Brisbane South Regional Health Authority v Taylor

LEGISLATION CITED: Industrial Relations Act 1996

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 Hurrell and Queensland Cotton Corporation Ltd [2003] NSWIRComm 139 CASES CITED: Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Smith v NSW Police [2004] NSWIRComm 44

APPLICANT Ms N Ross, Solicitor Inner City Legal Centre (25/08/05) Mr T Saunders of counsel (29/08/05) LEGAL REPRESENTATIVES:

RESPONDENT Mr A Ash, Solicitor Clayton Utz Lawyers

• 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Allan James Moore and Metropolitan Local Aboriginal Land Council

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

1 Allan James Moore ('the applicant') was dismissed from his employment as a caretaker for the Metropolitan Local Aboriginal Land Council ('the respondent') on or about 27 April 2005. The reasons for the applicant's dismissal, while not necessarily relevant for the purposes of this decision, relate to allegations that the applicant sexually assaulted two female trainees in October 2004 at the respondent's St Albans property (at which he was the caretaker). 2 The applicant has claimed relief from alleged unfair dismissal pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). His claim was filed on 24 June 2005; thereby placing it approximately five weeks out of time. As a preliminary matter, the applicant has asked the Commission to exercise its discretion to allow his application to be accepted out of time, pursuant to the provisions of s85(3) of the Act. I shall return to the terms of s85(3) later. 3 The out of time matter was listed for hearing on 25 August 2005. Ms N Ross, Solicitor, appeared for the applicant and Mr A Ash, Solicitor, appeared for the respondent. 4 Ms Ross tendered an affidavit deposed to by the applicant on 2 August 2005. Mr Ash did not seek to cross examine the applicant on the contents of his affidavit and did not oppose the Commission's exercise of discretion to allow his application to be accepted out of time. It is not enough of course, for the parties to consent to the exercise of the Commission's discretion. The statutory foundation of s85 requires a positive conclusion by the Commission that its discretion should be exercised, having regard to the tests contained in s85(3) of the Act. 5 Accordingly, I proceed to determine this preliminary matter by reference to the applicant's uncontested evidence and the helpful and considered submissions of Mr T Saunders of counsel filed on 29 August 2005. 6 Relevantly, the applicant's evidence dealing with the reasons for his late application are found at paras 8-14 of his affidavit, Ex"1". As a result of the termination of my employment my stress and depression became much worse and I had a complete breakdown. I was admitted to Rozelle Psychiatric Hospital on 22 April 2005 and I was discharged on 13 May 2005. Attached and marked "B" is a copy of the Discharge Summary from Rozelle Hospital. While I was a patient at Rozelle Hospital I sent a Medical Certificate to the Land Council. The Land Council faxed a letter to me at the hospital. A copy of that letter is attached and marked "C". Following my discharge from hospital I was still not completely well. I was prescribed medication and was referred to the Community Mental Health Team. I was given a medical certificate that I was unfit for work from 22 April 2005 until 15 June 2005. A copy of that Medical Certificate is attached and marked "D". Following the termination of my employment I had nowhere to live. My father lives in a one-bedroom flat so it was difficult for me to stay with him. I do not have any other family in Sydney, and not many friends because I have never lived in Sydney before. I have been moving around staying with various associates. Because I don't have a job I have not been able to rent a place to live. While I was living at the property at St Albans my children would come and stay with me in the holidays. At the time of my termination of employment I had made arrangements for my children to come and live with me permanently and to attend the local school. When I was forced to move from the property I was (sic) had to take my children to Leeton to live with their grandmother as I could not look after them without somewhere to live. After being discharged from hospital I decided to try and get some advice about what had happened to me. I was very upset that an Aboriginal organisation could have treated me so unfairly. I thought that the Aboriginal Legal Service was unlikely to help me because I was against an Aboriginal organisation. I asked lots of people where I could get legal advice. I went to Redfern Legal Centre, and they said they could not help me but arranged an appointment for me at Inner City Legal Centre. My first appointment with Inner City Legal Centre was on 15 June 2005. I saw a volunteer solicitor who said words to the effect of " Inner City Legal Centre may be able to help you with your case, but you will first have to see the staff solicitor, Natalie Ross ". On 23 June 2005 I had my first appointment with Natalie Ross. She agreed to act for me and we filled out the forms for an unfair dismissal application that day. 7 As I earlier mentioned, this evidence is uncontested and I apprehend no reason why I should not accept it. SUBMISSIONS

