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[2002] AIRC 874
procedural. The Commission declined to exercise its discretion to extend the time for lodging the s 170CE application. The late application was not allowed. [45]
Venables missed the deadline for applying for relief after her employment was terminated and asked the Commission to let her application proceed late. The Commissioner found that she already knew the reason for her dismissal when it occurred, that her disagreement with the employer did not amount to actively contesting the termination, and that the employer had experienced some prejudice. The Commissioner also considered the underlying claim insufficiently meritorious to justify extending time. The extension was refused.
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Leonie Venables was employed by the Royal Society for the Prevention of Cruelty to Animals Queensland Inc. (RSPCA) from 2 March 1998 until 1 November 2001. The RSPCA's stated reason for ending her employment was an incident involving two dogs left in a locked RSPCA-marked vehicle in a car park. The employer's letter of 5 November 2001 described the complaint as alleging that the dogs were left without water or ventilation, in the sun, for more than an hour. The RSPCA treated the conduct as serious misconduct and as bringing discredit on the organisation [4]-[6].
1 cited instrument linked from this judgment.
Venables applied for relief under s 170CE of the Workplace Relations Act 1996 on 14 January 2002. The Commissioner stated that the application had to be lodged by 22 November 2001, making it 53 days late [4]. Venables asked the Commission to extend the filing time. The RSPCA opposed the extension [1]-[2].
A central factual dispute concerned what Venables knew, and when. She said that the termination letter and separation certificate had been sent to an incorrect address and were not received until around 23 November. Her evidence also described contacting the Commission Registry, receiving an information pack, seeking legal assistance, and experiencing shock and family pressures [17]-[18]. The RSPCA argued that Venables knew the conduct said to have led to her dismissal and had been told the reason at the 1 November meeting [25]-[27].
The Commissioner refused to extend time. The decision was confined to that preliminary question. It did not determine the substantive merits of whether the termination was justified after a full hearing. The Commissioner did, however, state that the substantive application lacked sufficient merit to justify an extension [43]-[45].
The decision treated the statutory deadline as the starting point. The Commissioner identified Brodie-Hanns and Kornicki as the relevant authorities and quoted the Brodie-Hanns principle that the Commission must be positively satisfied that the prescribed period should be extended. The ordinary position, as expressed in that passage, is that the time limit should be complied with unless there is an acceptable explanation for delay making an extension equitable [33].
The Commissioner assessed Venables's explanation by examining whether the delayed documents prevented her from understanding that she had been dismissed or why. The decision identified that question as pivotal [35]. After considering the evidence, the Commissioner found that Venables knew the reasons for termination on 1 November 2001 [37]. On that finding, the misdirected letter and separation certificate did not account for the delay in lodging the application. The Commissioner therefore rejected the late receipt of those documents as an acceptable explanation [34]-[37].
The decision separately addressed Venables's claimed shock and her father's illness. The Commissioner accepted these were circumstances raised by Venables, but found they were not sufficient to justify the length of the delay [39]. This was a factual assessment in the context of the extension request, rather than a general rule that such circumstances can never be relevant.
The Commission also considered whether Venables had taken steps to contest the termination before lodging her application. The decision recited the principle that action to contest termination outside the statutory application is relevant and may favour an extension [40]. But the Commissioner found that Venables had essentially waited for the separation certificate, which repeated information she already knew. Her rejection of the employer's description of her conduct as misconduct did not establish active contest of the termination [40]-[41]. Thus, expressing disagreement with the employer's decision was not treated as enough on these facts.
Prejudice to the employer was another relevant factor. The Commissioner accepted that the RSPCA had replaced Venables and had not been told, before the application was lodged, that she intended to challenge the termination. The Commissioner found that this amounted to a degree of prejudice associated with delay [42]. The decision does not quantify that prejudice or describe further practical effects.
Finally, the Commissioner considered the merits of the proposed substantive application. The authorities identified in the decision permitted merits to be taken into account in deciding an extension request [43]. The Commissioner concluded that the application lacked sufficient merit to warrant an extension, but did not give a detailed account at that point of the substantive evidence or explain the precise weight assigned to each allegation [43]. The result followed from the cumulative assessment of the delay explanation, active contest, prejudice and merits, with the application refused [45].
