Herron v McGregor

LEGISLATION CITED: Industrial Relations Act 1996

Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported, Harrison DP, IRC829 of 1999, 17 March 1999) Brisbane South Regional Health Authority and Taylor (1996) 186 CLR 541 CASES CITED: Robert Stanley Green and Mayne Nickless t/as Armaguard [1998] NSWIRComm 40 Herron v McGregor (1986) 6 NSWLR 246 Howell v Red Australia Equipment [2002] NSWIRComm 119 Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311

APPLICANT Mr J Wormington of counsel LEGAL REPRESENTATIVES: RESPONDENT Mr J Stanton, Solicitor Australian Business Lawyers

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Stanton C

Yurdaer Karakis and George Weston Foods Limited t/as Tip Top Bakeries (Newcastle)

Application by Yurdaer Karakis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 This matter concerns an application made pursuant to s84 of the Industrial Relations Act 1996 ('the Act') by Mr Yurdaer Karakis ('the applicant') on 10 May 2006, following his dismissal by George Weston Foods Limited, trading as Tip Top Bakeries (Newcastle) ('the respondent') on 8 February 2006. The applicant suffered a workplace injury and during the course of his return to work program it was determined that there was no prospect of him returning to pre-injury duties "at any point in the foreseeable future". 2 The application was lodged seventy days late and simply stated: ... was advised by the Union there was nothing I could do to pursue my unfair dismissal. I was not advised of time limits for unfair dismissal. 3 The matter was listed for hearing on 17 August 2006. Mr J Wormington of counsel appeared for the applicant and Mr J Stanton, solicitor, appeared for the respondent. The applicant gave evidence on his own behalf. Mr D Maiava, the Operations Manager of the Newcastle Bakery gave evidence for the respondent.

For the applicant 4 The applicant's primary affidavit was filed on 22 June 2006 and an affidavit in reply on 11 August 2006. Both affidavits related to the applicant's employment with the respondent and the circumstances of his dismissal. No affidavit evidence was brought concerning the reasons for his delay in filing the application.

5 In response to a series of questions from Mr Wormington, the applicant accepted that his application was lodged "quite late" and said that shortly after his dismissal he sought advice from the Union who "pretty much said that they couldn't do nothing for me". The applicant maintained that at no time did the Union advise him that he "had 21 days to lodge an unfair dismissal claim" and said he was unaware of any time limits. 6 The applicant said in May 2006, he contacted "the Industrial Relations Commission Office under the New South Wales Government (and) spoke to a telephone consultant". He said "the papers" were subsequently received by mail about one week later and "they also gave me a reference to a Legal Centre to contact ... and from there I met Mr Wormington with my case". 7 When asked whether he had sought any legal advice or advice from anyone other than the Union prior to lodging his application in May 2006, the applicant said he had not. He said he "had a lot on his mind" between the time of his dismissal and contacting the Industrial Relations Commission.

8 The applicant stated he was now employed by Razer Industries as part of a structured return to work program consistent with the respondent's rehabilitation policy. 9 Mr Stanton's cross examination went to issues relating to the applicant's employment with the respondent, details concerning his workers' compensation injury, rehabilitation plan and post dismissal employment with Razer Industries. There was no examination concerning the late application

10 Mr Wormington's re-examination was confined to the issues raised by Mr Stanton.

For the respondent 11 Mr Danny Maiava, the Site Operations Manager of the respondent's Newcastle bakery facility gave detailed evidence in the proceedings relating to the applicant's employment, workers' compensation and rehabilitation history. He was subject to cross examination by Mr Wormington.

12 Mr Wormington submitted that in relation to the threshold out of time issue the applicant had acted appropriately. He had contacted his Union who suggested that a remedy may not lie under s 84 of the Act. There was no specific advice given to him concerning an appropriate remedy nor was there any mention of time limits applying. 13 Mr Wormington submitted the applicant was busy during the period immediately following his dismissal. It was the applicant's evidence that during the week following his dismissal the insurance company instructed him to attend Recovre, an injury management service provider, to be assessed for possible retraining opportunities. He said the applicant's evidence was that he had been busy looking for work. 14 Mr Wormington submitted the applicant was of Turkish descent and English was not his first language. Accordingly, judicial notice should be taken of the additional hardship that persons from non English speaking backgrounds have in relation to reading and writing. Mr Wormington submitted such persons do not share the awareness the general population enjoys where English is their first language. He said persons such as the applicant do not generally read the daily newspapers and are unaware of procedures in relation to unfair dismissals and the business of the Commission. 15 Mr Wormington said that when the applicant could not find any source of advice or help through his Union, he managed to contact the Industrial Relations Commission where he was advised that time limits applied. The applicant contacted a legal centre for advice and an application was lodged immediately on his behalf. 16 Mr Wormington submitted that by exercising its discretion in favour of the applicant the Commission would not in any way prejudice the respondent. He said it was the applicant's evidence that the respondent was put on notice he would seek advice in relation to his dismissal and the respondent concedes the applicant's intention to seek advice. He said the applicant denied stating "he had sought advice or was seeing lawyers" to a representative of the respondent shortly after his dismissal.

