Brisbane South Regional Health Authority v Taylor, 186 CLR 541

APPLICANT Mr D Greenstein, Solicitor Greenstein Shakenovsky LEGAL REPRESENTATIVES: RESPONDENT Mr S Coleman of Counsel SOLICITORS Morgan Lewis Alter Lawyers

JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 14 February 2002

Application by Gabriel Weisser re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2002] NSWIRComm 15 1 This is an application, pursuant to s 84 of the Industrial Relations Act, 1996 ("the Act"), filed by Mr Gabriel Weisser ("the applicant"), seeking relief in respect to his alleged unfair dismissal by Spur Group Pty Ltd ("the respondent"), on 30 June 2001. The application was filed on 10 August 2001 and listed for directions and conciliation on 23 August 2001. The application is twenty days "out of time" having been filed forty-one days after the applicant's termination of employment. It is also relevant to note that the applicant was given three and a half months' notice of his dismissal at a meeting with the respondent on 14 March 2001. The reasons for the dismissal are contested and will require findings by the Commission on the evidence presented during the proceedings.

2 Notwithstanding the unresolved question of the Commission exercising its discretion under s 85(3) of the Act to allow the application to be filed out of time, the Commission chaired conciliation conferences in an attempt to settle the matter. On 29 August 2001, the matter remained unresolved. Mr A Duc for the applicant and Mr S Coleman of Counsel for the respondent agreed to a hearing of the claim in which the "out of time" question would be considered concurrently with the substantive merits of the case. After a finding of unsuccessful conciliation pursuant to s 87 of the Act, I issued directions for the filing and service of evidentiary material.

3 The following matters dealing with the applicant's employment and the circumstances surrounding the termination of employment are relatively straightforward.

4 The applicant is 58 years of age and was originally employed in South Africa by Caars Pty Ltd, a supplier to the respondent's parent Company. In October 1995 the applicant commenced employment in Australia as Maintenance Manager for the respondent's restaurants, then at Cronulla and at the Rydalmere Head Office.

5 The applicant was initially paid $3,400 a month (this figure was increased three years later to $4,900 a month) and provided with a company maintained vehicle. His work schedule (Annexure A to Ex"C") primarily involved preventative maintenance at the respondent's restaurants from Monday to Friday. However, he was also "on call" during the weekends for emergencies.

6 The applicant reported to the Managing Director, Mr Ivan Posniak and General Manager, Mr Rodney Silber. A relevant factor in this matter is that Mr Posniak is the applicant's brother-in-law. In April 1998, the applicant met with Mr Pierre Van Tonder (Managing Director, Spur International), Mr Silber and Mr Posniak in relation to complaints as to his behaviour and attitude. The applicant acknowledged his behaviour and said he would try to improve. In April 2000, the applicant was excluded from one of the respondent's restaurants, Panarottis, at Penrith Panthers after an argument with the Manager, Mr Morney Schlebusch.

7 On 14 March 2001 a meeting was held involving the applicant, Mr Posniak and Mr Silber during which the applicant was given notice of his dismissal to take effect on 30 June 2001. I shall shortly return to the competing evidence of the parties as to what was said at this meeting.

8 The applicant continued to work out his notice until 24 May when, after an allegedly heated conversation with Mr Michael Watkin, the manager of another of the respondent's restaurants, the Silver Spur at Penrith, Mr Watkin refused him future entry to the restaurant. On 25 May, the applicant met again with Mr Posniak, Mr Silber and Mr Jose Vilar (Operations Manager, Spur International). It was alleged the applicant lost his temper and refused to discuss any matter with the employer as he was ceasing employment on 30 June.

9 On 28 May, the applicant took three weeks' stress leave and two weeks' annual leave to visit Israel. This leave took him to the date of dismissal, 30 June 2001. The applicant commenced alternative employment with a supplier to the respondent, two weeks later on 16 July, having arranged to do so prior to his dismissal.

10 On 20 July, the applicant wrote to the respondent claiming inter alia, redundancy pay of twenty weeks' salary ($22,553.40) and total outstanding payments of $49,483.01. On 1 August the respondent's solicitor (Morgan Lewis Alter) wrote to the applicant's solicitor in reply to a letter of 27 July and the applicant's claim of 20 July. The respondent denied making the applicant redundant and cited the various reasons for termination relating to his performance, behaviour and conduct.

