Howard v New South Wales Fire Brigades

APPLICANT: Mr C Acev (Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch) LEGAL REPRESENTATIVES: RESPONDENT: Ms M Warren (The Registered Clubs Association of New South Wales)

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 1 November 2002

AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF SHAUNA LORELLE BORG) AND MERRYLANDS BOWLING, SPORTING AND RECREATION CLUB LIMITED

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION NSWIRComm 291

1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act") filed by Shauna Lorelle Borg (nee Taylor) ("the applicant") seeking relief in respect to her alleged unfair dismissal by Merrylands Bowling, Sporting and Recreation Club Ltd ("the respondent") on 13 November 2000.

2 The applicant was dismissed following an investigation of fraudulent activity alleged to have been undertaken by a number of the respondent's employees. Insofar as the applicant was concerned, it was alleged that, either acting alone or in concert with others, she was involved in fraudulent transactions of poker machine takings.

3 After the respondent's investigation, which included meetings involving the applicant and her Union, the applicant's explanations for discrepancies in the poker machine takings were found to be unacceptable and she was summarily dismissed for serious and wilful misconduct. She was told at the time of dismissal that the police were investigating the matter. However, it wasn't until 10 May 2002, some eighteen months later, that the applicant was told that no criminal charges would be laid.

4 The unfair dismissal proceedings commenced on 23 February 2001. Ms T Moriarty, for the Union, advised that the applicant had been contacted by the police but had not been interviewed, let alone charged with any offence. At the request of both parties, the matter was adjourned until the police inquires were completed and the applicant was aware of whether she was to be charged.

5 Unfortunately, despite numerous report back proceedings, the matter drifted on for almost fifteen months before the applicant was finally informed that no criminal charges would be laid. The applicant had since moved to Nyngen in country New South Wales. She was not pressing for reinstatement, but sought monetary compensation for her alleged unfair dismissal.

6 It is relevant to note that as early as 1 May 2001, the respondent's representative, Ms M Gallagher foreshadowed a preliminary issue being taken as to the Commission's discretion to allow the application to be accepted outside the time limit prescribed by s85(3) of the Act. However, on 30 July 2001, both parties asked the Commission to deal with the preliminary issue in the context of the merits of the claim.

7 Notwithstanding the Commission's efforts in seeking settlement of the claim through a conciliated outcome, no agreement could be reached. On 30 July 2001, a finding of unsuccessful conciliation was made pursuant to s87 of the Act and a two-day hearing was listed for September 2001. However, as the outcome of the police investigation remained unclear, the applicant's union asked for the matter to be re-listed. As a consequence the hearing dates were vacated.

8 On 15 May 2002 the Commission was informed that no charges would be laid against the applicant. New directions were issued for the hearing, which eventually took place on 26 and 27 August 2002.

9 There was some confusion during the hearing, as to whether the "out of time" issue was to be determined as a preliminary matter. There was no confusion as far as the Commission was concerned. The parties had requested that the merits of the matter be heard and had prepared their evidence accordingly. The hearing time had been allocated on that understanding.

10 The Commission appreciates the orderly and efficient conduct of the proceedings and the significant time and effort involved in preparing and presenting the totality of the case by Mr Acev for the Union and Ms Warren for the respondent. There is always a risk, where jurisdiction and merit arguments are heard together, that it will become unnecessary for the merits of a case to be determined. It is axiomatic that the reverse can also apply. Significant time and costs can be saved if the Commission determines a matter on its merits subsequent to a finding against any preliminary impediment to the case proceeding. However, that is not the situation here.

11 As I have decided this matter by refusing to exercise my discretion, pursuant to s85(3) of the Act, I do not find it necessary to refer to the evidence and submissions of the parties which went to the merits of whether the applicant was unfairly dismissed.

12 The applicant commenced employment as a bar attendant on 8 November 1999. There appears to have been no complaint with her conduct or performance until she received a letter from the respondent, dated 16 October 2000, informing her that she was suspended from duty with pay. She was required to attend a meeting on 20 October to explain a number of issues relating to cash handling discrepancies and poker machine payout procedures.

13 The applicant was invited to have a union representative attend the meeting. The applicant immediately contacted her union organiser, Ms Lily Proctor, to seek advice and organise her representation at the meeting.

14 The meeting was attended by Ms Lily Proctor and Mr Andy Harpas, the Union's Assistant Secretary; Mr John Kelly, the respondent's Chief Executive Officer; Mr Graham West from the Barrington Group and Mr Martin Sainsbury from the Registered Clubs Association.

15 Mr West's organisation had been commissioned by the respondent to undertake an investigation into alleged fraudulent activity at the Club involving a number of employees. As a result of the investigation - including the use of covert surveillance - a number of employees had resigned or were dismissed. The police had charged at least two of the employees.