This decision records the legal approach applied in 2002 under s 170CE of the Workplace Relations Act 1996. It describes an extension of time as a discretionary matter and applies the principles attributed to Brodie-Hanns and the guidelines associated with Kornicki [20], [33]. The operative starting point was compliance with the prescribed filing period. The applicant seeking extra time had to persuade the Commission to exercise its discretion, and the Commission had to be positively satisfied that an extension was warranted [20], [33].
The decision sets out several considerations rather than a single decisive test. Its account of Brodie-Hanns includes explanation for delay, steps taken to contest the termination, employer prejudice, the merits of the substantive application, and fairness as between the applicant and others in a like position [8], [33]. The Commissioner applied some of those considerations to the evidence and did not discuss fairness further because of the conclusions already reached [44].
The text does not provide a later statutory history, subsequent authorities, or a comparison between the law before and after this decision. It therefore cannot establish from the material supplied whether later legislation or courts altered this approach, or how later tribunals have applied it. The decision should be read as showing how Commissioner Hodder approached this particular extension request, not as an account of the present law.
The decision's treatment of merits is also limited. It states that the merits may be considered, and that this application lacked sufficient merit, but it does not reproduce a full merits hearing or detailed findings on the underlying termination claim [43]. The judgment thus shows that merits formed part of the extension assessment, while leaving the precise substantive analysis largely unstated in the reasons.
The starting point for time limits: “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” [33]. In plain English, a late applicant starts from the position that the deadline applies. The Commission must be persuaded that the circumstances justify an exception.
The delayed termination documents: The Commissioner treated whether Venables could judge whether to apply before receiving the documents as “the pivotal point” [35]. The Commissioner then found that she knew the reasons for dismissal on 1 November [37]. In plain English, the late letter did not explain the delay if the key information was already known.
Active contest: The Commissioner found that rejecting the misconduct allegation did not demonstrate that Venables “actively contested the termination” [41]. In plain English, disagreeing with the employer's characterisation of events was not, without more in this case, treated as an active challenge to the dismissal.
Prejudice: The RSPCA had replaced Venables and had no indication before the application that she intended to challenge the termination. The Commissioner accepted a degree of prejudice [42]. In plain English, the employer's changed staffing position and lack of earlier notice counted against an extension.
Result: The Commissioner declined to exercise discretion to extend the time [45]. In plain English, the late application was not permitted to proceed.
This decision is relevant to a fact pattern involving a statutory employment-termination application filed after a prescribed deadline, where the applicant seeks an extension and the decision-maker must assess an explanation for the delay. The particular statutory scheme here was s 170CE of the Workplace Relations Act 1996, and the deadline discussed was 21 days [1], [4].
The reasoning is especially connected to disputes about whether an applicant knew the reason for dismissal before receiving formal documents. Here the Commissioner found that Venables knew the reasons on the termination date, despite the later receipt of the letter and separation certificate [35]-[37]. The decision may be relevant where an applicant relies on delayed written confirmation, but its factual significance depends on what the applicant knew and the evidence supporting that finding.
It may also be relevant where the applicant says they disagreed with the termination but did not take concrete steps to challenge it before filing. The Commissioner distinguished disagreement with the misconduct allegation from active contest of the termination [40]-[41]. The decision does not establish that a particular step is always necessary; it records the Commissioner's assessment of the evidence in this matter.
Employer prejudice may be relevant where a late application follows replacement of the dismissed employee and the employer had not been told of an intention to challenge the termination [42]. The decision does not say that replacement alone necessarily determines an extension request. Nor does it prescribe a formula for measuring prejudice.
Finally, this decision is relevant where the apparent merits of the underlying application are considered as part of an extension request [43]. It should not be read as a full determination of whether Venables's dismissal was legally justified. The operative decision was about time, and the merits comment was expressed briefly.
The judgment provided here contains no later judicial or tribunal history. It does not identify any court or Commission decision that subsequently followed, distinguished, questioned, or overruled Venables. Accordingly, no conclusion about later treatment can be drawn from this source alone.
