of the conversation with him on 6 August. He said he had not asked about his outstanding sick leave and had not told her that he had been threatened with dismissal because he refused to give the employer information about other employees.

19 The applicant denied Mr Stubbs' version of the conversation with him on 8 August. He denied that Mr Stubbs had told him he had lied to him and had no case for unfair dismissal. He denied Mr Stubbs had told him that the Union would not lodge an unfair dismissal claim or that he could lodge it on his own behalf.

20 Mr Dunn in oral evidence confirmed that he had spoken to the applicant on the day after he resigned. The applicant had complained that he wasn't getting any co-operation from the Union, in particular from Mr Dickson. Mr Dunn confirmed that at the end of the conversation on 8 August, he had said to the applicant "you should get your own solicitor, Sam". Mr Dunn said that the applicant did not tell him, at any stage, that the Union would not lodge a claim for him. 21 Mr Alan Dickson is the Union's Organiser responsible for Fairfield City Council. Mr Dickson had known the applicant for some years, having himself worked at Fairfield Council previously.

22 Mr Dickson gave his version of the conversation with the applicant on 22 July. He deposed as follows: Sammy rang me and wanted the union to issue unfair dismissal. I explained to Sam he had resigned. Sammy told me he believed Council had put documentation, or they had written certain things on his witness statements, or his statement, that he did for Council, which were not true, and I indicated to him, if he got the documents for me I would have a look at them and consider where we go from there. I would give Maria Wilson a ring on them. I reinforced to him he had resigned and there was only 21 days to lodge any unfair dismissal, if there was one to be lodged.

23 Mr Dickson said that he told the applicant on 5 August that the Union would not be running his unfair dismissal claim and it was probably in his best interests to engage his own solicitor.

24 Mr Dickson also disputed the applicant's version of the conversation on 7 August. He said that he had told the applicant he could not see where Council had changed the minutes of the disciplinary meeting. However, he agreed he told the applicant he would consult further with Ms Wilson. Mr Dickson agreed that the applicant had told him that he felt pressured into resigning and that Council had made changes to his statement.

25 On 11 August, Mr Dickson deposed to the following conversation with the applicant: Sammy rang and asked me if I could write a letter for him saying we had lodged an unfair dismissal. I told Sammy we never lodged an unfair dismissal, and that I advised him, prior, to engage his own solicitor and pursue his own unfair dismissal if he wanted to. He said he knew that. I told him I could not help him. Q. Did he tell you why he wanted the letter from the Union? A. He said he had gone to court and the courts required, because he had been late with his application.

26 Mr Dickson agreed, that at all times, the applicant had been keen for the Union to file his unfair dismissal claim. On 11 August, the applicant had requested a letter stating that the Union had done so. Mr Dickson said that, at no stage, did the Union indicate to the applicant that he had a good case. On the contrary, the Union believed his claim would not succeed.

27 Ms Maria Wilson is the Union's industrial officer. She said the Union's practice with unfair dismissal claims was for the organiser to discuss the matter with herself and Mr Stubbs. Ms Wilson said she knew of the applicant, but had never met him. Ms Wilson deposed to the following conversation with the applicant on 6 August: I had spoken to Mr Dickson about Mr Zerafa's matter and he had told me his version of events. When Mr Zerafa called I said - yes, I have spoken to Alan about you, I believe you resigned. Mr Zerafa said words to the effect - yes, I did but I was pressured. I said - what did you think was unfair about you resigning? He said words to the effect - I was forced to resign because I would not give up my mates. I said - that was not what I was told by Mr Dickson. Did you do anything wrong? He said - I got the sack for a packet of cigarettes, that is all. Then I said - is that all? And he said - yes, that is all, just a packet of cigarettes. I said - look, I do not think it is a very good case. He said that he would ring Mr Stubbs, who is manager of the Metropolitan Organising Union. The buck stops with him. It was not my call to say whether the application should be lodged, or not. I did not think it should be. I thought, if Mr Stubbs liked the idea, we would do it. I gave Mr Zerafa his number to ring him.

