Brisbane South Regional Health Authority v Taylor,

APPLICANT: Mr Michael Bonaccorso appeared for his son LEGAL REPRESENTATIVES: RESPONDENT: Mr R Bartalesi (Solicitor), Nescis Lawyers

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 March 2003 Matter No IRC02/6175 Anthony Bonaccorso and General Forest Tree Surgeons Pty Limited Application by Anthony Bonaccorso re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERLOCUTORY DECISION [2003] NSWIRComm 70

1 Mr Anthony Bonaccorso ("the applicant") seeks an interlocutory ruling from the Commission that would allow his claim of alleged unfair dismissal to be accepted "out of time". The application was made pursuant to s 85(3) of the Industrial Relations Act 1996 ("the Act"). The applicant's original claim of unfair dismissal was filed on 4 November 2002 - some 88 days after the dismissal and 67 days outside the statutory time limit set by s85 (1) of the Act.

2 The applicant claimed that he was forced to resign from his employment with General Forest Tree Surgeons Pty Limited ("the respondent") on 8 August 2002. The forced resignation was said to constitute a constructive dismissal and that the dismissal was "harsh, unreasonable or unjust " within the meaning of Pt 6 ch 2 of the Act.

3 From the outset of the proceedings the respondent has challenged the Commission's jurisdiction to determine the claim on the basis firstly, that there was no dismissal of the applicant and secondly, that the claim was filed significantly "out of time". Notwithstanding the respondent's position, the Commission sought to resolve the matter through a conciliation conference on 27 November 2002. The conference proved unsuccessful and pursuant to s87 of the Act, I made a finding of unsuccessful conciliation and set the matter for jurisdictional hearing on the "out of time" issue. Directions for the filing of evidence were issued on 27 November 2002. At the hearing, the applicant was represented by his father, Mr Michael Bonaccorso. Mr R Bartalesi (Solicitor) appeared for the respondent.

4 Regrettably, but perhaps understandably, much of the evidence contained in the affidavits of the applicant and his father went to the alleged circumstances leading to the applicant's resignation. Neither the applicant or his father were required for cross examination. Shortly stated, the evidence went to an allegation that the applicant had been the subject of racial and sexual harassment by a fellow employee, Mr Charlie Narayn, who is the brother of the respondent's director. It was said that, as management refused to do anything about the harassment, the applicant was forced to resign. Curiously, however, his letter of resignation was expressed in the following terms: To Shiu Narayn Please accept this letter as resignation of my position from your company, effective August 8 2002. My decision to resign was finalized after long and careful consideration of all factors. I regret leaving friends here however; I feel the change will be beneficial to my longterm career goals and objectives. Again it has been my pleasurable experience working as a part of your team and wish nothing but the best for General Forest Tree Surgeon Pty. Yours Sincerely, Anthony Bonaccorso

5 This letter was typed by the applicant's brother and hand delivered to the respondent by the applicant's mother on 12 August, 2002.

6 The only evidence directly relevant to the reason for the applicant's delay in filing his s84 claim was that he said he was not aware of the 21 day time limit to do so. He believed he had been constructively dismissed after discussing the matter with friends and family (see para 11, Ex "1").

7 In recognition of the manner in which this case proceeded I shall refer to the evidence concerning the reasons for the applicant's resignation. This evidence will be of assistance when I later consider the applicant's prospects of success at a substantive hearing.

8 The applicant deposed that during his total of three years with the respondent he enjoyed his work, particularly learning to do new things. However, during his employment, Mr Charlie Narayn and Mr Shui Narayn would say things to him like "you're dumb" and "stupid dickhead". The applicant said that at first he was not bothered by these comments.

9 However, in the last six months of his employment, the applicant claimed Mr Charlie Narayn began to constantly harass him and say things like, "bring your mother here so I can fuck her" and "bring your whole wog family here so I can fuck them all." The applicant said he was very upset and hurt by this and told his parents about it. His parents had suggested he speak to Mr Shui Narayn.

10 The applicant claimed he told Mr Shui Narayn and his wife about the matter, however, they shrugged it off and ignored it. The applicant said that the harassment continued. While he tried to ignore it, he felt intimidated, anxious and unhappy. Finally, he said he was forced to resign.