16 At the meeting on 20 October 2001, the applicant was asked whether her signature appeared on a number of poker machine dockets which were allegedly part of a "scam" by staff to collect link jackpots from unsuspecting poker machine winners. She denied that the signature on a docket for the 25 July 2000 was her signature. The respondent indicated that the matter would be further investigated.

17 The applicant returned to work on her next shift and received a second letter suspending her employment and requiring her to attend another meeting on 13 November 2000.

18 The applicant again contacted Ms Proctor, who attended this meeting with her. Mr West asked the applicant about the same poker machine docket (25 July 2000) and informed her that a hand writing expert believed it to be her signature after he had compared it to other documents that she had signed. The applicant again denied it was her signature.

19 The meeting was adjourned for a short time. When it resumed Mr Kelly informed the applicant that her employment was to be terminated effective immediately. Mr West said the police would contact her.

20 After her dismissal, the applicant and Ms Proctor contacted the respondent on several occasions seeking a separation certificate and a letter of dismissal. These documents were eventually received on 25 January 2001.

21 The applicant's claim for relief from alleged unfair dismissal was filed on 30 January 2001. It is authorised under the signature of Mr John Barry, Secretary of the Union. The application was filed 78 days from 13 November 2000, thereby making it 57 days outside the 21 day time limit prescribed by s85(3) of the Act.

22 The applicant and her union organiser, Ms Lily Proctor, provided affidavit and oral evidence. I shall only refer to that evidence relative to the "out of time" issue.

23 The applicant deposed that she was told it was necessary to wait until she received a letter of dismissal and separation certificate before filing her application for unfair dismissal. Despite contacting the respondent on numerous occasions, the documents were not provided until 25 January 2001. Ms Procter said she made at least four attempts to have the respondent's Chief Executive Officer, Mr Kelly, provide the letter of dismissal and separation certificate. Ms Proctor conceded that it was "not normal" for the Union to advise a member to wait for a letter of dismissal and separation certificate before lodging an unfair dismissal claim.

24 Secondly, the applicant said her union representative had told her to hold off filing her application until the police contacted her. Ms Proctor confirmed that in the meeting on the 13 November 2000 the applicant had been told the police would contact her. Nothing happened for months. Ms Proctor agreed that a better course of action would have been to file the application and have it stood over pending the police investigation.

25 The applicant could not recall if she was informed of a 21 day time limit on filing the application.

26 Ms Proctor has been a union official for over five years and each year has dealt with about four or five dismissal meetings involving union members. She had been attending the Club regularly after the investigation by Barringtons. The investigation involved seven or eight employees, some of whom had resigned or were dismissed.

27 In submissions, Mr Acev addressed each of the sub clauses of s85(3) of the Act.

28 Mr Acev submitted that the union had a confirmed belief that the applicant was to be formally charged by the police. It was a natural and reasonable response to wait for the police to contact the applicant. When nothing eventuated, the applicant took the initiative and contacted the police herself.

29 Mr Acev said there would be clear and obvious hardship to the applicant if she were denied an opportunity to "clear her name". There would be a constant cloud of suspicion hanging over her. On the other hand, Mr Acev said there was no evidence of hardship for the respondent if the applicant's claim proceeded to determination.

30 Mr Acev submitted that the conduct of the employer was inappropriate. It had not provided the documentation the applicant and Ms Proctor sought until 25 January 2001. Once the documents were received, the application was filed five days later.

31 Ms Warren put that the onus for positively convincing the Commission to exercise its discretion under s85(3) rests with the applicant.

32 Ms Warren submitted that the applicant and her union could not have been in any doubt that she had been dismissed on 13 November 2000.

33 Ms Warren put that the applicant was at all times represented by the Union. One would reasonably expect a union, dealing regularly with such matters, to file an application within time, regardless of whether the police were involved. Ms Warren cited Covington v Katies Fashions (Australia) Pty Limited (unreported, Connor C, IRC1818 of 1995, 27 October 1995) in which Connor C held that an employee could request an unfair dismissal application to be stood over pending the outcome of criminal proceedings. Ms Warren said this option was available to the applicant and her union but they had chosen not to take it up for eleven weeks.

34 Ms Warren referred to the length of delay as being sufficient for the Commission to refuse to exercise its discretion.

35 As to hardship, Ms Warren submitted there was no hardship for the applicant, whereas the respondent had acted in good faith and had "moved on" in the belief it would not have to defend a claim of unfair dismissal.

36 Ms Warren said the conduct of the employer was such as to expect that its former employee would be prompt in filing a claim. The award had been complied with; there was a thorough investigation; there were two meetings involving the applicant and her union and the applicant was given an opportunity to respond to the allegations and the evidence the respondent had against her.