11 On 19 September 2001, the respondent wrote to the applicant's solicitor confirming the termination of employment from 30 June 2001. The letter reaffirmed the reasons for dismissal and noted the three and a half months' notice and the applicant's leave taken five weeks prior to 30 June 2001.

12 It is germane to the determination of this matter to consider the veracity of the reasons for the applicant's dismissal as contended by the respondent. In doing so, the Commission will need to make findings as to whose version of the conversation at the 14 March meeting is to be believed and whether there was any basis for the applicant's belief that he was made redundant.

13 Affidavit and oral evidence was provided by: Mr Ivan Posniak Director, Spur Group Mr Rodney Silber General Manager, Spur Group Mr Morney Schlebusch General Manager, Panarottis Mr Wynand Schlebusch Restaurant Manager, Silver Spur Mr Michael Watkin General Manager, Silver Spur

Mr Jose Vilar Operations Manager, Spur International Mr Pierre Van Tonder Managing Director, Spur International

15 Mr Ivan Posniak gave evidence that he was confident the applicant had the knowledge and capabilities for doing repair and maintenance work on the equipment used in the restaurants. Despite this, Mr Posniak said he received many complaints from the restaurant managers about the standard of the applicant's workmanship. He said most complaints would come second hand through Mr Silber, as the managers would be nervous about raising problems with his brother in law.

16 Mr Posniak deposed that there were many occasions (at least ten) on which he counselled the applicant about his attitude and conduct. The applicant was given an opportunity to respond and he did so. No counsellings were ever recorded; Mr Posniak described them as informal. This, he said, was because of the applicant's family relationship and his hope that the situation would improve. The applicant could not recall any problems with his attitude, behaviour or performance from 1998. He could not recall specific meetings with senior management over these matters, such as a meeting with Mr Van Tonder in April 1998. He said Mr Posniak agreed with him that the managers did not show him respect. The applicant didn't believe it was his job to get on with the managers. Nevertheless, he was unaware of growing dissatisfaction with him. He said if he had been aware of a problem, he would have addressed it.

17 While not specifically warning the applicant his job was in jeopardy, Mr Posniak said he used expressions such as "we can't carry on like this" and "you have to change your attitude". The applicant agreed he would try to improve and would do so for a week or two but would then slip back to his old ways. The applicant denied Mr Posniak spoke to him in these terms.

18 Mr Posniak cited the problems with the applicant's behaviour at Panarottis Restaurant at Penrith. Here, Mr Posniak said, the manager refused to have the applicant carry out any maintenance work due to his poor workmanship, his attitude and his refusal to properly record his hours worked. The management decided to contract the maintenance to a team employed by the Panthers Club. Mr Posniak denied that it was cheaper to use the Panthers' maintenance team. He believed the applicant was sufficiently trained on the equipment used at Panarottis. The equipment was not very complex. It was of a kind ordinarily encountered in any restaurant kitchen. The applicant said there were occasions where outside contractors had been called in. This occurred in respect to the breakdown of the Salamander grilling machine.

19 Mr Posniak deposed that one of the problems was the applicant not keeping a record of his work hours. When he finally did so after eight months, the managers refused to pay, believing that he had not worked the hours claimed. Mr Posniak referred to a particular bill of $20,000 in February 2001. The applicant said he was not aware that there were difficulties with the managers prior to the time in 1999 when a work schedule was prepared. He said he was only asked to record his work from 1999 onwards. He accepted that the restaurant managers would not always sign off the work sheet.

20 Mr Posniak said that the applicant's salary and costs were apportioned across all the restaurants, but the real costs were never able to be fully recovered. This was not the reason for the applicant's dismissal. It was his conduct and attitude.

21 Mr Posniak gave evidence that the applicant continued his poor conduct after the notice of termination. He was refused entry to the Penrith restaurant following an argument with the manager. On another occasion Mr Silber had to apologise to a client for the applicant's behaviour.