28 Ms Wilson's version of the conversation of 8 August was that the applicant had told her that Mr Stubbs had said he had a very good case. She knew this was not true because she had checked with Mr Stubbs. Indeed, Mr Stubbs said he had told the applicant the Union would not be lodging an unfair dismissal claim, as he didn't have a good case. Ms Wilson had agreed with this assessment.

29 Ms Wilson believed the applicant had told her lies when he said that Mr Dickson and Mr Stubbs had said he had a good case. Ms Wilson said she was wary of running a matter for the applicant because "if someone lies to me, they are likely to lie to the court". Ms Wilson agreed that she was angry with the applicant and had said to him on 8 August "do you think we do not talk to each other here in the office?"

30 Ms Wilson believed that after the applicant's disciplinary interview he had been presented with a number of options by the Union and he had chosen to resign.

31 Mr James Stubbs is the Union's Metropolitan Manager. Part of his responsibility was to make the final decision as to whether a particular unfair dismissal claim is pursued for a member.

32 Mr Stubbs referred to his conversation with the applicant on 7 August. The applicant had told him that he had been asked to attend a disciplinary meeting without union representation and had been forced to resign. Mr Stubbs said he was concerned at the allegation of no union representation and undertook to speak to Mr Dickson. Mr Stubbs said in evidence: I contacted Mr Dickson who indicated that Mr Zerafa was a liar and that he had had two delegates in attendance, along with Mr Dickson, and he was given advice in the matter, which included the fact that he would lose some $11,000 dollars approximately in sick leave payments that he was trying to get. Mr Dickson went on to outline the allegations against Mr Zerafa along with some background concerning the issues. This included some admissions to Council during the disciplinary proceedings that Mr Zerafa allegedly made, which formed the basis for Mr Dickson's view that Mr Zerafa should give serious consideration to resigning.

33 Further, Mr Stubbs gave his version of the conversation with the applicant on 8 August: From my notes, when Mr Zerafa rang me back the next day, I indicated to him that based on Dickson's advice, he had lied to me, and that he was fully represented and informed of the options available to him when he chose to resign from Council the following day after the disciplinary meeting. I informed Mr Zerafa that he did not have a case for unfair dismissal as he was not terminated. Mr Zerafa argued that the union should run an unfair dismissal case on his behalf. I told him we would not lodge any application on his behalf because, in my experience in industrial relations, any application would be put on the basis of constructive dismissal. At this point I had to explain to him what that meant, and indicated to him how the circumstances surrounding his resignation did not fit the criteria to be successful in such an application. Mr Zerafa continued to go over and over the point that Council had no right to sack him. I was unable to get through to him that he had resigned, and told him that the union would not lodge an application on his behalf because it would be deemed frivolous, vexatious or devoid of merit. I then informed him he could lodge his own application in the Industrial Relations Commission and stressed the point with him that he had to have it in no later than 21 days after he resigned.

34 Mr Stubbs recalled a further conversation with the applicant after 8 August (presumably on the occasion the applicant phoned him on 11th August): Mr Zerafa contacted me again one Sunday afternoon. We were looking at caravans at Yagoona on that day. I was on my mobile, which was on speakerphone. My wife witnessed the conversation, in which Mr Zerafa indicated that Mr Zerafa's solicitor had allegedly asked him to get a statement from the union indicating when the union had lodged an unfair dismissal application on his behalf. I reminded him of our last conversation and asked who his solicitor was. He replied "I only know him as Jake". I asked Mr Zerafa to have his solicitor contact me, to which Mr Zerafa said that he could give me his phone number. I said "all right, I'll contact him". The phone number he gave me was one digit short. I waited for Jake's phone call but he never replied.

35 The applicant was recalled to give further evidence arising from this evidence of Mr Stubbs.

36 The applicant claimed he had rung EHS in the week before the 6 September and that Mr Stubbs must have got his dates "mixed up." He said that after his first court appearance, (8 October 2003) EHS had asked him to get a letter from the Union indicating the Union had not lodged an unfair dismissal claim. The applicant claimed he rang Mr Dickson and Mr Stubbs on 11 October to ask for the letter. The phone records tendered by the applicant disclosed that he indeed had spoken to Mr Dickson and Mr Stubbs on this day.

