Hurrell v Queensland Cotton Corporation

Industrial Relations Commission (NSW)|2015-10-22

Mr D Gardner, Maddocks Lawyers (Solicitor for the Respondent) File Number(s): IRC 379 of 2015 | 2016/35366

Background

Mr Mtanda Hilton (the Applicant) has worked with NSW Health since he came out from England in 2006.
He commenced employment with NSW Health, Nepean Blue Mountains Local Health District, as a full-time After Hours Nurse Manager on 4 August 2014. He was classed as a Nurse Manager Grade 2 Year 1 pursuant to the Public Health System Nurses' & Midwives' (State) Award.
In correspondence dated 13 February 2015, the Applicant was provided with two written complaints against him. He was required to respond to Investigators by 20 February 2015.
Two further complaints were received on 1 March 2015. Following completion of a formal risk assessment, the Applicant was suspended from duty effective 6 March 2015 pending a thorough investigation of the allegations. The Applicant received correspondence from the Respondent outlining the reasons for his suspension. As it turned out 6 March 2015 was the Applicant's last day at work.

Legislative Framework

The Commission needs to consider the evidence and material adduced in the proceedings in light of the statutory provisions relevant to the time for making applications. The provisions the decision needs to direct its mind to are contained in Section 85, Time for making applications, of Ch 2 Pt 6 of the Industrial Relations Act 1996 (the Act) which relevantly provides that: (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) … (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.

A. Time Limit for making applications

The Applicant contended that he held the reasonable belief that he was required to file within 21 "business" days.
He insisted that he was not late intentionally and claimed that he takes the law seriously. He pointed out that, in addition to being traumatised by his dismissal, he has a wife and three dependent children to care for, pay bills and studies to undertake.
The Applicant said he attempted to seek affordable legal counsel. He contacted Divine Lawyers but did not engage that firm as he was advised that it did not specialise in Industrial Law. After the matter was set down for hearing of the threshold jurisdictional issue, the Applicant consulted Michael Vassili Barristers & Lawyers, who lodged a notice of appearance in these proceedings, filed submissions on his behalf then filed a notice of ceasing to act.
Both in cross-examination and in the submissions prepared by Michael Vassili, Barristers & Lawyers, the Applicant contended that he had not received legal advice regarding the time limit for lodgement of the application. The Applicant also submitted that he had not received advice from the NMA regarding the time limit for lodging the claim.
He said he relied on his own reasonable belief that the 21 day limit referred to 21 business days not including public holidays as opposed to 21 chronological days. Therefore, the fact that he filed 21 business days from the date of termination demonstrated that he was within the time limit he believed to be correct.
In the written submissions prepared by his lawyers on his behalf, it was contended that neither Divine Lawyers nor the NMA had advised him of the time limit for lodging unfair dismissal applications. That submission was made without any evidence to substantiate it. The Applicant's oral evidence was merely that Divine Lawyers advised that they did not specialise in Industrial Law. The Respondent submitted that it was hard to fathom that the NMA, which had represented the Applicant for a lengthy period in relation to this matter, would not have advised him on the time limit to be met and pursued the matter during cross-examination at which time the Applicant agreed that nowhere in his statutory declaration did he claim that the NMA did not advise him of the 21 day limit. In submissions in reply, the Applicant conceded that the NMA may have told him about the time limit but he automatically assumed that it referred to business days and did not seek to clarify it.
The Respondent submitted that the Applicant just has not paid heed to the time limit. The Commission was reminded that the Applicant did not provide a reason as to how he arrived at the belief that 21 days referred to business days.
The Applicant claimed he was so traumatised that it drastically altered his perceptions and processes. The Respondent asked the Commission to put that excuse into perspective pointing out that the Applicant is an intelligent man who is able to read application forms that are written in plain English. The Commission's attention was drawn to the fact that he was undertaking a course of study in two Masters Degrees during the relevant time.
Having considered the evidence, including the intellectual abilities of the Applicant, I accept that there is no evidence before the Commission as to how the Applicant arrived at the belief that 21 days referred to "business" days, particularly after the admission that the NMA had advised him of the 21 day time limit.
Even on his own reckoning that the 21 days referred to 21 "business" days, the claim was filed one day out of time.