37 In summary, Ms Warren said that the applicant and her union failed to discharge the onus of establishing a "sufficient reason" for failing to lodge the application within time. The application, therefore, should be dismissed.

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

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. 39 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. 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) (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.

40 The Commission, however, is guided as to the matters to be taken into account, by reference to sub clauses (a), (b) and (c). 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 its discretion should be favourably exercised.

41 An authoritative judgment on the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in 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 "[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 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 the extension. 42 In consideration of the principles discussed above and in the context of other decisions of this Commission, the Commission as presently constituted had cause to summarize the general principles applying in s85(3) proceedings in Kent Gorrell v Uwatec Pty Ltd (unreported, Sams DP, IRC1700 of 1999, 11 November 1999): 1. The Commission's power to accept out of time applications is discretionary. 2. The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3. 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.

4. 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.

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

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

7. Each of the subclauses (a), (b) and (c) in s.85(3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for thee Commission's discretion to be exercised. 8. Ignorantia legis neminem excusat (ignorance of the law excuses no one).

43 (See also Skelly v Prouds Jewellers Pty Ltd, 53 IR 3; Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch); Parker v Capitol Painters & Decorators Pty Ltd, 68 IR 100, Thomas v Repco Auto Tech (unreported, Tabbaa C, IRC3900 of 1998, 23 March 1999); Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported Harrison DP, IRC829 of 1999, 17 March 1999); Herrera and Creative Packaging Services Pty Ltd (unreported Sams DP, IRC2108 of 1999, 11 November 1999); Maity and Express Publications Pty Ltd [2001] NSWIRComm 169 and Weisser and Spur Group Pty Limited [2002] NSWIRComm 15).

44 The crucial issue here is not whether the applicant received her dismissal letter and separation certificate two months after her termination of employment. Rather, it is whether the applicant was in any doubt that she had been summarily dismissed on 13 November 2000.

45 In my opinion, particularly bearing in mind the involvement of the applicant's union at all stages of the disciplinary process, the answer is manifestly obvious.

46 Firstly, the applicant could not have been in any doubt as to what was being alleged against her at the meetings of 20 October and 13 November 2000. Her evidence is that she was asked about her involvement, or knowledge of, fraudulent link jackpot payouts and specifically about an instance of this happening on 25 July 2000 involving a fraudulent payout docket bearing her signature.

47 Secondly, the applicant acknowledged that rumours about the link jackpot "scam" had been circulating within the Club for some time.

48 Thirdly, other employees had either been dismissed or resigned after their involvement was discovered.

49 In other words, the applicant could not have harboured a skerrick of doubt that these were very serious allegations and her future employment was in jeopardy. She must have known her dismissal was based on the Club's belief that she was involved in the fraudulent activity.

50 However, even if there was some doubt about the applicant's understanding, the union could not have been under any illusion of what was happening. The applicant was represented at all times by her union organiser of five years experience, Ms Lily Proctor. Ms Proctor's evidence was that she had been frequently attending the Club as a result of the Barrington investigation in which seven or eight employees had been implicated in the fraud - some had resigned, others dismissed.

51 Ms Proctor agreed that Mr Kelly summarily dismissed the applicant on 13 November 2000 in her presence. Ms Proctor agreed that it would have been a better practice to lodge a claim of unfair dismissal within time and then have the matter stood over pending the police investigation.

52 Further, Ms Proctor conceded that it was not normal for the Union to advise members to wait for confirmation of dismissal or separation certificates before filing an application for alleged unfair dismissal.

53 These frank and honest acknowledgements by Ms Proctor of course, beg the obvious question - why wasn't the application lodged soon after the dismissal? I turn then to consider this question in light of the relevant provisions of the Act.

54 Both the applicant and her union organiser gave evidence that there were two reasons why the application was not filed within 21 days, as prescribed by s85(3) of the Act.

55 Firstly, that the respondent had not provided the applicant with a letter of dismissal and an employment separation certificate until 25 January 2001; and secondly, that the applicant was waiting for the police to contact her, as promised by the respondent.

56 In both respects, I find it extraordinary that the union would have advised its member not to lodge a claim for unfair dismissal within the prescribed time. As mentioned earlier no one, least of all the Union, could have been in any doubt that the applicant had been summarily dismissed on 13 November 2000.

57 While I accept that the respondent was tardy in respect to finalising the applicant's dismissal, it must be asked what purpose would have been served in waiting for the documents? It was completely unnecessary to do so. One might speculate as to whether the application would have been lodged at all if the respondent, as is often the case, simply didn't provide a letter of dismissal or a separation certificate. I welcome Ms Proctor's candid admission that it was not normal for the union to advise members to wait for letters of confirmation of dismissal and separation certificates before lodging an unfair dismissal claim.

58 Dealing with the second reason, I find that it has even less merit than the first. It is inconceivable that a union would advise a member to wait to be contacted by the police, before lodging a claim for unfair dismissal.

