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[2003] AIRC 1037
defendant. The jurisdictional objection to the extension of time application was upheld. The applicant's application with respect to his termination of employment was dismissed.
An employee who was fired applied for unfair dismissal relief but filed in the wrong court (Queensland) within the time limit. When told he needed to file in the Federal court instead, he waited over two months before doing so. He claimed he couldn't afford the filing fee, was depressed, and needed to gather documents. The Commission found these excuses weren't convincing because he had started a new job, didn't ask for a fee waiver, and was able to do other administrative tasks like enrolling in university during the same period. The Commission refused to extend the time limit and dismissed his case because the delay after learning of the correct court was deliberate and not adequately explained.
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2 cited instruments linked from this judgment.
s.170CE application for relief in respect of termination of employment
Australian Association of Motor Insurers Limited
Termination of employment - jurisdiction - extension of time
[1] This decision deals with an application by Mr KJB (the Applicant) for the Commission to accept his s.170CE(1) application for relief regarding the termination of his employment by extending the statutory time limit pursuant to s. 170CE of the Act.
[2] Section 170CE(7) provides that an application of this nature must be lodged within 21 days of the day on which the termination took effect. It also states:
"OR within such period as the Commission allows on application made during or after those 21 days".
The onus in establishing that the statutory time limit should be extended lies with the Applicant.
[3] The Applicant's employment was terminated effective from 5 March 2003, and he lodged the application within 21 days; however, it was incorrectly lodged in the Queensland Industrial Relations Commission (QIRC).
[4] The Applicant commenced employment with the Australian Association of Motor Insurers Limited (AAMI) (the Respondent) on 9 November 1998 as a telephone sales and customer service operator at the Respondent's head office in Brisbane, and was later promoted to the position of telephone sales supervisor. The Applicant's employment was terminated by the Respondent due to serious misconduct on 5 March 2003. The Respondent alleges that the substantive case in the matter related to misuse of the Respondent's Cabcharges and chargebacks for unauthorised personal use by the Applicant.
[5] After his termination, the Applicant initially lodged his application in the QIRC on 24 March 2003. The matter was to proceed to a conciliation conference on 9 April 2003; however, the Respondent objected to the QIRC application on the jurisdictional ground that the Applicant was employed pursuant to a Federal Certified Agreement1. On the day of the scheduled conference, the QIRC dismissed the application as the Applicant had been employed under a Federal Certified Agreement, and therefore the Applicant was required to file in the Australian Industrial Relations Commission (AIRC) in order to pursue his application. The Applicant subsequently lodged his application in the AIRC on 29 May 2003, 85 days after his termination, and 64 days after he lodged in the QIRC.
[6] Subsection 170CE (7) of the Act provides:
"(7) 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."
[7] The following Note appears under subsection 170CE (7A):
"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."
[8] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Limited at page 299:
"(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 for the delay which makes it equitable to 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."2
[9] The submissions of the parties, the evidence and materials have been considered against those principles.
[10] At the hearing of this matter, the Applicant sought to tender an additional bundle of some fifty documents. The Applicant stated that, subsequent to receiving the Respondent's submissions in this matter, he considered such further documents were relevant to the proceedings. The Commission expressed reservations in accepting the documents at that late stage. However, given that the Applicant was unrepresented and had only ascertained, after preparing his materials, that the principles in Brodie Hanns3 would be the relevant issues to guide the Commission's determination of this matter, the documents were accepted after allowing the Respondent's representative and relevant parties an adjournment to consider the documents and take instructions.
[11] Ms Caylock, on behalf of the Respondent, stated that she considered a number of the documents were irrelevant to the extension of time proceedings, and, after the adjournment, did not object to proceeding or for the documents to be accepted by the Commission.
[12] The Applicant submitted the following, by way of explanation for the delay involved in lodging his application with the AIRC:
"1. Failure from Respondent to forward requested documentation and pay full entitlements as per termination letter.
2. Relocation of all belongings from Sydney to Brisbane.
4. Treatment and Counselling as a result of dismissal from AAMI.
6. Was unable to have relevant documentation to contest until items moved from Sydney.
7. Moving of residential address from Carina to Tingalpa.
8. After receiving no response for information from AAMI I have lodged application on the expectations I would be provided information prior to conciliation.
9. Believed AAMI would allow me an opportunity to conciliation hearing if they were confident in decision to terminate my employment."
[13] Section 170CE(7) requires the application for relief for termination of employment matters to be filed within 21 days of the dismissal. This is the prima facie position, which should not be ignored. The Commission notes that there are sound industrial and administrative reasons for there being a time limit.