B. Time taken in negotiations

It is noted that the Applicant also provided as a reason for the late application the time taken up in negotiations with the Respondent.
The Respondent noted that that the Applicant was professionally represented by the NMA at least up to the date of his dismissal and beyond. The last discussion between the NMA and Ms Nambier regarding the Applicant was on 2 June 2015 which left the Applicant with another week to file.
On 2 June 2015 the NMA advised the Applicant that it was not able to secure a resignation result for him in lieu of his dismissal and that the Respondent was not accepting any further offers. The NMA had in no way held out any possibility of settlement and, for its part, the Respondent had taken no action which could have given the Applicant the impression that there was a likelihood of the Respondent changing its position.
The Respondent submitted that the Applicant was not compelled to await the outcome of the attempts to resolve the matter in an amicable fashion as s. 85 (1) of the Act places a requirement on applicants to file within the time limit. It was not open to the applicant to replace the limitation period specified by the Act with his own subjective opinion of when litigation should commence.
It was also submitted that there was no credible evidence adduced by the Applicant of negligence or failure to advise.
Having considered the evidence in these proceedings, it is patently obvious that the negotiations between the parties did not have any influence on the delay in lodging the claim.

C. Response to Questions 33 & 34

The Applicant stated that he researched his dismissal rights over the internet and came across the Commission's website. He did not recall seeing the Guide for Applicants on that site.
He said he downloaded the Section 84 (Form 7A) application from the internet in Word format. He said he completed it in type written form and signed it in the presence of a Justice of the Peace on 17 June 2015, on the same day it was filed at Parramatta Registry. Question 34 had not been completed even though, on his own reckoning, the claim was filed out of time.
Form 7A contains a section headed "LATE APPLICATIONS (IF APPLICABLE)". In that section there are two questions. Question 33 asks: "Have you filed this application more than 21 days after the date that you believe you were dismissed?" The Applicant responded: "N/A. Application is within 21 business days after dismissal." The word "within" was crossed out with biro ink. It is not clear when that was done but the question is clear - there is no mention of "business" days or public holidays.
All responses on Form 7A were type-written save for the response to Question 34 which was left blank. At the Registry office in Parramatta it was pointed out to him that the answer to Question 33 must be "Yes" and he was required to complete Question 34 which he did in handwriting. Question 34 asks: "If the answer to Question 33 is yes, what was the reason or reasons why your application was filed late?" The Applicant's response was as follows: "Yes. (1) Made attempts to negotiate with employer to no avail (2) Believed deadline to be 21 business days after dismissal."
It was argued in submissions on behalf of the Applicant that it cannot be inferred or implied from the amendment that the Applicant had knowledge of the 21 day time limit or that he was attempting to mislead the Commission.
All that the Applicant was required to do, given his evidence, was respond "no" to question 33. His motive is questionable as to why he would choose to go on to write that the application was within 21 "business" days after dismissal.
I do not accept the Applicant's submissions. The Applicant was aware that, firstly, there was no delay occasioned by the negotiations with the Respondent and, secondly, the claim was filed out of time even on the Applicant's own calculation using the "business" days argument.

