Kagan v Primus Telecommunications

JUDGMENT:

• 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HUNGERFORD J Thursday, 6 June 2000 Matter No IRC 2279 of 2000 RONALD KAGAN v PRIMUS TELECOMMUNICATIONS (AUST) PTY LIMITED Application to extend time to appeal against a decision of Mr Commissioner Neal given on 28 April 2000 in Matter No IRC 6735 of 1999. DECISION (extempore) 1 This is an application by Ronald Kagan pursuant to s 189 of the Industrial Relations Act 1996 to extend the time within which to file an appeal against a decision of Mr Commissioner Neal given on 28 April 2000. The commissioner dismissed the applicant's claim under s 84 of the Industrial Relations Act in relation to his alleged harsh, unreasonable or unjust dismissal by the respondent, Primus Telecommunications (Aust) Pty Limited on 24 November 1999 for want of jurisdiction because his remuneration was greater than $69,200 per annum as the limit prescribed for a valid claim under s 83(1)(b). The application to extend time to appeal was opposed by the respondent. 2 An appeal is to be made in accordance with s 189(1) within 21 days after the date of the challenged decision so that the appeal should have been filed no later than 19 May 2000. However, s 189(2) enables the Commission to allow further time, either before or after the end of that 21-day period. The applicant filed the application to extend time to appeal, accompanied by a supporting affidavit, on 24 May 2000; at the same time, an application for leave to appeal and appeal was filed. The reasons stated in the notice why the appeal was not filed within time were - "applicant seeking legal advice as to costs" and "applicant pre-occupied pursuing alternative employment opportunities." 3 The grounds relied upon were stated as : 1. The Respondent is not disadvantaged.

2. The issue involves a matter of importance and general application.

3. A significant injustice would be occasioned to the Applicant should the matter not be further determined. 4 The applicant's affidavit sworn on 23 May 2000 deposed to the correctness of the above stated reasons. The questions said to be raised by the appeal were stated in the proposed notice of appeal thus: 1. Whether an employee who is required to use his/her own motor vehicle in order to carry out his/her work, is entitled to have the value to the employer of the costs of providing that vehicle taken into account as a deduction against " remuneration " for the purposes of sub-section 83(1)(b) of the Industrial Relations Act 1996.

2. If so, whether the appellant (Mr Kagan, the Applicant in the matter below) was entitled to have the amount of his annual costs for providing his motor vehicle for use in the performance of his work as a Sales Executive, which costs ($12,000 pa) were not disputed by the Respondent, taken into account against his " remuneration" of not more than $78,000 (on the Respondent's calculation) when the limit to the Commission's jurisdiction at the relevant time was $69,200 pa.

3. Whether the Commission had jurisdiction to hear and determine the Appellant's Application for unfair dismissal under Part 6 of Chapter 2 of the said Act. 5 In his decision, the commissioner reasoned in this way: Here the applicant agrees that the "remuneration package" signed for was $70,000, concedes that the actual value of the total package was $77,720, but argues that because the employee provides the vehicle, the cost of business usage should be deducted - because only private use should count in calculating "remuneration". Thereby, the applicant is said to be within jurisdiction.

The only documentation of value available to the Commission was the employment contract signed by the parties specifying $70,000 as the "remuneration package". Despite the applicant's assertion that he had negotiated the $12,000 of this to be paid as car allowance, there is no documentation to this effect. The applicant apparently did lodge a s 221D application late in his employment, but the ATO approval of this was not received by the Company until after his termination. Thus, all the applicant's benefits were paid throughout his employment and at termination at the rate of $70,000 per annum. That is what he actually received, plus superannuation and commissions earned.