37 Mr Jake Boghossian is the director of EHS. His evidence was that the applicant contacted EHS in early September. Mr Boghossian met the applicant on 6 September. Mr Boghossian advised the applicant to contact the Union and to ask for a letter which indicated he had instructed the Union to file his application, but it had failed to do so.

38 Mr Boghossian said that he could not recall speaking to the applicant before 6 September, but agreed it was possible. Mr Boghossian recalled speaking to the applicant after 8 October about the Union issue.

39 Mr Ross Smith is Council's Manager - Waste Services. His version of the phone conversation with the applicant on 17 July was that the applicant had phoned him for a job reference. Mr Smith had replied that, in the circumstances, it would not be appropriate. He had told him that if someone called the Council, no comment would be made, other than he had resigned. Mr Smith had made a contemporaneous file note of this conversation. He said that the applicant had not mentioned being forced to resign or that he had resigned because it was likely he would be dismissed.

40 Mr Smith disputed the applicant's version of the conversation he had with him on 22 July. He said the applicant had said: Could I get a copy of the minutes of my meetings. I was not involved in the fuel card matter but took rubbish from the service station in exchange for cigarettes. I was a little fish and there are bigger fish and you need the right hook. If I can return to work at the Council I might tell you more but I am gagged. Mr Smith also made a file note of this conversation. Mr Smith said the applicant had not mentioned anything about an unfair dismissal claim.

41 Mr Smith said that after this conversation he had put a copy of the minutes of the disciplinary interview in the Council's mail out system on 23 July. He could not recall if the applicant had contacted him again. In cross examination, Mr Smith agreed that he may have spoken to the applicant on 25 July and told him that he had mailed out the minutes. Mr Smith said that the reason he mailed the document was that he didn't want the applicant to come to the Council.

42 Mr Smith said that as a result of the applicant's resignation, he received outstanding entitlements totalling $18,142.93 including $2,654.65 in accrued sick leave which was paid according to the terms of the Council's enterprise agreement.

43 Ms Alamaddine submitted that pursuant to s85(3) of the Act, the Commission should exercise its discretion to allow the application to be accepted out of time. It was 56 days after the termination of employment; making it 35 days late.

44 Ms Alamaddine conceded that the applicant had known he had 21 days to file his application, but he had relied on his Union to do so. He believed that he was required to obtain the minutes of the disciplinary meeting, after which his claim would be filed. She said the applicant had not been told that the Union was not intending to take his case. He had made numerous phone calls to check on the status of his claim, but had been "mucked around."

45 Ms Alamaddine submitted that it wasn't until late August that the applicant realised his claim had not been filed by the Union. He had immediately contacted EHS and made an appointment for 6 September. The application was filed five days later.

46 Ms Alamaddine said that the reason for the delay was not the applicant's fault. He had been diligent in pursuing his claim. The applicant had been employed for 19 years, the allegations against him had not been proven and he wished to be reinstated. His termination of employment had resulted in severe hardship for him and his family.

47 She put that the respondent's conduct and that of the Union had contributed to the delay, in that he had asked for the minutes of the disciplinary meeting and had genuinely believed his claim had been filed.

48 Ms Alamaddine submitted that Mr Stubbs and Mr Dickson were mistaken, by two months, as to the conversations of 11 August and 11 October. The phone records prove there had been conversations with Mr Stubbs and Mr Dickson on 11 October.

49 Ms Alamaddine relied on Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 and Kornicki v Telstra Network Technology Group (unreported, AIRC, Print P3168 22 July 1997). In respect to representative error, Ms Alamaddine cited Clark v Ringwood Private Hospital (1997) 74 IR 413.

50 Mr Swebeck submitted that the Commission must be satisfied that there was an acceptable reason for the delay in filing an unfair dismissal application. The applicant would have the Commission believe that it was all the Union's fault. Even if the Commission was minded to accept the Union was partially at fault, it doesn't answer the question as to why the applicant waited until 3 September before contacting EHS after his friend had advised him on 8 August to get his own solicitor.

51 Mr Swebeck noted the Union's evidence that the applicant had been told, on a number of occasions, that he had a weak case and that it would not be filing a claim on his behalf. The Union advised him to file the claim himself or obtain alternative advice. Moreover, the applicant had lied to the Union in the vain hope that one of the officials would "pick up his case and run with it."