8 After referring to the provisions of s85 (3) of the Act, and the various authorities of the Commission dealing with out of time applications in unfair dismissal matters, Mr Saunders submitted that there were two principal reasons for the applicant's late filing of his application. 9 Firstly, the applicant had a complete mental breakdown as a result of the termination of his employment. Mr Saunders observed that in Smith v NSW Police [2004] NSWIRComm 44, Boland J dealt with an application for relief from unfair dismissal filed almost 10 years out of time. In that case, the reason for the applicant's late filing was the applicant's constant medication for the treatment of a mental illness following his termination of employment. While rejecting the applicant's claim, (primarily because of the prejudice to the respondent after such a long period of time) his Honour nevertheless noted at para 23: It seems to me that if the applicant in these proceedings had been late in filing his unfair dismissal claim by only a few weeks, or even a few months, given the reasons for the late filing, there would have existed reasonable grounds to exercise discretion in favour of accepting his out of time application... Mr Saunders put that Boland J's observation is applicable in this case where the applicant is only five weeks out of time and his reason is the same as that considered by His Honour. 10 The second ground relied upon was that, after leaving hospital, it took the applicant some time to obtain legal advice. Mr Saunders referred to the applicant's efforts to obtain legal advice and the added personal difficulties he encountered because he was homeless (see Ex 1). 11 Mr Saunders argued that the applicant would suffer significant prejudice in not having his unfair dismissal case determined; whereas the respondent would suffer no prejudice. Indeed, the respondent had put no case as to any prejudice it might suffer if the claim was allowed to proceed. 12 Mr Saunders further submitted that on a preliminary assessment of the merits of the case, the applicant had reasonable prospects of success with his claim. The applicant denies that he resigned and strongly rejects the allegations of sexual assault. There has been no report to the police of the incident and no proper investigation of the incident by the respondent. CONSIDERATION

The legislation and relevant principles 13 The legislative provisions dealing with the Commission's discretionary powers to allow unfair dismissal applications to be filed out of time are found at s85(3) of the Act. This section relevantly provides: 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. 14 The general principles applying to the waiver of time limits for the filing of civil claims was helpfully discussed by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case 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 that extension.

15 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 by the applicant. Consistent with each case being decided on its own facts and circumstances, the term "sufficient reason" is not defined in the Act, as it is not appropriate to do so. In this regard, 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.

16 Nevertheless, the Commission is guided as to the matters to be taken into account, by specific reference to sub clauses (a), (b) and (c) of s85. In most cases, an applicant will address each of the criteria in the sub clauses. However, for the Commission to be satisfied its discretion should be favourably exercised, requires the balancing of a range of considerations, including, but not limited to, the specific matters identified in s85(3)(a)(b)(c). 17 In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139, the Full Bench of the Commission granted leave to appeal having being satisfied that the appeal raised important questions relating to the principles applicable in the determination of an application under s85(3) of the statute. 18 The Full Bench went on to say at para 12-13: 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. 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".

19 In light of the aforementioned authorities, it is my opinion that the applicant has made out a persuasive case for the acceptance of his unfair dismissal application out of time. It would appear to be self evident that any employee who has been hospitalised (be it because of the termination of employment or completely unrelated to it) would be unlikely to be in a position to prepare and file an unfair dismissal claim. Further, in this case the uncontested evidence is that the applicant continued to be unwell following his discharge from hospital on 13 May. I note that his situation was further exacerbated by other personal and family difficulties. In these circumstances, it would not serve the interests of justice to refuse to accept the applicant's out of time claim. 20 Moreover, Mr Saunders' reliance on Boland J's decision in Smith v NSW Police was entirely on point. I accept that Boland J's observations are apposite to the circumstances in this case. 21 In addition, the applicant, in my view, will suffer substantial prejudice if his case is not determined. I hasten to add, that at this time, no concluded view can be made on the substantive grounds for the applicant's dismissal. It must also be relevant that the respondent raises no objection to the applicant's claim being accepted out of time and obviously did not suggest it would suffer any prejudice if the Commission exercised its discretion in the applicant's favour. 22 Accordingly, I am comfortably satisfied that this is a case which warrants the exercise of the Commission's discretion pursuant to s85(3) of the Act. The applicant's claim for relief for alleged unfair dismissal in matter IRC3252 of 2005 is accepted out of time. 23 I confirm the Commission's directions made on 25 August 2005 in preparation for the substantive hearing listed for 5 and 6 December 2005.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.