I don't accept the applicant's argument that the value of business usage should be deducted to calculate "remuneration" in his case because private usage would have been added had the car been provided by the employer. Any concession the applicant is entitled to for his using his car for business purposes would be the consideration that might be given to him by the ATO in calculating his taxation obligations. In my view, the applicant's "remuneration" for the purposes of s 83(1) of the Act is a figure somewhere between $70,000 and $78,000, depending on which parties' calculations are used. 6 In the result, the commissioner dismissed the applicant's claim. In a real sense, it seems to me, the challenged decision was based very much on a finding of pure fact as to the amount of remuneration, and, to that extent, would seem to be unexceptional and as not supporting appellate review out of time. Indeed, the submissions of Mr J J De Meyrick , counsel for the applicant, were quite short to this effect; counsel said during argument: … That is his reasons. He set them out there and we are submitting that the respondent is not prejudiced by the delay and we can't see that there is any real reason why there should be opposition to the matter. There was a very important issue involved, not only for him as to a question of justice, but also as to the interpretation of the Act. So it's an important matter and one deserving the Commission's indulgence to allow the application to be filed and to be pursued out of time.

… These things do take time and, as I indicated, it's not a question of an applicant deciding: yes, I am going to appeal the next day. It is just foolish to be told of twenty-one days and the applicant decides. One has to look at the merits and consider the evidence that was given and further to consider all aspects of costs, et cetera, that will be involved; and having pursued that as quickly as possible, after a decision was made the application has been filed. As I say, it's only a matter of five days, and including in that is a weekend, so a loss of three business days. 7 I have to say, viewed in that way, that I have difficulty in accepting a case has been made out to justify extending time to appeal. Given the matter was seen by the applicant as important one would think he would have acted with expedition. After all, for the purpose of the proper administration of justice time limits are set for the completion of litigation and parties, particularly those succeeding, are entitled to rely on those established time limits within which to order their positions. 8 Although the appeal here was but 5 days out of time, the applicant at the first instance proceedings was represented by counsel and it is somewhat difficult to imagine legal advice as to costs and his pre-occupation in pursuing alternative employment opportunities would have precluded the timely filing of an appeal. Also, of course, the applicant could have, but did not, sought further time to appeal before the 21-day limitation period had expired. Nevertheless, and making full allowance for his personal position, I note from his affidavit that the applicant is a divorced father of two children aged 6 years and 8 years and he shares 50 per cent residency with the children's mother. 9 If that was all that was involved, then, in my view, the following submission by Mr B K B Cross , counsel for the respondent, would be persuasive in requiring the refusal of the present application to extend time to bring a competent appeal : The Applicant does not claim to be unaware of the decision of Commissioner Neal or the time for appeal, and the prospect of an appeal were actually being considered. The time limit for appeal was apparently disregarded while the Applicant addressed other matters. There is no explanation of why an application to extend time to appeal was not made prior to the time for appeal expiring despite such an application being contemplated by sub-section 189(2) of the Act.

The Respondent submits that there is no material upon which the Commission could be satisfied that to refuse the application to extend time would constitute an injustice. …

The Respondent, however, will suffer prejudice if the extension of time is granted. It will suffer the cost and inconvenience of the litigation not brought within the limitation period prescribed. … 10 The principles to be applied in considering the present issue are well settled. In Skelly v Prouds Jewellers Pty Ltd [1994] 53 IR 3, a Full Bench of the Commission constituted under the former Industrial Relations Act 1991 said at (p 6) : The Commission's rules require an appeal to be filed within 28 days of a decision. (I interpolate that under s189 of the present Act the period is 21 days) There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all of the circumstances before it. 11 Those principles were relied upon and affirmed by Walton J, Vice-President in Brady v Kennedy t/as "Sardines " (1999) 91 IR 258 at 263-264. His Honour also cited the propositions involved in this respect as collected in and summarised by a Full Bench of the Court ( Bauer , Hungerford and Schmidt JJ) in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301. They were referred to and followed by me recently in Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48 at paras 16 and 17. As I observed, however, in Van Rooy Machinery (at para 33) : Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice. 12 A search for justice in the present case takes one to the grounds of appeal set out in the notice filed, as follows: 1. The Commissioner erred in finding that the value of business usage of the Appellant's motor vehicle should not be deducted in the calculation of " remuneration" for the purposes of sub-section 83(1)(b) of the said Act.

2. The Commissioner erred in so finding on the basis that, " private usage would have been added had the car been provided by the employer ."