52 Mr Swebeck noted the evidence that on 22 July the applicant was advised he had 21 days to file his claim. Indeed, the applicant had acknowledged he had to act with urgency.

53 Mr Swebeck submitted that there was a serious question as to whether the applicant contacted EHS well before 6 September. Mr Stubbs referred to the phone call on 11 August in which "Jake" was mentioned as requiring a letter from the Union. There was a real issue about what happened from 11 August to 11 September.

54 Mr Swebeck contended that the evidence of Mr Smith, as to the disputed phone conversations with the applicant, should be preferred. Mr Smith had made contemporaneous notes of the conversations. It was clear the applicant was seeking to trade his way back to Council by offering information on other employees. Mr Swebeck identified many other inconsistencies in the applicant's evidence, including contradictions with Mr Boghossian's evidence.

55 Mr Swebeck submitted that the applicant had not demonstrated any hardship. He had secured casual work shortly after his resignation and received additional termination benefits which he would not have received had he been dismissed. Mr Swebeck contended that the respondent had incurred substantial costs, inconvenience and dislocation. Moreover, there was no evidence that the respondent had hindered, or prevented the applicant from filing his claim.

56 Mr Swebeck submitted that Ms Alamaddine's reliance on authorities decided under the Workplace Relations Act (Cth) 1996 were of little assistance. The relevant authorities are Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 and Hurrell and Queensland Cotton [2003] NSWIRComm 139. Mr Swebeck also referred to the principles discussed in Bonaccorso v General Forest Tree Surgeons [2003] NSW IRComm 70.

57 Mr Swebeck said that the applicant's prospects for success were limited. There was no dismissal as he had voluntarily resigned from his employment. Even if he had been constructively dismissed, it was unlikely such a dismissal would be found to be unfair and reinstatement would be most unlikely.

58 Mr Swebeck concluded that prior to 7 August 2003, the applicant was aware that: i) the 21 day statutory time period under the Act was operating from 17 July 2003; ii) the period for filing his application expired on 7 August;

iii) the Union was not intending to file a claim on his behalf; iv) he should consult a solicitor; and iv) he could lodge the s84 application himself.

59 The applicant had failed to provide any convincing evidence to explain the reasons for the delay between 17 July and 11 September 2003. Further, the applicant failed to take positive action to ensure that his application was filed within the prescribed period for filing, or failing that, shortly thereafter.

60 Mr Swebeck submitted that in all circumstances, the Commission should not exercise its discretion under s85(3) of the Act, and should reject the applicant's out of time application.

61 Ms Alamaddine replied that the applicant had always been of the understanding that his claim had been filed. He had acted with urgency and diligence in pressing his claim. He had exhausted all avenues in contacting the Union to find out what was happening.

62 Ms Alamaddine observed that there was no phone records of contact with EHS before 3 September.

63 Section 85(3) of the Act is expressed in the following terms:

The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) The reason for, and the length of, the delay in making the application, and

(b) Any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) The conduct of the employer relating to the dismissal. 64 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. The Full Commission in Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121.

65 Nevertheless, the Commission is guided as to the matters to be taken into account by reference to sub clauses (a), (b) and (c) of s85(3). In a particular case, it is appropriate for an applicant to address each of the matters referred to. It may be, of course, that only one of these matters, two of them or all three, might be found to constitute a sufficient reason or reasons, for the Commission to be satisfied its discretion should be exercised in an applicant's favour.

66 I turn now to the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension.

67 More recently, a Full Bench of this Commission said in Hurrell: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

68 I return then to the facts and circumstances of this case.

69 It seems to me that this matter is able to be determined by the making of findings on the numerous examples of conflicting evidence between the applicant and the Union's witnesses and the applicant and Mr Smith.

70 At the outset, I am bound to say that the Commission has had great difficulty in accepting the applicant as a reliable witness. Notwithstanding his literacy difficulties, the applicant's evidence revealed many inconsistencies. For example, in his statement he agreed Mr Stubbs told him that the Union would not be taking his case. However in oral evidence, he said he had never been told of the Union's decision.