22 Mr Rodney Silber said he had spoken to the applicant on numerous occasions about his attitude, performance and behaviour after complaints from the restaurant managers. The applicant rejected this evidence. He couldn't recall being told to communicate with people; he denied that there were complaints made about him at weekly management meetings and said there were "questions," not "complaints". He denied Mr Silber asking him to "cool it" around the office accountant. 23 The applicant said that from March 2001 there were no problems with his attitude and work quality. He said that neither Mr Posniak nor Mr Silber had raised these matters. Mr Silber described his conversations with the applicant as informal talks, not formal counsellings. Because of the family relationship, the applicant was treated differently to the company policy.

24 Mr Silber deposed that the applicant did a lot of good work, but it was his attitude, which was the problem. He was aggressive and constantly put people offside. Mr Silber referred to the incident of the broken Salamander machine. The applicant refused to fix the machine when contacted to do so and waited until the next day.

25 The applicant denied being warned by Mr Silber over an incident concerning the delivery of a spice rack. He explained, in evidence, that he had not received the order by the time he had left home and his schedule would have been drastically affected if he had gone back to collect the spice rack.

26 Mr Silber described the incident in which the applicant had abused a client in front of other persons. The client had phoned Mr Silber to complain. Mr Silber wasn't aware if the client had provoked the applicant. Mr Silber told of another supplier who complained that the applicant was loud and aggressive.

27 Mr Silber said on another occasion the applicant had slammed the phone down on him. The applicant denied slamming the phone down more than once.

28 Mr Morney Schlebusch worked with the applicant at San Pablo Spur and Silver Spur and described the applicant as rude and aggressive. Mr Schlebusch complained to senior management that it was impossible to work with the applicant.

29 Mr Schlebusch said there were occasions where the applicant told him to "get stuffed" or "fuck off". The applicant denied this.

30 As to the applicant's work, Mr Schlebusch said it was inconsistent. He displayed no sense of urgency or commitment. He rarely signed on and off for his jobs, nor did he record his hours worked.

31 Mr Schlebusch gave evidence of the breakdown with the Salamander machine that the applicant was asked to fix on a Saturday. He did so the next day. In oral evidence Mr Schlebusch conceded there had been problems with the machine prior to the incident.

32 When Mr Schlebusch was appointed General Manager of Panarottis in March 2000, he made it clear he would not have the applicant perform any maintenance work at the restaurant. The applicant rejected this evidence and said the management preferred using the Panthers' maintenance team because it was cheaper. He could not recall Mr Schlebusch not wanting him there.

33 Mr Michael Watkin had worked with the applicant from mid 1996. He gave evidence that he often expressed dissatisfaction to Mr Silber regarding the applicant's attitude, failure to keep records and abrupt phone manner.

34 In May 2001 Mr Watkin had a discussion with the applicant and Mr Schlebusch. He asked the applicant to make an effort to get on with the management. He simply said "Why should I, I will not." Mr Watkin said the discussion became heated. He told the applicant to leave and not return to the Penrith restaurant. The applicant's evidence was that he could not recall any problems he had with Mr Watkin.

35 Mr Wynand Schlebusch gave evidence that he believed the applicant was not qualified to do all the work he was performing. He referred to certain electrical work that required rewiring. In oral evidence, Mr Schlebusch said he didn't know whether the applicant's work was defective. The applicant could not remember this incident.

36 Mr Schlebusch said that Head Office would bill each restaurant for the services performed by the applicant. However, it was difficult to get the applicant to fill in his time sheets. The applicant said he did fill in the time sheets. However, he couldn't recall if Mr Schlebusch had refused to sign certain time sheets.

37 Mr Schlebusch said the applicant would get angry when questioned and said he was being treated like a child. On one occasion in early 2001, the applicant said to Mr Schlebusch, "Because of your big mouth, I am losing my job." The applicant denied saying this. After this incident the applicant simply ignored Mr Schlebusch. The applicant said things deteriorated because Mr Schlebusch questioned his loyalty and integrity.

38 Mr Schlebusch acknowledged in cross-examination that the applicant didn't refuse to do jobs. However, Mr Schlebusch found it was more convenient and saved costs if he did the work himself.