D. Special Notes for Applicants

A copy of the application was not received by the Respondent until 26 June 2015. It was contended by the Respondent that the unfair dismissal application filed by the Applicant was an unusual variation of the Commission's standard Form 7A.
The Applicant agreed that the document he filed was identical to the one shown to him by Mr Gardner which was downloaded from the Commission's website - both in relation to typeface and font - up to the section headed "Special Notes for Applicants". That section, which contains a warning regarding the time limit, was deleted from the Applicant's form and replaced with a manipulated photographic image of a sign-post with the words "Unfair Dismissal" on it - an image which he said he cut and pasted from a UK website.
The Applicant stated that he probably did not read the "Special Notes for Applicants" prior to their deletion because he did not believe they were relevant. He went on to point out that upon reading the notes during cross-examination, he still assumed that they were referring to 21 business days.
In the submissions filed by his lawyers, it was contended on behalf of the Applicant that it was further evidence of the fact that the Applicant was not in receipt of advice as to the proper form and time limit for lodging such application.
The Respondent submitted that the evidence confirmed that the Applicant downloaded a version of Form 7A which contained the Special Notes for Applicants section. That section contained an important explanation as to the 21 day time limit for filing applications. The Applicant deleted that section and chose to paste a photograph there instead. No explanation has been provided for that action except that he thought the deleted section was not relevant. It was suggested that a reasonable inference that can be drawn is that the Applicant was hoping that his explanation about the business days would be accepted.
There was no reason provided by the Applicant for deletion of that section of the form apart from the fact that he thought that it was irrelevant. That, in the Commission's opinion, is a remarkable and curious submission to make given the heading of that section and given also that one usually downloads and completes a form in its entirety. The Applicant has not provided any logical or acceptable explanation for his actions. In all of the above circumstances, I agree with the Respondent that a reasonable inference that can be drawn is that the Applicant was hoping that the application will get past the lodgement stage and his explanation about the "business" days will accepted by the Commission.

E. Due Diligence

The Respondent submitted that the Applicant has not demonstrated that he has been diligent and committed to prosecuting his claim in a timely fashion. It was pointed out that the Applicant has been late on every occasion commencing from the filing of his claim, through to filing of his evidence/submissions and finally appearing in the hearing of the threshold issue without any papers or preparation.
During cross-examination, Mr Mtanda agreed that, since April 2015, he has been late responding to every requirement of the Commission: 1. At the conciliation proceedings before Newall C on 24 July 2015, he was presented with written notice of the standard directions. He understood at that time that he had 21 days from that date to file his evidence yet he was late doing so despite the fact that his evidence was a statutory declaration containing three paragraphs. He pointed out that he had three children to look after, he was unemployed and studying fulltime; 2. The signed statutory declaration was filed late because he had forwarded it to the wrong address. At the proceedings before the Industrial Registrar he had an unsigned copy with him in an Express Post envelope; and 3. He received the Respondent's reply a week earlier than the directions required. Yet, once again, he was late in filing his evidence in reply which was due on 11 September 2015 despite the fact that he had Solicitors engaged at the time.
The Respondent questioned the evidence given by the Applicant that his Solicitors needed to read "thousands and thousands of pages" in order to provide submissions on this threshold jurisdictional issue. It was pointed out that it would not be in the public interest to exercise discretion to allow the out of time claim as it would mean that the Applicant would be expecting to submit thousands and thousands of pages in the substantive proceedings which, in the Respondent's view, has no reasonable prospects of success.
The Applicant argued that all 22 reasons provided in the submission prepared by his Solicitors are valid reasons. The NMA had advised him not to raise issues that would strain the employment relationship which the Association intended to maintain. Now that relationship has been severed by the Respondent, it is important that the 22 valid reasons are tested.
The Applicant did not contend that he was unaware of the limitation period. The Applicant was aware of the limitation period of 21 days from the date of dismissal but claimed ignorance in relation to the fact that he was required to file within 21 chronological days. His only explanation was that he inferred that the reference was to 21 "business" days. There was absolutely no explanation as to why such an inference could be made.
Even on the Applicant's reasoning and reckoning, the claim was still filed out of time.
The 22 so-called reasons set out in the submissions were not put forward as evidence which could be tested by cross-examination of the Applicant. They were put in the form of closing submissions from the bar table. Some, in fact, were contrary to the evidence provided by the Applicant during cross-examination.

