Lucic v Nolan and Others, Federal Court of Australia - General Division, Fitzgerald J,

CATCHWORDS: Unfair dismissal - out of time - no finding of sufficent reason for late lodgement of claim - extension of time refused.

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

CASES CITED: Lucic v Nolan and Others, Federal Court of Australia - General Division, Fitzgerald J, [1 Nov 1982], 45 ALR 411 @ 416.

APPLICANT Mr P Rochfort, agent from IR Australia LEGAL REPRESENTATIVES: RESPONDENT Mr R Young, solicitor from Holman Webb Lawyers

Barbara Ann Stratford -v- Anglican Retirement Villages (Diocese of Sydney)

Application by B Stratford pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal.

1 On 15 March 2006, IR Australia Pty Ltd (the agents), lodged a claim for unfair dismissal on behalf of Barbara Ann Stratford, (the applicant). The unfair dismissal claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act).

2 The claim identified the respondent employer as Anglican Retirement Villages (Diocese of Sydney), (the employer). 3 The claim was the subject of unsuccessful conciliation proceedings conducted before McKenna C. The file in this matter was reallocated to the Commission as currently constituted for the purpose of Hearing. Pursuant to protocols established in conjunction with Practice Direction No 17, the Hearing of this matter was directed to involve both the substantive application and the issue involving the late lodgement of the claim. The claim was filed some eighty-four days beyond the time limit for the making of such applications as prescribed by section 85(1) of the Act. 4 The matter was fixed for Hearing on a single day, 3 August 2006. However the proceedings were not completed on that day and a further day, 24 October 2006, was subsequently required to complete the Hearing of the matter. At the conclusion of proceedings on 24 October, the Commission reserved Decision.

5 The applicant is a woman who was some sixty-six years of age at the time of her alleged unfair dismissal on 30 November 2005. The applicant had worked for the employer for over twenty-one years. 6 The applicant was primarily engaged as a Registered Nurse (RN). For several years immediately preceding her dismissal the applicant was engaged on a four day per week part-time basis. The applicant's regular engagements involved work on Friday, Saturday, Sunday and Monday. The work of the applicant on weekends involved slightly different tasks and responsibilities, such that the applicant was paid a higher rate associated with the position of Assistant Director of Nursing (ADON). The applicant worked at the Lady Gowrie Nursing Home which incorporates the Roden Cutler Hostel. 7 The applicant had an outstanding work history. For more than two decades she provided a broad range of professional nursing and additional services to the aged care operation run by the employer at the Lady Gowrie/Roden Cutler facility. The applicant's long and distinguished devotion to her work established a unique, eclectic range of work functions. In addition to the variety of RN functions and responsibilities, the applicant also provided personal, social and emotional support for the aged individuals who were under her care. The applicant's extensive additional functions included such diverse roles as playing the organ during Church services for residents at the Lady Gowrie/Roden Cutler facility. 8 During August of 2005, the employer identified financial difficulties associated with the operation of its aged care facilities. In brief the employer discovered an operating loss of something in excess of one million dollars relating in large part to the wages and salaries of staff engaged at the various aged care facilities. Faced with this financial dilemma the employer commenced an employment restructuring program that required significant reductions in the number of persons engaged across the various aged care facilities. This restructure involved, inter alia, the identification of any positions which may be determined as not essential to the operational requirements of a particular facility. Consequently various positions in a number of facilities were identified as subject to this restructure and declared redundant. Unfortunately the applicant's position was one such position that was determined as redundant. 9 In early November of 2005, the applicant was told that her position had been determined to become redundant. The employer decided that many of the additional functions that the applicant had lovingly and professionally performed over many years had to be either removed or reconfigured as part of the need to redress the financial difficulties that had been identified. These financial difficulties were said to create a commercial crisis that could threaten the ongoing operation of the aged care facilities generally.