39 Particularly pertinent to this decision is the evidence concerning what was said by the respondent as to the reasons for the applicant's dismissal in a meeting on 14 March 2001. Shortly put, the applicant said he was not told that his conduct and behaviour were the reasons for his dismissal. Rather, he believed the employer was no longer willing to pay for his work, thereby making him redundant.

40 Against this, the respondent maintained that there was no mention of redundancy. It had made clear to the applicant he was to be dismissed for his continued poor performance and behaviour. The conflicting evidence may be summarised this way.

41 The applicant's version of the conversation is recorded in paragraphs 10 - 20 of his affidavit. It is useful to recount it in full: … 10. On 14 March 2001 a senior managers meeting was held. After that meeting I met Mr Ivan Posniak, Mr Rodney Silber, Mr Jose Vilar (Spur South Africa) alone. 11. Mr Vilar said to me " Ivan is claiming $20,000 more from South Africa in order to keep paying you…tell me what you have done today…bring me the book? " 12. Mr Vilar then said " Is that all? Has anyone signed it? " 13. Mr Vilar then left the meeting at the request of Mr Posniak. 14. Mr Posniak said " Gaby, South Africa does not want to come to the party to keep paying your wages…we keep on losing money…I've not drawn a cent out of this business…I can't keep digging into my pocket…we can't keep paying you. We have to let you go ." 15. Mr Silber said " That's right. " 16. Mr Posniak said " If you want to carry on you can have the car and if the restaurants need you they can call you, like a contractor " 17. I said " I can't work like that…they don't like me as a person " 18. There were only two shops left to service. It would have been impossible for me to earn a living. 19. Mr Posniak said " You've got until 30 June then you are on your own ." 20. Mr Silber later said to me, without Mr Posniak present " We will work out a plan whereby you will be kept by the company ".

42 In oral evidence the applicant denied being told he was to be dismissed because of conduct, attitude and performance issues. These matters had never been raised with him previously. He acknowledged that he was given three and a half months notice of dismissal, during which time he could look for another job. He denied being told to improve his behaviour during the notice period. He denied being questioned about being refused entry to Panarottis restaurant. He denied he had problems with the restaurant managers.

43 While acknowledging that the word "redundancy" was not used during the meeting, he was told "he was to be let go" and "We cannot afford you anymore." (Tp.22)

44 The applicant said he was never warned he would be dismissed if his attitude didn't change. He had never received written documentation concerning his conduct or behaviour.

45 Mr Posniak accepted that the applicant did not receive any written reasons for his dismissal until after he had lodged his unfair dismissal claim. He said this had been a mistake. Mr Posniak believed the applicant had accepted the situation with good grace and had found another job anyway. Mr Posniak said he gave the applicant three and a half months notice so as to provide him with time to find alternative employment. Notwithstanding the applicant continuing to cost the respondent money, Mr Posniak said he wanted to be compassionate.

46 Mr Posniak said that he thought the applicant was probably surprised by his dismissal. During the meeting his demeanour was quiet and he didn't offer any defence. Mr Silber recalled the applicant was upset, but offered no response. Mr Posniak and Mr Silber rejected the applicant's version of the conversation at the meeting.

47 During the meeting Mr Posniak said a proposal was made to the applicant for him to offer his services as an independent contractor. The offer was raised again in the 25 May meeting. However, Mr Posniak said the applicant was abusive and would not discuss any matter. The applicant denied this.

48 Mr Silber was upset with what had happened and told the applicant if he would improve "perhaps somewhere down the line we can do something." Mr Silber said he even contacted other suppliers seeking work for the applicant. Mr Silber said there was discussion of the company vehicle being available to the applicant during the notice period.

49 Mr Silber said he organised the 25 May meeting hoping to convince Mr Vilar and Mr Posniak to try and do something for the applicant by talking to the managers. In hindsight, he said he had been "naïve and very stupid" to think the applicant would change his behaviour.

50 Mr Greenstein submitted that the applicant was denied procedural fairness, thereby rendering his dismissal unfair. He said the applicant had not been counselled and had not been warned that his conduct might result in his dismissal. The employer had applied lesser standards of procedural fairness to the applicant than were applied to other employees because of the family relationship between the applicant and Mr Posniak.