71 Further, in oral evidence the applicant said he made numerous calls to the Union from 11 August to 6 September. Yet his phone records disclose calls made only to his friend Mr Dunn. These inconsistencies cannot be explained away or justified by the applicant's literacy difficulties. Moreover, in the face of compelling evidence from Mr Dickson, Mr Stubbs, Ms Wilson and Mr Smith, the applicant either completely misunderstood what he had been told, or was simply so convinced of the merits of his claim, that he did not want to hear what he was being told.

72 That being said as a general observation, I turn to the specific areas of significant evidentiary conflict.

73 The applicant claimed that he had told Mr Smith that he resigned under pressure and because he was about to be dismissed. Mr Smith's evidence, supported by a record of the conversation in a contemporaneous note of 17 July 2003, was that no such comments were made. Rather, the applicant had phoned him to ask for a reference.

74 Secondly, Mr Smith said that on 22 July the applicant attempted to trade his way back to Council when he had said to him that he was only a "small fish" and he could provide further information about others involved in the fraudulent activity. The applicant said he had called Mr Smith to obtain the minutes of the disciplinary meeting. Again, Mr Smith's contemporaneous note is to be found in his diary for that day. I accept Mr Smith's version of both these conversations.

75 Of more serious concern was the evidence of the Union officials that the applicant lied to them about two matters. Firstly, that he was unrepresented at the disciplinary meeting and secondly, that each of the Union officials had told him he had a good case. Neither of these claims were true. I must say that it is little wonder that the Union did not feel comfortable with accepting what the applicant told them and were skeptical of his claim of being forced to resign.

76 In my opinion, the Union's witnesses gave perfectly believable evidence. I accept that the applicant had been told on 22 July, 5 August and 8 August that the Union would not be pursuing his unfair dismissal claim. Further, the applicant was told that he could seek his own independent advice or lodge the claim himself. The applicant's own evidence was that Mr Dickson told him on 5 August that the Union did not believe he had a good case because he had resigned. It was advice the applicant did not want to hear and chose to ignore. I find that the applicant was well aware on 22 July and, would have been in no doubt on 8 August, that the Union was not intending to pursue his claim for unfair dismissal. Further, I accept the applicant was advised to seek independent advice or lodge the claim himself.

77 In addition, I reject Ms Alamaddine's submission that the applicant was diligent in pursuing his claim. It is obvious the applicant was pestering the Union to pursue his case. When he knew he was having difficulties with the Union, he "whinged" to his friend Mr Dunn on 8 August that he was being "mucked around." It was the applicant's evidence that Mr Dunn had advised him to get his own solicitor.

78 The applicant's further evidence was that he did not phone EHS until 3 September and he met Mr Boghossian on 6 September. If the evidence about his first contact with EHS is true (and I have my doubts about it) one might reasonably query why the applicant chose to wait for almost a month to do so after a person he trusted (Mr Dunn) had told him to get his own solicitor. This evidence hardly accords with the submission that the applicant acted with due diligence. I am fortified to this conclusion by the applicant's own evidence that he was told on 22 July that he had 21 days to lodge a claim and he knew he had to act urgently.

79 What role did Mr Boghossian have in this matter? In a curious turn of events, Mr Stubbs gave evidence that he heard about "Jake" (Boghossian) on or about 11 August in a phone call from the applicant. In other words, the applicant had seemingly contacted EHS soon after 8 August and a month before he said he had done so. I shall return to this matter shortly.

80 It follows therefore that either the applicant waited almost a month to contact EHS or EHS failed to file his application for over a month when it knew that the claim was already out of time. Even accepting the applicant's and Mr Boghossian's version of events, there was no explanation for the delay from the 3 September phone call to EHS and when the application was eventually filed on 11 September. On any reasonable view, the applicant could not be considered to have been diligently pursuing his claim.

81 As just mentioned, Mr Stubbs gave evidence, supported by his notes, that around 11 August the applicant phoned him and said his "solicitor", a person named "Jake", had asked for a letter from the Union saying that it (the Union) would not be lodging an unfair dismissal application on his behalf.

82 The applicant's response was that Mr Stubbs must have got his dates "mixed up" because he had not spoken to EHS until 3 September. However, he went further and said that this conversation about "Jake" did not occur until 11 October; after the first listing of the matter before the Commission. The applicant's phone records would seem to indicate that he spoke to Mr Dickson and Mr Stubbs on 11 August and did not speak to Mr Stubbs again until 11 October.