10 Understandably the applicant was upset at the advice of her redundancy. It was clear that the applicant's distinguished employment record was reflective of a deep personal commitment and heart-felt devotion to helping others particularly the aged and infirmed. Although the applicant was personally upset at the loss of her employment, she was equally concerned for the ongoing well being of residents and patients with whom she had established strong personal bonds. Consequently the termination of the applicant's employment was even more traumatic than might ordinarily be anticipated for an employee with over twenty-one years service. Nevertheless, at the time, the applicant reluctantly accepted her fate and her employment was concluded on 30 November 2005. 11 The applicant was paid accumulated leave entitlements together with an amount that was described as twenty weeks severance payment, plus five weeks notice. In effect the applicant received an amount equivalent to twenty-five weeks remuneration characterised and taxed as a severance payment. 12 In January of 2006, the applicant obtained some alternative employment, which was not of a regular basis. On or about 3 February 2006, the applicant noticed a job advertisement placed by the employer in a local newspaper, The North Shore Times. This job advertisement involved inter alia, a vacancy for a Registered Nurse to work on Saturdays and Sundays at the Roden Cutler lodge. The position as advertised on 3 February 2006, displayed some obvious connection with the applicant's former position although the vacancy appeared to relate only to work on Saturdays and Sundays. 13 However the applicant did not make further inquiry or apply for the position as advertised. Instead the applicant applied for another position with a different employer. 14 During a discussion with a person in relation to alternative employment, the advertisement for employment at the Lady Gowrie/Roden Cutler facility was raised and the applicant was encouraged to make contact with the agents. This encouragement apparently arose from the applicant telling the prospective employer about the circumstances of the termination of her employment with Anglican Retirement Villages, including mention of the subsequent advertisement in The North Shore Times of 3 February. 15 The applicant then made arrangements to meet with the agents on or about 9 March 2006. Thereafter on 15 March 2006, the agents filed the claim giving rise to these proceedings. 16 The applicant has asserted that her dismissal was unfair. The applicant has claimed that the redundancy of her position was a sham and further, that the employer failed to adopt fair procedures when implementing her dismissal. The applicant has not sought reinstatement or re-employment but instead monetary compensation as Relief for her alleged unfair dismissal. 17 The employer has rejected that the applicant's dismissal was in any way unfair. Further, the employer has strongly contested the out of time issue. The employer asserted that the claim which was made some considerable time after the twenty-one day limit should not be accepted. 18 Logically, the question of any extension of time must be determined before any broader consideration of the substantive merits of the claim would be undertaken.

THE OUT OF TIME ISSUE 19 In many respects it is regrettable that the out of time issue was not dealt with separate to the substantive merits issues regarding the application. It has long been a matter for the discretion of individual members of this Commission as to whether out of time unfair dismissal claims should involve discrete proceedings concerning any extension of time before there be, if any, further consideration of the substantive claim. 20 There are a number of balancing considerations regarding composite as opposed to separate proceedings with out of time unfair dismissal matters. In many instances where claims have been filed only a short period out of time, there is often clear practical benefit in having a composite proceeding. Often in such cases the Parties may jointly request that the Commission provide for a composite proceeding. 21 In instances where the claim is filed a considerable period out of time, and there is a contest as to whether composite or separate proceedings should be provided, I have adopted as a broad "rule of thumb" that separate proceedings should be provided where the claim has been filed twenty-one days or more out of time. That is, if the application is beyond time by a length of time equal to or greater than the time prescribed by section 85(1) of the Act (twenty-one days), it would generally seem that the out of time question might attract significance and potential for refusal to extend time such that a separate proceeding should be provided. This is particularly important so as to ensure that an applicant seeking an extension of time is given clear indication of the need to properly establish that there is sufficient reason to grant an extension of time.

22 In this instance a composite proceeding was arranged and particularly as the Parties were represented, there was no obvious failure from either side to appreciate the need to address both in an evidentiary sense and by way of submissions, the issue of the extension of time. 23 The chronology of events as summarised earlier in this Decision established that the application was filed some eighty-four days beyond the twenty-one days time limit prescribed by section 85(1) of the Act.

