Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") v Lorraine Linda Asciak

Industrial Relations Commission (NSW)|1994-12-09|Before: Walton J, Grayson DP, Peterson JJ

CITATION: Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") v Lorraine Linda Asciak [2009] NSWIRComm 159

Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") (Appellant) PARTIES: Lorraine Linda Asciak (Respondent)

CORAM: Walton J Vice-President; Grayson DP; Macdonald C

LEGISLATION CITED: Industrial Relations Act 1996

Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404 Asciak v Gai Brennan [2009] NSW IRComm 1033 Brady v Kennedy t/as Sardines (1999) 91 IR 258 Buckman v Burdekin Resources (1998) 85 IR 415 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Cavacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247 Commissioner of Police v Police Association of NSW (2005) 141 IR 423 CASES CITED: Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd (2001) 121 IR 122 Hurrell v Queensland Cotton Corporation (2003) 125 IR 145 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Micalleff v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Price v Box Valley Pty Ltd (1999) 90 IR 480 Public Service Association (NSW) v Department of Corrective Services IRC 2829 of 1993 (Unreported, Hill and Peterson JJ, Murphy C, 9 December 1994) Western Sydney Area Health Service v Gibson (2001) 109 IR 359 WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298

LEGAL REPRESENTATIVES: Mr D Shoebridge of counsel Liston & Clifton Lawyers (Respondent)

CORAM: WALTON J, Vice-President GRAYSON DP MACDONALD C

Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") v Lorraine Linda Asciak

Application by Gabrielle Irene Brennan (trading as "Gai Abandon Clothing") for leave to appeal and appeal against decisions of Commissioner Cambridge given on 7 July 2009 in Asciak v Brennan [2009] NSWIRComm 1033 and 24 July 2009 in Matter No IRC 2329 of 2008

1 The appellant in this matter, Gabrielle Irene Brennan, trading as Gai Abandon Clothing ('GAC'), seeks leave to appeal and to appeal against decisions of Cambridge C given on 7 July 2009 in Asciak v Brennan [2009] NSWIRComm 1033 ('the first decision') and 24 July 2009 ('the second decision') given during the course of proceedings in Matter No IRC 2329 of 2008. 2 The first decision involved the exercise of discretion under s 85(3) of the Industrial Relations Act 1996 ('the Act') to extend time for the filing of an unfair dismissal application. The second decision, recorded on transcript, involved the refusal by the Commissioner of an application by GAC under s 173(1) of the Act that he not exercise arbitration powers in relation to the matter and would proceed to hear and determine the unfair dismissal application brought by Lorraine Asciak ('the respondent') (which application was filed 16 December 2008). 3 The appellant also sought to stay the proceedings which were programmed for arbitration before Cambridge C on 29 and 30 September 2009. That matter, however, lapsed as a result of the Commissioner's decision to vacate the arbitration dates pending the outcome of these appeal proceedings.

4 The grounds of appeal set out in the appellant's amended application were as follows: H. Grounds of the appeal are: In respect of the Commissioner's decision of 7 July 2009, the grounds of appeal are as follows:- (i) The Commissioner erred in the exercise of his discretion in failing to have proper regard to the lack of any or any sufficient explanation for the delay in commencing proceedings with the statutory period prescribed by the Act;

(ii) The Commissioner erred in the exercise of his discretion in failing to give any or any sufficient weight as to the evidence of Applicant's knowledge of her entitlement to lodge an application for relief with the statutory period prescribed by the Act;

(iii) The Commissioner erred in the exercise of his discretion in giving excessive weight to an assertion that the Applicant had been dissuaded by the New South Wales Office of Industrial Relations from lodging an Unfair Dismissal application.

(iv) The Commissioner erred in the exercise of his discretion in finding that the Applicant had been advised by the New South Wales Office of Industrial Relations prior to the Applicant lodging the Unfair Dismissal application, that it would cease its investigations into related entitlement questions, if an unfair dismissal claim was made, as that finding was not properly open on the evidence before the Commission.

(v) The Commissioner erred in the exercise of his discretion in finding that advice was given by the New South Wales Office of Industrial Relations to the Applicant regarding her ability to file an Unfair Dismissal application that led to delay in the filing of the Application within time by the Applicant.

