Neil Smith v NSW Police

Application by Neil Francis Smith re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT [2004] NSWIRComm 44

1 Neil Francis Smith ("the applicant") claimed that he had been unfairly dismissed from the NSW Police. On 4 December 2003 he filed an application for relief under Ch 2 Pt 6 of the Industrial Relations Act 1996. Mr Smith sought compensation and reinstatement.

2 The matter came before the Commission on 15 December 2003 for mention at which time it became apparent that the reason Mr Smith had sought relief under the Industrial Relations Act as opposed to the Police Act 1990 (formerly the Police Service Act 1990) was that the alleged unfair dismissal was said to have occurred on 27 August 1994. Given the date of the alleged unfair dismissal I considered that it was appropriate to deal with the question of whether the Commission had jurisdiction to hear the application as a threshold matter. Directions were given for the filing and service of submissions.

3 The NSW Police ("the respondent") failed to comply with the directions relating to the filing and service of submissions in that this occurred later than required by the directions. The problem appeared to have been lack of adequate internal communication procedures. Mr Smith contended that, in light of the lateness of the respondent's submissions, I should deal with his application ex parte. I have declined to take that course.

4 Mr Smith referred to s 85 of the Act which provides: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) The similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.

5 In explaining the delay in making his application for relief Mr Smith said that in retribution for the stand he took on misconduct and corruption in the Police Service he came under such pressure that in a state of depression and anxiety he resigned from the respondent in August 1994. As I understand his submission, the applicant contended that whilst in a vulnerable psychological state the respondent acted to constructively dismiss him. Mr Smith said that since 1994 he has been on constant medication for the treatment of post traumatic stress disorder, anxiety, depression, panic attacks and, on occasions, "suicidal ideation".

6 Since 1994 and up until 2003 the applicant said that because he had "resigned" he had believed there was no recourse open to him to obtain relief for his constructive dismissal. He submitted that: The Respondent accepted the resignation of a mentally ill person who was on sick report for that illness at that time. It offered no advice, assistance or counselling to this 13 years of service veteran. It may be that the Applicant's contract of employment with the respondent was unlawfully broken by its acceptance of a resignation from a mentally ill employee, such injury occasioned by his treatment in the workplace. It may be that the Applicant was never lawfully discharged from the NSW Police Service with all the ramifications that may include.

7 It was further submitted by the applicant that: [E]xtreme hardship will continue to accrue if the applicant is denied the opportunity to be vindicated for the stand he took against misconduct and/or corruption at Cabramatta which went as far as giving evidence to the Royal Commission into the NSW Police Service. It is submitted that the applicant's mental state can only continue to worsen if he does not "have his day in Court".

8 Mr Smith attached a lengthy statement to his written submissions detailing his and his wife's alleged treatment at the hands of the respondent as well as a decision in the Workers' Compensation Commission where he was awarded compensation for partial incapacity.

9 Mr R Reitano of counsel for the respondent submitted that the Commission was without jurisdiction to hear the application for relief but even if there were jurisdiction the application was so far out of time, an application to extend time would not be granted.

10 Mr Reitano submitted that the Industrial Relations Act 1996 commenced operation on 2 September 1996 almost two years after the applicant alleged he was dismissed. The provisions of the Act concerning relief from unfair dismissal did not have any retrospective effect and, therefore, there was no power to deal with a dismissal that occurred prior to the commencement of the Act.

11 In response, Mr Smith referred to Schedule 4 of the Act and in particular to cl 43, which provides: 43 General saving (1) If anything done or commenced under the 1991 Act before the repeal of that Act and still having effect or not completed immediately before that repeal could have been done or commenced under this Act if this Act had been in force when the thing was done or commenced: (a) the thing done continues to have effect, or (b) the thing commenced may be completed, as if it had been done or commenced under this Act. (2) A reference in this clause to anything done or commenced under the 1991 Act includes a reference to anything done or commenced under the 1940 Act and continuing to have effect under the 1991 Act. (3) This clause is subject to any express provision of this Act on the matter.

