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[2002] AIRC 3
procedural. The Commission allowed the application for relief to be accepted as lodged on 2 November 2001, notwithstanding that it was one day outside the 21-day period. The file was referred for conciliation...
The Commission accepted that Donald had a genuine, understandable reason for filing one day late: he mistakenly believed his employment ended on 12 October, when it had ended on 11 October. It weighed that explanation alongside prejudice, the absence of other steps to challenge the dismissal, the apparent merits of the underlying claim, and fairness to comparable employees. It found the explanation persuasive, the specific prejudice from the delay unsubstantiated, and the other factors either supportive or neutral. The application was therefore accepted out of time and sent to conciliation. The decision did not determine whether the termination itself was fair.
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Commissioner Cargill’s decision concerned only whether Ian Donald could have his termination application accepted outside the statutory filing period. It did not decide whether Colonial State Bank had lawfully or fairly terminated his employment.
3 cited instruments linked from this judgment.
Donald had worked for the Bank since January 2000. On 6 July 2001, he was placed on a Managing Unacceptable Performance program, described in the decision as the “MUP” program [4]. At a performance review meeting on 10 October, he gave the Bank’s representatives a letter raising concerns. The meeting was adjourned so those concerns could be considered [4]-[5]. The Bank’s position was that Donald had been told the previous day that a final decision about his employment would be given on 11 October [4].
At the meeting on 11 October, Donald was told that his employment was terminated with immediate effect. The termination letter was dated 11 October [5]. Donald later told the Finance Sector Union (FSU) that the termination had occurred on 12 October. The FSU sought legal advice, and the solicitor advised that the application should be lodged by 2 November, calculated from the date he had been given [6]-[7]. The application was lodged on that date and recorded 12 October as the termination date [8].
The discrepancy was discovered only after the Bank objected to an extension of time. Donald checked his calendar and realised that the termination had taken place on 11 October. The application was therefore one day outside the statutory 21-day limit [9].
Donald’s application was made under s 170CE(1) of the Workplace Relations Act 1996. Section 170CE(7), quoted in the decision, required an application to be lodged “within 21 days after the day on which the termination took effect”, unless the Commission allowed a longer period [27]-[28]. The Bank opposed allowing the late application. The Commission’s task was to decide whether to extend the time, not whether the underlying termination claim would succeed.
The decision identified six principles from Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298. The legislation’s note expressly referred to those principles in relation to a similarly worded provision, but the Commissioner observed that it was unclear whether the note was intended to apply to s 170CE(7). Because both parties accepted that Brodie-Hanns was relevant, the Commissioner proceeded on that basis for the decision [29]-[30].
The first principle was central: the prescribed period should prima facie be complied with, but an extension may be appropriate where there is an acceptable explanation for delay that makes it equitable to extend time [30]. The principles also made relevant any post-termination action taken to contest the dismissal, prejudice to the employer, the merits of the substantive application, and fairness between the applicant and others in a like position. The absence of prejudice alone was not sufficient to justify an extension [30].
The Commission accepted Donald’s evidence that he had been shocked by the termination, despite knowing that dismissal was possible [32]. It also accepted his evidence that he genuinely misstated the termination date to the FSU and that the mistake was “most likely caused by the shocked state” he was in [33]. The employer disputed the explanation in submissions, but the Commissioner accepted Donald’s evidence. The decision notes that he was not required for cross-examination and that there was no direct evidence contradicting his account [32]-[33].
A further part of the explanation was that neither the union nor the solicitor questioned Donald about the date, even though the termination letter was dated 11 October. The Commissioner accepted that this compounded the mistake, but held that, in the circumstances, the representatives’ error should not be visited upon Donald [34]. This was not a determination that representatives’ errors can never matter. It was the Commission’s assessment of the facts before it, including the accepted mistake and the very short period of lateness.
The Commission also considered the other Brodie-Hanns factors. Donald had taken no action after termination to contest it apart from lodging his claim [35]. The Commissioner said that this was not fatal and found the omission understandable in the circumstances and given the length of the delay [35]. The Commissioner also rejected the submission that Donald’s pre-termination objections counted as action to contest the termination for this principle. The principle concerned action after termination, as indicated by its wording [36].
The Bank argued that it would be prejudiced because it would have to defend a claim despite having acted reasonably and in good faith. The Commissioner accepted that this was prejudice in a general sense. But the Bank did not identify particular harm resulting from the one-day delay, such as key witnesses being unavailable. The Commissioner also observed that the Bank was a relatively large employer with human resources staff or consultants [37]. On balance, the accepted prejudice was outweighed by the other factors [38].