11 Mr M Bonaccorso's evidence did not add much to his son's evidence. Mr Bonaccorso said that at the commencement of his son's employment, he had told Mr Narayn that his son had some learning difficulties. However, he was a hard worker. Mr Narayn had seemed to understand. (During the proceedings the respondent conceded that the applicant had such difficulties.)

12 Mr Bonaccorso was aware of his son's problems with Charlie Narayn and had observed that his son was anxious, nervous and reluctant to go to work. Mr Bonaccorso knew the details of the bad language said to have been used by Mr Charlie Narayn. Mr Bonaccorso said that, after discussing the matter in great detail, his main concern was his son's health and wellbeing. It was decided that his son should resign.

13 In light of the applicant's evidence, the respondent replied with evidence, which similarly did not primarily relate to the "out of time" issue.

14 Although it was said that the applicant was "generally a good worker," certain work issues including performance and attendance were mentioned in the affidavit of Mr Shui Narayn. These matters are not relevant for present purposes.

15 Mr Shui Narayn deposed that the applicant had commenced employment in March 1998 and resigned in February 1999. At that time, the applicant had said he was leaving to try something else. About eighteen months later, the applicant approached the respondent for re-employment and was re-engaged as a labourer.

16 During the course of this later employment the applicant had two car accidents. Mr Narayn believed these accidents contributed to the applicant's lack of concentration at work. Mr Narayn said the applicant appeared very anxious, stressed and short tempered.

17 Mr Narayn denied he had ever used pejorative language towards the applicant and was unable to comment on what it was alleged his brother had said to the applicant.

18 Mr Narayn acknowledged that the applicant approached him about an incident in February or March 2002 in which Mr Narayn's brother and the applicant had a heated argument. In cross examination, Mr Narayn agreed he did not know exactly what his brother had said to the applicant. Subsequently, Mr Narayn had spoken to both of them and he believed the matter was amicably resolved. He further added that he had received complaints from other employees about the applicant's own bad language.

19 On 8 August 2002, Mr Shui Narayn said he received a telephone call from the applicant's mother. She asked to speak to him about her son. A meeting was arranged for the next day. It involved a lengthy discussion about the applicant's work performance.

20 Also on 8 August, Mr Shui Narayn deposed that he received a phone call from a Mr Jean Luc Mayo from Arborpro (a competitor company). Mr Mayo had sought a verbal reference concerning the applicant, who had visited him the day before, seeking casual work. Mr Narayn said he was shocked when Mr Mayo told him the applicant was seeking alternative work.

21 Mr Shui Narayn said that, at no time, did he pressure the applicant to resign, and that he had no reason to believe that the applicant was dissatisfied with his job.

22 Mr Bonaccorso objected to Mr Mayo's affidavit on the grounds of relevance. Mr Mayo was not available for cross examination. Notwithstanding the objection, Mr Mayo's affidavit was admitted as Ex "A".

23 Despite some inconsistencies with Mr Narayn's evidence, Mr Mayo's evidence was not controverted. Mr Mayo deposed that he spoke by phone to the applicant and his mother on 8 August 2002 concerning the availability of casual work as he was looking for "something new". He had then phoned Mr Shui Narayan and sought a verbal reference from him in respect to the applicant's work performance. Mr Narayn had said, that he didn't know the applicant had left his employment, and he had advised Mr Mayo not to employ him.

24 Notwithstanding Mr Narayn's reservations, the applicant commenced casual employment with Mr Mayo's company on 12 August 2002 and continued until Friday 27 September. However, on Monday 30 September, the applicant failed to turn up for work and has never returned.

25 Mr Bonaccorso put that there was no evidence the employer would suffer any detriment if his son's application was allowed to proceed. On the other hand, his son would suffer a detriment by not being given an opportunity for his case to be heard.

26 Mr Bonaccorso said this was not a case about his son's work performance or what he called his work colleagues. It was a case about sexual and racial harassment, which the employer had allowed to continue. Mr Bonaccorso asked why Mr Charlie Narayn was not present in court to give evidence.