12 There was no substantial argument presented to the Commission in relation to the respondent's contention that there was no power to deal with a dismissal that occurred prior to the commencement of the Act on the basis that the unfair dismissal provisions did not have retrospective operation. It seems to me, however, that in providing that a person has 21 days to lodge an application and that the Commission has the discretion to accept an out of time application, s 85, like its predecessor, s 246 of the Industrial Relations Act 1991, is merely procedural (see Griffith Ex Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 51 IR 186 at 190) and does not affect pre-existing rights. The ordinary presumption against retrospective operation is, therefore, inapplicable: See Maxwell v Murphy (1957) 96 CLR 261; Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228.

13 The more significant issue is whether the Commission should exercise its discretion in this case to allow the out of time application.

14 Recently a Full Bench of the Commission considered the relevant principles to be applied to out of time applications in Hurrell and Queensland Cotton Corporation Limited (2003) 125 IR 145. The Full Bench:

· Considered that: The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success.

· Quoted with approval from the decision in Griffith Ex-Services Club where it was said at 190: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.

· Referred with approval to Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, where the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; · Adopted the observations of Walton J, Vice-President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258B that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

15 The Full Bench also referred at [17] to [19] with approval to the observations of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where the High Court considered extensions of time, in the context of certain Queensland legislation concerning personal injuries: The decision of McHugh J considered matters such as the effect of delay on the quality of justice; the oppressiveness which may be caused in allowing an action to be brought long after the circumstances which gave rise to it have passed; the proposition that people should be able to arrange their affairs and resources on the basis that claims would no longer be made and the public interest in the quick resolution of matters. As his Honour noted (at 553 - 554): A limitation period is the general rule; an extension provision is an exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. ...Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

18 The judgment of Dawson J adverted to similar considerations, as well as to prejudice. In this latter respect his Honour noted (at 544): To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant...

19 Toohey and Gummow JJ expressed difficulty (at 459) with: [T]he notion of weighing prejudice to an applicant against prejudice to a respondent ... [because] in one sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised.

16 The Full Bench in Hurrell also made some observations about the relevance of considering an applicant's prospects of success. At [21] and [22] the Full Bench said: 21 In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospects of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a "sufficient reason" has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits.

22 Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion: Brady at 269. Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary considerations: Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at 193 - 194. It should be emphasised, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature.

17 In considering the present application I have sought to apply the principles identified in Hurrell.

18 In the present case the applicant is seeking that that Commission deal with matters that are nearly a decade old. He contended, however, that he has been unable to bring the proceedings earlier than now because of "'serious incapacity' due to mental illness and ignorance of remedies available".

19 Mr Reitano referred to the judgment of McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 254-255 where his Honour observed: The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James [1978] AC 297 at 329 … Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. … Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule. His Honour expressed similar sentiments in Brisbane South Regional Health v Taylor at 551, 552 and 553.

20 The applicant's ignorance of the remedies available to him in relation to unfair dismissal derives from the fact that he considered that he had resigned from the NSW Police and, therefore, there was no question of him being able to bring a claim for unfair dismissal. It appears, however, that at some time between 1994 and 2003, the applicant became aware of the concept of constructive dismissal. He believed that because of the alleged harassment and intimidation he and his wife suffered at the hands of other police officers - especially during the early part of 1994, his consequent anxiety and depression and the fact that he was offered no counselling or support by his employer, that he had no alternative but to resign. These circumstances, he submitted, amounted to constructive dismissal.

21 In addition to his ignorance of a potential remedy the applicant submitted that he was incapacitated due to mental illness from 1994 to 2003 and that this affected his ability to consider and pursue a remedy for the alleged unfair dismissal. In support of this contention Mr Smith relied on a decision by Arbitrator Bell in contested proceedings in the Workers Compensation Commission (unreported, matter no. WCC11670-2003, 24 December 2003) where the Tribunal accepted that the applicant's experience in 1994 caused him stress, that the applicant sustained an injury, namely panic/anxiety disorder, arising in the course of his employment with the respondent and that "the applicant was partially incapacitated from 8 September 1994 to 24 February 2003".