On the underlying claim, the Commissioner accepted that the Bank had followed a process to address alleged performance deficiencies. Donald nevertheless challenged the fairness of that process. The Commissioner did not form a concluded view about the claim, but was prepared to accept that it was “not without merit” [39]. That was a limited assessment for the extension question, not a finding on the ultimate merits.
Finally, the Bank relied on the MUP program being applied universally to relevant employees. The evidence did not establish whether other employees had been dismissed, challenged their dismissals, or sought extensions. The Commission therefore treated comparative fairness as neutral [40].
Taken together, these considerations supported acceptance of the application despite the lateness. The Commission allowed it to be accepted as of 2 November 2001 and referred the file for conciliation under s 170CF [41]-[42].
This decision applied the version of the Workplace Relations Act 1996 then in force, following amendments made by the Workplace Relations Amendment (Termination of Employment) Act 2000 [26]. Section 170CE(7), as quoted in the decision, set a 21-day filing period and expressly allowed the Commission to permit another period on an application made during or after those 21 days [27].
The decision did not treat the 21-day limit as optional. It described the prima facie position, drawn from Brodie-Hanns, as requiring compliance with the prescribed time limit unless an acceptable explanation made an extension equitable [30]. Nor did it say that the absence of employer prejudice alone could justify an extension: principle 4 expressly ruled out that reasoning by itself [30].
The legislative note described in the decision referred to Brodie-Hanns in connection with a similarly worded provision. The Commissioner was unsure whether the legislature intended that note to apply to s 170CE(7), and noted that the Second Reading Speech and Explanatory Memorandum did not resolve the question. The Commissioner nevertheless considered the Brodie-Hanns principles because both representatives relied on them [29]-[30]. This is the decision’s stated basis for using those principles, rather than a definitive ruling about the note’s statutory reach.
The decision records no later change in the law and cites no later judgment. It therefore cannot, on the supplied text, establish the present state of Australian law or how later courts have treated the principles. Its conclusions are tied to the then-current provision and the facts before the Commission.
At [30], the decision states that the Commission must be “positively satisfied” that the prescribed period should be extended. In plain English, lateness does not automatically lead to an extension. The applicant must persuade the Commission that the circumstances justify allowing the late filing.
At [32], the Commissioner said: “I am satisfied that there is an acceptable explanation for the delay in lodgement in this case.” The finding rested partly on accepting Donald’s evidence that he was shocked by the termination. The Commissioner acknowledged that he had known termination was a possibility, but did not consider that inconsistent with being shocked when it occurred [32].
At [33], the Commissioner accepted that Donald had made a “genuine mistake” about the date. This mattered because the explanation was not simply that he had forgotten the deadline or chosen not to file. On the accepted evidence, the date supplied to the union was wrong and the filing calculation followed from that error.
At [34], the Commissioner said that the representatives’ failure to check the date “should not be visited upon the applicant.” In plain English, the Commissioner did not treat that failure as a reason to deny an extension in this case. The passage should be read with its context: the applicant’s own evidence about his mistake was accepted, and the delay was one day [33]-[34].
At [37]-[38], the Commission accepted prejudice in the sense that the Bank would have to defend the claim, but noted the absence of identified prejudice caused by the delay. The decision distinguishes the general burden of defending a claim from particular disadvantage arising because the application was late. It then weighs the accepted prejudice against the other circumstances rather than treating it as decisive.
At [39], the Commissioner’s statement that the claim was “not without merit” is deliberately qualified. The Commissioner did not decide the termination claim or form a concluded view on its merits. The statement only records the limited assessment considered relevant to the extension application.
The decision is most directly relevant to an application for an extension of time under the provision it considered, where the applicant has missed the statutory period and asks the Commission to accept the application late. Its reasoning is particularly fact-sensitive.
Factors that supported an extension here included an accepted genuine mistake about the effective termination date, evidence that the mistake was associated with the applicant’s state of mind after the termination, and a delay of only one day [32]-[34]. The fact that the union and solicitor did not independently check the date was considered, but did not defeat the request in these circumstances [34].
Other potentially relevant features include whether the applicant took steps after termination to contest the dismissal, whether the employer identifies particular prejudice caused by the delay, whether the substantive claim has some apparent merit, and what the evidence shows about fairness to people in comparable positions [30], [35]-[40].
The decision does not establish that a mistaken date will always be an acceptable explanation, that a representative’s failure to check a document will always be excused, or that a short delay must be allowed. Nor does it establish that general employer size or resources will always outweigh prejudice. Those points formed part of the Commissioner’s assessment of this particular record.