(vi) The Commissioner erred in the exercise of his discretion in giving excessive weight to an assertion that the Applicant had believed that her employment continued after 30 June 2008. (vii) The Commissioner erred in failing to give any or any sufficient weight to evidence that the Applicant was aware during the statutory period prescribed by the Act that her employment had been terminated on or about 30 June 2008.

(viii) The Commissioner erred in failing to give any or any sufficient weight to evidence that the Applicant had obtained other employment in the period prior to the filing of the application.

In respect of the Commissioner's decision and orders of 24 July 2009, the grounds of appeal are as follows:-

(ix) The Commissioner erred at law in refusing an application pursuant to section 173(1) of the Act, that he did not exercise Arbitration powers, in circumstances where he had conducted a conciliation of the matter; (x) The Commissioner erred at law in refusing an application pursuant to section 173(1) of the Act, that another member of the Commission exercise Arbitration powers in the matter; (xi) The Commissioner erred in listing the matter for hearing before himself in circumstances where he had conducted a conciliation of the matter and a party had objected, pursuant to s.173(1) of the Act, to the Commissioner exercising Arbitration powers in the matter; (v) The Commissioner erred in concluding that the determination of an application to lodge an out-of-time application for relief, in relation to alleged unfair dismissal, pursuant to section 85(3) of the Act, amounted to the exercise of Arbitration powers, such as to disentitle a party to a right to object, pursuant to s.173(1) of the Act, to the Commissioner exercising Arbitration powers in the matter, where the Commissioner has also conducted a conciliation of the matter; (vi) The Commissioner erred in concluding that pursuant to section 173(1) of the Industrial Relations Act 1996 (NSW) he was permitted to exercise arbitration power in circumstances where he had conducted a conciliation and a party had objected to him exercising arbitration powers. 5 The relief sought by the appellant was as follows:

The Appellant seeks orders that:- (i) The appeal against the decision of the Commissioner dated 7 July 2009 be allowed. (ii) The decision of the Commissioner made 7 July 2009 to grant an extension of time be quashed. (iii) The Applicant's application for an extension of time to file her application be refused. (iv) The Applicant's application under section 84 of the Act for relief in relation to Unfair Dismissal be dismissed.

In the event that this Honourable Court does not grant the orders above, then the Appellant seeks orders that: (v) The appeal against the orders of the Commissioner dated 24 July 2009 be allowed. (vi) The order of the Commissioner made 24 July 2009, refusing an application pursuant to section 173(1) of the Act, be set aside. (vii) An order that Commissioner Cambridge be restrained from further hearing the matter or exercising Arbitration powers in respect to the matter. (viii) An order that the matter be referred to the President for allocation of the matter to another member of the Commission for hearing.

6 In the first of the impugned decisions, the Commissioner exercised the discretion permitted by s 85(3) of the Act, the provisions of which are as follows: 85(3) [Commission may accept application lodged out of time] 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.

7 In extending time, Cambridge C took into account the sworn evidence of the dismissed employee and her husband as to the circumstances in which the application for relief was filed out of time. Both of those witnesses were extensively cross-examined by the appellant's legal representative. Although other affidavit evidence from the appellant's side was admitted by the Commissioner without objection, the facts material to the question of lateness were discoverable, as the Commissioner noted, almost exclusively from the evidence of the two witnesses called, namely, the respondent and her husband. 8 When that evidence and the competing arguments were analysed by the Commissioner, in particular the evidence and argument going to the reason/s for and length of delay in filing the application for relief, the Commissioner entertained the following considerations: 21 Consequently the first reason for the delay in making the application was the advice from the OIR. The applicant was clearly dissuaded from lodging an application because the OIR would then cease investigation and other work into the applicant's disputed entitlements matters. 22 The second and related factor that established the reason for the delay in making the application involved the applicant's belief that the dismissal by way of the letter of 23 June 2008, was invalid and therefore the applicant could treat her employment to have remained on foot. The evidence strongly supported the genuine, but somewhat mistaken belief, that the applicant's employment continued after 30 June 2008. For instance, when the applicant completed an OIR complaint form on 17 July 2008, in answer to a question "Are you still working for this employer?" she circled the answer "yes" and in the related comments area she wrote the words "on leave". Exhibit 1 - Annexure J. 23 There was further evidence that the applicant and her husband genuinely believed that the applicant remained employed notwithstanding the letter of dismissal dated 23 June 2008. The applicant's husband wrote to the employer on 10 September 2008, inquiring as to why there had been no regular payment of wages made to the applicant. Further, on 8 November 2008, the applicant in a response to a request from OIR stated "I believe I have not been terminated as yet!". Exhibit 1 - Annexure R.