27 Mr Bartalesi submitted that, even at its highest, the evidence in this case disclosed one or two occasions of bad language between two employees. The respondent had not condoned the conduct. There was no evidence that the employer influenced the mind of the applicant such as to force him to resign.

28 On the contrary, Mr Bartalesi contended that there was evidence the applicant was happy in his employment, which included two periods of a total of three years. The applicant's resignation letter was couched in friendly terms. At the meeting on 8 August 2002, the applicant's performance was discussed including his knowledge of, and commitment to safety. This was not unreasonable.

29 Mr Bartalesi submitted that the evidence of bad language occurred months before the applicant's resignation. There could be no link between the two events such as to establish a "temporal connection". Mr Bartalesi put that, even if the language alleged to have been used by Mr Charlie Narayn was said, it could not be characterised as sexual or racial harassment.

30 Mr Bartalesi put that the respondent would be prejudiced if the claim was accepted "out of time". There had been no dismissal. In any event, the applicant had arranged alternative work before he had resigned.

31 In reply, Mr Bonaccorso said that his son did not have alternative work before he resigned; but he was looking for work. In explaining the tone of his son's resignation letter, Mr Bonaccorso said that his son didn't want to write anything which might create ill feeling for any future employer.

32 The Commission is obliged to express from the outset its serious concerns at the manner in which this case was argued. The Commission repeatedly reminded Mr Bonaccorso to focus on the issue to be determined; namely whether his son's s84 application should be accepted "out of time". (See Tp 2,7 & 12) Nevertheless, Mr Bonaccorso insisted on returning to matters which were relevant to the merits of the claim. In doing so, his son's case suffered from a material lack of evidence relevant to the issue to be determined in these interlocutory proceedings.

33 That being so, it is necessary to refer again to the difficulties experienced by unrepresented litigants and the particular problems, which invariably arise when an applicant is represented by a parent. (See Stephan and RL Whyburn and Associates [2000] NSWIRComm 154) It is doubtful that a parent in these circumstances will bring an objective view to the conduct of the proceedings.

34 Section 85(3) 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. 35 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. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 where a Full Commission 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.

36 The Commission, however, is guided as to the matters to be taken into account by reference to sub clauses (a), (b) and (c). In a particular case, it is appropriate for an applicant to address each of the criteria in sub clauses (a), (b) and (c). 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 favorably exercised.

37 An authoritative judgment on the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in Brisbane South Regional Health Authority v Taylor, (1996) 186 CLR 541 where 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. 38 In consideration of the principles discussed above and in the context of other decisions of this Commission, the Commission, as presently constituted, had cause to summarize the general principles applying in s85(3) proceedings in Kent Gorrell v Uwatec Pty Ltd (unreported, Sams DP, IRC1700 of 1999, 11 November 1999): 1. The Commission's power to accept out of time applications is discretionary.

2. The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3. It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances.

There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing.

There is a public interest in the prompt institution and prosecution of litigation before the Commission.

The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties.

Each of the subclauses (a), (b) and (c) in s85(3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised.

Ignorantia legis neminem excusat (ignorance of the law excuses no one). See also Skelly v Prouds Jewellers Pty Ltd , (1994) 53 IR 3; Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) ; Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100, Thomas v Repco Auto Tech (unreported, Tabbaa C, IRC3900 of 1998, 23 March 1999); Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported Harrison DP, IRC829 of 1999, 17 March 1999); Herrera and Creative Packaging Services Pty Ltd (unreported Sams DP, IRC2108 of 1999, 11 November 1999); Maity and Express Publications Pty Ltd [2001] NSWIRComm 169, Weisser and Spur Group Pty Limited [2002] NSWIRComm 15, Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (on behalf of Shauna Lorelle Borg) and Merrylands Bowling, Sporting and Recreation Club Limited [2002] NSWIRComm 291 and McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283.

39 It is convenient for the Commission to address the issues relevant to this matter under the headings of the subsections of s 85(3).

40 As mentioned earlier, the only reason deposed to by the applicant as to why he didn't file his claim within the time limit was that he was unaware of the 21 day time period. In my opinion, merely being unaware of the statutory requirement could not, on its own, be a sufficient reason for the Commission's exercise of discretion. Unfair dismissal laws have been the subject of much public, political and media controversy in recent years. It could hardly be said that it is an area of industrial law which has been tucked out of sight from the public domain.