The supplied judgment does not identify any later courts or tribunals that applied, distinguished, followed, or questioned this decision. It also contains no later case history. It would therefore be unsupported to describe a subsequent line of authority or say that later courts have adopted its reasoning.
The precedent expressly considered by Commissioner Cargill was Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298. The Commissioner set out its six principles and applied them to Donald’s application [30]-[40]. The decision also contrasted the Bank’s circumstances with those of the respondent in Brodie-Hanns, noting the Bank’s size and human resources capacity [37]. That comparison formed part of the prejudice assessment in this decision; the text does not describe any later treatment of Donald.
For research or professional use, the judgment itself supports only the account above: it applied the Brodie-Hanns framework for the purposes of the extension question and allowed the application out of time. Any claim about how the decision has been treated since would need later authorities not included in the supplied material.
The decision left the underlying termination claim unresolved. It expressly said that the Commissioner had formed no concluded view on the merits [39]. The application was referred for conciliation, and the text does not report what happened in that process or any later substantive decision [42].
The decision also left open whether the legislative note referring to Brodie-Hanns was intended to apply to s 170CE(7). The Commissioner recorded the uncertainty and proceeded because both parties accepted that the principles were relevant [29]-[30]. The decision does not resolve that statutory interpretation question for other cases.
The scope of the accepted explanation is also fact-dependent. The decision does not set out a general test for when shock, a mistaken termination date, or an error by a union or solicitor will justify an extension. It explains why those matters were accepted on the evidence in Donald’s case [32]-[34].
Finally, the comparative-fairness issue was neutral because there was no evidence about other employees’ terminations or applications [40]. The decision does not establish what outcome that factor would have if reliable comparative evidence were available. Similarly, it does not define the kinds or degree of delay-related prejudice that would outweigh an otherwise acceptable explanation. The Bank identified no specific prejudice such as unavailable witnesses, so the Commission did not need to assess such a claim on evidence [37]-[38].
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s.170CE application for relief in respect of termination of employment
[1] In this matter Mr I. Donald (the applicant) has lodged an application pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) for relief in respect of the termination of his employment by Colonial State Bank (the respondent). The application was lodged outside the time limit of 21 days prescribed by section 170CE(7) and the applicant seeks to have the application accepted out of time. The respondent objects to an extension of time being granted.
[2] The matter was heard as part of the callover on 19 December 2001. The applicant was represented by Mr Hendry, solicitor, who appeared by leave, and the respondent was represented by Mr Maroun, Manager - Employee Relations NSW/ACT.
[3] Affidavits sworn by the applicant and Ms J. Angrisano, an official of the Finance Sector Union of Australia (FSU) an organisation of which the applicant is a member, were tendered without objection. Neither deponent was required to give evidence. The applicant's affidavit was marked Exhibit Applicant 1 and Ms Angrisano's affidavit was marked Exhibit Applicant 2.
[4] The applicant commenced employment with the respondent in January 2000. On 6 July 2001 he was placed on a Managing Unacceptable Performance program (MUP). On 10 October 2001 he attended a performance review meeting at which time he presented a letter to the respondent's representatives setting out certain concerns. That letter is Annexure A to the applicant's affidavit. He also sent a letter to another official of the respondent, Annexure B to the applicant's affidavit. The respondent's submissions indicate that, at this meeting, the applicant was made fully aware that he would be informed the next day of the final decision as to his employment, hence he was aware of the fact that his employment might be terminated on 11 October.
[5] As a result of the letter, Annexure A, the respondent's representative adjourned the meeting to consider what had been raised by the applicant. A further meeting was held on 11 October at which time the applicant was informed that his employment was terminated effective immediately. The applicant was handed a termination letter which was dated 11 October 2001.
[6] The applicant contacted the FSU by telephone on 23 October 2001. He sought the Union's assistance and advised Ms Angrisano that his employment had been terminated on 12 October. Ms Angrisano advised the applicant that the FSU would seek legal advice on his behalf and instructed Mr Hendry to provide such advice.
[7] On 31 October 2001 Mr Hendry provided advice about various aspects of the applicant's case, which are not directly relevant to the present matter. He further advised that, if a claim was to be made, it should be lodged by 2 November, that is, 21 days after the date Mr Hendry had been informed was the date of termination. The FSU then instructed him to proceed and the application was lodged on 2 November.
[8] The application for relief, Form R18, indicated at point 12 that the date on which the termination took effect was 12 October 2001 and point 15 had been left blank, reflecting Mr Hendry's understanding that the application was lodged within time. The letter of termination, which was lodged with the Form R18, is dated Thursday, 11 October 2001. In the top right hand corner there is a hand-written note "received on 12/10/01". Mr Hendry stated that he believed that this notation had been made by an FSU official.