The authorities discussed in the decision are earlier authorities, not later treatment of this decision. The Commissioner identified Brodie-Hanns and Kornicki as pertinent to the extension question [33]. Other decisions, including Lei Nivaga, Neal Smith, Dempsey, Kyvelos, Walshe and Stannard, appear in the parties' submissions or in material quoted from those submissions [7]-[16], [20], [26]-[27]. The task is to extract the Commissioner's reasoning, so those references should not be represented as later courts treating Venables.
A practitioner researching the decision's subsequent status would need sources beyond the judgment supplied here, including later decisions and any relevant statutory history. This analysis does not claim that the decision remains good law or that a later authority has adopted its reasoning.
Several matters remain unresolved or only briefly addressed in the reasons. First, the decision does not explain in detail how the Commissioner assessed the substantive application as lacking sufficient merit [43]. The reasons identify the conclusion but do not provide a developed comparison of the allegations, evidence and relevant legal standards.
Second, the decision does not detail the practical evidence supporting the RSPCA's claimed prejudice beyond the replacement of Venables and the absence of prior notice that she intended to challenge the termination [42]. It does not quantify the effect of the delay or explain whether other forms of prejudice were asserted or accepted.
Third, the decision records competing accounts about what Venables was told and when. The Commissioner resolved the central knowledge issue by finding that she knew the reasons for termination on 1 November [37]. The text does not set out a detailed analysis of each item of evidence or explain the evidentiary basis for resolving every conflict.
Fourth, the reasons do not elaborate on how the applicant's circumstances, including shock and her father's illness, were weighed against the length of delay, beyond finding them insufficient in this case [39]. Nor does the decision explain the fairness consideration in detail; it says that it did not require comment given the conclusions already reached [44].
Finally, the supplied judgment does not establish the decision's present precedential status, later treatment, or the current statutory framework. Those points require separate source material. This analysis is grounded only in the judgment text supplied.
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s.170CE application for relief in respect of termination of employment
[1] This decision relates to an application for relief lodged under section 170CE of the Workplace Relations Act 1996 (the Act) by Ms Leonie Venables (the applicant). The application was lodged outside of the 21 day time limit prescribed by section 170CE(7) of the Act and the applicant has sought to have the application accepted by having the time for lodgement extended to 14 January 2002.
[2] The Royal Society for the Prevention of Cruelty to Animals Queensland Inc. (the RSPCA) was named as the respondent employer in the application and it has raised an objection to this Commission, as presently constituted (this Commission) granting an extension of time for the lodgement of the section 170CE application.
[3] Both parties were represented with Ms S. Moody of Counsel having appeared on behalf of the applicant and the RSPCA was represented by Livingstones Australia. The respective outlines of submissions of the parties were lodged together with affidavits of the following witnesses who were cross-examined at the hearing:
· Ms Sheila Collecott, Executive Officer of the RSPCA, and
[4] The applicant commenced employment with the RSPCA on 2 March 1998 and her employment with it was terminated on 1 November 2001. Subsequently, the applicant lodged a section 170CE(1) application for relief on 14 January 2002. Section 170CE(7) of the Act required that the application for relief be lodged on or before 22 November 2001 and as a consequence, the application was lodged 53 days outside of the time period prescribed by the Act.
[5] In a letter dated 5 November 2001 the RSPCA wrote to the applicant and confirmed the outcome of a disciplinary interview held with her on 1 November 2001. The reasons given to the applicant in the letter for the termination of her employment were that the RSPCA had received a formal complaint from a member of the public that on 27 October 2001 the applicant had left two dogs in a locked and unattended RSPCA marked vehicle which had been parked in a car park. It was alleged that the animals had been left in this manner, without water or ventilation, with the vehicle sitting in the sun for a period over one hour. This action, it was claimed by the RSPCA, had brought discredit upon it and was in contradiction to its aims and values.
[6] The RSPCA formed the view that the applicant had been unable to provide a satisfactory response to the allegations and as a consequence, her actions constituted serious misconduct and her employment with it was formally terminated. In this regard I note that Regulation 30CA(1)(b)(ii) of the Workplace Relations Regulations provides the following example of serious misconduct as being_:_
"(b) conduct that causes imminent, and serious, risk to:
(ii) the reputation, viability or profitability of the employers business".