83 What I find extraordinary, and frankly unbelievable, is that the applicant could not recall anything about the 11 August conversations with either Mr Stubbs or Mr Dickson - even though he had initiated the calls. This was rather curious considering the applicant could recall exactly what had been said in many other conversations long before this date.

84 What might one draw from this evidence? In my opinion, the applicant's inability to recall these crucial conversations was because he knew exactly why he had phoned Mr Stubbs - to get the letter that EHS had told him to get from the Union. When this evidence came to light during Mr Stubbs' evidence, the Commission directed Mr Boghossian to file an affidavit in relation to his first knowledge of the matter.

85 In his evidence, Mr Boghossian strenuously maintained that he first met the applicant on 6 September and could not recall if, or when, he had spoken to him on an earlier occasion. Strangely, the applicant's supplementary evidence was directly at odds with Mr Boghossian in that he said he only asked for the letter on 11 October. Mr Boghossian was firm that he had told the applicant to obtain the letter over a month earlier - at their first meeting on 6 September. If one believes the applicant, one might rhetorically ask why he would wait over a month to do so? I reiterate again that he could hardly be said to be pursuing his claim with due diligence.

86 If one accepts Mr Stubbs' evidence as to the timing and content of this conversation it must mean that the applicant had contacted EHS a month earlier than he claimed he had done so. In other words, the applicant had misrepresented the factual position in both his affidavit and oral evidence.

87 Continuing on this line of speculation, it would follow that someone at EHS had failed to lodge the applicant's claim for over a month, even knowing the claim was already out of time. If this was so then it constituted negligent conduct on behalf of the applicant's representative. What explanations are possible? Either someone at EHS had failed to inform Ms Alamaddine of the first contact with the applicant, or the applicant failed to tell her of his conversations with someone at EHS, or Ms Alamaddine misled the Commission. If the first explanation is correct, such conduct raises serious questions as to the agent's duties and obligations to its client. I would prefer not to think Ms Alamaddine deliberately sought to mislead the Commission.

88 As I have noted, the above observations are obviously speculative, and arise from contradictory and confusing evidence. Notwithstanding the seriousness with which I regard these matters, they are not decisive to my conclusions on the substance of this case. It is to those matters which I now turn.

89 In view of my findings on the evidence in this case, the Commission is satisfied that the applicant has not established a sufficient reason for the delay in filing his application. To summarise my findings, I conclude that: 1) The applicant was informed on 22 July that the Union would not be filing his claim and he had 21 days to do so. He was told to seek independent advice or file the claim himself. 2) Mr Dickson told the applicant on 5 August that the Union did not believe he had a good case. 3) On 8 August, Mr Dunn told him to get his own solicitor.

4. The applicant said he knew he had to act urgently.

5. On that the applicant's own evidence, he did not contact EHS until 3 September. 90 Having so found, the Commission is also obliged to consider the length of the delay when deciding whether to exercise it's discretion to admit the application. In this case the delay was 56 days, or 35 days outside the statutory time limit. This was a significant delay. I concur with the opinion expressed by Cambridge, C in Schwager v Church Stores [1999] NSWIRComm 485: 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 be to obtain the discretion to extend time.

91 This factor alone would not be decisive to determining this matter. However, when taken together with other factors the Commission has taken into account, a delay of 35 days must represent a significant hurdle for the applicant to overcome.

92 There was no evidence that the applicant has suffered any excessive hardship compared to the generality of difficulties that all dismissed employees experience. He had secured alternative casual employment soon after his resignation.

93 In this regard, it is apposite to refer to what I said in Kent Gorrell and Uwatec Pty Ltd: There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, 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 Paul Thomas v Repco Auto Tech - unreported, Tabbaa C, 23 March 1999).

94 As to hardship for the employer, I refer to what I said in Bonaccorso: Mr Bonaccorso argued there was no evidence that the respondent would suffer any detriment if the s84 application were accepted. I would have thought the respondent's detriment was self evident. The respondent has incurred costs in defending the claim based on its view that there was no dismissal and the applicant had secured alternative employment. To my mind, it is unreasonable to expect an employer to have its business dislocated and incur costs beyond a reasonable period which it would otherwise expect to face litigation of this kind. When nothing happens for a significant period in excess of 21 days, the employer is entitled to expect finality of the matter.