The Case For The Applicant Seeking An Extension Of Time 24 Mr P Rochfort who appeared for the applicant, submitted that the Commission should accept the explanation provided for the late lodgement. Mr Rochfort referred to various Authorities that he said provided principles for the approach to consideration of an extension of time. 25 Mr Rochfort said that the advertisement for a job vacancy appearing in The North Shore Times in February 2006, provided confirmation for the applicant's concern that her alleged redundancy has been nothing more than a sham. Mr Rochfort said that the applicant read the job advertisement and was entitled to then believe that her termination had been a device to remove her from the position that she had filled at the Lady Gowrie/Roden Cutler facility for over twenty-one years. 26 Mr Rochfort further submitted that although the applicant did not immediately apply for the particular position that was advertised in The North Shore Times on 3 February, she did make contact with the agents who subsequently filed the claim on her behalf.

27 Mr Rochfort said that the application was not immediately lodged when the applicant first approached the agents on or about 9 March, because the agents required the applicant to gather information regarding her termination so that they could establish that there was merit in the case so as to avoid lodging a frivolous application. 28 Mr Rochfort made further submissions regarding the question of any hardship that would be caused to the applicant or the employer if the application was or was not rejected. In this regard Mr Rochfort said that the applicant would suffer clear hardship if her valid case for argument regarding her alleged unfair dismissal was denied. Mr Rochfort said that there was no evidence that the employer would suffer any hardship if the matter was allowed to proceed. 29 Mr Rochfort also submitted that the Commission should recognise that there was no rigid definition for what would constitute a sufficient reason to extend time, and that each case had to be considered on its own facts and circumstances. Mr Rochfort said that there were some unique facts and circumstances that explained the delay in this instance. In particular, Mr Rochfort submitted that the advertisement of February 3, 2006 operated as the stimulus for the lodgement of the unfair dismissal claim. 30 Mr Rochfort said that it simply was not available for the application to be made until such time as it became apparent to the applicant that her alleged redundancy had been a sham when the position had been advertised in The North Shore Times. Mr Rochfort submitted that the applicant having been provided with the information, then acted in a timely way and therefore sufficient reason existed for the Commission to accept the application which had been lodged out of time.

The Case For The Employer Opposing An Extension Of Time 31 Mr R Young, solicitor, appeared for the employer at the Hearing. Mr Young opened his submissions by asserting that the applicant did not get to "the first hurdle" in respect to the time extension. 32 Mr Young submitted that the applicant was required to establish that sufficient reason existed to permit the Commission to exercise the discretion to extend time. Mr Young said that the applicant had not provided any proper explanation for the late lodgement. 33 Mr Young submitted that the application had been filed eighty-four days after the time limit had expired. Mr Young submitted that this was an extensive period of time, and that there was no proper basis established for the reason that was alleged to have stimulated the applicant into filing the application. 34 Mr Young submitted that the applicant's assertion that the job advertisement raised the spectre of her redundancy being a sham, could not be properly sustained. Mr Young said that the applicant had provided evidence that she had contacted the Nurses Association at around the time of the dismissal, circa November 2005. Mr Young said that the applicant had obtained advice about the circumstances of her dismissal at that time, and took no further action. 35 Mr Young also said that the advertisement did not identify a vacancy that was consistent with the position that the applicant previously occupied. Further, Mr Young said there was an unexplained delay after the applicant became aware of the advertisement. 36 Mr Young said that the applicant would still have filed out of time if the Commission was prepared to accept the alleged legitimacy of the concerns of the applicant arising from the advertisement of 3 February 2006. Mr Young suggested that the Commission should not be convinced that there was any legitimacy attached to the actions of the applicant, said to have been stimulated by the job advertisement appearing on 3 February 2006. 37 Mr Young made further submissions regarding the hardship that he said would be suffered by the employer if the application was to proceed. In this respect, Mr Young said that the applicant had received payment of a total of twenty-five weeks, had obtained alternative employment, was seeking only monetary compensation, and the employer was now facing an alleged unfair dismissal claim. Mr Young described the position as the employer being "held to ransom". Mr Young said that the employer should be entitled to rely upon the timeframes that had been stipulated for unfair dismissal matters and it was onerous to require the employer to now answer the unfair dismissal claim. 38 Mr Young also submitted that there was no conduct on the part of the employer that could be seen as interfering with the applicant's capacity to make a claim within the twenty-one days time limit. Mr Young said that the employer was open with the applicant at the time of her dismissal and invited her to speak to relevant individuals if she required further information about any aspect of her redundancy. The applicant did not take up these offers and Mr Young said that there was no suggestion made by the applicant to the employer that she maintained significant issues concerning the termination of her employment. 39 Mr Young further criticised the applicant by suggesting that if she had genuinely believed that the redundancy was a sham, she should as a matter of conscience, give back the pay that she had been given on termination, rather than simply seek to obtain more money by way of the compensation sought as remedy for the unfair dismissal claim. 40 Mr Young concluded his comments regarding the issue of extension of time by reiterating that the time limit for the lodgement of unfair dismissal claims was clear and was established for obvious reasons. In this instance according to Mr Young, the applicant had not established that there was sufficient reason for the late lodgement of the claim. 41 Mr Young said that the claim was significantly out of time and that there was no proper explanation particularly in respect of the applicant's delay in the period between 3 February 2006, and 15 March 2006. Mr Young urged the Commission to refuse to accept the application, which had been lodged eighty-four days beyond the prescribed time.