24 Therefore in a period of several months after the dismissal, the applicant and her husband genuinely believed that the applicant had not been dismissed and remained employed although without receiving pay. The applicant's husband gave further evidence that he had calculated a period of leave from 30 June which he thought would operate so that any unfair dismissal claim would not need to be filed until within twenty one days after the expiration of that period of leave. These calculations took the period that the applicant mistakenly believed would apply to the lodgement of an unfair dismissal claim until about 21 December 2008.

25 In summary therefore there are three primary components which provide the explanation for the delay in making the application. Firstly, the applicant was advised that the OIR would cease its investigation into related entitlements questions if an unfair dismissal claim was made. Secondly, because of certain aspects relating to the dismissal including its apparent retrospective operation, and that the applicant's medical certificates were rejected, the applicant genuinely believe that the dismissal was invalid, such that she remained an employee of the employer despite the letter of dismissal. Thirdly, the applicant and her husband had calculated a period beyond the apparent dismissal date which would encompass the (disputed) leave entitlement of the applicant, and that only after the expiration of this period would they then be subject to the operation of the time limit for making an unfair dismissal claim. 26 A careful evaluation of the evidence that supports the three primary factors which established the reason for the delay in making the application leads to both an understandable and plausible basis for what was a mistaken belief. Although the reason for the delay would at first instance be difficult to believe, the evidence has provided confirmation of the genuine belief of the applicant and her husband and the somewhat unhelpful advice provided by the OIR.

9 In the final analysis, the Commissioner concluded: 38 The challenge to establish sufficient reason for the exercise of the discretion to extend time should not be underestimated. The applicant therefore commences with a significant but not insurmountable hurdle which must be overcome. 39 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 become to obtain the discretion to extend time. In the present matter the delay is at least one hundred and forty eight (148) days or about seven times the prescribed limit. However the evidence that has been provided for the reason for that delay could be described as exceptional. 40 The evidence for the reason for the delay is plausible and logical albeit, at first instance, difficult to believe. The most unusual aspect of the reason for the delay involved the regrettable position adopted by the OIR. Just why the OIR would apparently as a matter of established "guidelines", not proceed to assist the applicant if she filed an unfair dismissal claim should probably be the subject of separate inquiry by way of that agency's internal protocols. 41 Unfortunately in this instance the OIR advice was a significant contributing factor for the late lodgement of the unfair dismissal claim. In addition the evidence has properly supported the applicant's genuine but mistaken belief that the dismissal by way of letter dated 23 June 2008, was null and void and that the employment continued beyond that time. 42 Consequently valid reason for the delay has been established. 43 Further, a considerable injustice may be perpetrated if the applicant was denied an opportunity for determination of her claim for unfair dismissal. There was no evidence of extensive or unusual hardship that would be caused to the employer if the application was accepted out of time. The evidence has also established substantial prospects for success of the claim, although no conclusive determination could or should be made at this time. 44 In conclusion therefore the interests of justice will be best served if the applicant is given an opportunity to have this matter heard and determined. There is therefore sufficient reason to exercise the discretion provided by section 85(3) of the Act. The application is accepted notwithstanding that it was made beyond the statutory time limit.

10 Having regard to some issues we will consider shortly in relation to leave to appeal, we propose to refer to some aspects of the appellant's submissions at first instance. The essential thrust of GAC's submissions in the 'out of time' hearing may be distilled from the following passages of transcript: The mistake of fact, the mistake of law, misunderstanding, wrong questions asked, question not asked, forming a view what the law says about the effective date of a termination is really the crux of this matter. The crux is that I suspect with respect to both Mr and Mrs Asciak, that Mrs Asciak has been guided significantly by the counsel provided by her caring husband. He has said that he did everything that a good husband would do, and I don't take issue with that. But I suspect that the applicant may have owed a further duty to herself to do a little more than merely rely upon these issues from her husband. She said, well, look, I don't think my husband has any real training or knowledge in industrial relations, but then again, she did observe, well, look - or it might have been Mr Asciak said, I have been an employer and I knew something about these issues, particularly you couldn't sack someone while they're on certified sick leave. So they've formed a team view and I would submit, Commissioner, that the view they formed at law was wrong on the basis that the termination letter clearly indicated the termination was to take effect that date.

