In this interlocutory proceeding the applicant seeks, pursuant to subsection 85(3) of the Industrial Relations Act 1996, ('the Act') that his application for relief pursuant to s.84 I be admitted out of time.
The Respondent has filed a Notice of Motion seeking that the application be struck out on the ground that it is out of time; the essential question before the Commission is whether it will admit the application out of time. It is that question that I proceed to address as a preliminary issue.
Mr John resigned from his employment with the respondent on 19 April 2016. He claims that he was constructively dismissed by bullying and harassment. He filed the present application on 6 July 2016. The present application is therefore, leaving aside whether there was in fact a dismissal, 27 days out of time.
[2]
Statutory framework
It is of value to set out once again the legislative provisions. Section 85 of the Act relevantly provides as follows:
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(c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part.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. It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal occurring.
It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal occurring.
Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission.
Subsection (3), in contrast to subsection (2), provides no more than that the Commission 'may' allow an application which is made out of time and which is not required to be accepted for the reasons set out in sub-section (2), subject to the exercise of the Commission's discretion.
The discretion under subsection 85(3) is not unfettered. Its exercise in favour of an application first of all requires that the Commission consider that there is 'a sufficient reason to do so' before admitting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subs. 85(3).
It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections (a), (b) and (c) are not an exhaustive list of matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only a list of those matters to which the Commission is to have particular regard.
Each case in which s.85(3) is invoked is 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. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190.
Given that the prima facie position is that an application brought out of time is excluded by subs.85(1), the onus is on an applicant seeking the discretion of the Commission to circumvent the bar to his late application effected by subs.85(3): as to this principle see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416.
The law as to the approach to the exercise of the discretion sunder 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) 52 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 2.564(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".
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]; Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998).
There is a place within the exercise of the discretion under s.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.
The overarching principle is therefore 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, is paramount.
And fundamental to consideration of the statutory structure within which the discretion is to be exercise is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t represents the legislature's judgment that 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.' Brisbane South Regional Health Authority v Taylor loc cit at 553.
That is of course why an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor loc cit at 553, emphasis added.
[3]
Unusual circumstance of this case
There is a particular aspect to this application which sets it apart from other applications under s.84 to which I now turn. The applicant does not seek reinstatement, re-employment or compensation from the employer. Rather, he seeks a reference that would, in his view, permit him to obtain employment in another State. Mr John presently resides outside NSW.
I pressed Mr John on this matter during the proceedings on 19 September and I am satisfied that the sum of what he seeks from the proceedings is a reference to enable him to get work elsewhere in the profession of pathology. He does not seek the remedies available to me under the Act.
[4]
Facts
Mr John was employed as a part-time employee in the cytology section of the Respondent from November 2014 to April 2016, when he resigned claiming bullying and harassment.
The Respondent denies that it dismissed Mr John. It denies that he was bullied. It points rather to a performance management process over Mr John due to a number of errors in his work.
[5]
Consideration
I have set out above the statutory provisions and the fundamental principles to apply to a late application under s.84.
When those principles are applied to the above facts the following emerges.
The Commission, in exercising its discretion to depart from the prima facie position and allow an application which is brought out of time, must consider the matters set out in subsection 85(3) of the Act.
First, the Commission must have regard to the length of and reason for the delay.
This application is brought 27 days out of time, so that the application is brought after more than twice the period of time that the Parliament has determined as appropriate for the bringing of applications of this kind.
Mr John advances 11 reasons for his application being late, including that he felt helpless before and around the bullying he alleges, that he was too busy in finding a job for income, and that he knew such an application would end up in "compromise."
I do not find the reasons given by Mr John weighty.
The Commission is also required to have regard, pursuant to subsection 85(3)(b), to any hardship that may be caused to the applicant or the employer if the application is or is not rejected.
The hardship to the applicant is that he will not be able to pursue his unfair dismissal claim. That must be measured against the remedy he seeks, which is definitively not employment or compensation, but a reference. It follows that the hardship he will suffer is either none at all, because he does not seek any remedy that the Commission could grant, or at most, the loss of a reference.
That has a relevance to hardship to the employer, which I am also obliged under the statute to address. The respondent would be obliged, if the application were admitted, to prepare for and conduct a case that could have no outcome within the remedies contemplated by the Act. In my view to conduct otiose proceedings is an unnecessary hardship to the respondent.
It is also contrary to the Commission's obligations under the Act and under ss.55-58 of the Civil Procedure Act 2005. The Civil Procedure Act militates strongly against using court time and public and private resources for any purpose outside the just, quick and cheap resolution of issues. To conduct otiose litigation is not within that compass.
Critically to this application, when one examines the prospects of success of the application, it must be said that they are poor. Mr John first has to make out that he was dismissed at all, which on the wording of the written resignation he provided is at minimum problematic. Even if he were able to surmount that hurdle, the onus of proof of which lies on him, he does not want a remedy that the Commission can within jurisdiction provide, and does not want a remedy that is within jurisdiction to provide.
On any view the applicant's prospects of success in the case are at their highest, poor.
I am also to have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed insofar as it has any bearing on the lateness of the application.
I cannot see that the employer's conduct had any bearing on the lateness of the application
As I set out above, the Commission is not confined in the exercise of its discretion only to the matters to which it is 'particularly' to have regard under subsections 85(3) (a), (b) and (c), although it must have regard to those matters. The Commission is able, for example, in exercising the discretion pursuant to subs.85(3), to have regard to the post-termination conduct of the applicant: Rainey v Retirement Solutions Pty Ltd (unreported, Cambridge C, 2494 of 1997, 24 October 1997).
I can properly have regard to the fact that Mr John now resides outside NSW and does not wish to continue employment in NSW.
In sum, the position is this. Mr John brings an application which requires him to make out that he has in fact been dismissed in the face of a written resignation tendered by him. He seeks from that application a remedy, and only a remedy, that the Commission has no power to grant. He does not wish to reestablish the employment relationship at all, nor does he seek compensation. He brings that application substantially out of time.
In those circumstances I do not propose to grant leave for the application to be admitted.
Orders
The application made by Mr Biju John pursuant to s.84 of the Act is dismissed for reason that it is not brought within time.
PETER NEWALL
Commissioner
[6]
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Decision last updated: 18 November 2016