[9] At some point in time, apparently towards the end of November, Mr Hendry was informed that the respondent was objecting to time being extended for lodgement of the application. Mr Hendry then took the matter up with the applicant who checked his calendar and realised that the termination had taken place on 11 October rather than 12 October. The application was lodged one day outside the 21 day limit.
[10] An outline of submissions on behalf of the applicant was tendered and marked Exhibit Applicant 3. Mr Hendry supplemented this with oral submissions.
[11] Mr Hendry submitted that the relevant principles to be applied in matters of this kind are those set out in the decision of Brodie - Hanns v MTV Publishing Limited (1995) 67 IR298 @ 299 (Brodie-Hanns). He submitted that the applicant had provided an acceptable explanation for the delay. The applicant made a genuine mistake as to the actual date of termination and he provided the FSU with incorrect information to this effect. This information was then passed on to Mr Hendry who provided his advice as to the appropriate date of lodgement based on this incorrect information. Mr Hendry referred to the applicant's evidence at paragraph 10 of Exhibit Applicant 1 that the mistake was "most likely caused by the shocked state" of the applicant following the termination.
[12] Mr Hendry submitted that the applicant had substantially contested the intended termination and this was reflected in the letter Annexure A to Exhibit Applicant 1. Following the termination he had lodged the present claim.
[13] Mr Hendry submitted that it was difficult to see how the respondent would be prejudiced by the grant of an extension of time. He submitted that this was especially so when balanced with fairness to the applicant and the prejudice that would be suffered by the applicant if the extension was not granted.
[14] In relation to the question of the merits of the claim Mr Hendry submitted that the applicant has an arguable case with a reasonable chance of success. He submitted that, in considering the issue of fairness between the applicant and respondent, the issues set out in Annexure A to Exhibit Applicant 1 should be taken into account.
[15] Mr Hendry submitted that I should exercise my discretion to extend the time for the lodgement of the applicant's claim.
[16] Written submissions on behalf of the respondent were tendered and marked Exhibit Respondent 1. Mr Maroun supplemented these with oral submissions.
[17] The respondent referred to the principles set out in Brodie-Hanns as being relevant but emphasised that the prima facie position was that the legislative time limit must be complied with and the onus was on the applicant to persuade the Commission to extend the time.
[18] Mr Maroun submitted that the applicant had not provided an acceptable explanation for the delay in lodgement. He submitted that I should not accept that the applicant was in a shocked state following the termination as he had known for some time that his employment would be terminated if his performance did not improve. Mr Maroun referred to Annexure B to Exhibit Applicant 1 as indicating that the applicant was aware, prior to the termination, that he may be dismissed.
[19] Mr Maroun submitted that I should not accept that there was a genuine mistake about the actual date of termination. He submitted that it was clear that the letter of termination was dated 11 October 2001 and the diary notes at Annexures 1 and 2 to Exhibit Respondent 1 supported the fact that the letter was provided to the applicant on 11 October. Mr Maroun submitted that the letter of termination was obviously provided to the applicant's representative prior to the lodgement of the claim and there was opportunity for either the FSU or Mr Hendry to have questioned him about the date prior to that lodgement.
[20] Mr Maroun submitted that no action had been taken by the applicant to contest his termination prior to the lodgement of this claim.
[21] In relation to the issue of prejudice the respondent submitted that it had followed due process and had acted in a procedurally fair and reasonable manner. It is submitted that the applicant had the opportunity to lodge a claim within the appropriate time frame and the respondent should not be prejudiced by his failure to do so. The respondent submitted that principle 4 could not be relied upon by the applicant as there was prejudice to the respondent.
[22] The respondent provided details of the MUP program which was followed in relation to the applicant as well as material about the meetings on 10 and 11 October 2001. The respondent submitted that its actions were fair and reasonable. It stressed that the applicant had declined assistance from both his direct Line Manager and his Area Manager. Mr Maroun submitted that all of the issues which were raised by the applicant in Annexure A to Exhibit Applicant 3 had been considered by the respondent prior to the termination and were addressed in the letter of termination.
[23] Mr Maroun submitted that it was also relevant to the issue of the merits of the claim that the FSU had not become involved in the applicant's case until after the termination. He submitted that this indicated that the process was appropriate and the Union was aware of this.
[24] The respondent submitted that the fact that the MUP program was applied universally throughout the bank to employees whose performance was considered unacceptable, was relevant to principle 6.
[25] Mr Maroun submitted that the statutory time limit should be applied stringently. He acknowledged that there was a discretion to extend the time however submitted that there was no reason for such an extension in this case. He urged me to dismiss the application.
