In this interlocutory proceeding the applicant, Ms Rebecca Katsantonis, seeks, pursuant to subsection 85(3) of the Industrial Relations Act 1996, ('the Act') that the Commission accept an application under s.84 of the Act that is made out of time.
Ms Katsantonis was dismissed from her employment by the respondent on 7 November 2016 by way of a letter provided to her, which she agrees she received, on 7 November 2016. Her application was lodged on 15 December 2016, which, having regard to rule 1.11 of the Uniform Civil Procedure Rules 2005, is on my calculation 16 days out of time.
[2]
Statutory framework
In the course of proceedings I made the observation to the parties that matters of this kind must be, and will be, decided according to law and the Commission's jurisprudence. In that context it is of value to set out once again the relevant legislative provisions. Section 85 of the Act 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(c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part.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.
Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission.
I observe that Ms Katsantonis did not lodge any application with the Fair Work Commission in relation to her dismissal. The consequence is that this matter falls to be determined solely under subsection 85(3) of the Act.
That subsection provides no more than that the Commission 'may' - that is, as a matter of discretion - accept an application which is made out of time but which is not required to be accepted for the reasons set out in sub-section (2).
The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting 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 subsection 85(3).
It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the 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 those matters to which the Commission is to have particular regard.
Each case in which subsection 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 subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416.
The law as to the approach to the exercise of the discretion under subsection 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); Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [[2013] NSWIRComm 1012.
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.
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: Hurrell at [13].
And fundamental to consideration of the statutory structure within which the discretion is to be exercised 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 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.
[3]
Facts
I now turn to the facts in this matter. While there were a number of matters which, it was clear, would be in contest concerning the reasons for the dismissal, there is no contest over the date on which the dismissal was effected and communicated: 7 November 2016.
Ms Katsantonis gave evidence by way of a written statement, supplemented by submissions handed up on the day of hearing, and by way of oral evidence given in cross-examination. I formed the view that Ms Katsantonis gave her evidence truthfully and I accepted her evidence.
So far as it is relevant to this application, that evidence amounted to this. Ms Katsantonis felt for some time that she was being specifically targeted by managers, including the respondent's Director and the Human Resources Manager, and that these officers influenced and coerced other staff within the respondent to target her with untoward and coercive behaviour. There had been a number of contests between her and her employer since early 2016 over her qualifications, which the respondent repeatedly asked her to furnish. In April 2016 Ms Katsantonis absented herself from work and filed a workers' compensation claim citing bullying, which claim was initially declined and, as I understand it, is still a matter of contest. Ms Katsantonis did not return to work between that time and her termination on 7 November 2016, but did use sick leave and other accumulated leave.
As to the reasons for the delay, Ms Katsantonis gave evidence that she had no practical knowledge of how to go about contesting her dismissal. I accept that was the case. The evidence was clear, on documents before the commission, that she forwarded the letter of termination to her union, the USU, on the day of her termination. She also gave evidence that she forwarded the letter on that day to counsel she engaged in her workers' compensation matter.
Importantly, Ms Katsantonis' evidence was that she was advised in writing by her barrister that the correct forum for an application was this Commission, and that she must lodge the claim within 21 days: applicant's evidence, Exhibit 1, page 2. She then gave evidence that she sought within that 21 days' period assistance from the USU, but could not access the union's legal services because of unpaid membership fees. I am satisfied on her own evidence that Ms Katsantonis was aware of the time limitation upon s.84 applications before the expiry of that time.
I accept that may well be difficult for a person who has been dismissed, without knowledge of the various systems of industrial regulation, to know where to turn. Once, however, a person who has been dismissed has been advised by a lawyer of the correct forum and of the time limitation attaching to such applications, and been told that within the period of that time limit, as happened here, the Commission would need to be satisfied that there was another intervening factor providing a reason for the delay.
[4]
Consideration
I have set out above the statutory provisions and the fundamental principles to apply to an application pursuant to s.84 that is brought late.
The Commission, in exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, must, in considering whether there is 'sufficient reason to do so', consider the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act. I now turn to those.
[5]
Length of and reason for the delay
First, the Commission must have regard to the length of and reason for the delay.