22 In considering whether there is sufficient reason to grant the out of time application the Commission may consider whether the applicant has an arguable case. If it could be shown by the applicant that his employer engaged in or condoned a course of conduct, such as harassment or intimidation, designed to force the applicant to resign it may be the applicant could succeed in his application for a remedy. There is insufficient material before me to make any judgment about that question at this stage but it could not be said that the applicant has no prospect of success.

23 It seems to me that if the applicant in these proceedings had been late in filing his unfair dismissal claim by only a few weeks, or even a few months, given the reasons for the late filing, there would have existed reasonable grounds to exercise discretion in favour of accepting his out of time application. The respondent contended that the matters relied upon by the applicant to extend time were neither probative nor admissible. I am not convinced that is entirely correct but in any event the Commission is not bound by the rules of evidence; the guiding principle is that the Commission is to act according to equity, good conscience and the substantial merits of the case. Nothing put by the respondent suggested that the applicant's contentions regarding ignorance and mental incapacity and the effect this had in causing the late application were completely devoid of any merit.

24 This is not to say I have no reservations about the merits of the applicant's application. Firstly, whilst the applicant contended that it was his mental state that contributed to his failure to seek a remedy, I note that his mental state was not such as to inhibit him pursuing a very vigorous (but largely unsuccessful) campaign with politicians and the media in relation to his allegations of corruption in the Police Service. Secondly, on 17 February 2004 the applicant amended his application to seek reinstatement as well as compensation notwithstanding the fact that Arbitrator Bell recorded in his decision that a psychiatric specialist who examined the applicant did not believe the applicant could function as a police officer due to his alcohol dependence. Thirdly, I am not entirely convinced that the applicant's objective in making his application is confined to seeking relief for unfair dismissal but that the applicant sees it as an opportunity to vindicate his long-standing campaign against police corruption.

25 The other matter to be considered is that it is nearly ten years since the applicant resigned his employment. The Commission must consider the hardship that may be caused to the respondent if the out of time application is not rejected. The relevant considerations are those referred to by McHugh JA (as he then was) in Herron v McGregor and again by his Honour sitting in the High Court in Brisbane South Regional Health Authority v Taylor.

26 As McHugh J observed in Brisbane South Regional Health Authority v Taylor at 553 A limitation period is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced".

27 The limitation period for filing unfair dismissal applications is 21 days. It is apparent, in my view, that the legislature was concerned that claims relating to unfair dismissal should be dealt with as quickly as possible. The applicant in these proceedings must show that his case "is a justifiable exception to the rule that the welfare of the State is best served" by the 21 day limitation period.

28 The applicant has contended that he was forced to resign and that this came about because he was considered by other police officers as a pariah due to his campaign against police corruption. The applicant contended that psychologically he was unable to deal with this treatment and was left with no option but to resign. Further, that the NSW Police effectively stood by and let him resign without the benefit of any support or counselling. It is true that the applicant will bear the onus of proof in any proceedings but in order to properly defend the claim it will not be simply a matter for the respondent of digging out old files. The respondent would need to locate relevant officers who may have had some connection with the applicant's complaint and the respondent may no longer employ some or all of these persons. If they were to be located they could be called upon to recollect events and conversations that are now nearly ten years old and which related to allegations by the applicant that were general in nature, for example, "The contempt which other officers displayed towards me, continued and I became very depressed and anxious." I consider the respondent would be seriously prejudiced if the out of time application was accepted.

29 I have given careful thought to the competing considerations in this matter and I have come to the view that, on balance, I should not accept the applicant's application. In particular, the prejudice likely to be caused to the respondent by the period that has elapsed since the resignation of the applicant outweighs those considerations in favour of the applicant. I order that the application in this matter is dismissed. ___________________________

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