51 Mr Greenstein said that despite being given three and a half months notice, the applicant had not sought reinstatement because the conduct of the respondent did not display any intention of reconsidering its position. He agreed the respondent had provided the notice so as to permit the applicant to seek alternative employment.

52 Mr Greenstein submitted that there was no real problem with the applicant's workmanship. However, he received no training on new equipment which was introduced by the respondent. His denial of entry to the Penrith restaurant had more to do with cost savings, than the applicant's conduct.

53 Mr Greenstein complained that the applicant received no formal notice of the allegations against him and no reasons for his dismissal were given until six months after receiving notice.

54 Mr Greenstein said that the meeting of the 14 March was presented to the applicant as a fait accompli. He was given no opportunity to give an explanation or make out a defence.

55 Mr Coleman acknowledged that the evidence disclosed some procedural deficiencies. However, these were not sufficient to invalidate the applicant's dismissal.

56 The applicant had been dismissed for his refusal to complete time sheets, his failure to make himself available on call and his hostile and aggressive manner towards other staff. This conduct was sufficient to justify the applicant's dismissal. Moreover, Mr Coleman said, the applicant had conducted himself such as to disclose his intention not to be bound by the employment contract.

57 Mr Coleman rejected the applicant's claim of no warnings. He said the undisputed evidence of Mr Silber and Mr Posniak was that the applicant was spoken to on many occasions. While these were not formal warnings the applicant would have been under no illusion of what was meant by words such as "we cannot go on like this." Accepting the lack of documentation Mr Coleman said this was perfectly understandable and explained by Mr Posniak as being due to the applicant's family relationship.

58 Mr Coleman submitted that the applicant's workmanship was an issue. The evidence was that he was reluctant to do certain jobs, unnecessarily called outside contractors, failed to respond to managers' requests and failed to complete paper work. Mr Coleman denied the applicant needed training. It was the applicant who had ordered the new equipment and maintained it. The applicant had never expressed a lack of confidence in doing the work. The issue was not incompetence (Mr Posniak and Mr Silber both said the applicant was technically clever), but rather a refusal to perform his duties.

59 In addressing s 88 of the Act, Mr Coleman submitted that reasons for the dismissal were given, the reasons had a basis in fact, the applicant had been counselled on many occasions and, despite three and a half months' notice, the applicant had not sought reinstatement.

60 Another matter the Commission should take into account was that the applicant had acknowledged fault and said he would change. However, his post notice behaviour was no different to his pre notice behaviour. Indeed, he had been excluded from a restaurant during the notice period.

61 Mr Coleman submitted that the respondent had not wished to dismiss the applicant. It was made more difficult because of the applicant's family relationship and his technical expertise. However, the respondent's tolerance had been sorely tested and dismissal was a last resort.

62 Mr Coleman submitted that there had been no request for reinstatement, simply a demand for monies to which the applicant was not entitled. The applicant secured alternative employment before he was dismissed and had suffered no economic loss. There were no elements of unfairness in the termination of employment.

63 In reply, Mr Greenstein was invited to make submissions on the "out of time" application. He relied on Question 34 in the originating application, which stated that, believing he had been made redundant, the applicant made inquires as to his entitlements. When told on 1 August that he was not made redundant, he filed his claim. Mr Greenstein said the twenty-one day time limit should therefore apply from 1 August, and not 30 June 2001.

64 Mr Coleman said that the word "redundancy" had never been used by the respondent and could not be now raised as a basis for accepting the "out of time" application.

CONSIDERATION Legislation and Relevant Principles.

65 The relevant section in Pt 6 ch 2 of the Act which provides the Commission with a discretionary power to accept an unfair dismissal application outside the twenty-one day time limit, is found at s 85(3). The section requires the Commission to be satisfied that "a sufficient reason" for the delay has been made out, having regard 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.

66 An authoritative judgement on the 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, 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 judgement 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 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 In consideration of these principles and in the context of other decisions of this Commission, the Commission, as presently constituted, had cause to summarize the general principles applying in s 85(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.

4. 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.

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

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

7. Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for thee Commission's discretion to be exercised. 8. Ignorantia legis neminem excusat (ignorance of the law excuses no one).