and later The other issue that I would like to dwell on for a moment is, Mr Commissioner, do you have enough before you from the point of view of the applicant in communications and the advice that the Department may or may not have given from time to time, particularly in relation to the unfair dismissal claim, bearing in mind the onus is on the applicant. The applicant talks about having done certain things, they have provided evidence individually that they spoke to the Office of Industrial Relations. Mr Asciak can't remember which of the officers gave him the advice that you couldn't run both together and that sort of thing, but I've got no opportunity to test this, I can't call a witness to contest something that was said by someone when the complainant herself is not able to say who provided that advice. At the end of the day, it seems to me, Mr Commissioner, whether it's appropriate, recognising the total issues under section 85, whether the applicant has done enough practically and been able to provide the evidence of what she has done to permit you to exercise your discretion to permit the process to proceed significantly out of time. 11 In the appeal, and in summary, Mr C Magee, counsel for the appellant, submitted that matters such as are present here and which involve determinations on jurisdictional questions are of such importance that, in the public interest, leave to appeal should be granted. Such matters are not merely decisions of a procedural nature related to case management, but rather decisions on important threshold issues which are determinative of substantive rights and, further, that the correction of clear and manifest error on the part of the Commissioner is also a matter of such importance that, in the public interest, leave should be granted. Failure on the part of the Commissioner to properly exercise the discretion vested in him would, if established, constitute such clear and manifest error. The appellant further submitted that the Commissioner's finding of a "valid reason for the delay" was a finding of fact not open to him on the evidence. Accordingly, his discretion miscarried, as it was based on errors of fact, in particular an error of fact involving the New South Wales Office of Industrial Relations who were found to have dissuaded the respondent from lodging her unfair dismissal application. At its highest, such a finding is purely supposition based at best on circumstantial evidence.

12 The appellant further submitted that the Commissioner erred in giving excessive weight to an assertion that the respondent believed her employment continued beyond the date she received the letter of termination and that the Commissioner gave little, if any, weight to evidence that the respondent was aware during the 21 day period prescribed by the Act, that her employment had, in fact, been terminated by letter received on 30 June 2008. It was contended that it is a matter of accepted principle that an appellate court, having reviewed the facts of a case on appeal, is entitled to decide the correct or proper inference to be drawn from those facts and, whilst it will be important to give proper respect and weight to the conclusions of the primary fact finder, this does not prevent an appellate court from reaching its own conclusions and giving effect to them.

13 Counsel for the respondent, Mr D Shoebridge, submitted, in broad summary terms, that leave to appeal should be refused on the basis that the decision to accept an application out of time relates entirely to matters of fact and an exercise of wide discretion and does not raise matters of public interest. Further, the decision to extend time is an interlocutory one which does not ultimately determine the rights of parties. 14 In any event, it was contended that GAC had conceded, in the out of time hearing, that the respondent and her husband had made a genuine mutual mistake as to the effective date of her termination, a factor which was taken into account and given proper weight by Cambridge C. The evidence of Mr and Mrs Asciak generally as to the reasons for and length of delay in filing the unfair dismissal application was effectively unchallenged and, therefore, not open to GAC to seek to discredit on appeal.

15 At hearing, counsel for GAC developed an ancillary ground of appeal which, if established, had relevance to the question of leave and, subject to that question, the reach of the appeal. That ancillary ground goes to the question of whether the Commissioner erred in the exercise of his discretion in failing to consider, if the respondent was dissuaded by the OIR from filing the unfair dismissal claim out of time, such influence was brought to bear upon her within or outside the 21 day limit imposed by the Act or, in any case, in such a way as explained, in whole or in part, the delay. Mr Shoebridge submitted that that matter was not appropriate for the grant of leave to appeal and that the Commissioner's decision, when properly considered, did address this question and did so favourably to the respondent. 16 Mr Magee contended that, if error was demonstrated, such that the appeal was upheld, the Full Bench should determine for itself the extension of time application.