41 The Commission is also obliged to consider the length of the delay when deciding whether to exercise it's discretion. In this case the delay was 67 days. On any view of it, this was a significant delay. I concur with the view 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. See also McClymont v Thomson Financial Services and Australian Liquor Hospitality and Miscellaneous Workers Union on behalf of Shauna Lorelle Borg v Merrylands Bowling Club.

42 This factor alone, however, would not be decisive to determining this matter. However, when taken together with the other factors the Commission has taken into account, a delay of 67 days represents a significant hurdle for the applicant to overcome.

43 In my view, there is no evidence that the applicant has suffered any excessive hardship compared to the generality of difficulties that all dismissed employees experience.

44 At this juncture, 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).

45 I earlier mentioned that there were some inconsistencies in the evidence of Mr Narayn and Mr Mayo about when the applicant approached Mr Mayo for the job. Mr Narayn said Mr Mayo had phoned him on 8 August 2002, seeking a verbal reference about the applicant who had visited him the day before looking for casual work. Mr Mayo deposed that he had spoken to the applicant and his mother by phone on 8 August about casual work. In my view, nothing turns on these inconsistencies.

46 That having been said, it also appears the applicant may well have secured alternative employment before he submitted his resignation or, at the very least, on or about the same day. This timing seems to neatly gel with his letter of resignation, which states, in part, that he was looking for a change.

47 I cannot see how the applicant has suffered any financial loss in circumstances where he secured immediate alternative employment. It is irrelevant how long this next employment lasted. Plainly, the respondent in these proceedings cannot be held accountable for the employment the applicant obtained with a new employer.

48 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.

49 In my judgement, 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.

50 I respectfully agree with what Cambridge, C said in Green v Mayne Nickless t/as Armguard (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.

51 There is no evidence, in this case, of any conduct of the employer, which prevented the applicant from filing his application within time. Indeed, on the state of the evidence, a reasonable conclusion to draw would be that the applicant's resignation was sufficient for the respondent to assume that the contract of employment had ended amicably and that it was unlikely to have any more contact with the applicant.

52 Mr Bartalesi put that, in light of the evidence advanced in this case, it would be appropriate for the Commission to consider, in exercising it's discretion under s85(3) of the Act, the applicant's prospects of success in the substantive proceedings. Mr Bartelesi's submission is well made and supported by authority. In Sebastion 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.

53 The Commission would note that much of the evidence canvassed the reasons for the applicant's resignation. I am, therefore, well equipped to make a preliminary assessment of the applicant's prospects of success. I would make these observations.

54 It beggars belief, if the sexual and racial harassment was as bad as alleged, that the applicant would not have sought advice at, or soon after, his resignation. If true, the language was vile and grossly offensive. Moreover, the applicant claimed in his evidence that the obscene language was said "in front of my peers." Yet, the applicant provided no evidence from other persons to corroborate these claims.

55 I find it even more extraordinary that both his parents were said to be aware of the details of the alleged harassment. Unyet the family took no steps after their son's resignation to do any thing about it.

56 As mentioned in para 4, the applicant's letter of resignation is curious. There is no reference to his alleged reasons for resigning. On the contrary, the letter is couched in friendly terms; even wishing the company well for the future and describing his work experience as a "pleasure". I reject Mr Bonaccorso's explanation that it was so expressed so as not to cause difficulties for any future employment opportunities.

57 I also find it strange that the applicant's mother attended the respondent's premises to hand deliver his resignation. There is no evidence that his mother said anything to the respondent about the vile language said about her. Indeed, if it were true, I find it difficult to accept she would go anywhere near the work place.

58 Viewed in this way, and on a purely preliminary basis, there would appear to be very real jurisdictional difficulties with the applicant's claim of unfair dismissal.

59 In any event, in my opinion, the applicant has not established a sufficient reason for filing his claim outside the statutory period. Having regard for all the aforementioned circumstances, I cannot be satisfied that this is a case where the Commission's discretion should be exercised in the applicant's favour.

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