[7] The submissions made on behalf of the applicant in support of an application to extend the time for lodgement of the section 170CE application referred to the following authorities in respect of out of time applications:
"The tests to be applied by the Commission in the exercise of this discretion to allow the Application after the twenty-one day period are contained in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR298 at page 299 ( Brodie -Hanns) and most recently approved in Lei Nivaga -v- Moishe Gordon trading as City Park Hotel (U2001/6043) by Commissioner Grainger in the Australian Industrial Relations Commission at Melbourne on the 6th February 2002 and Neal Smith -v- Australian Capital Territory (U2001/8022) by Commissioner Deegan in the Australian Industrial Relations Commission at Canberra on 13th February 2002."
[8] It was acknowledged that the following six principles emerged from Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (Brodie-Hanns) which appears in the form of a notation immediately following subsection 170CE(7A) of the Act:
"(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 take 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 employer including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the employer 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 person in a like position are relevant to the exercise of the Court's discretion".
[9] It was confirmed that subsection 170CE(7) of the Act required that the application should have been lodged by 21 November 2001 but in fact this did not occur until 14 January 2002 resulting in a delay which was claimed as being 54 days out of time. However, it was put that the applicant had provided an acceptable explanation for the delay with the lodgement of the application and that consistent with Brodie-Hanns, the second criteria to be taken into consideration was whether the applicant actively contested the decision made by the RSPCA to terminate her employment with it. This criteria, it was claimed, was satisfied as it was put that the applicant had pursued positively her objection to the termination.
[10] As to the merits of the substantive application, it was contended that it was appropriate for this Commission to take the merits of the substantive application into account when considering whether an extension of the time should be allowed and that the matters contained within the applicant's affidavit prevailed in this regard.
[11] Attention was drawn to a decision of Commissioner Gay in Dempsey -v- Heinz [PR912826], 21 December 2001 in which, it was submitted that the principles of a decision of the Full Bench of the Commission in Kyvelos v Champion Socks [Print T2421] was reaffirmed by way of the following passage:
"It should be emphasised that in considering the merits, the Commission is not in a position to make findings of fact on contested issues unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to section 170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice."
[12] Further, it was claimed that Commissioner Gay considered the requirement to take the merits of the substantive application into account consistent with principle 5 of Brodie-Hanns and relied upon the Full Bench decision in Kornicki v Telstra - Network Technology Group [Print P3168] (Kornicki) where it was held that:
". . . it would be sufficient for the Applicant to establish that the substantive Application was not without merit".
[13] In this regard it was claimed that the applicant had established the merits of her substantive application in that her behaviour did not constitute serious misconduct which had been the basis for the termination of her employment by the RSPCA. By way of comparison a decision of Deputy President Leary in Walshe and BSH Electrical Pty Ltd [PR912959] (Walshe) was referred to in which the circumstances in that matter were that the applicant only decided to pursue an application for unfair termination after having received a separation certificate sought requested by Centrelink and that Leary DP found that the evidence revealed that the applicant in that case had not actively contested the decision to terminate his employment until such time.
[14] In this matter however it was claimed that the facts were clearly distinguishable from those in Walshe as it was put that the applicant requested full details for the reason for the termination of her employment from the RSPCA on 1 November 2001 and actively pursued such details despite the fact that the termination letter had been forwarded to her at an incorrect address.
[15] In relation to any prejudice caused to the RSPCA in respect of the late lodgement of the applicant, it was contended that no prejudice was caused to it and that conversely prejudice was caused to the applicant as it was she who was not properly informed by the RSPCA of the grounds for the termination of her employment either on 1 November 2001 or for a period of time following due to the oversight with her address.
[16] Addressing principle 6 in Brodie-Hanns, the submissions for the applicant claimed the issues of fairness between the applicant and other persons in a like position were not relevant to the current application and that in all of the circumstances this Commission should allow the section 170CE application by extending the time for its lodgement.
[17] It is appropriate to refer to the following extracts taken from the applicant's affidavit which address her version of the sequence of events in respect of the termination of her employment and her subsequent response to it:
"I was required to attend an interview on the 1st November 2001 which was conducted by Byron Hall, Chief Inspector (who was my immediate supervisor) and Sheila Collecott, Executive Officer. During that meeting which lasted for approximately one (1) hour Mr Hall and Ms Collecott advised me that a written complaint had been received from a member of the public in relation to dogs being left in the RSPCA work vehicle in a carpark of a shopping centre for a period of an hour or so. I was not shown the letter of complaint. I was requested to respond to each matter raised in that letter of complaint which I did so forth rightly and honestly, but without being shown that letter of complaint. The allegations were essentially that I had used an RSPCA vehicle to transport dogs which were said to be my own animals and that those dogs were locked in the RSPCA vehicle without water or ventilation and in an open carpark in the sun for a period of time exceeding an hour and that my actions had bought discredit to the RSPCA.