[14] The reasons of fairness and equity require the Commission to consider a range of factors in determining whether to exercise the discretion to extend the time limits.
[15] The Applicant claimed that, as he had initially been employed in Queensland, he had expected that the QIRC was the appropriate jurisdiction in which to lodge his application. Once the Applicant was advised that his action in the Queensland jurisdiction had been dismissed, it was his obligation to file the application in the Federal jurisdiction.
[16] The Applicant submitted he was unsure as to the reason for his application in the QIRC being dismissed. However, it is clear that the Applicant was aware he had to relodge his application in the AIRC. The Applicant confirmed this in his handwritten submissions to the AIRC dated 29 June 2003:
"My original application was lodged within the specified time frame and a conference was to be held on the 9/4/03, however on the day I was advised I would have to relodge my application in the Australian Industrial Court."
This also contradicts his submission that he thought his application would automatically transfer to the AIRC.
[17] During the period prior to lodging in the AIRC, the Applicant sought details by electronic mail to recommence his tertiary studies, indicating that, whilst he was undergoing counselling and had commenced a new job he was still able to constructively pursue issues of importance to him.
[18] The Applicant stated that he considered it was necessary to gather all appropriate documentation prior to any conference in the Federal jurisdiction to defend his claim from similar dismissal. In this regard, he stated he made a series of telephone inquiries with the Respondent to acquire documentation relevant to the substantive application.
[19] He had also originally sought an adjournment to the scheduled date of his QIRC conference, demonstrating that he was aware of such a process. Therefore, if he had lodged his application in the AIRC, but had not been in possession of all of the relevant documents, he could have sought an adjournment of the conference date to gather the materials.
[20] The Applicant stated that he had left messages seeking copies of documents from the Respondent when he telephoned with inquiries regarding his superannuation and car insurance.
[21] However, the evidence of Ms Victoria Hull (Employee Relations Manager for the Respondent) was that inquiries regarding superannuation and insurance would have been made to completely separate business units, which had no ability to internally transfer telephone calls to the Respondent's Human Resources Division or to take telephone messages for them. The evidence was that the Respondent was not aware of any such inquiry. Ms Hull confirmed that they only received the request for documents from the Applicant prior to these proceedings. In response, she said that these documents were directly sourced and couriered to him.
[22] The Applicant confirmed that he sought the application forms from the AIRC Registry; however, he reasoned that he did not have sufficient funds in cash or on his credit card to cover the $50 lodgement fee. He did concede that he had commenced paid employment, but that he had had to wait for the next remuneration cycle to be paid.
[23] The documentation with the application forms, under the heading "Financial Information", states:
"... ...Under the Workplace Relations Regulations a Registrar may waive payment of the unfair/unlawful termination of lodgement fee where he/she is satisfied that the Applicant will suffer serious hardship in paying the fee."
[24] The Applicant did not make specific inquiries in this regard for a waiver. He contested that the correct termination entitlements had been paid to him and he also raised that he had been adversely financially affected by having to relocate his belongings from Sydney to Brisbane.
[25] Whilst the Applicant referred to his situation in not being able to meet the $50 lodgement fee, he did not apply for a fee waiver. His circumstances were that he had received some termination payments from the Respondent and had obtained new full-time employment within four weeks of his termination. The relocation from Sydney to Brisbane was confirmed as occurring well in advance of the lodging of the application at the end of May.
[26] Whilst the Applicant submitted he was receiving counselling as a result of the termination, limited evidence of such was provided. However, on his evidence, such counselling did not prevent him from pursuing information on his case and regarding lodgement of details to continue his tertiary studies.
[27] Whilst I acknowledge that it may be possible for the Applicant's depression to be a contributing factor to the delay, the Applicant stated that during this same period he was actively pursuing tertiary education information, witnesses and documents, as raised below in cross-examination:
"Okay. All right. Can you explain to the Commission why it is that the medical problems that you've referred to prevented you from lodging your application form, but they didn't prevent you from relocating, from moving house, from seeking to enrol in a university course, from attempting to contact witnesses, researching recent changes made to Cabcharge procedures and the other matters you've referred to?---Because all of those things that you've just mentioned didn't involve me ensuring that - moving house, I didn't have someone there trying to cross-examine me and make sure that I was moving things the right way. It's something that just happens.
Did you expect to be cross-examined when you sent in your application form? It's simply - - -?---I don't know what I expected."4
[28] The Applicant submitted that an important reason for the delay was the sourcing of all relevant materials to his application from the Respondent. However, under cross-examination he was questioned on this, and he moved away from this reason to the impediment of his financial position, as follows:
"...There aren't any, sorry, additional documents attached to this second application that weren't attached to the Queensland application, are there?---Not at this stage because at this point in time I was of the understanding that, as I mentioned, it would proceed and transfer and I attached that because that's what I had already put with my application.