The application is brought 16 days out of time in circumstances where the legislature has chosen to set a relatively short time period of 21 days. In that context the delay cannot be disregarded or treated as trivial.
I accept that Ms Katsantonis did not herself know, at the time of her dismissal, where to apply for relief. I accept that may well be difficult for a person who has been dismissed, without knowledge of the various systems of industrial regulation, to know where to turn. Once, however, a person who has been dismissed has been advised by a lawyer of the correct forum and of the time limitation attaching to applications within that time limit, as happened here, the Commission would need to be satisfied that there was another intervening factor providing a reason for a delay beyond the statutory time limit. I am not able to find another factor, on the evidence before the Commission.
[6]
Hardship to the applicant
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 if the application is rejected is that she will not be able to pursue her unfair dismissal claim. That is a hardship, of course, which every out of time applicant suffers whose application is rejected. That hardship must be seen in my view in the context of the fact that Ms Katsantonis expressly does not seek reinstatement or re-employment, but only compensation, and that she was paid five weeks' pay in lieu of notice on termination.
In circumstances where reinstatement and re-employment are expressly not sought, the maximum compensation payable is 26 weeks' pay. The maximum is, unsurprisingly, rarely awarded.
And in the context of subs.85(3)(b) it is proper to consider the strength of Ms Katsantonis' case, as it is one measure of the disadvantage she may suffer if her application is not accepted. I say that noting again what the High Court held in Brisbane South Regional Health Authority v Taylor at 553, that is, that an applicant with an arguable or even a good case is not for that reason alone guaranteed admission of a late application.
I form, of course, no final view about the termination, the facts of which have not been tested in evidence before the Commission. There is very clearly a significant gulf between Ms Katsantonis' account of the circumstances of her employment and its termination and the respondent's, particularly as it goes to the question of qualifications and responsiveness to lawful directions. I do not need to resolve those matters here, because in my view it is sufficient to say that even were Ms Katsantonis successful in her application before the Commission, the likely compensation would not so very greatly add to what she was paid on termination as to make the loss of a chance to argue for it a substantial matter.
I emphasise that in saying that I make no criticism of Ms Katsantonis in any way, nor do I call into question her accounts of what occurred.
[7]
Hardship to the employer
No evidence was brought suggesting hardship to the employer if the application were admitted and, although I consider that matter as I am bound to do under the statute, consideration of hardship to the employer has had a negligible effect on the exercise of discretion in this matter, beyond observing that where a time limitation exists, a party who might be a respondent is entitled, once the time limit has passed, to regard themselves as free from suit.
Thirdly, I have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed only 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. There is no dispute that the notification of termination was received by the applicant on 7 November 2016. From that point on the respondent had no involvement in the matter.
[8]
Overall consideration
On the basis of the whole of the above consideration, Ms Katsantonis has not discharged her onus to persuade the Commission to admit her application. That is essentially because no telling reason has been advanced to show why Ms Katsantonis did not lodge an application within time, given that she received legal advice as to where to apply, and that there was a time limit, within the time required. Again I say, I accept that a person who has lost their employment is necessarily subject to stress and financial incapacity. The Parliament must be taken to have understood that when fixing 21 days as a limit for applications. There has to be some telling reason over and above that circumstance to persuade the Commission to overturn the prima facie position. There was not one here.
Accordingly, the Commission's guided discretion must in this case be exercised to decline to disturb the prima facie position. To do justice in this particular case, which is the overarching test, requires that outcome. To do justice to other parties who rely on consistent application of the principles by the Commission in determining these questions requires the same result. The application will not be accepted.
I emphasise that I am not ruling on whether the dismissal was fair or unfair, or on any of the matters in contest between the applicant and respondent. I do not question Ms Katsantonis', or anyone else's, truthfulness or credit about any aspect of the matter. The application cannot be accepted because the material which would direct the Commission's discretion toward admitting it is simply not there.
[9]
Orders
1. The application made by Ms Rebecca Katsantonis pursuant to s.84 of the Act is dismissed for reason that it is not brought within time.
2. The Summons to Produce issued to Ms Katsantonis on 28 February 2017 is set aside.
PETER NEWALL
Commissioner
[10]
Amendments
26 April 2017 - Corrected paragraph numbering.
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Decision last updated: 26 April 2017