Brisbane South Regional Health Authority v Taylor

DECISION 1In this interlocutory proceeding the applicant, Mr John Clark, seeks pursuant to subs 85(3) of the Industrial Relations Act 1996 ('the Act') that the Commission accept an application made under s 84 of the Act which is brought out of time. 2Mr Clark was, it is said, dismissed from his employment by way of not being offered further shifts by the respondent on or about 16 January 2014; this was confirmed by letter on 24 January 2014. The application before the Commission was lodged on 11 April 2014. The present application is therefore, if one judges as I think one probably does, from the time Mr Clark was first told of the loss of shifts on 16 January, 62 odd days out of time. 3It is of value to refer to the relevant legislative provisions. I do not propose to set them out in this ex tempore decision in full, but s 85 of the Act relevantly provides at subs (1) that an application under that part of the Act within which it falls must be made not later than 21 days after the dismissal of the employee. 4It is immediately apparent from that that the Act makes it mandatory that applications pursuant to s 84 be made within 21 days of the dismissal occurring. Subsection 85(2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. That is not relevant here save to contrast it to subs 85(3) which provides no more than that the Commission may - that is as a matter of discretion - accept an application that is made out of time but which is not required to be accepted for the reasons set out in subs 85(2). This is an application of that kind. 5The discretion which the Commission is to exercise under subs 85(3) is not unfettered. Its exercise in favour of an application such as the application before the Commission today requires that the Commission consider that there is a sufficient reason to do so in the terms of the Act. 6And that discretion is in turn a guided discretion, in that in considering whether there is a sufficient reason to do so, the Commission is told to have regard to the particular matters set out in subs 85(3); I will return to those. It is apparent from the wording of the subsection that that list of matters is not an exhaustive one in deciding whether there is a sufficient reason, but merely sets out matters to which the Commission is to have particular regard. It goes without saying I think in a matter of this kind that each case under the subsection is decided on its own facts and circumstances and previous decisions, while they may be informative, are authorities on principles, not factual circumstances. I draw that proposition from the decision in Jess v Scott (1986) 12 FCR 187 at 195 and also from that in Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186. 7Given that the prima facie position is that an application which is brought out of time is excluded by subs 85(1), there is no doubt that an applicant bears the positive onus of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 8The law as to the approach of the exercise of the discretion under the subsection is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40, drawing on what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145, a decision of a Full Bench of this Commission. In Hurrell the Full Commission held, relevantly at paragraph 12: "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." The Full Bench went on to refer to a number of authorities and concluded by saying: "The ultimate exercise of discretion is governed by the requirements of justice in a particular case." 9It should at this point be noted that the reference to the conduct of an employer within the meaning of subs 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay. That subsection does not invite, nor does it allow, an exercise of discretion in favour of an applicant for reason that the Commission comes to view the dismissal itself as unfair. McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 is authority for that proposition. There is of course a place within the exercise of discretion for a consideration of the fairness or otherwise of the decision, that is, the merits of the case, but that falls not within 85(3)(c) but rather within the consideration of the prospects of success under 85(3)(b). 10So the overarching principle is therefore that in exercising a discretion as to whether to accept proceedings instituted out of time, as they were here, the requirements of justice in a particular case considered within the statutory structure is paramount. I draw that from Hurrell at para 13. Parliament has chosen to identify 21 days as the period in which a claim under s 84 is to be made. This limitation period is not an arbitrary cut off date unrelated to anything, including unrelated to the interests of justice or the welfare of society. Rather, it represents the Parliament'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. Again that is from Taylor's case at p 553. 11The overall statutory context when one deals with cases under this Act necessarily includes the very first object of this Act set out at subs (3)(a), that is to provide a framework for the conduct of industrial relations that is fair and just, and it is without doubt an essential element of the Commission's jurisprudence that it act so as to provide fairness so best it can in employer/employee relations. That is what the Parliament has enjoined the Commission to do.