[26] The legislative provisions which are relevant to this decision have recently been amended as a result of the enactment of the Workplace Relations Amendment (Termination of Employment ) Act 2000.
[27] Subsection 170CE(7) of the Act now provides:
"An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days."
[28] This is an application under subsection (1).
[29] Subsection 170CE(7A), which relates to applications under subsections (2) or (4), is in relevantly similar terms. The following note appears immediately after that subsection:
"Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988."
[30] It is unclear whether the legislature intended this note to apply to subsection (7) as well as subsection (7A). Neither the Second Reading Speech nor the Explanatory Memorandum are of assistance. However, both representatives in this matter submitted that the principles set out in Brodie-Hanns were relevant in the determination of the application for the extension of time and, for the purposes of this decision, I am prepared to accept that I should have regard to those principles. Those principles are as follows:
"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."
[31] I now turn to consider those principles.
[32] I am satisfied that there is an acceptable explanation for the delay in lodgement in this case. Regardless of whether the applicant knew that the final step in the MUP program may have been the termination of his employment and despite the fact that he may have been told during the meeting of 10 October that a final decision would be made the following day, I am prepared to accept that the applicant was shocked by the decision. The termination of a person's employment is often a major negative event in that person's life. The applicant was not required for cross examination and, in the absence of direct evidence to the contrary, I accept his evidence that he was in a shocked state during the days following the termination.
[33] In any event the applicant's explanation does not rest solely upon his state of mind. His evidence was that he made a "genuine mistake" when he informed the FSU that his employment had been terminated on 12 October and that this "was most likely caused by the shocked state" he was in. This evidence of mistake is uncontested except by submissions and I accept the applicant's evidence in this regard.
[34] I accept that the applicant's mistake was compounded by the fact that neither his Union nor his solicitor questioned him about the date despite the letter of termination being dated 11 October 2001. However, in my view, any such error on behalf of the applicant's representatives should not be visited upon the applicant. I find that there is an acceptable explanation for the delay in this case which makes it equitable to extend time.
[35] It is clear that the applicant took no action to contest the termination other than by lodging this claim. However, the absence of such action is not fatal to an extension of time application. In my view, in the particular circumstances of this case and considering the length of delay involved, any failure to take other action is understandable.
[36] As indicated earlier in this decision, Mr Hendry submitted that the applicant's actions prior to the termination were relevant to a consideration of this principle. With respect, that submission appears misguided as the principle provides, inter alia, "(A)ction taken by the applicant to contest the termination" (emphasis added). This seems to indicate that it is an applicant's actions post-termination which need to be considered.
[37] I accept the respondent's submissions that it would suffer prejudice if the time was extended in the sense that it will then have to defend the claim in circumstances where, it submits, it has acted reasonably and in good faith. However, I note that the respondent is a relatively large employer with a number of human resources staff and/or consultants. This circumstance has probably been reinforced since its merger with the Commonwealth Bank. In this respect the respondent in the present case is in stark contrast to the respondent in Brodie-Hanns. I note that the respondent did not identify any particular prejudice which would flow from the actual delay in lodging the application. For example it was not argued that key witnesses were unavailable.
[38] In my view any prejudice to the respondent in this case is outweighed by other factors. Principle 4 is not directly relevant in the light of my comments above.
[39] I have carefully considered all of the respondent's submissions concerning the merits of the applicant's claim and accept that a process was followed to deal with alleged deficiencies in the applicant's performance. However, the applicant challenges the fairness of that process. Although I have not formed any concluded view on the merits of the substantive application, I am prepared to accept that it is not without merit.
[40] The final principle to be considered relates to a consideration of fairness as between the applicant and other persons in a like position. The respondent submitted that the MUP program was applied universally to all relevant employees. However, there was nothing before me to indicate whether any of those employees had actually had their employment terminated, whether any had challenged such a termination or indeed whether any had sought an extension of time for the lodgement of a claim for relief. In my view this aspect of the matter is neutral.
[41] In the circumstances of this case, for the reasons set out above, I have decided to allow the acceptance of this application as of 2 November 2001, the date on which it was lodged in the Commission. An order reflecting this decision is contained in Print PR912905.
[42] The file will now be referred for conciliation in accordance with section 170CF of the Act.
Printed by authority of the Commonwealth Government Printer
Ian Donald
Colonial State Bank - PR912904 [2002] AIRC 3;
(1995) 67 IR 298
The Commission allowed the application for relief to be accepted as lodged on 2 November 2001, notwithstanding that it was one day outside the 21-day period. The file was referred for conciliation under s 170CF.