(See also Skelly v Prouds Jewellers Pty Ltd , 53 IR 3; Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch , 51 IR 186; Parker v Capitol Painter & Decorators Pty Ltd , 68 IR 100, Thomas v Repco Auto Tech (unreported, Tabbaa C, 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) and Maity and Express Publications Pty Ltd [2001] NSWIRComm 169).

68 I intend to apply these principles to my determination of this matter.

69 Both parties agreed to have this matter determined, as to s 85(3) of the Act, concurrently with the substantive merits of whether the applicant's dismissal was "harsh unjust or unreasonable" within the meaning of Pt 6 ch 2 of the Act.

70 Having regard for the applicant's onus to satisfy the Commission that it should exercise its discretion to allow his application to be admitted "out of time", it was rather surprising that very little was put as to the reasons for his late application. Even more curious was that Mr Greenstein put no submissions on the specific matters expressed in s 85(3) of the Act.

71 Indeed, the 'out of time' question would not have been addressed at all, if the Commission had not alerted Mr Greenstein to the question after the conclusion of the respondent's case.

72 In a short submission, Mr Greenstein relied on the answer to question 34 in the originating application: It was only after Mr Weisser sought outstanding entitlements that he was informed that the only reason for termination was not redundancy (as advanced on 14 March 2001) but was for performance and conduct reasons outlined in correspondence received from the respondent's solicitor on 1 August 2001

73 It followed Mr Greenstein argued, that the twenty-one day time limit for filing the application should commence from the 1 August 2001. Having been filed on 10 August, the application was therefore in time.

74 This submission must be rejected. The express provisions of s 85(3) require an applicant under Pt 6 ch 2 to be made within twenty-one days "after the dismissal of the employee". The undisputed evidence of both parties was that the applicant was dismissed on the 30 June 2001. There can be no doubt that this was the date of the dismissal of the employee for the purposes of s 83(3) of the Act and for all other relevant purposes. Moreover, it was recognised that the applicant commenced new employment on the 16 July 2001. Put another way, the applicant could not have been dismissed by the respondent on 1 August 2001, because the contract of employment had been terminated on 30 June 2001 and a new contract entered into with a new employer.

75 On the other hand however, if the real reason for an employee's dismissal is not disclosed at the time, but is subsequently found out, such discovery might very well constitute "a sufficient reason" for the purposes of s 85(3) of the Act.

76 For example, one might well imagine an employee willingly accepting that his/her position is redundant, but subsequently discovering after twenty-one days, that the dismissal was for totally unrelated and disputed reasons. The employee's grievance would be a legitimate basis for filing an unfair dismissal claim. Any delay in doing so may well be found to constitute "a sufficient reason" for admitting the application and having it determined on its merits.

77 Nevertheless, it seems to me that this case will be decided on whether the applicant's belief that redundancy was the reason for his dismissal was a belief reasonably held by him. It is to this matter that I will shortly attend.

78 Notwithstanding that the case was conducted on its substantive merits, and although there is some overlap, on the "out of time" application, I do not find it necessary to comment in detail, on the evidence directed towards the merits of the dismissal.

79 However, two procedural matters relating to the admission of evidence, were raised during the proceedings and require some elaboration.

80 Firstly, Mr Coleman sought to admit sworn affidavits from Mr Pierre Van Tonder and Mr Jose Vilar, both of whom were unavailable for cross-examination. Mr Van Tonder is a resident of South Africa and Mr Vilar was in South Africa during the proceedings.

81 The respondent's solicitor had given notice on 24 October 2001, pursuant to s 67 of the Evidence Act 1995, and Rule 189 of the Industrial Relations Commission Rules, that it intended to rely on the affidavit evidence of Mr Van Tonder and Mr Vilar.

82 Although Mr Greenstein maintained he did so, no objection to such evidence was made within twenty-one days in accordance with s 68 of the Evidence Act 1995. Mr Greenstein could produce no evidence of such objection.

83 Obviously the Commission is not bound by the strict rules of evidence. In any event, I allowed the admission of the disputed evidence, subject to the usual caveats and the Commission's general obligations under s163 of the Act.

84 In my view the evidence of Mr Van Tonder and Mr Vilar did no more than corroborate the respondent's properly tested evidence.