17 Mr Wormington said the respondent has a Human Resources Department which is very experienced in dealing with dismissal matters and there was no evidence before the Commission to suggest that the respondent would suffer any prejudice as a result of the application being accepted. However, there would be extreme hardship to the applicant if the Commission's discretion was not exercised in the applicant's favour. For the respondent

18 Mr Stanton submitted that there was no evidence before the Commission that the applicant had any language difficulties or how these alleged difficulties contributed to his substantial delay in prosecuting this matter. 19 Mr Stanton submitted that on the question of the out of time, there was no evidence to show a reason or a satisfactory explanation for a 70 day delay in bringing a claim where the applicant seeks the principal remedy of reinstatement.

20 Mr Stanton submitted that the respondent's principal position was that contrary to s 85(1) of the Act, the application is made later than 21 days after the dismissal of the applicant and there were no sufficient reasons for the Commission to exercise its discretion to accept this application out of time and it should rejected. 21 Mr Stanton said the length of the delay was excessive and referred to the decision of Harrison DP in Howell v Red Australia Equipment [2002] NSWIRComm 119 where his Honour declined to exercise his discretion in the circumstances of a 30 day delay. Mr Stanton also referred to Robert Stanley Green and Mayne Nickless trading as Armaguard [1998] NSWIRComm 40 where Cambridge C determined a delay of 72 days was excessive. Mr Stanton said these decisions highlight the fact that the applicant carries the onus of proof to positively satisfy the Commission to accept an application out of time.

22 Mr Stanton drew the Commission's attention to the decision of McHugh J in Brisbane South Regional Health Authority and Taylor (1996) 186 CLR 541 where at 553 his Honour said: 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." [25] 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.

23 Mr Stanton said the Brisbane South Regional Health Authority decision clearly demonstrates the burden upon the applicant to show the "justice of the case" requires an extension of time is extremely high and the applicant's defence that he was simply too busy to pursue the matter within the statutory period was insufficient to warrant the Commission's intervention.

24 Mr Stanton submitted the applicant had the opportunity to provide an explanation for the delay through his affidavit evidence and he chose not to do so.

25 Mr Stanton said the applicant had the opportunity to explain the delay when Mr Wormington led further evidence from him and all the applicant could say was that he was simply too busy and that he had visited the Union who told him he had no case. The Union was not represented in these proceedings and there was no evidence before the Commission concerning what was put to the Union by the applicant. Mr Stanton reiterated that there was also no satisfactory evidence to show the nature of Union's advice to the applicant.

26 Mr Stanton also referred to Baxter and Charlestown Shopping Centre Holdings Pty Ltd, (unreported, Harrison DP, IRC 829 of 1999, 17 March 1999) where his Honour stated that ignorance of the law was no defence in these matters particularly given the public notoriety afforded to unfair dismissal applications. 27 Mr Stanton submitted the applicant had failed to satisfactorily discharge the onus that the justice of his case requires the Commission's intervention. He referred to s 85(3) of the Act which sets out the discretion available to accept an application that is made out of time if the Commission considers that there is a sufficient reason to do so, having regard in particular to matters including the reason for and length of the delay in making the application.

28 Mr Stanton concluded by stating there were no sufficient reasons given for the applicant's lengthy delay and there was no reliable evidence of any hardship to the applicant if this application is rejected. CONSIDERATION

29 The rationale for imposing time limits on the filing of applications is that the respondent employer is entitled to know within a reasonable period of time whether the dismissal will be challenged and where challenged these matters need to be dealt with expeditiously.

30 The relevant statutory provision is s 85 of the Act which states: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. ... (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. 31 In exercising its discretion pursuant to s 85(3) of the Act to allow an out of time application to be made, the Commission is required to be satisfied that a "sufficient reason" has been made out.

32 In Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 the Full Bench observed at paragraphs 25 and 26: An application for relief from unfair dismissal pursuant to Part 6 of Chapter 2 of the Act has time of the essence. The initial obligation is upon the applicant to file his or her application within 21 days. The discretion to be exercised by the Commission under s 85(3) must be viewed within the framework of the legislative intention expressed by that requirement. In considering the reason for delay, hardship to both applicant and respondent and the conduct of the employer, there may come a point when the length of delay outweighs in a substantial way other considerations. 33 In Herron v McGregor (1986) 6 NSWLR 246 at 254 McHugh JA observed: The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James [1978] AC 297 at 329 … Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively.

34 The principles associated with the legislative intention to fix time limits were also canvassed by McHugh J in Brisbane South Regional Health Authority v Taylor: 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 ... 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...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. 35 In setting a 21 day time limit for filing an unfair dismissal application Parliament was no doubt concerned that claims should be dealt with expeditiously. Accordingly, the onus falls squarely on the applicant to persuade the Commission that his case is an exception to that rule.

36 In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 the Full Bench stated at [12]: ... 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.

Similar comments may be found in a range of decisions of the Commission in relation to applications concerning out of time applications. 37 In deciding this matter I have given consideration to the conduct of the respondent relating to the applicant's dismissal, all of the evidence and submissions of the parties before the Commission, the merits of the applicant's substantive application and his prospects of success. I am satisfied that the circumstances of this case when considered as a whole, with due regard to the balance of prejudice or hardship as between both parties, are insufficient to warrant the exercise of the Commission's discretion in favour of accepting the application lodged out of time.

21 I order that application IRC 2317 of 2006 is dismissed.

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