42 Unfair dismissal applications must be made not later than twenty-one days after the dismissal of the employee. Section 85(1) of the Act fixes this time by which an unfair dismissal application must be made. 43 Section 85(3) of the Act allows the Commission to accept an application that was made out of time if the Commission considers that there is sufficient reason to do so, having regard to particular factors that are set out in subsections (a), (b) and (c). There are five distinct factors, which can be identified within paragraphs (a), (b) and (c) of section 85(3) of the Act. These five factors represent primary issues for consideration in any case seeking the exercise of the discretion to extend time. 44 The length of the delay in this instance was eighty-four days, which represents a period of four times the prescribed limit of twenty-one days. This is a significant period of time and therefore the reason or reasons, for this delay must be carefully considered if it is ultimately decided to accept the application lodged significantly out of time. 45 The reason for the delay involved the proposition that the applicant reluctantly accepted her termination of employment by way of alleged redundancy in November of 2005. The evidence clearly established that the applicant was understandably upset at the prospect of the loss of long standing employment in a position that involved great emotional connection. At that time she apparently sought advice from the Nurses Association and took no further action in respect to any contest with her former employer concerning her dismissal. 46 The applicant had been paid an amount in respect of the alleged redundancy and it became clear that she is not of a character that would be inclined to dispute and agitate in respect of her perceived unfair treatment. The applicant's concern was directed more towards the care and well being of her former residents and patients, rather than issues relating to her personal circumstances. 47 Consequently it is both understandable and plausible that the applicant's reluctant acceptance of her termination gave rise to a conscious decision not to activate unfair dismissal proceedings or some other form of claim against her former employer. However, the Commission must then consider the changed circumstances that are said to have been created by the applicant's notice of the advertisement in The North Shore Times of 3 February 2006. 48 The applicant was said to have identified that her earlier redundancy may have been "a sham" as suggested by Mr Rochfort, because of confirmation that was be said to be provided by the advertisement of 3 February. There is significant potential for these circumstances to represent legitimate basis for complaint by an employee who was previously dismissed on the basis of alleged redundancy. 49 There have been numerous instances where employees that had been made redundant, initially accepting of their dismissal, have subsequently lodged unfair dismissal claims when they have been alerted to circumstances that give some legitimate basis for belief that the redundancy was not genuine. In many instances a job advertisement for a position that appears very similar to that which was previously declared redundant, acts as catalyst for the filing of out of time unfair dismissal claims. An initial appraisal of the circumstances in this case may seem to fit such a situation whereby sufficient reason for the late lodgement is understandably connected to the job advertisement of the previously declared redundant position. 50 However a more detailed analysis of the circumstances in this instance does not provide for a clear and acceptable connection as would usually be identified where a person activates unfair dismissal proceedings in response to an advertisement for their "old job". 51 Firstly the job advertisement (Exhibit 1 - Attachment G) does not identify a job vacancy that clearly relates to the previous position that the applicant held at the Lady Gowrie/Roden Cutler facility. In particular the advertisement identifies a vacancy for a Registered Nurse to work Saturday and Sunday shifts. This must be contrasted with the applicant's previous role on Saturdays and Sundays, which was paid and referred to as an ADON, coupled with her RN work on Fridays and Mondays. 52 Although the position advertised does not neatly match the position that the applicant previously held, it is sufficiently similar to have raised legitimate concerns in the mind of the applicant. However the applicant did not make any attempt to apply for the position or positions, nor did she make any further inquiries of the former employer about any connection or reason for the advertisement and its apparent relationship to the position that she had previously occupied. 53 Secondly, the evidence revealed that the applicant did not seek to lodge an unfair dismissal claim or make other formal complaint, at or shortly after the advertisement appeared on February 3. Instead the evidence revealed that it was not until the applicant was discussing potential employment with another employer that she was encouraged to make contact with the agents.