59 Firstly, as the union would well know, there is a different standard of proof in civil matters to that applied in the criminal jurisdiction. The Commission is not bound by a conviction or an acquittal in a criminal jurisdiction when determining an application for alleged unfair dismissal. See Four Sons Pty Limited v Sakchai Limsiropothong (2000) 98 IR 1 and my recent decision in Humphries and Cootamundra Ex Services and Citizens Memorial Club Limited [2002] NSWIRComm 225.

60 Secondly, as this case graphically illustrates, police investigations of these matters are notoriously, but understandably, lengthy. No union would expect a police investigation of this nature to be over in a short space of time. I agree with Connor C's opinion in Covington v Katies where the Commissioner refused to extend time in a case involving an applicant who had criminal charges dismissed and said: Of course, there was nothing to stop Ms Covington from lodging her Part 8 application and requesting that it be stood over until after the criminal proceedings were resolved. That would have certainly been the prudent course to adopt in her case. It did not happen.

61 In addition, the Commission is obliged to consider the second leg of s85(3)(a) - the length of delay. Impliedly, I think, this consideration means that the longer the delay the more difficult will be the applicant's task to satisfy the Commission that its discretion should be exercised. This notion was well expressed by Cambridge, C in Schwager v Church Stores [1999] NSWIRComm 485: 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 be to obtain the discretion to extend time.

62 Here the application was 57 days out of time. On any objective view, this length of delay was significant. Taken together with the other matters to be taken into account, I find such a delay to represent a significant hurdle for the applicant to overcome.

Hardship for the employee or employer - Section 85(3)(b)

63 Mr Acev argued that it was necessary for the applicant to remove the stigma of having been dismissed for misconduct and that there was a "cloud hanging over her" in respect to her employment in the industry. This went to the question of hardship experienced by the employee and contemplated by s85(3)(b).

64 In addressing this submission it is appropriate, I think, to recount what the applicant's current circumstances are. She does not seek reinstatement and has moved to Nyngen, in country New South Wales, where she is working in a hotel. No criminal charges were ever laid. Moreover, the applicant's dismissal was two years ago.

65 It seems to me therefore, that the force of Mr Acev's submission has been diluted by the passage of time and her current circumstances.

66 In my judgement, the applicant has consciously chosen to move on with her life. Seemingly, she has not suffered in employment terms. Perhaps it is best to end this matter there and try to forget about this unfortunate and unpleasant experience.

67 On the other hand, for a very obvious reason it cannot be said that the employer will suffer any hardship if the claim is not determined.

68 The case has been run on its merits and the applicant does not seek reinstatement. The usual observations one might make about the employer's hardship simply do not arise. This situation however, does not resolve the matter in the applicant's favour.

69 Section 85(3)(c) of the Act is directed towards the conduct of the employer relevant to the delay in the applicant filing an application for unfair dismissal. Put another way, the conduct there referred to is not about the conduct of the employer in respect to the circumstances of dismissal.

70 I refer to what Cambridge C said in Green v Mayne Nickless Ltd t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998): There was no evidence that any conduct on the part of the employer after the applicant's dismissal contributed to the reason(s) that were provided for delay in the lodgement of the application. The applicant sought to provide evidence regarding the alleged unfairness of the dismissal as a factor, which should influence the exercise of the Commission's discretion to accept the application out of time. An examination and consideration of evidence of this nature could lead the Commission to a quasi determination of the application proper. Therefore the consideration of the conduct of the employer must, having established that an arguable case exists, focus upon only that conduct which is said to have contributed to any delay in the lodgement of the application.

71 I concur with Cambridge C's opinion that to undertake an inquiry of the employer's conduct at the time of dismissal would be dealing with the alleged unfairness of the dismissal and not the reasons for the applicant's delay in filing the application.

72 Viewed in this way, I cannot find any evidence that the conduct of the employer inhibited or prevented the applicant from filing the application within time.

73 That is not to discount entirely the failure of the respondent to provide the documentation requested by the applicant and her union for two months after the dismissal. In my view, it is incumbent on an employer to provide a letter of dismissal and an employment separation certificate as soon as practicable after the dismissal. I regard the employer's conduct as sloppy and regrettable.

74 Notwithstanding these comments, I don't see how this criticism can be regarded as a sufficient reason, or even a contributory factor, for the applicant's failure to lodge her claim within time. Accordingly, I take this matter no further.

75 The applicant has not discharged the onus of establishing a "sufficient reason" for failing to lodge her claim of alleged unfair dismissal within the prescribed time period in the Act.

76 It follows that the Commission declines to exercise its discretion, pursuant to s85(3) of the Act, such as to permit matter IRC01/409 to be accepted for determination.

77 The application is dismissed and the proceedings are concluded accordingly.

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