85 Accordingly, it is unnecessary to take this matter any further.

86 Secondly, Mr Greenstein sought to adduce oral evidence from the applicant's wife. Mrs Weisser had not provided an affidavit in accordance with the Commission's directions (Rule 179). Mr Greenstein apparently had had a conversation with Mrs Weisser, "walking to court this morning" and it was what Mrs Weisser told him that he craved leave to bring evidence about.

87 Mr Coleman, not surprisingly, objected to Mrs Weisser being called to give evidence. He said the applicant was already in default of the Commission's directions, no notice had been given to the respondent of the nature of Mrs Weisser's evidence and the respondent would be prejudiced by evidence brought "after the horse has bolted."

88 I directed the parties to discuss the matter during the adjournment, observing nevertheless, that "I will have to be well convinced that directions issued a long time ago should be somehow disturbed by a request for further evidence to be admitted at this very late stage."

89 After the adjournment Mr Greenstein renewed his application to call evidence from Mrs Weisser, relying on r 176 of the Commission's Rules. After an explanation of the nature of the evidence in Mrs Weisser absence, I ruled as follows: This is really not a matter that comes about as a result of any evidence that emerged about which you have been surprised Mr Greenstein . It goes to the very heart of what your client has argued from the beginning and I would have thought if there was corroborative evidence from one so close as one's wife that it would have been put in chief in accordance with my directions. So on that basis I decline leave for any further evidence to be adduced.

90 I feel bound to observe, lest the parties need reminding, of what the Full Bench said in The Spanish Club Ltd v Bounouar, 94 IR 173, concerning the importance of compliance with directions of the Commission, "directions designed to facilitate the efficient and effective determination of matters before the Commission".

Reason for length of delay - Meeting of 14 March 2001

91 The Commission earlier referred to the conflict of evidence as to what was said in the termination of employment meeting of 14 March 2001.

92 Mr Posniak, Mr Silber and the applicant were present; Mr Vilar was present at the beginning of the meeting. He had asked to look at the applicant's books and was shown some time sheets. Little turns on Mr Vilar's role in the meeting. However, I am satisfied that the comments alleged to have been made by him, of a $20,000 loss being claimed from South Africa, were never made.

93 The applicant was given three and a half months notice. No person present mentioned the word "redundancy" or "retrenchment." The applicant was able to keep a company provided vehicle during the notice period. There was some brief discussion of the applicant contracting out his services to the restaurants.

94 The overwhelming weight of the evidence is that, throughout the applicant's employment, he was frequently rude, discourteous and aggressive to the restaurant managers and other employees, including his superiors. I am also convinced that he failed to fulfil the full range of his duties and was costing the respondent significant amounts of money for work claimed, but not carried out. The applicant provided no corroborative evidence to refute these complaints. It is instructive that when asked about them in cross examination his frequent replies were "I don't recall" or "I wasn't aware". He put the complaints no higher than informal conversations, and most certainly not warnings. However, the applicant acknowledged that he needed to improve his relationship with the managers.

95 Notwithstanding the weight of evidence and my preference for the evidence of the respondent, the applicant's own evidence was that in the termination interview, Mr Posniak said "If you want to carry on you can have the car and if the restaurants need you they can call you, like a contractor." He replied "I can't work like that … they don't like me as a person".

96 In my opinion, this exchange makes it perfectly plain that the termination of employment was not for reasons of redundancy, but on the basis of the history of his poor relationship with the restaurant managers. In view of the applicant's work history, it makes no sense that Mr Posniak and Mr Silber would simply have ignored these matters in the meeting.

97 In such circumstances, I do not believe the applicant was ever told or given the impression that his dismissal was for reasons of redundancy. I find accordingly.

98 Nevertheless, it is most curious that there was not a single written record of any warnings, counselling or notes of meetings, including no record of the 14 March meeting. There was no letter of termination until 1 August 2001 in which the reasons for dismissal are first committed to writing.

99 While these matters have troubled me, I am able to comfortably accept the reasons why no documentation exists. Mr Posniak admitted he had been wrong and naïve not to do so. However, he had felt his family relationship with the applicant and his hope that things might improve, were a sufficient basis not to issue formal warnings or formalise the termination of employment arrangements.