At the conclusion of the interview on the 1st November 2001 I was told by Byron Hall that I was being dismissed from my employment and that it was effective immediately. I asked the reasons on what grounds I was being dismissed and I was told that I would receive a separation certificate and that would be set out in that. I continued to ask the reasons for the dismissal and was told that because of the formal complaint received I had discredited the RSPCA. I did not consider that what had taken place was misconduct which would warrant my instant dismissal but given that a complaint had been received that at the most a reprimand should have been given. I do not consider that my actions which were the subject of the alleged complaint from one person of the public were wrong or warranted my employment being terminated.
I did not realise that I was being terminated for 'misconduct' until I received the letter from the RSPCA dated 5th November 2001 and the employment Separation Certificate dated 16th November 2001 true copies of which are exhibited hereto and marked with the letters 'C' and 'D' respectively. The said letter and separation certificate were not received by me until on or about 23rd November 2001.
On the 19th or 20th November 2001 I telephoned and spoke to Sheila Collecott to enquire of the whereabouts of my separation certificate as it had not been received and I was wanting to know details of the grounds for my termination. I was advised that it had been sent in the post and when I inquired to what address I was informed that it had been sent to '27 Kianga Court, Currumbin Valley". I advised that I had never lived at that address and could not get the letter that had been sent there. I requested that a new Separation Certificate be issued and forwarded by post to me to my correct address at '10 Ironbark Street, Palm Beach'. The new Separation Certificate (Exhibit 'D') was received on or about the 23rd November 2001 together with a copy of the letter dated 5th November 2001 (Exhibit 'C') and a copy of the Employment Separation Certificate previously forwarded to the incorrect address, a copy of which is exhibited hereto and marked with the letter 'E'."
[18] The affidavit then refers to the actions the applicant took which led to the lodgement of her section 170CE application:
"I was initially in shock and could not believe what had happened.
About a week later I telephoned the Industrial Relations Commission Registry and spoke with an officer regarding my situation and was advised that a 'pack' would be sent to me by the end of the week which would detail the matters I needed to know.
I had not received the 'pack' by the end of the week and on Friday 16th November 2001 I again telephoned the Registry and spoke to woman who said that she could not explain why the pack had not been sent out to previously but as she couldn't send it because of the lateness on Friday afternoon she assured me that it would be sent out the following Monday. I received the 'pack' on the Tuesday or Wednesday of the next week.
I recall that the 'pack;' arrived about the same time as the replacement Separation Certificate and copies of letters (exhibit C, D, E).
After receiving the Separation Certificate and the copies of the letters I was shock and upset by the allegations that were made in them. I discussed with my family about taking action against RSPCA and considered the information in the 'pack' sent to me by the Industrial Relations Commission Registry. I was not sure whether I was employed under a State or Federal Award and really did not understand whether I had a case or not. I consulted Mr Michael McDevitt of Shane Ellis Lawyers, Palm Beach, Gold Coast in early December 2001 and he advised me that I had case and should consult with a Solicitor who has experience in the area of law as he practiced in personal injury and Workcover claims only. He recommend that I consult with Arcuri Lawyers. I contacted Arcuri Lawyers but was unable to arrange a consultation until the 8th January 2002 at which time I was able to receive proper advice with respect to making a claim. It was at that time confirmed to me that what I had thought was correct that is that the Application had to be filed within twenty-one days or the Commission could extend it. I had not been worried about not filing the Application within the twenty-one days because I thought that the time period would be extended as a result of me not having received the Separation Certificate and details of the grounds on which I had been terminated for a period of time.