3. The Commissioner erred in finding that " Any concession the Applicant is entitled to for using his car for business purposes would be the consideration that might be given to him by the ATO in calculating his taxation obligations" . 13 Those grounds are to be understood in light of what transpired before me in debate with Mr Cross, as follows: CROSS: The evidence below was that the employee, and this applicant, had a choice between either taking the $70,000, or a lower base rate and a vehicle allowance. It was accepted, certainly it appears in the decision, that $70,000 was chosen. Despite the applicant saying "I chose a lower rate", there was no evidence to support that the lower rate was $58,000 and $12,000 for car allowance.

HIS HONOUR: So you say there was evidence that he had the choice of taking $58,000 plus a car allowance.

HIS HONOUR: If he took that choice what was the car allowance?

CROSS: The car allowance, he would have been paid a car allowance but not as part of his base rate of pay and that was $12,000.

HIS HONOUR: If he didn't take that, he could take what.

HIS HONOUR: What would have been the decision, on your submission, if he had taken the first choice, whether or not he would be under the $69,200 remuneration?

CROSS: That wasn't addressed, but it would appear if that is the base rate of pay - I am sorry, I have no instruction on that, but it was a base rate. Certainly I think there would be a strong argument.

HIS HONOUR: Well, you have no instructions on that.

CROSS: No, I don't. I have nobody here today. That wasn't really a matter that was considered because he had received the $70,000. He had chosen to receive it and he had received that money. Now a matter that arose in the hearing was the allegation by the applicant that he had expended the moneys in using his car.

HIS HONOUR: He was expected to by the employer to the tune estimated as around $12,000 a year.

CROSS: It was an estimate. That was very much in issue. There was an affidavit put on by the applicant about the calculation as to these amounts. That evidence did not match up with the 221D form.

HIS HONOUR: Forget the 221D, please. Look, it was common ground that he would have taken $58,000 plus $12,000 car allowance, or a $70,000 salary out of which he had to himself pay for the car.

HIS HONOUR: Well, what are your submissions as to the relevant rate of remuneration in the latter situation?

CROSS: In the latter situation, it is this, it does not follow from that that the expenses he would have incurred would have been $12,000, or whatever. I certainly recall making a submission on that.

HIS HONOUR: But his evidence was that he did incur it.

CROSS: And part of the basis of that evidence was the direction that the applicant provides information, particularly this tax form. Your Honour, I am just trying to draw your attention to the relevance of that taxation. 14 In the result, I saw both counsel in chambers in order to provide an opportunity to see whether this matter could, in some mutually satisfactory way, be compromised. Even at this late stage of the contested litigation, I am firmly of the view that if circumstances permit then parties should be afforded such an opportunity so as to resolve their differences in a cost effective and timely way. On resumption, and by arrangement with counsel, I adjourned the hearing until today to enable them to obtain instructions. Unfortunately, no agreement had been reached and I proceeded to judgment accordingly. 15 I am satisfied that this matter seems to raise a real and important question as to the meaning and operation of the word "remuneration" in s 83 of the Industrial Relations Act in the regular determination of unfair dismissal claims. It may well be, of course, that a Full Bench in the hearing of any appeal would disallow leave to appeal, but, I think, the question raised involves serious and practical issues which, at the least, are well arguable in that respect. That argument, in the interests of justice between the present parties and the orderly disposition of the many unfair dismissal claims which come before the Commission involving the level of an employee's remuneration for jurisdictional purposes, should be heard. 16 Shortly stated, the question raised, as I see it, is whether in calculating an employee's "remuneration", for the purposes of s 83(1)(b) of the Industrial Relations Act to determine if the statutory provisions apply to the dismissal, an amount included in the remuneration paid for business expenses (here, car usage) and expended for such expenses may be deducted to obtain the relevant remuneration level. 17 I am of the view, on balance in all the circumstances but not without some hesitation, that a delay in filing the appeal of 5 days for the reasons stated should not deny the applicant the opportunity to put what seems to be, at least logically, a well arguable case. I think that a just result between the parties would warrant an extension of time to appeal. 18 Accordingly, I order that time be extended to file the application for leave to appeal and appeal herein until 24 May 2000 so as to make the present process competent.

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