Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 27 July 2001

Matter No. IRC00/6216 BIMALANANDA MAITY AND EXPRESS PUBLICATIONS PTY LTD. Application by Bimalananda Maity re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 169

1 Mr Bimalananda Maity ("the applicant") was dismissed on 4 October 2000. Seventy seven (77) days later he lodged a claim for relief from alleged unfair dismissal, pursuant to s84 of the Industrial Relations Act ("the Act"), against his former employer Express Publications Pty Ltd ("the respondent").

2 By consent of the parties, this decision deals only with whether the Commission should exercise its discretion, pursuant to s85(3) of the Act, to waive the twenty one (21) day time limitation for lodging an application under Pt6, ch2 of the Act. When the matter was first listed, on 12 February 2001, the Commission raised with the applicant (who was unrepresented at the time) the provisions of s85(3). Mr J Kounas, representing the Company, nevertheless agreed to discuss settlement of the claim. The matter was adjourned to 2 March at which time the Commission chaired private conferences with the parties. No settlement could be reached. Accordingly, the Commission, pursuant to s87 of the Act, made a finding of unsuccessful conciliation, set the matter for hearing and issued directions for the filing and service of evidentiary material. The directions were subsequently amended and a new hearing date set at which Mr P Day (Solicitor), represented the applicant and Mr S Bliim (Solicitor) appeared for the respondent. While much of the affidavit material was directed to the merits of the matter, particularly, the reasons for the dismissal, it is only necessary to detail and consider those matters pertinent to whether the application should be accepted out of time.

3 The applicant's claim was filed fifty-six (56) days out of time. His reasons for doing so were: 1. Mr Miaty was hopeful of being reemployed by the Company, as he had been dismissed and reinstated in June 2000. On that occasion, Mr Maity had been dismissed on 9 June 2000. After writing a letter to the Company dated 14 June, explaining he had been unfairly dismissed (Annexure B, Ex 1), he was reinstated on 19 June. 2. For a few days after his second dismissal, Mr Maity claimed he made numerous phone calls to the Company, which were not returned. He said he was particularly concerned with reinstatement. The respondent did not dispute this claim. 3. Between 7 November and 12 December 2000, the applicant was in constant contact with the Company, seeking monies which he claimed were owed to him for payment in lieu of notice, unpaid commissions, bonuses and superannuation. He received some entitlements in "dribs and drabs" (Annexure F1-F5 of Ex 1). 4. When Mr Maity realised he was going to have difficulties in receiving outstanding entitlements he " decided that I have to take some legal action " (T. p7).

4 Mr Maity requested a reference on 7 November, which the Company was prepared to provide. He said he was unemployed from 4 October to 15 January, when he undertook some commission only work.

5 In cross examination, the applicant conceded that it was open to him to write to the Company soon after his dismissal (as he had done in June), and request his job back. He had not done so. The applicant said he requested a reference on the 7 November, because by that time, he realised he was not going to be reinstated. He accepted, however, that he had not requested reinstatement (T. 13). At no time did he give notice to he Company that he intended to file an unfair dismissal application. He said he eventually filed the application because he was "afraid all my entitlements would be delayed" (T. 15). He drew a distinction with his earlier dismissal by deposing that he wanted to talk personally to the directors, but they would not return his phone calls.

6 Mr Day, for the applicant, submitted that the Commission should accept the reason why the applicant delayed filing his application was that he was seeking to be reemployed and was concerned that if he commenced unfair dismissal proceedings, his unpaid entitlements would be delayed. It was coming up to Christmas and he needed the money that was owed. The reason why the applicant had not followed the same procedure he adopted when dismissed in June - that of writing a letter claiming unfair dismissal - was that he was now working directly under the directors and that they would be unaware of his performance. This, Mr Day submitted, was a reasonable apprehension on the applicant's part. It was also reasonable, when the applicant sought a reference on 7 November, that such a request would have been unfavourably received, if the employer was aware of a claim for unfair dismissal.

7 Mr Day submitted that the applicant had experienced considerable hardship; being out of work for three months over Christmas. He said there was no evidence of any prejudice for the respondent, which had prepared its case for substantive hearing. The conduct of the employer in summarily dismissing the applicant, escorting him off the premises, not returning his phone calls and not paying appropriate notice and other entitlements, demonstrated dilatory conduct on its behalf which the Commission should take into account when exercising its discretion in the applicant's favour.

8 No evidence was put by the respondent; Mr Bliim was content to rely on the applicant's own evidence which, he said, did not demonstrate any substantive reason why the Commission's discretion should be exercised in his favour.

9 The applicant's evidence clearly disclosed his different concerns in respect to his two dismissals. Even his own evidence, that by late October or early November he considered reinstatement was unlikely, does not explain why he waited a further six weeks before filing his application.

10 Mr Bliim contended that at no time, after dismissal, did the applicant seek reinstatement or reemployment - nor did he protest his dismissal as unfair. Indeed, Mr Bliim submitted that the applicant's request for a reference on 7 November demonstrated he had accepted the dismissal and was seeking other employment. The applicant was really only concerned with pursuing his unpaid entitlements. Mr Bliim submitted that the Commission should not accept the alleged hardship on the applicant in the absence of proper evidence. A mere assertion of hardship is not sufficient. Mr Bliim referred me to Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported, Harrison DP, IRC829 of 1999, 17 March 1999) and Herrera and Creative Packaging Services Pty Ltd (unreported, Sams DP, IRC2108 of 1999, 11 November 1999), in support of his submissions.

11 Section 85(3) is expressed in the following terms:

85(3) 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.

12 In deciding whether to exercise it's discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (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.