95 I accept Mr Swebeck's submissions on this issue. Having accepted the applicant's resignation following the investigation of fraudulent activity, the respondent was entitled to believe that the applicant had chosen his best option in all the circumstances and with the Union advice. In my view, it would not serve the cause of justice to require the respondent to incur further costs and inconvenience when it was reasonable for it to regard the matter as ended.

96 Subsection (c) of s85(3) is directed towards any conduct of the employer which may have prevented or hindered an applicant from filing an application within 21 days. It is not concerned with the conduct of the employer leading up to, and including a dismissal.

97 In this regard, I agree with what Cambridge, C said in Green v Mayne Nickless t/as Armaguard (unreported, IRC 2945 of 1997, 11 February 1998): There was no evidence that any conduct on the part of the employer after the applicant's dismissal contributed to the reasons that were provided for delay in the lodgment of the application. The applicant sought to provide evidence regarding the alleged unfairness of the dismissal as a factor, which should influence the exercise of the Commission's discretion to accept the application out of time. An examination and consideration of evidence of this nature could lead the Commission to a quasi determination of the application proper. Therefore the consideration of the conduct of the employer must, having established that an arguable case exists, focus upon only that conduct which is said to have contributed to any delay in the lodgment of the application.

98 There is no evidence in this case, of any conduct of the respondent, which prevented the applicant from filing his application within time; indeed he laid the blame squarely at the door of the Union.

99 It is clear that the applicant would have faced a further jurisdictional hurdle if he had been successful in the instant case. This hurdle was whether he was forced to resign. I will not refer to the extensive body of authority on the subject of what constitutes a constructive dismissal (see for example Allison v Bega Valley Council). The principles have been stated and reaffirmed many times.

100 It is to be remembered that the applicant was involved in a wider investigation by the respondent of fraudulent activities by a number of its employees. The applicant and the other suspected employees were represented by the Union during the investigation. Mr Dickson said he presented all the options to the applicant and he chose to resign. As will be obvious from the terms of the resignation letter, it mentions nothing about being forced to resign. Indeed, it is couched in friendly and thankful terms. I refer also to the evidence of Mr Smith in this regard and express again my preference for accepting Mr Smith's version of the conversations with the applicant, particularly on the day of his resignation.

101 Moreover, it is self evident that there was a very strong motivation for the applicant to resign. He stood to lose some $2,654.65 in untaken sick leave if he was dismissed for misconduct. I accept that the options had been explained to him by the Union. At that time, he opted to take the Union's advice. I might suggest that it was wise and sensible advice. It's a pity he didn't take the Union's later advice. However, it is wrong and unacceptable for the applicant to now effectively change his mind and renege on his earlier decision to resign.

102 Connor C, in Coghlan v Donald and Donald Advertising (unreported, Connor C, IRC01/6028, 15 July 2002) commented on the not dissimilar situation to that revealed in this case. At pp 6 and 7 of the decision he said: There are two interpretations which may be placed on the uncontested evidence in this hearing. On the one hand, if an employee, in full knowledge of an allegation levelled against him, chooses to adopt the option of resigning which the employer holds out to him as a concession, there would be no dismissal, constructive or otherwise. In Roberts v Prince Alfred College (1979) 46 SAIR 598 Olsson P of the South Australian Industrial Court summarised the situation (at p.617) as follows: "…The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded (by the employer) so as to minimise the prejudice to (the employee) in obtaining other employment…" On the other hand, if the employee, confused and relatively powerless against an employer, is ambushed into resigning because he believed that he had no real choice in the matter, the purported resignation is not one in fact because of the threat of duress directed against him. It does not represent his true intentions. In such a situation the actual termination of his services is, constructively, a dismissal. Whilst the termination of employment was in form a resignation, the force applied to him made it a dismissal in fact [Achal v Electrolux Pty Limited (1993) 50 IR 236 at p.238]

103 With this in mind, I am satisfied, on the material before the Commission, that the applicant would have failed at the second jurisdictional hurdle. His resignation was freely given and accepted in order to minimise the prejudice to the applicant in obtaining alternative employment.