100 In my opinion, having regard for my general observations of Mr Posniak's demeanour in the witness box, I find this a perfectly reasonable explanation.

101 Moreover, I doubt the applicant was uncertain or unclear as to the reasons for his dismissal. Despite being warned about his behaviour, and given notice of dismissal, he made no effort to change. Indeed, as the evidence disclosed, his conduct and behaviour remained a cause for further complaint.

102 The first reference to the issue of redundancy was in a claim for redundancy payments made in a letter from the applicant to the respondent dated 20 July 2001. It is noted that around late May 2001 the applicant said he felt he had been badly treated by the company. I shall return to this point shortly. The respondent's solicitor replied by letter dated 1 August 2001. It was this letter, which the applicant asserts was the first time he was aware that redundancy was not the reason for dismissal. The point here is that the applicant waited a further nine days before filing his s 84 application. No explanation was given for this delay.

103 Moreover, it is apparent that at least as at 24 July 2001, the applicant had sought legal advice. It is odd that no application was filed for a further fifteen days. Again, no explanation was given for this delay in circumstances where it would have been obvious that the matter was rapidly becoming one of major controversy.

104 I return to the applicant's evidence that in late May he felt he had been badly treated by the employer, and took three weeks' stress leave. If he had felt badly treated by the respondent, one might reasonably query why he did not file his unfair dismissal claim at that point, rather than two and a half months later.

105 The stress claim was made soon after the applicant was denied entry into the Parramatta restaurant. It is to be observed that there was no claim for work related stress, nor did the doctor's certificate disclose the nature of the applicant's unfitness for duty.

106 Coincidently the applicant took annual leave and visited Israel for two weeks immediately after his stress leave and perfectly timed to end on the day of dismissal.

107 In other words, for the five weeks prior to the 30 June 2001, while not at work, the applicant took not a single step to initiate a claim of being unfairly dismissed.

108 In any event, I have serious doubts as to the applicant's bona fides in respect to his taking of this leave.

109 Although Mr Greenstein did not address the specific provisions of s 85(3) of the Act, it is sufficient for me to make the following observations and findings on the evidence as I understand it as being relevant to such matters.

110 The evidence was that the applicant secured alternative employment with a supplier to the respondent two weeks after his termination of employment. It seems clear that he had sought and obtained the alternative employment while still in the employ of the respondent. This was the very purpose, Mr Posniak said, as to why he had provided the applicant with three and a half months notice.

111 In light of this, it is difficult to imagine what, if any, hardship the applicant experienced.

112 In any event, no evidence was properly adduced to support any finding of hardship visited upon the applicant.

113 If any aspect of the respondent's conduct could be criticised, it was its failure to document and formalise its warnings and counsellings given to the applicant. Similarly, there was no documentation pertaining to the meeting of 14 March 2001.

114 However, viewed in the context of the respondent's overall conduct, this criticism, in my judgement, is inconsequential and takes the applicant's case nowhere.

115 The evidence was that the respondent provided the applicant with three and a half months notice of termination, frequently had cause to counsel the applicant as to his conduct and behaviour, displayed considerable patience in tolerating the applicant's continued behaviour, even after the notice of termination, and allowed the applicant ongoing use of the company's motor vehicle while on leave.

116 Notwithstanding there were no submissions put on subsection (c) of s 85(3), it seems to me, it would be a brave submission indeed to regard this conduct as constituting "a sufficient reason" for allowing the "out of time" application to be accepted.

117 The Commission finds that the applicant was well aware that the reasons for dismissal, advised to him at the meeting of 14 March 2001, were his poor performance and inappropriate conduct and behaviour. The applicant would have been in no doubt that these were the grounds for his termination of employment on 30 June 2001.

118 The applicant has not established "a sufficient reason" for his failure to lodge his claim of unfair dismissal within twenty-one days of dismissal.

119 Notwithstanding the substantive arguments put concerning the alleged unfairness of the dismissal, it is unnecessary for the Commission to consider the merits of the applicant's claim.

120 For the reasons I have expressed herein, I decline to exercise the Commission's discretion, pursuant to s 85(3) of the Act, such as to allow matter IRC5380/01 to be accepted "out of time". The application is dismissed and the proceedings concluded.

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