Hardship to the Applicant

The onus rests with the Applicant to produce positive evidence to demonstrate hardship.
It is asserted that there is harshness as a result of the Applicant's inclusion on the SCR. It was submitted on behalf of the Respondent that his inclusion was administrative and was independent of any termination or resignation. The Respondent is specifically mandated by the Service Check Register Policy to include employees where misconduct has occurred and there is an administrative process for review of that decision. The NMA is fully aware of that Policy and how it operates.
The Applicant was employed for nine months of which he worked only seven yet the allegations concerned the first four months of employment. The Respondent submitted that if it is correct that he has had 10 years' service in the industry in Australia, then the hardship he described is overstated. It would indicate that he is capable of finding other forms of employment in the industry. The Respondent cannot see how, being able to run his full substantive case on the issues raised in his submission with no evidence to support any of them will assist the Applicant in finding or securing other employment.
During submissions the Applicant expressed the opinion that he was discriminated against because he is a black man in a foreign country.
The Applicant felt that his inclusion on the SCR has placed yet another barrier in his career path as private employers would be able to access that Register.
The Respondent submitted that the inclusion of the Applicant on the SCR is independent of any termination or resignation. The Respondent is specifically mandated by the Service Check Register Policy to include employees against whom misconduct is alleged. There is an administrative process for review of that decision. The NMA is fully aware of that Policy and how it operates.
As a result of his termination by Nepean Blue Mountains Local Health District, the Applicant was terminated from casual employment with Sydney South Local Health District (which pre-dated his employment with the Respondent).
The Applicant advised that financial considerations were the only reason why he was not legally represented.
The Applicant advised that he has three dependent children - one child in day care and two children in primary school.
The Applicant is presently undertaking study for a Masters of Health Law and Masters of International Public Health. The Applicant did not give direct evidence of this but in submissions prepared by his Solicitors contended that he had deferred the Masters of Health Law to 2016.
He has been with NSW Health since coming out from England in 2006.
The applicant also pointed out that he was going through a great deal of emotional turmoil at the time. He was consulting a psychologist and obtaining other support.
In his written submissions, the Applicant stated that the implication of the allegations of misconduct would tarnish his reputation and affect his ability to continue within his professional field and prohibit him from being employed in the NSW Health Services or the Ministry of Health if the application for relief was rejected.
As the Respondent pointed out, the reasons provided by the Applicant in submissions prepared by his Solicitors as to why his dismissal was unfair were not put by either himself or the NMA during the investigation or show cause process.
The Applicant's inclusion on the SCR is an administrative matter mandated by a policy of NSW Health. There is an administrative process for review of such inclusions.
I accept that the Applicant lost his casual position with Sydney South Local Health District. However, there was no absolutely no evidence before the Commission as to the circumstances pertaining to that loss save for submissions.
No proof was provided of the Applicant's unsuccessful attempts to find alternative employment or proof to confirm that assertion.
No proof was provided that private employers are able to access the Service Check Register. The allegation was made in submissions only.
The Applicant accepted that there was absolutely no evidence before the Commission to support the assertion that he was being discriminated against because of his colour.
The Applicant did not provide any evidence whatsoever regarding his mental or emotional state and how they impacted on his ability to lodge the application on time.
The Applicant did not provide any evidence of any hardship apart from bland assertions made in written submissions. I do not consider the aspect of financial hardship to be an issue and is not a persuasive factor.