104 In Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 a Full Bench of the Commission said at 193: In this case the Commissioner followed the views expressed by the Full Commission in Skelly in relation to an application for extension of time to lodge an appeal, namely in the words of McHugh J in Gallo v Dawson (1990) 64 ALJR 458: "When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal:…" A similar question arises in applications such as this. Consideration may properly be given to whether or not the appellant's case appears unlikely to succeed. In that sense, as was conceded by the appellant, the Commissioner's approach to a consideration of the application was properly open in the exercise of her discretion.

105 In Hurrell the Full Bench said: 21] In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospects of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a "sufficient reason" has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits. 22] Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion: Brady at 269. Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary considerations: Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at 193 - 194. It should be emphasised, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature.

106 As to the applicant's prospects for success on the substantive reason for his termination of employment, I am able to conclude that it would have been unlikely that the Commission would have been persuaded that his dismissal was harsh, unreasonable or unjust. On his own admission, he had received free cigarettes for making unauthorised garbage collections (see para 23 of his originating application). Notwithstanding that he claimed he was a "little fish" in a wider net of fraudulent activity, I am convinced that the respondent's view that it had reasonable grounds to have dismissed the applicant was soundly based.

107 That having been said raises to my mind, another serious matter. That is, it must be asked upon what basis did EHS believe the applicant had a good case with reasonable prospects of success? In my judgement, any objective assessment of this case by an industrial practitioner of even meagre competence, or limited experience, would have concluded that the applicant's claim had little or no chance of success.

108 As I have earlier observed, the claim faced two significant jurisdictional hurdles; both of which would have proved fatal to the case proceeding. As I have just said, the merits of the applicant's substantive case, at the highest, must be said to be very weak.

109 Moreover, the agent knew that the Union had concluded that the applicant did not have a good case and would therefore not represent him. With this in mind, one might have expected the agent to pay closer and cautious attention to considering taking on the applicant's case. I note this same organisation was criticised by his Honour Lawler VP of the Australian Industrial Relations Commission for advice given to another applicant that he had a "reasonable case." In Mihajlovski and I R Cootes Pty Ltd, U2002/1721) his Honour said at para 78: Even given the Applicant's instructions as to pressure being placed on him to meet time deadlines and his instructions suggesting inconsistent treatment, I do not see how a specialist representative of even modest competence could have advised the Applicant that he had a "reasonable case" , the advice given by Mr Boghossian. Given the seriousness of the Applicant's misconduct and the otherwise overwhelming merits in favour the Respondent, a competent representative would have questioned the Applicant closely in relation to those instructions. A competent representative would not have given the advice given by Mr Boghossian without obtaining precise particulars of the pressure applied and sufficient detail of the supposedly comparative cases to demonstrate that they were properly comparable. Such questioning would probably have disclosed that at no time was it suggested that the Applicant ought speed or drive dangerously and that, in any event, no such pressure was applied in relation to the occasion when the accident occurred. Such questioning would probably have at least raised a serious doubt about the validity of the supposedly comparative cases. In those circumstances, a competent representative would have cautioned the Applicant that his prospects of success could not be rated above very poor and that his exposure to the risk of a costs order could not be rated as less than high. Given the attitude of the Applicant leading to his decision to discontinue the matter, it is probable that the Applicant would not have commenced this proceeding if such advice had been given.

110 As I did not raise these concerns with the parties during the proceedings, I intend to take this matter no further at this stage; suffice to state the obvious. It behoves industrial agents to adopt a rigorous and realistic assessment of an applicant's claim of being unfairly dismissed before a claim is lodged and processed by the Commission. It is not good enough to file a claim - no matter how unmeritorious - and hope for some favourable result along the way of its processing. Such conduct raises serious issues for the proper administration of justice and the efficient utilisation of the Commission's resources.

111 Notwithstanding this criticism, I am satisfied that the applicant has not established a sufficient reason for filing his claim outside the statutory 21 day period. Having regard for all the aforementioned circumstances, I determine that this is a case where the Commission's discretion should not be exercised in the applicant's favour.

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