Immediately following the interview on the 1st November 2001 I commenced packing my belongings. During that time I continued to question what were the grounds for my dismissal and said that it was unfair and if there was a problem then a reprimand would have been appropriate. I said words to the affect that I wanted to pursue the question with them of the unfairness of my dismissal and that I had been surprised and shocked by the decision and felt that it was not fair. Byron Hall told me that if I felt that it was unfair that I should take the matter up with the Industrial Relations.
For a period of about two or three weeks following the date of termination (1st November 2001) I was having difficulty coping with accepting that I had been terminated from my employment as well as my father's whose health had deteriorated and he was seriously ill at that time. I felt that there was so much pressure on me and I could just not cope with everything that was going on in my life at that time. I believe that this also contributed to the reason why I did not lodge my Application in the Industrial Relations Commission shortly after receiving the 'pack' from the Registry."
[19] The submissions of the RSPCA, in opposing the granting of an extension of time for lodgement, drew attention to the requirements of the Act and referred to authorities which were claimed to demonstrate that this Commission should not allow the late lodgement of the section 170CE application. Issue was taken with the claims of the applicant concerning her alleged actions in respect of her contesting the termination of her employment as well as potential prejudice to the RSPCA in the event that the application were allowed.
[20] Under the heading Onus in its submissions, the RSPCA referred to a decision of this Commission in Stannard v Department of Family and Community Services [PR905016] which contained the following extract taken from the decision in Kornicki:
"The prima facie position is that the legislative time limit should be complied with and an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise the discretion in s170CE(8) in their favour".
[21] The submissions then referred to Annexure A to the Form R18 - Application for Relief lodged on 14 January 2002 in which the applicant stated that she was not made fully aware by the RSPCA of the grounds for the termination of her employment on 1 November 2001 and that the letter of termination dated 5 November 2001 was not received by her for a number of weeks after the dismissal due to it having been sent to an incorrect address. The applicant then stated (at clause 3) that she:
". . . . then endeavoured to seek legal advice as to my rights before lodging an Application with the Commission as I did not know whether I was able to or not and I was not aware under what Award or Workplace Agreement I was employed. I made those enquiries but due to the Christmas vacation I was unable to consult my Solicitor until the 8th of January 2001 [sic]. I lodged my Application as soon as possible thereafter".
[22] It was claimed by the RSPCA that the applicant was employed with it as an Ambulance Officer commencing on 2 March 1998 and that her employment was regulated by the RSPCA - Queensland Inc. Certified Agreement 2001 under which clause 2.2.4(d)(iv) stated that it was not required to provide notice of a termination of employment:
"(iv) where the Employee is subject to instant dismissal as a result of committing any of the unacceptable acts which would warrant summary dismissal in terms of the Workplace Relations Act 1996, as amended from time to time".
[23] Reference was then made to Regulation 30CA(1)(b)(ii) of the Regulations in relation to the definition of serious misconduct and in this regard it was submitted that the complaint in relation to the applicant's alleged cruelty in leaving the dogs in a locked RSPCA vehicle in the sun constituted serious misconduct. It was further put that the evidence of Mr Hall and Ms Collecott corroborated the claim by the RSPCA that the applicant had admitted to leaving the dogs in the vehicle and that the applicant also confirmed this. The evidence of Mr Hall and Ms Collecott also confirmed that the applicant had not received permission to use the RSPCA vehicle for the personal transport of her own dogs and accordingly the vehicle was being used by her without the consent of her employer.
[24] The submissions went on to detail the evidence of these two witnesses in relation to the potential dangers of leaving any animal in the sun in a vehicle and that when these allegations were raised with the applicant on 1 November 2001, she was given an opportunity to respond to them. Subsequent to the applicant admitting to the actions complained of, the RSPCA formed the view that her actions had brought discredit to the Society and accordingly the applicant's employment was immediately terminated.
[25] In relation to the nature of the meeting between the RSPCA and the applicant on 1 November and the sequence of events thereafter, it was submitted that there was no doubt for the reason for the termination of the applicant's employment on 1 November and it was confirmed that on 5 November 2001 a letter of confirmation was forwarded to her at an incorrect address. Ms Collecott gave evidence that around 16 May 2001 she was contacted by the applicant concerning the whereabouts of the Employment Separation Certificate. During the course of this conversation, Ms Collecott stated that the applicant:
". . . did not express a view that she thought the termination was unfair or indicate that she intended to challenge the decision".