Conduct of the Employer relating to the dismissal

Ms Nambier gave evidence that she recalled receiving a request from the Applicant for a digital recording of his disciplinary interview, burning another copy of it and sending it to him, most likely by Express Post. The Applicant denied receiving that digital recording. The Respondent pointed out that the NMA was fully involved in representing the Applicant at the time and would have made a fuss about it if the digital recording had not been forwarded to the Applicant.
The Respondent pointed out that the relief sought by the Applicant during the discussions between the NMA and the Respondent was contrary to the reinstatement he is seeking in these proceedings.
It was pointed out that the submissions prepared by the Applicant's solicitors on this threshold issue concede that the Respondent has been scrupulous in advising the Applicant on the effect of his termination. Yet the Applicant states that discretion should be exercised by the Commission because there has been gross unfairness to him. That, it was submitted, has not been demonstrated on the facts.
The Respondent further submitted that no evidence had been called to prove the assertion that policy directives have not been followed. Ms Nambier gave evidence, on the other hand, that the policy was followed.
Section 85 (3) (c) of the Act is directed towards the conduct of the employer relevant to the delay in the Applicant filing his claim. The Commission has to be wary of embarking upon an assessment of the substantive matter by considering the matters raised by the Applicant regarding the alleged conduct of the Respondent which led to the dismissal. The Commission needs to focus on whether or not there was evidence of conduct by the Respondent which inhibited or prevented the Applicant from filing his claim within time.
Apart from the allegation, made in submissions, that the Applicant did not receive a copy of the digital transcript of his interview, no evidence was given as to the link between that and the late filing of the application. In any event, Ms Nambier provided evidence to the contrary.
There is no evidence that any conduct on the part of the Respondent after the Applicant's dismissal were a contributing factor to the delay in the lodgement of this application.

Consideration

Section 85 (1) of the Act provides that an application made pursuant to Chapter 2, Part 6 of the Act must be made not later than 21 days after the dismissal of the employee.
Both parties relied on the decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. In that judgment, McHugh J considered a number of matters which may be impacted on by extensions of time: [533-554] A limitation period is the general rule; an extension provision is an 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". 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 the justice of the case requires that extension.
The Commission is required to consider whether "sufficient reason" exists to accept an out of time application having regard to the matters set out in subsections (a) - (c) of section 85 (3) of the Act.
Statutory limits should be adhered to and should neither be treated, nor perceived, as "trivial" or an administrative inconvenience: Brisbane South Regional Health Authority v. Taylor (per McHugh J)
The evidence before the Commission indicates that the Applicant was represented by the NMA at least up to the date of his dismissal on 18 May 2015 and the NMA continued to negotiate a settlement with the Respondent on his behalf until at least 2 June 2015 when the Respondent made it clear that no further offers would be made to settle. The deadline for filing Form 7A did not fall due until 8 June 2015.
The Applicant did not clarify whether or not he received professional advice as to the 21 day time limit until, during an exchange with the Commission in reply submissions he advised that the NMA may have advised him of the 21 day time limit but he did not seek to clarify it and instead relied on his presumption that it referred to 21 business days.
The cover page of Form 7A sets out the following: SPECIAL NOTE FOR APPLICANTS

Not all employees who believe they have been unfairly dismissed can make an application under this Act. Check that you are eligible before you file this application. For example, you would not be eligible to bring a claim if: • …. • …. • …. • …. • …. • ….
You must file your application within 21 days of the date when you believe you were dismissed. If you file the application any later than that time, the Commission will have to decide at some subsequent date whether you should have permission to continue with your claim. If the application is late, complete questions 33 and 34 in addition to question 1-32.
Please complete all of the details in this application form carefully. If you do not have a legal representative or union assisting you in completing the form, you are required to verify the details you include in this form by statutory declaration. Under the Oaths Act 1900 (NSW) there are substantial penalties for knowingly making a declaration that is in any respect untrue. • …. • … .