54 The applicant was aware of the advertisement on and from about 3 February 2006, but it was not until about 28 February that she sought to make arrangements to meet with the agents. There is no evidence to provide for any explanation for the delay of the applicant in the period between 3 February and 28 February 2006. 55 The evidence suggested that it may have only been the encouragement from the undisclosed person from another employer with which the applicant was seeking to obtain employment, that operated to prompt the applicant to make contact with the agents. The following extract of the applicant's testimony during cross-examination establishes that the motivation for the applicant's claim appeared to have been generated by this undisclosed person, presumably a competitor of the employer: "Q. Mrs Stratford, you say that after you made your initial inquiry in February you compiled material expeditiously. You then saw Rochford on 9 March 2006. I take it that was the first date that you could make arrangements to get in? A. I'm not of the mind to sort of do unto others what had been done to me but I was encouraged to do this and that's why I sort of decided to speak". ... Q. And so you sought advice?

A. Only on encouragement from a person who was the - responsible for a particular job that I wanted to apply for." Transcript of proceedings (03/08/06) @ pages 26-27.

56 Consequently it would appear that the applicant was simply not self motivated to pursue any prospects of agitation of a claim against the employer even after the apparent revelations that were said to be provided by way of the job advertisement in The North Shore Times of 3 February. The corollary of this apparent absence of self motivation gives rise to the implication that the applicant may never have lodged an unfair dismissal claim had she not been prompted by a representative of another organisation, presumably a competitor to the employer, with whom she was seeking alternative employment. 57 There is further unexplained and unacceptable delay in the period between approximately 9 March and 15 March 2006. The evidence indicated that the applicant made contact with the agents on 28 February and met with the agents on 9 March. However the application was not filed until nearly a week after the first meeting with the agents and over two weeks after the first telephone contact made with the agents. 58 It would seem that where a potential unfair dismissal claim could be quickly identified to have been considerably out of time, there might have been some urgency attached to the filing of a claim, or at very least making contact with the former employer raising the concerns that had allegedly emerged as a consequence of the job advertisement of 3 February. 59 It would seem reasonable that an aggrieved employee or those acting on their behalf, might endeavour to make direct contact with the former employer about the concerns that were apparently raised by way of the advertisement which was said to have created a "sham" of the redundancy of the applicant. Such an approach may have led to advice of a satisfactory explanation for the advertisement and avoided the need for any litigation. Similarly such an approach may have been more consistent with a genuine concern arising from the job advertisement as compared with the encouragement to raise issue with the agents and the subsequent, albeit further delayed, filing of an unfair dismissal claim. 60 In respect to the issue of hardship that may be caused to either the applicant or the employer there appeared to be obvious potential hardship for either side if the application was or was not rejected. Obviously the applicant would suffer some hardship if she was denied the opportunity to have her unfair dismissal case heard and fully determined. Balanced against the applicant's position it was similarly identified as onerous upon the employer if, after a significant period of time vis-a-vis the time limitation, the employer was potentially liable to make payment of further amounts in excess of an amount that was close to the maximum compensation that the applicant was pursuing. It would seem therefore that hardship might be visited almost equally upon either side dependent upon whether or not the out of time application was or was not rejected. 61 There was some evidence of conduct on the part of the employer that may have been relevant to the issue of delay in respect of filing of the unfair dismissal claim. The employer had obviously experienced some unintended outcomes with its employment practices as they related to redundancy. The employer had developed a need to establish a policy that a person that the employer had made redundant could not be offered re-employment within a period of three months after the dismissal on the basis of the alleged redundancy. Further, the evidence revealed that the employer had modified this unusual policy to extend the period from three to twelve months. 