[26] Reference was then made to the principles established in Brodie-Hanns and the guidelines established by the Full Bench in Kornicki as far as the onus placed upon an applicant in seeking an extension of time for the late lodgement as well as whether there was an acceptable explanation for the delay, the merits of the substantive application and whether the applicant actively contested the decision in relation to the termination of her employment.
[27] The following extracts taken from the submissions for the RSPCA then refer to portions of the applicant's affidavit addressing relevant issues:
"In her Affidavit the Applicant questions whether her actions warranted the termination, this is quite a different issue to alleging that she did not know the reason for her termination. (para 6)
The Applicant appears to rely on the description of the conduct which led to her dismissal as `misconduct' as founding her claim that she was not aware of the reason for her termination. As per the Affidavit evidence of Mr Hall and Ms Collecott, the Applicant was fully aware of the conduct which led to her dismissal irrespective of whether or not it had been referred to using the term `misconduct'.
In the alternative, if it was to be accepted that the Applicant did not become aware of the reason ( a position opposed by the Respondent) until she received the letter confirming the termination on or before 23 November 2001, her application is still at least 31days out of time.
The Applicant admits in her affidavit `about a week later [from date of termination] I telephoned the Industrial Relations Commission Registry and spoke with an officer regarding my situation....the pack arrived about the same time as the replacement separation certificate'. (para12,13 &14)
The Applicant therefore, had considered the issue of making an application prior to the receipt of the information pack or the letter to confirm the termination.
The applicant admits to requesting and receiving an information pack from the Australian Industrial Relations Commission Registry. This information pack clearly identifies that there is a 21 day time limit for making an application.
The Applicant admits in her Affidavit, that on 1 November 2001, she was told that if she felt the decision was unfair she 'should take the matter up with the Industrial Relations' (para 18)."
[28] As to the merits of the substantive application reference was again made to the evidence of Ms Collecott who claimed that in her role as an Ambulance Driver for the RSPCA, the applicant was required to participate in the public education in respect of issues relevant to animal cruelty. In particular, a campaign had been conducted by the RSPCA named Dogs Die in Hot Cars and, it was again reiterated that the actions of the applicant had not only brought discredit to the RSPCA but also seriously affected its reputation.
[29] Further, it was put that the originating complaint from the member of the public which led to the termination of the applicant's employment with the RSPCA would have also been witnessed by other members of the public and whilst the numbers are unknown, the vehicle was parked for a period of time in excess of one hour. This, it was claimed had the capacity of greatly increasing the damage done to the reputation of the RSPCA in the eyes of the public. The submissions then went on to refer to the financial dependency of the RSPCA upon the public for fundraising and that the actions of the applicant could have impacted on its ability to continue to receive donations from the public.
[30] The evidence of Mr Hall, it was claimed, referred to the poor work and conduct performance of the applicant and it was also reiterated that the applicant made no contact with the RSPCA following the termination on 1 November 2001 prior to her telephone call to it on 16 November 2001.
[31] It was submitted that prejudice to the RSPCA had been occasioned by the applicant's delay in the filing of her late application due to its operational requirements and that there was no acceptable reason for such delay nor sufficient special circumstances and that the substantive application was lacking in merit.
[32] In reaching a decision as to whether this Commission should grant an extension of time in this matter I have considered the evidence and the submissions of the parties.
[33] The authorities which have emerged pertinent to applications of this order are Brodie-Hanns and Kornicki and accordingly it is the principles and guidelines contained within such authorities which have been applied against the circumstances of this application and which have formed the basis for my conclusions and in particular, the following taken from Brodie-Hanns:
"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."
[34] I have considered what emerges from the stated reliance by the applicant upon the need for her to have been made aware of the reasons for her termination before she was in a position to file the section 170CE application. This reliance by the applicant that she was not aware of the details of the reason for the termination of her employment does not, I find, constitute an acceptable explanation for the delay with the lodgement of her application and is not supported by the evidence.
[35] The applicant has sought to rely upon the late receipt of the letter of termination containing the details for the termination and which also included a Separation Certificate from the RSPCA. The documents were forwarded by the applicant's former employer to her to an incorrect address and the applicant received the documents some time between 16 and 23 November 2001. Whether the applicant was in a position to make a judgment as to whether she should have filed an application under section 170CE of the Act is, it seems to me, the pivotal point in this matter.