13 The Commission, however, is guided as to the matters to be taken into account, by reference to sub clauses (a), (b) and (c). In my opinion, it is appropriate for an applicant to address each of the criteria in sub clauses (a), (b) and (c). It may be, of course, that only one of these matters, two of them or all three, might be found to constitute a sufficient reason, or reasons, for the Commission to be satisfied it's discretion should be favourably exercised. Mr Day discharged the applicant's onus in addressing the Commission on each of these matters.

14 An authoritative judgment on the question of out of time applications and a tribunal's discretion to waive time limits is 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 where there is delay the whole quality of justice deteriorates. at 552: 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. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. 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. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. and at 553: 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 s31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit when an action was to be commenced." 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 Kent Gorrell v Uwatec Pty Ltd (unreported, Sams DP, IRC1700 of 1999, 5 July 1999), the Commission as presently constituted, summarised the principles to be considered in respect to out of time applications: 1. The Commission's power to accept out of time applications is discretionary.

The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application.

It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances.

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

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

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

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

Ignorantia legis neminem excusat . See also Skelly v Prouds Jewellers Pty Ltd (53 IR 3); Baxter and Charlestown Shopping Centre Holdings ; Herrera and Creative Packaging Services Pty Ltd ; Sadler and others and Queensland Cotton Corporation Ltd (unreported, Neal C, IRC3115 of 2000, 6 July 2001).

16 In my view, the applicant launched these proceedings because he wished to force the employer's hand to pay him what he believed were his unpaid entitlements. It was not because he believed he was unfairly dismissed. It hardly needs to be said that an unfair dismissal application is not the appropriate mechanism for pursuing unpaid entitlements. There was little put in evidence which convinces me otherwise. Exchanges of correspondence, and his contact with the Company after 4 October were not about seeking his job back; rather he continually queried his entitlements. Moreover, he expressly requested a reference from the Company on 7 November.

17 It is most curious when one considers the applicant's behaviour when he was first dismissed in June, to what he did after the 4 October dismissal. Two distinct and different motivations are obvious. On the first occasion, he wrote to the employer within a few days, seeking his job back and expressly putting that he had been unfairly dismissed. He was reemployed soon after. By contrast, on the second occasion, he waited over a month before writing to the employer seeking outstanding entitlements and a reference. There was no mention of being unfairly dismissed. He received a reply on 24 November indicating commission payments, calculated on an annual basis, were to be withheld, but would be paid when they became known. The applicant wrote again on 1 December and 12 December, complaining about alleged unpaid entitlements. Again, there was no reference to being unfairly dismissed, nor did he foreshadow unfair dismissal proceedings.

18 The applicant's own evidence was that his letter of 7 November was concerned with his alleged entitlements. Further evidence was that his application was filed, when he realised the Company was not paying his entitlements: …statements they gave me was misleading or incorrect and ultimately I realised that they are not, it is going to be difficult for me to get that entitlement. Then when I decided that, I have to take some legal action. (T. p7)

19 Mr Maity accepted that he had given up on reinstatement by late October or early November. Why would he then wait until 20 December to file his application? Having regard for his earlier reinstatement and his apprehension that he might be reinstated a second time, it would be reasonably open for the Commission to find that a period of time, of about a month, should be taken into account in the applicant's favour. Even so, it was reasonable to expect that soon after this point, when on his own evidence, reinstatement was not going to happen, an application would have been filed. He didn't do so for another six (6) weeks. There was no explanation - let alone a reasonable explanation - as to why Mr Maity chose to wait this long before lodging his claim. These circumstances fortify my opinion that he filed, and pursued his application, to force the hand of the employer in respect to outstanding commissions.

20 It is trite to observe that a dismissed employee who remains unemployed for three months will experience some degree of hardship. Of course, the extent of, and degree of such hardship will vary from case to case. Hardship may be cushioned by the individual's overall circumstances and his means of supporting himself and his family. In some cases, an unemployed person may experience no hardship at all. No evidence was brought by the applicant which demonstrates the extent, or degree of his hardship.

21 In a case where the onus is on the applicant to convince the Commission it should exercise it's discretion in his favour, it is incumbent upon the applicant to bring positive evidence to demonstrate hardship. I agree with Mr Bliim that merely asserting hardship is not good enough. Moreover, one might well imagine, if a dismissed employee was fearful of the economic hardship his dismissal might create, that a hasty decision would be made to lodge a claim, in the hope that some compensatory relief under Pt6 ch2 of the Act might result from conciliation or arbitration proceedings. Having this in mind, I do not accept the applicant's bland assertion of hardship when he chose to wait seventy-seven (77) days before lodging his claim.

22 The Commission accepts that the employer's conduct, including the manner in which the dismissal was effected, the refusal to return phone calls and its haphazard approach to making payments for unpaid entitlements, does not reflect favourably upon it. It is obvious that the whole matter could have been handled with more care. Wisely, the respondent did not strenuously argue against this proposition. On the other hand, the evidence is that the payment for an additional two (2) weeks notice and commissions due at the time, were all paid by the 7 November when the applicant requested a reference. Indeed, Mr Maity expressly thanked the respondent for addressing these matters in his favour.

23 Again, I observe that it was a further six (6) weeks before he filed the application. This fact does not sit well with his complaint of the employer's dilatory conduct. In any event, I am not satisfied that the employer's conduct (notwithstanding its imperfections) was of sufficient gravity to warrant the exercise of the Commission's discretion in the applicant's favour.

24 For the reasons I have expressed herein, I decline to exercise the Commission's discretion pursuant to s85(3) of the Act, such as to allow this application to be accepted out of time. Accordingly, the application is dismissed and these proceedings concluded.

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