John Nicolis v Canterbury-Bankstown Council

The Law

1. Section 85 of the Act is in the following terms: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (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.
2. Subsection 85(1) makes it mandatory that applications pursuant to s 84 be made within 21 days after the dismissal of the employee. The prima facie position is that an application made out of time is excluded by the subsection. An application must or can only be accepted by the Commission subject to ss 85(2) and (3).
3. Subsection 85(2) identifies particular circumstances where the Commission is required to accept an application that is made out of time. Although Mr Nicolis commenced proceedings in the Fair Work Commission, he did not do so within 21 days of his dismissal, as required by s 394(2)(a) of the Fair Work Act 2009 (Cth). I am therefore not bound to accept the Application by s 85(2) of the Act.
4. Subsection 85(3) confers on the Commission the discretion to accept an application under s 84 which is made out of time. That discretion is a fettered one. The Commission may only accept an application that is made out of time if it considers that there is "a sufficient reason" to do so. In considering whether such a sufficient reason exists the Commission is required to have regard "in particular", but not exclusively, to the matters set out in s 85(3)(a), (b) and (c).
5. The Act does not provide a definition as to what constitutes a "sufficient reason". It is not appropriate to attempt to formulate any such definition: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. Each case in which the Commission is asked to exercise its discretion under s 85(3) must be decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195.
6. The prima facie position is that an application made out of time is excluded by s 85(1). An applicant seeking to invoke s 85(3) bears the onus of demonstrating that the justice of the case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan (1982) 45 ALR 411 at 416. As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as 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 that the justice of the case requires that extension." (Footnote omitted)
7. The law as to the approach to take to the discretion under s 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: "[12] ... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: 'Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a 'sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 246(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a 'sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.' [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that 'the ultimate exercise of discretion is governed by the requirements of justice in a particular case'."
8. In Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Commissioner Newall made these observations: "13. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. That has a particular relevance to his application, as Ms Isaac's case before the Commission in these interlocutory proceedings was argued in good part, although not wholly, on the basis that the Department had failed correctly to follow its own policy document, Procedures for managing non-work related injuries or health conditions, in the process which led to Ms Isaac's dismissal. 14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others. 15. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13]."

Submissions

1. In his submission of 22 November 2018 Mr Nicolis stated as follows: "As far as [I'm] concerned [I'm] still an [employee] of the council because I haven't signed any [separation] papers."
2. If this submission was accepted the Application would necessarily have to be dismissed, on the basis that there would be no "dismissal" for the purposes of s 84 of the Act.
3. At the hearing today Mr Nicolis withdrew this submission.
4. The question then for determination is whether the Commission should accept the Application pursuant to s 85(3) of the Act.
5. Put simply, Mr Nicolis' case for an extension of time comes down to three propositions: 1. he did not receive the Termination Letter prior to 6 September 2018. As a consequence he was not aware until then, or the previous day when he spoke to Mr King, that his employment had been terminated; 2. his failure to make contact with his employer prior to September 2018 can be attributed to his psychological condition at the time; and 3. on being told that his employment had been terminated he immediately commenced unfair dismissal proceedings in the Fair Work Commission. Having been advised that he had selected the incorrect jurisdiction, Mr Nicolis filed the Application. This infers, he says, that had he discovered in March 2018 that he had been dismissed he would similarly have commenced proceedings.

Consideration

1. I have set out above the relevant legislation and the principles to be applied by the Commission in deciding whether to exercise its discretion under s 85(3) of the Act. I turn first to the matters set out in s 85(3)(a), (b) and (c).

Length and reason for the delay - s 85(3)(a)