Consideration re first decision 17 This is an appeal from the exercise of a discretion under s 85(3) of the Act by Cambridge C. The principles relevant to the determination of an appeal of that character are well settled. 18 In Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 the Full Bench said this at [8]: It is timely also to restate what we regard as the settled approach to follow on an appeal from a discretionary decision involving findings of fact and credibility of witnesses. In Abboud v State of New South Wales (Department of School Education) (1991) IR 32 at 32-44, Wright J, President and Walton J, Vice President reviewed the principles by reference to the authorities cited therein. In summary form, the approach was re-stated by a Full Bench (Wright J, President, Glynn and Hungerford JJ) in Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at 428, as follows: "Nevertheless, and notwithstanding the grant of leave, this appeal falls to be considered in accordance with the ordinary principles as an appeal stricto sensu and having in mind the statutory requirement in s 191(3) of the Industrial Relations Act obliging the Full Bench to follow the principles applying to appeals from discretionary decisions: see Big W Discount Stores v Donato (1995) 58 IR 239 at 242-244; Re Solicitors (State) Award (No 3) (1997) 72 IR 225 at 234-235 and the cases cited therein. In the result, it is only open for us to view the challenged decision on appeal in accordance with the proposition that the exercise of a discretion by the primary judge has long required that an appellate court is not justified in interfering with the decision made unless it reaches the clear conclusion that by reason of some error whether of fact or of law, the primary judge not only has taken a different view had has failed to properly exercise the discretion conferred: see also Mace v Murray (1995) 92 CLR 370 at 378; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 58-60. The principle was restated by a Full Bench (Wright J, President, Walton J, Vice-President and Peterson J) of the Court in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 446 and again in Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 at 42-43 (per Wright J, President, and Walton J, Vice-President); it needs no further elaboration here." See also Micalleff v ICI Australia Operations Pty Ltd [2001] NSW CA 274 and Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at [12] and [13].

19 The appellant has demonstrated, in our view, appealable error in the decision at first instance. Whilst there can be no doubt that the Commissioner was entitled to have regard to the advice received from the OIR by the respondent, it was impermissible to take that matter into account without assessing how much that factor contributed to the delay in the bringing of the application in the matter. It was an inappropriate exercise of the discretion to take this factor into account without assessing its contribution as a satisfactory explanation (or otherwise) for the entire period of the delay: Cavacuiti v Toyota Motor Corporation Ltd (2002) 122 IR 247 at [69]. The Commissioner failed to make any assessment as to actual proportion of the delay in this case which was properly and reasonably attributable to the receipt of the OIR advice and, in doing so, committed appealable error. 20 In coming to that conclusion we would not wish to be taken as saying that an exercise of a discretion under s 85(3) requires a microscopic examination of what proportion of a period of delay a particular reason accounts for in a given case. However, it is not sufficient to ignore this consideration in the exercise of discretion, particularly where, as in this matter, the period of delay was very substantial. As the Commissioner noted, it was 148 days late. 21 It was argued for the respondent that the reason advanced in relation to the OIR constituted but one factor taken into account by the Commissioner in assessing whether there was a proper reason for delay. It was argued that it could not, therefore, constitute a proper basis for upholding the appeal. However, this matter has similar characteristics to those found in Hurrell v Queensland Cotton Corporation (2003) 125 IR 145 at [24], where a Full Bench of the Commission formed the view that the particular erroneous factor taken into account had the effect of 'colouring' the eventual exercise of discretion. In this case, it is clear that the Commissioner attached a great deal of importance to the advice given by the OIR, which he described as "a significant contributing factor for the late lodgement of the unfair dismissal claim". As in Hurrell, we cannot be satisfied that the OIR advice was not a primary but erroneous factor in determining the exercise of discretion, and, thereby, constituting appealable error. 22 We consider that this conclusion requires the grant of leave to appeal in this matter in the interests of the proper administration of justice, notwithstanding our concern about whether this issue was properly developed by the appellant in the proceedings at first instance. On balance, we consider that leave to appeal should be granted in order to identify the error and as a means of identifying the correct approach to be taken in relation to 'out of time' applications which frequently come before this Commission. Further, the issue was sufficiently raised at first instance as to not warrant the approach adopted in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at [381]. The error relating to the OIR advice constitutes a sufficient basis, therefore, to grant leave to appeal. 23 We should mention one further matter going to the exercise of discretion at first instance. There was an absence of discussion by the Commissioner in his decision as to whether the respondent had an arguable case or had reasonable prospects for success at first instance. That may have arisen as a result of the conduct of the parties' cases at first instance. However, that is a matter the Commissioner should ordinarily have considered in determining an application brought under s 85(3): Hurrell at [21] and [22]. We do not propose to develop that consideration as to error, however, because of the paucity of the argument in that respect during the appeal. 24 The question arises, however, as to what orders should be made in the disposition of the appeal in the light of these findings. Mr Magee submitted that, if we found error, we should ourselves proceed to determine the question of the extension of time. We propose to take that course and, in doing so, conclude that the extension of time sought should, nonetheless, be granted in this case. We have come to this conclusion for the following reasons:

The period of delay in this case is very substantial and weighed significantly against the grant of an extension of time in the interests of justice.
However, the reasons advanced for the delay are quite significant. We do not consider that the mistake by the respondent as to the calculation of time for filing an application could have, of itself, properly sustained a basis for an extension of time. This was a mistake as to the operation of the rules governing the time for the bringing of unfair dismissal applications. However, it is clear that the mistake was influenced by Mr Asciak's miscalculation as to time limits for the filing of applications. The mistake was, in this respect, a genuine one influenced by the advice given by Mr Asciak (and not the OIR), and not arrived at by any lack of diligent attention being paid to the time question. Further, this is an explanation applicable to the whole of the period of delay.

A further factor is the OIR advice or, on the evidence below, the impression formed by the respondent as to the importance of that advice (which was the conclusion properly available on the evidence). The evidence in the proceedings does not allow for any accurate apportioning of this advice in terms of the delay. However, it is reasonably clear that the OIR was instrumental in the respondent's delay for some portion of the period before the application for the unfair dismissal was filed. We do not agree, therefore, with the contention advanced by the appellant that this advice must be treated as only operating after the filing of the application. A reasonable inference from the evidence is that it occurred sometime during the operative period.
The question of prejudice to the appellant naturally arises, particularly where a long delay of this kind is occasioned. However, that needs to be matched against the clear notice given at an early time by the respondent to the appellant that she might bring an application for unfair dismissal in conjunction with the pursuit of her leave entitlements.
As earlier mentioned, in Hurrell, the Full Bench referred to the appropriateness of considering, in the context of exercising discretion to extend time, the applicant's prospects of success. The Full Bench emphasised, however, that any such assessment of an arguable case or an applicant's prospects of success will, of necessity, be made in the absence of all the relevant evidence and, as such, can only be preliminary in nature.

The failure on the part of Cambridge C to consider on a preliminary basis whether the respondent had an arguable case, or what her prospects of success may be, was of particular significance in this case because all of the evidentiary material proposed to be relied upon by the respective interests in the substantive proceedings was tendered and admitted in the course of the 'out of time' hearing (albeit that neither party explicitly eschewed the right to rely on further material if the matter proceeded beyond that stage). The Commissioner was, therefore, ideally placed to consider those issues, as is the Full Bench.

That evidentiary material, in our view, demonstrates, albeit on a preliminary basis, the presence of an arguable case. On the face of it, the case brought by the respondent was that her dismissal was a vindictive response by the appellant, her then employer, to a dispute with her husband, Mr Asciak, over payment for building work he had carried out to the employer's business premises in Central Mall, Armidale. Whilst this proposition is vigorously resisted by GAC, it is, nonetheless, a proposition which, if made out, would comfortably attract the intervention of the Commission. 25 Having regard to these considerations, we propose to uphold the appeal based upon the errors earlier discussed but, nonetheless, to make orders extending time to bring the unfair dismissal application upon a different basis to that found at first instance. (See Price v Box Valley Pty Ltd (1999) 90 IR 480 at 485, Buckman v Burdekin Resources (1998) 85 IR 415 at 419 - 420 and Anderson v Northern Co-operative Meat Company Pty Ltd (2004) 137 IR 404 at [67].) An alternative approach available would be to confirm the orders at first instance upon a different basis.

26 Having reached this decision, we do not consider that the issues raised by the second ground of appeal properly arise for decision. Given the nature of our findings as to error, the matter should now proceed for determination under Pt 6 of Ch 2 of the Act before another Member of the Commission. In this light, the matter is remitted to a Member of the Commission allocated by the President to hear the matter (no doubt having regard to regional considerations). 27 In that light, we do not propose to determine the second ground of appeal. However, in the light of arguments presented to us, we propose to make some observations as to those issues.