The Applicant deleted the above section from Form 7A and instead, pasted a sign writing reading "unfair dismissal" on an arrow which he downloaded from another website from the U.K.
The Applicant, in a 3-paragraph statutory declaration tendered as the totality of his evidence in the matter, stated that he had operated on the mistaken belief that the deadline for filing was 21 business days after the termination of the employment contract.
During cross-examination the Applicant initially stated that he probably did not read the "Special Notes for Applicants" prior to their deletion because he did not believe they were relevant: I probably didn't read it because I just thought special notes don't need to be on the actual application itself because they're not relevant to the application. That was my belief. Later in cross-examination, he admitted that he had read the Special Notes for Applicants but pointed out: To me, reading it now and reading it then, I would've just assumed it was twenty-one business days. I didn't think - it didn't occur to me that it will be explicit, you know, that explicit to be so specific in terms of, you know the limit as to put twenty-one business days. I thought twenty-one days, to me it must have meant twenty-one business days.
In my view, given the evidence before the Commission, there was no reason for the Applicant to delete any part of Form 7A as downloaded and replace with a photograph from another totally unrelated website unless he was trying to bolster up his reason for not complying with the time limit set by the legislature.
Conciliation proceedings before Newall C on 24 July 2015 failed to resolve the dispute and standard directions were issued with the Applicant being directed "to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 14 August 2015" and his reply statements by 11 September 2015.
The Standard Directions handed to the Applicant at those proceedings provided the following 'ADDITIONAL DIRECTIONS": OTHER MATTERS: The attention of the parties is drawn to the following matters:

These DIRECTIONS must be complied with.
failure to comply will have serious consequences for your case. The parties were advised by the Registry on the same day that the matter was listed for hearing of the jurisdictional issue before the Commission as currently constituted on 22 October 2015.

The Applicant called the Registry on 13 August 2015 for assistance. The verbal response given to him was confirmed by email to him on 17 August 2015 that the Registry staff cannot give him advice on his out-of-time application. He was advised to seek independent legal advice if he required assistance in preparing his evidence. The Applicant failed to comply with the direction to file by 14 August 2015.
On Tuesday, 18 August 2015 the Registry sent an email to the Applicant at 11.27 am advising that he was to attend a Compliance Check before the Industrial Registrar on 19 August 2015 to explain his failure to lodge any evidence by the compliance date. At 1.10 pm the Registry emailed the Applicant once again confirming receipt of his message that he had forwarded his statements to the wrong address instead of the Registry and that his statement/submissions will be received by Thursday or Friday of that week. He was advised that he still had to attend the Compliance Check before the Industrial Registrar.
The Applicant was very evasive when cross-examined as to why at the proceedings before the Industrial Registrar he had his statement in an Express Post envelope. He stated that he had an unsigned copy in that envelope. There is no evidence as to what wrong address the Applicant sent his statement to. There is no explanation as to why it was not filed in the Parramatta Registry where he filed his Form 7A. The statement he filed was an extremely brief 3-paragraph statutory declaration which did not address the tests to be met in s 85 of the Act. The Respondent filed its evidence on 27 August 2015, a week earlier than it was required to do (ie 4 September 2015).
On 10 September 2015, a notice of appearance was filed by Michael Vassili Barristers and Solicitors on behalf of the Applicant. An extension of time was sought for service of the Applicant's evidence in reply (due 11 September) to 25 September 2015, a request which was objected to by the Respondent in the absence of an explanation sufficient to justify the reasonableness of that request.
No statement in replay was filed by the Applicant. Instead, the Applicant's solicitors filed a 28-paragraph document titled "Applicant's submissions in response" on 21 September 2015.
Michael Vassili Barristers and Solicitors filed a notice of ceasing to act on behalf of the Applicant on 16 October 2015.
In the absence of any period of reasonable notice being fixed by the Commission, cross examination of a witness shall not be allowed unless, at least 7 days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination.
Mr Mtanda had not provided the requisite 7 days' notice about his intention to cross-examine the Respondent's witness. Nevertheless, no objection was taken. He was provided with another copy of Ms Nambier's statement as he did not bring any papers with him and provided with 15 minutes to read it and prepare his cross-examination.
Mr Mtanda was provided with an opportunity to make submissions but chose to rely solely on the submissions prepared and filed by his lawyers in these proceedings dated 21 September 2015.

DECISION

Having regard to the provisions of Section 85 (3) of the Industrial Relations Act 1996, I do not regard that there is sufficient reason for the delay and hereby decline to accept the out-of-time application. I Tabbaa AM COMMISSIONER

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. Decision last updated: 05 February 2016

Under the Oaths Act 1900(NSW)

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