1. The Commission must have regard to the reason for, and the length of, the delay in making the application.
2. The application is brought almost seven months out of time. Given that the legislature has set a time period of 21 days, such a delay can only be regarded as substantial.
3. The central issue, particularly and indeed perhaps the more when the delay is of that length, is the reason for the delay: Clark v Family and Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [22].
4. Mr Nicolis claims not to have received the Termination Letter until 6 September 2018. Against this, there is the following evidence: 1. The address to which the letter was delivered is the same as that which appears on the Application. 2. Mr Nicolis admits to having received the letter of 6 February 2018 which was delivered to that address. 3. Mr Nicolis admits to having received the letter of 6 March 2018 that was delivered to that address on 6 September 2018.
5. There is, in the evidence, a courier receipt demonstrating that the Termination Letter was delivered to Mr Nicolis' home address on 7 March 2018. In the circumstances, I have difficulty accepting Mr Nicolis' assertions that he had not received the Termination Letter on or about the date it was delivered.
6. Mr Nicolis further submits that he was not aware until September 2018 that his employment had been terminated. In part, this is tied in with the first issue. At the same time, there is the additional evidence that, on 16 March 2018, an amount of approximately $1,300 was deposited into Mr Nicolis' bank account, representing his termination entitlements. Mr Nicolis claims that he understood that to be a tax refund. However, in evidence before me are his bank statements which make it quite clear that the payment was deposited on 16 March 2018 by Canterbury-Bankstown Council. I note that there is a later entry of 27 July 2018, which is clearly titled "Tax refund".
7. The respondent has submitted, and I accept, that there is a consistency in the narrative that it has presented. It claims that Mr Nicolis was sent the Termination Letter dated 6 March 2018. Within approximately one week, a termination payment was deposited into his bank account. When Mr Nicolis finally made contact with the respondent in September 2018, Mr King was able to immediately send to him the letter which had been sent and was dated 6 March 2018. (To the extent that there is any suggestion that Mr King or anyone else in the Council fabricated that letter, I reject such a submission outright.)
8. Mr Nicolis then contends that he did not contact his employer due to the fact that he was on stress leave from June/July 2017. As already stated, Mr Nicolis has put into evidence a letter from Mr Ziedni dated 19 November 2018. During the course of today's proceedings he produced a medical certificate from Mr Ziedni dated 18 July 2017, in which Mr Ziedni expresses the opinion that Mr Nicolis "has no capacity to return to work for at least three months' period of time".
9. As already stated, the evidence does not establish Mr Nicolis' psychological condition. At best, it covers the period from July 2017 to October 2017. This is consistent, in part, with the evidence of Ms Mortimer, who stated that she was aware from approximately June or July 2017 that Mr Nicolis was on stress leave but that, to her recollection, there was no medical evidence verifying that after December 2017.
10. The evidence before the Commission does not establish a link between any condition suffered by Mr Nicolis and his failure to contact his employer between February 2018, when he acknowledges receiving the letter from Ms Mortimer, and September 2018, when he contacted Mr King. It does not provide a basis on which I can properly conclude that, due to his psychological condition, Mr Nicolis was unable to contact his employer.
11. The respondent has directed me to the matter of Aumeer v Moran Health Care Group [2003] NSWIRComm 367, in which Deputy President Sams held at [74]: "74. The applicant claimed he had been psychologically injured by the respondent's conduct. He had been stressed and depressed and had sought medical advice and counselling. The Commission was informed that a worker's compensation claim had been lodged, refused by the insurer and was the subject of other legal proceedings. I accept that a medical certificate was provided to the respondent some time after 21 March 2003 - although it was not produced. However, there was no medical evidence at all as to the applicant's mental or psychological condition at the time he said was relevant; namely, immediately prior to the time of his resignation. It is simply not enough to assert a medical condition and expect the Commission to accept it as fact."
12. With respect, I agree with his Honour's comments.
13. Finally, Mr Nicolis claims that an inference should be drawn that as he commenced Fair Work Commission proceedings immediately on being told that his employment had been terminated, he would have done so in March 2018, had he been told then that his employment had been terminated. In all of the circumstances, such an inference cannot readily be drawn.
14. Given my findings in relation to the date of termination being 6 March 2018, and not accepting Mr Nicolis' assertions that he did not receive the Termination Letter, the inference, in any event, would not help him. In any event, it does not explain, even if there had been no receipt of the correspondence in March 2018, why he did not contact his employer between February and September 2018.
15. I am at a loss to understand why there was no contact between Mr Nicolis and the respondent during that period, but ultimately it is not up to me to draw the connection, it is up to Mr Nicolis to explain it. He has not done so.

Hardship to the applicant or the respondent - s 85(3)(b)

1. The Commission must have regard to any hardship that may be caused to the applicant or the employer if the application is or is not rejected.
2. Mr Nicolis has adduced no evidence regarding hardship, other than for the fact that he remains unemployed. Obviously, if the Application is rejected he will suffer the hardship of not being able to pursue his unfair dismissal claim, and so seek redress for these matters, but that is a hardship suffered by any applicant whose out of time application is rejected.
3. It is in this context that it is proper to consider the strength of Mr Nicolis' case, as it is one measure of the disadvantage he may suffer if his application is not accepted: Isaac at [31]. I do not, of course, form a final view about the matter. I do not have all of the facts of the matter and I have deliberately requested that Mr Nicolis not address me on the merits of his Application. In any event, these matters have not been tested in evidence before the Commission.
4. It is relevant to note that Mr Nicolis was the subject of meetings, if not an investigation, into inappropriate behaviour at work. As at November 2017, the respondent intended to issue Mr Nicolis with a first and final warning in relation to that conduct. However, after November 2017 the respondent was unable to contact him either directly or through his union. Having had no contact from Mr Nicolis, despite having sent him correspondence and leaving voicemail messages on his mobile telephone, the respondent terminated the employment on the basis of abandonment. The ultimate question would be whether this decision was harsh, unreasonable or unjust. Mr Nicolis would have to explain his lack of contact with the respondent from November 2017 until March 2018, which may come down to medical evidence.
5. On a preliminary view, Mr Nicolis would face some challenges in making out that the dismissal was harsh, unreasonable or unjust.
6. For its part, the respondent has made no submissions as to the harshness that it would experience if the Application is not rejected.

The conduct of the employer relating to the dismissal - s. 85(3)(c)

1. The Commission is required to have regard to the conduct of the employer relating to this dismissal. As noted in Isaacs, the employer's conduct is to be viewed only in so far as it has any bearing on the lateness of the application.
2. I do not consider that the respondent's conduct had any bearing on the lateness of the Application.

Other considerations

1. Section 85(3) does not exhaustively list the matters to which this Commission can have regard in determining whether or not to exercise its discretion. For the sake of completeness I make the observation that I do not consider that the evidence and submissions disclose any other matter that would have a material bearing on my decision as to whether to accept the Application out of time.

Conclusion

1. I am not satisfied that Mr Nicolis has discharged the onus which is on him to demonstrate a substantial reason to accept the application out of time.

Orders

1. I make the following orders: 1. Direct that the name of the respondent be amended to Canterbury‑Bankstown Council. 2. Mr Nicolis' application that the Commission accept the Application out of time is rejected. 3. The Application is dismissed for the reason that it is not brought within time. Damian Sloan 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: 17 January 2019