28 The appellant, in a letter to the Industrial Registrar dated 23 July 2009, sought to invoke s 173(1) of the Act in the following terms:

Dear Registrar, RE: Lorraine Asciak v Gabrielle Brennan NSW IRC Proceedings 2329 of 2008 I am the Respondent in the above manner. (sic) I have been advised today that this matter is listed for Teleconference Directions on Friday 24th July 2009 at 9.30am before Commissioner Cambridge. I transmit herewith, copy of correspondence from you dated 23 July 2009 received by me this day. The matter was allocated to Commissioner Cambridge who undertook a Conciliation pursuant to section 86 of the Industrial Relations Act , 1996, on 3 February 2009 at Tamworth. Commissioner Cambridge also heard an 'Extension of time application' and delivered a Decision in relation to the extension of time on 7 July 2009. Pursuant to section 173(1) of the Industrial Relations Act , I object to Commissioner Cambridge exercising arbitration powers in relation to these proceedings. I request that a different member of the Commission exercise arbitration powers in relation to this matter. I would be pleased if you would acknowledge receipt of this letter and respectfully ask that the Teleconference scheduled for tomorrow be vacated in light of my request.

Yours faithfully, Gabrielle Brennan 29 In proceedings convened the following day, namely, 24 July 2009, as the extract of transcript set out hereunder reveals, the same application was made directly to the Commissioner: LOCKE: Yes, Commissioner. Look, if I may, having listened to what has been said, I need you to be aware that as of yesterday my client has retained alternate representation. Mr Colin McGee, barrister is engaged. He is in another court jurisdiction and he has asked me to participate in this teleconference this morning and has asked that I put to you in respect apparently to a letter from the respondent which I have not seen, that the matter not proceed today to the allocation of any timetable or fixing for hearing. But I understand that a request has been made for the matter to be referred to the President of the Commission for reallocation before another Commissioner for determination. Now, Mr Commissioner, I'm not sure if you're aware or if you've seen that, but I understand there's a communication which was sent by mail to the Commission by fax yesterday and that the author of the notice of listing who is Yvette, I understand, had some lengthy discussion with Mrs Brennan yesterday. The application is based on s 173(1) of the Industrial Relations Act. COMMISSIONER: Well, I've seen something about that. I can say quite simply and bluntly that request is refused. LOCKE: Right. COMMISSIONER: The time for making an application under s 173 has long since gone in this matter, I've commenced the arbitration process. So in simple terms I'm not prepared to accede to that request. LOCKE: Right.

30 Section 173 of the Act applies to proceedings brought under Pt 6 of Ch 2 of the Act. The words "or other matter" in s 173(1) are not of unlimited operation but are, rather, confined by the phrase also appearing in the section, "is not to exercise arbitration powers in relation to the dispute or matter". Thus, as Mr Shoebridge put it, the "term 'industrial dispute or other matter' in s 173(1) must be a reference to an 'industrial dispute or other matter' in respect of which the Commission can exercise arbitration powers". As the determination of an unfair dismissal application involves the exercise of arbitration powers (as we will discuss below), s 173 was, therefore, applicable to those proceedings. 31 Except for an abuse of process, s 173(1) provides an unfettered right to object to a Member of the Commission sitting in arbitration proceedings under Pt 6 of Ch 2 where that Member has conciliated the unfair dismissal application under s 86 of the Act at any time up to commencement of the exercise of arbitration powers: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 at [12] and Commissioner of Police v Police Association of NSW (2005) 141 IR 423 at [25] and [28]. However, the right conferred under s 173(1) is extinguished by the commencement of arbitration proceedings without prior objection: Public Service Association (NSW) v Department of Corrective Services IRC 2829 of 1993 (Unreported, Hill and Peterson JJ, Murphy C, 9 December 1994) at 14 and Commissioner of Police at [26]. 32 Here, the Commissioner conducted a conciliation of the application under s 86 of the Act prior to hearing the application for an extension of time under s 85(3). The application under s 173(1) was made after the determination of the 'out of time' question. The issue, then, is whether the hearing of the 'out of time' question under s 85(3) of the Act constituted the exercise of arbitration powers under Pt 6 of Ch 2 of the Act such as would extinguish the rights of the appellant under s 173(1), which were otherwise available at the conclusion of the conciliation and prior to the commencement of arbitration proceedings. 33 As we have mentioned, it is unnecessary for us to answer this question in this appeal. Further, we should note that we have only received short (supplementary) written submissions on the question so framed. 34 It would seem that a determination under s 85(3) does not involve the exercise of an arbitration power or arbitration proceedings for the purpose of s 173(1), and that it may not, therefore, have been open to the Commissioner to refuse to stand down under s 173(1) when an application to do so was made after the determination of the application made by the respondent under s 85(3) of the Act. 35 Our views, in that respect, are based upon the following considerations:

The arbitration powers constrained by s 173(1) are those exercisable in relation to the matter, in this case an unfair dismissal application, brought under Pt 6 of Ch 2 of the Act. This much is clear from the use of the definite article 'the' in the phrase "in relation to the dispute or matter" in the sub-section.
Hence, the inquiry as to whether arbitration powers have been exercised for the purpose of s 173(1) must be directed to the particular statutory context in which the arbitration proceedings arise. Thus, the question in the present case is whether an arbitral power was exercised under Pt 6 of Ch 2 when the 'out of time' question was determined. That question must be answered having regard to the particular statutory conditions for the exercise of arbitral power under that Part.
Viewed in that light, there are a number of aspects of the statutory scheme which point in favour of the view that the legislature did not treat the determination of an 'out of time' application as an arbitration under Pt 6 of Ch 2 of the Act. This is because: (a) Whilst s 87 of the Act does not, by its terms, refer to 'arbitration', it is clear that, where the section refers to the Commission having to "determine the claim", it is a reference to the exercise of such powers. The provisions of that section operate where conciliation has failed. The whole statutory scheme is premised upon unsuccessful conciliation being resolved by 'arbitration' (see, for example, s 3(g)) and, in this context, a determination under s 87 must involve an arbitration. Further, the nature of the powers referred to under s 87(1) are consistent with that conclusion, as is the heading of the section (although this is only of marginal use in construing the statute). (b) The provisions of s 87 (coupled with s 89) specify the determinations that may be made in an arbitration, none of which are coextensive with a power to extend time, although they may well include other interlocutory adjudications, such as the resolution of jurisdiction questions (see Commissioner of Police at [29] and [30]). The expression "making any other order it is authorised to make under the Act" in s 87(1) is wide, but it does not seem to encompass an 'out of time' application, as the order, so made, can only be for the purposes of determining the claim, being a reference to the claim brought under s 84. Such a claim may only be brought within time (s 85(1)) or by the grant of an extension of time (s 85(3)) but in neither case, it would appear, does the claim arise unless one of those conditions is first met (see, the words "may accept" in s85(3) and also the discussion in Commissioner of Police at [30]). (c) None of the matters prescribed in s 88 are referable to a determination under s 85(3), which identifies, by its own provisions, a particular class of factors to be taken into account. (d) If a determination under s 85(3) constituted an arbitration, then it would follow that the legislature contemplated that a determination of that question could only occur after the completion of conciliation. This would appear to be the combined effect of ss 86 and 87 which contemplate the sequential processes of conciliation and arbitration. Such an approach is entirely inconsistent with the policy of resolving preliminary issues, where appropriate, at the earliest available time. It would be an odd result if the legislation contemplated subjecting all 'out of time' questions to an adjudication after conciliation, as such an approach would seem to stand against modern approaches to the efficient and cost effective disposition of proceedings. We have emphasised the word 'all' in the preceding sentence, as parties, by agreement, may well find that a conciliation at an earlier time in the proceedings is the most cost effective means of conducting the unfair dismissal proceedings. (e) Subjecting all 'out of time' applications to a preliminary conciliation would further stand in the face of the restrictions for bringing applications out of time in s 85(1) and jurisprudential notions that an extension of time should never be granted lightly and only for the purposes of ensuring the statutory restrictions (or other such restrictions in rules) do not become instruments of injustice: see WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299 - 301; Brady v Kennedy t/as Sardines (1999) 91 IR 258 at 263 - 264 and Hurrell at [13]. CONCLUSION

36 We confirm that time is extended to bring the application in Matter No IRC 2329 of 2008 to the date of the filing of such application and that the application is thereby within time.

37 The orders of the Full Bench are as follows: 1. Leave to appeal granted. 2. The appeal is upheld to the extent specified in this decision. 3. The time for the filing of the application by the respondent under s 84 of the Act in Matter No IRC 2329 of 2008 is extended to 16 December 2008, so as to bring the application within time. 4. Matter No IRC 2329 of 2008 is referred to a Member of the Commission other than Cambridge C for hearing and determining under Pt 6 of Ch 2 of the Act, as allocated by the President.

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.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (3)