[36] In this regard the following extracts taken from the submissions of the RSPCA referred to the evidence of the applicant in relation to her understanding of the reason for the termination of her employment:
"In this regard we bring to the Commission's attention that contrary to the affidavit provided by Ms Venables and her evidence at PN 172 that she was not aware that her termination was for 'misconduct' until she received the separation certificate, at PN 384 to PN 385 Ms Venables confirms that she was told that it was 'misconduct' on 16 November 2001."
[37] I have considered the evidence of the applicant and the RSPCA which addresses this issue and am satisfied that the applicant was aware of the reasons for the termination of her employment on 1 November 2001. Accordingly, I am not satisfied that the reasons advanced by the applicant that the delay occasioned with the filing of the section 170CE application was caused by the late receipt by her of the letter of termination and the Separation Certificate. I do not find that the reasons advanced by the applicant represent an acceptable explanation for the delay with the filing of the section 170CE application.
[38] The evidence of the applicant established that she did not concur with the position which the RSPCA took at the interview on 1 November 2001 that her actions on 27 October 2001 were of such an order that they constituted misconduct, even though they were put forward as being the reason for the termination of her employment on 1 November 2001.
[39] As to other circumstances which arose at the relevant time, I find that I am not satisfied that the level of shock which the applicant claims to have suffered as a consequence of the termination of her employment combined with the illness of her father, are sufficient to justify the lengthy delay incurred with the filing of the section 170CE application.
[40] In respect of the second Brodie-Hanns principle:
"Action take 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."
I find that the evidence of the applicant was that essentially she did nothing to contest her termination other than wait for the Separation Certificate to arrive which essentially told her what she already knew and that was that she had been terminated for misconduct. The real issue at that point in time for the applicant was, I suspect, the late receipt of the Separation Certificate and I have concluded that this was not central to the delay incurred with the late lodgement of the section 170CE application. The following extract taken from the applicant's affidavit confirms the events at the time:
"On the 23rd November 2001 I lodged the new Separation Certificate with Centrelink to enable me to obtain benefits as I had not been in receipt of any income since the 1st November 2001 when my employment was terminated. It took approximately a fortnight for Centrelink to review my request for benefits."
[41] One of the other central themes of the cause for delay relied upon by the applicant was that she did not accept that her actions represented misconduct or that such actions justified the termination of her employment. In any event, the issue of misconduct was the term expressed by the RSPCA as being the reason for the termination of the applicant's employment. The matter which requires consideration by this Commission is whether or not the applicant's rejection of the misconduct allegation can be construed to be taken to have meant that the applicant actively contested the termination of her employment and in this regard I find that such rejection was not sufficient to demonstrate that the applicant actively contested the termination.
[42] As to the third Brodie-Hanns principle:
"Prejudice to the employer including prejudice caused by delay will go against the granting of an extension of time."
I am satisfied that the RSPCA has incurred a degree of prejudice associated with the delay in filing given that it has replaced the applicant in its workforce and, I accept that there was no indication by the applicant to it, prior to the lodgement of the section 170CE application, that she intended contesting the termination of her employment.
[43] Having found that the RSPCA has suffered prejudice, the fourth Brodie-Hanns principle does not require attention but as to:
"The merits of the substantive Application may be taken into account in determining whether to grant an extension of time."
I am satisfied that the substantive application is lacking sufficient merit and does not warrant an extension of time being granted to allow the section 170CE application.
[44] As to the final principle in Brodie-Hanns:
"Consideration of fairness as between the Applicant and other person in a like position are relevant to the exercise of the Court's discretion."
In the light of the above conclusion this principle does not require comment.
[45] In all of the circumstances of this matter, I have decided not to allow the section 170CE application as I have declined from exercising my discretion to extend the time for lodgement of it as sought by the applicant.
C. Laird of Livinstones Australia for the respondent.
Printed by authority of the Commonwealth Government Printer
Leonie Venables
The Royal Society for the Prevention of Cruelty to Animals Queensland Inc - PR920615 [2002] AIRC 874;
(1995) 67 IR 298
The Commission declined to exercise its discretion to extend the time for lodging the s 170CE application. The late application was not allowed. [45]