62 The applicant was told about the employer's policy of no re-engagement of redundant employees until after a three months period had elapsed. The applicant suggested that this inferred that she might be re-engaged after a three months period following her dismissal. The subsequent submission was that this policy operated to dissuade the applicant from agitating an unfair dismissal claim at least for the first three months after dismissal in the expectation that there might be re-engagement following that period. Such a proposition appears to have some potential validity. However the applicant did not provide evidence of any conscious decision to withhold the filing of an unfair dismissal claim because of an expectation that re-engagement might occur potentially from about the end of February 2006, which would be three months after the applicant's dismissal on 30 November 2005. 63 Further, it would seem that if the applicant was acting in accordance with a belief that she may be re-engaged on or after February 2006, she took no steps to apply for or inquire about the positions advertised on 3 February 2006. As a matter of logic it would seem that if the applicant had been dissuaded from making an unfair dismissal claim because of the apparent potential for re-engagement after three months, she would have at very least, inquired of the employer when she first saw the job advertisement for a position that had some similarities to the one from which she had been declared redundant. 64 Consequently although it would seem that the employer's rather strange policy regarding engagement of allegedly redundant people not sooner than three months after their dismissal, might ordinarily act as conduct that could be seen as impacting upon, and creating delay in lodgement of an unfair dismissal claim, it did not actually have such impact in the case of the applicant. CONCLUSIONS 65 Consideration of the granting of an extension of time is often referred to as a balancing of the interests of justice. The time limitations are set for good and obvious reason. Therefore any applicant seeking to have the discretion to extend time granted must logically bear a significant onus. 66 There is considerable Authority in this regard. Although dealing with different Legislation, the approach adopted by Fitzgerald J in the case of Lucic v Nolan and Others is relevant to the exercise of the discretion provided by section 85(3) of the Act. The following extract from the Judgement of Fitzgerald J is relevant: "Where specific periods are fixed, they are quite short. That carries obvious implications. However the time limitations are not absolute. In this, as in other matters arising under the Act, eg in respect of the relief, which may be granted under s16, the court is given a discretion. None the less, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained." Lucic v Nolan and Others , Federal Court of Australia - General Division, Fitzgerald J, [1 Nov 1982], 45 ALR 411 @ 416.

67 The onus to establish sufficient reason for the exercise of the discretion to extend time cannot be overstated. The applicant therefore commences with a significant but not insurmountable, hurdle that must be overcome. The length of the delay adds height to that hurdle almost in an exponential ratio. That is, the further the delay extends, the more difficult it will be to obtain the discretion to extend time. In the present matter the delay is eighty-four days or four times the prescribed limit. 68 Therefore the delay is considerable and the applicant must establish proper explanation so that sufficient reason could be found to extend time. This is particularly relevant in circumstances where not only the Act prescribes certain time limits but that Practice Directions and other case management protocols require that litigation, particularly in the area of unfair dismissal claims, must be dealt within in a timely manner. 69 Following detailed examination of the alleged reason for the delay, the applicant has not properly established an explanation for the delay in total and in particular, in relation to that period of time between the job advertisement on 3 February which was said to be the catalyst for the applicant's complaint and the subsequent filing of the application on 15 March 2006. It has become apparent that the motivation for the application has not been something that arises entirely from the applicant's personal discontent. In some respects although the evidence is not conclusive, there appears to have been the potential for some extraneous or ulterior motives that may have prompted the application. 70 Consequently the applicant has not made out a case to establish that sufficient reason exists for the Commission to exercise the discretion provided by section 85(3) of the Act. The length of the delay was significant, and there was simply insufficient evidence to properly establish reason for the delay throughout that period. 71 Accordingly I Determine not to exercise the discretion provided by section 85(3) of the Act. The application has been filed beyond the time prescribed by section 85(1) of the Act, and therefore the application is dismissed and the proceedings are concluded.

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