But you've stated this morning that you delayed filing the application because you were waiting on some documents from AAMI. You haven't actually attached any additional documents when you filed this application, have you?---That's correct, and the reason for doing that is that is information that I wanted to take with me for use and reference. This purely states the reason of my unfair dismissal.
Well, that's exactly right, isn't it, and therefore there was no need for you to have held on to this application at all. You could have lodged it as soon as you received it?---No, I couldn't have.
Why is that? --- Because I wasn't in a financial position to do so."5
[29] The Applicant had sought advice from the Union, Legal Aid, and an "employer advocate". He stated:
"I spoke to them at various times with different questions and I can't recall what questions I asked when.6"
[30] The Applicant maintained he wanted further legal consultations prior to lodging in the AIRC. Under cross-examination, he confirmed the advice he was seeking related to the substance of his application, rather than the procedure for filing in the AIRC:
"Are there any other questions that you can recall that you needed to ask of those people before you lodged your Federal application?--- Most of my calls related to scenarios in regards to what had actually happened.
So they were more to do with how you were going to present your case once it got to - once it was filed and once it got to the next stage?---Yes."7
[31] The Applicant stated that he was not aware of any time limit in lodging his further application in the AIRC. However, the documentation provided by the Registry states that the Application is to be filed within 21 days.
[32] It was agreed that the Applicant had, at the time of termination, informed the Respondent that he intended to contest the termination and that, further to this, he had lodged the application in the QIRC within 21 days. He also contended that the Respondent was on notice of his contesting the termination by virtue of his inquiries seeking relevant documents. Ms Hull refuted having any knowledge of these inquiries until they received one request for documents prior to the proceedings. After the lodgement in the QIRC, the Respondent had not received any further notification from the Applicant that he was contesting the termination until the lodgement in the AIRC was notified to them some two months later. The Applicant submitted that he had taken further action by seeking advice on his substantive application from a range of sources.
[33] The conduct of the Applicant is an important aspect of an extension of time matter. The Applicant did not act promptly in pursuing the application in the AIRC. It is not unusual for confusion to occur as to the appropriate jurisdiction for lodgement and such may provide an acceptable reason for the initial breach of the 21-day time period. However, after the proceedings were commenced in the wrong jurisdiction, the question is raised as to whether there are acceptable reasons for the further delay of some two months until the subsequent lodgement in the AIRC.
[34] It is not envisaged that the Applicant will be significantly prejudiced by the lapse of time. However, this alone is not a reason to extend the statutory time limit.
[35] Whilst the substantive merits of the application were not traversed in any detail, the Applicant defended his position in that he had not received training or policy direction on the use or purpose of company Cabcharges and that he had not misused such. The Commission did not have sufficient evidence or materials available to it to enable a view to be formed as to the merits of the matter.
[36] This criterion, in the current circumstances, provides minimal assistance to the resolution of the issue before the Commission. To the extent that it does provide assistance, it favours the case of the Respondent in circumstances where approximately three more terms of 21-day periods (64 days) have elapsed after the lodgement in the QIRC, without cogent explanations for the delays. The evidence of the Applicant with respect to the reasons and time for seeking additional advice and further materials was not credible.
[37] The Applicant demonstrated that he was aware of the processes involved in lodging an application and seeking an adjournment (QIRC), and in communicating with organisations such as a tertiary institution to ascertain relevant administrative information and lodge applications. His experiences with such processes should have enabled him to lodge his application in the AIRC.
[38] The explanations provided do not justify the delay that occurred after the lodging in the QIRC8 considering the Applicant was aware he had to relodge in the AIRC. If the 21 day time limit had only been breached by the filing in the wrong jurisdiction and the error was quickly remedied, the determination would be different. The failure to lodge the application in the AIRC was a deliberate and voluntary decision by the Applicant.
[39] Having considered all of the circumstances of the case and factors relevant to the exercise of the Commission's discretion, there is an inadequate explanation for the overall time period between lodging in the QIRC and the AIRC. Accordingly, the jurisdictional objection to the extension of time application is upheld in accordance with the legislation. Accordingly, the Applicant's application with respect to his termination of employment is dismissed.
S. Caylock of Deacons Lawyers appeared for the Respondent.
Printed by authority of the Commonwealth Government Printer
2 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
3 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
KJB
Australian Association of Motor Insurers Limited - PR936348 [2003] AIRC 1037;
(1995) 67 IR 298
The jurisdictional objection to the extension of time application was upheld. The applicant's application with respect to his termination of employment was dismissed.