s.643 application for relief in respect of termination of employment

Appeal - termination of employment - extension of time within which to lodge application - whether error in exercise of discretion - Workplace Relations Act 1996 ss.120, 643(1) and 643(14).

[1] This is an appeal, for which leave is required, by Ms Y Iliadis (the appellant) against a decision and order made by Vice President Lawler on 24 July 2007. [1] The appellant was employed by Rail Corporation New South Wales (the respondent) until 2 March 2007 when the respondent terminated her employment on the grounds of medical incapacity. The appellant lodged an application for a remedy in relation to the termination of her employment pursuant to s.643 of the Workplace Relations Act 1996 (the Act) on 26 March 2007. Section 643(14) of the Act provides that such an application is to be lodged within 21 days of the relevant termination of employment or within such period as the Commission allows. The appellant's application was filed on 26 March 2007, some 24 days after the termination of her employment. It could not be effective unless the Commission extended the time for lodgment. The respondent filed a motion seeking dismissal of the application on the basis that it had been filed out of time. The Vice President decided not to extend time but to dismiss the application on the ground that it was "manifestly untenable."[2]

[2] The appeal was listed for hearing on 26 September 2007. On 24 September 2007 the appellant unsuccessfully sought an adjournment. The appellant did not appear and was not represented on 26 September. We indicated at the conclusion of the hearing that, as things stood at that time, we would not grant leave to appeal. Nevertheless we provided the appellant with an opportunity to make written submissions by 17 October 2007. These matters are more fully set out in the decision we made and published after the hearing on 26 September 2007. [3]

[3] On 9 October 2007 K P Lawyers and Solicitors, acting on behalf of the appellant, made an application to vary the directions made on 26 September 2007. In particular they sought leave to file amended grounds of appeal by 19 October 2007 and to extend the time for filing submissions from 17 October until 29 October 2007. The grounds advanced were that instructions had only just been received from the appellant and that counsel had been urgently briefed and instructed. On 12 October 2007 the respondent wrote to the Commission claiming that it would be prejudiced by the variation sought. On 16 October 2007 we granted the appellant's application to vary the directions and we issued fresh directions. Those directions required the appellant to file its amended grounds of appeal and its submissions by 19 and 29 October respectively and required the respondent to file its submissions by 14 November 2007. The appellant and the respondent have complied with those directions. We also reserved liberty to either party to apply in writing within 7 days after 14 November 2007 for a further oral hearing of the appeal. No application has been made for a further oral hearing. We shall determine the appeal on the basis of the material now before us.

[4] The original notice of appeal contains a number of grounds all of which are expressed as general allegations or submissions. They do not seek to identify error and are signed by the appellant herself. The grounds in the amended notice of appeal have been drafted with a greater appreciation of the principles which the Commission applies in determining appeals. In the circumstances, despite the respondent's objection, we think it is fair to accept the amended notice and to determine the appeal on the basis of the grounds it contains.

[5] There are a number of grounds of appeal. It is only necessary to deal with one of them. Ground 7 in the amended notice of appeal is as follows:

"The Commission at first instance further erred in:

i. Having regard to the existence of other legal remedies that may be available to the Appellant in determining to not grant an extension of time. Such matters were not relevant to the determination of whether or not to grant the Appellant an extension of time to file her application for relief from unfair dismissal; and

ii. Making an artificial distinction between unfair treatment by the Respondent that materially contributed to the circumstances which caused the termination to occur and the termination itself in considering whether the termination was harsh, unjust or unreasonable. The evidence, accepted by the Commission at first instance established that the two were inseparable such that the treatment by the Respondent of the Appellant caused the termination."

[6] In order to deal with this ground it is necessary to refer to some important parts of the decision under appeal. The following paragraph of the reasons is a critical one:

"[13] Ms Iliadis commenced employment with RailCorp in March 1985. In recent years Ms Iliadis has developed a serious mental disorder, namely an adjustment disorder with anxiety and depression. Ms Iliadis attributes her condition to wrongful harassment and victimisation by RailCorp managers. RailCorp disputes Ms Iliadis' allegations of harassment and victimisation. Consistent with the approach outlined above, I proceed on the assumption that Ms Iliadis' medical condition was caused by wrongful harassment and victimisation by RailCorp managers."

[7] It can be seen that the Vice President dealt with the matter on the basis that Ms Iliadis would ultimately be able to satisfy the Commission that her medical condition was caused by wrongful harassment and victimization by the respondent's managers. On that assumption, the Vice President went on to identify the matters which he regarded as significant:

"(a) there is uncontested medical evidence from Ms Iliadis' own treating practitioners that she will never be able to perform her usual occupation with RailCorp;

(b) RailCorp did not act precipitately and moved to terminate Ms Iliadis' employment only after attempts at redeployment had been unsuccessful;

(c) there is uncontested medical evidence, upon which RailCorp acted, that termination of Ms Iliadis' employment was in her own best interests;

(d) there is uncontested medical evidence that Ms Iliadis' condition leads to hostile outbursts on her part and RailCorp would properly be concerned at the potential adverse effects of such outbursts on other employees; and

(e) if Ms Iliadis' condition was caused by wrongful harassment and victimisation by RailCorp managers, she will have remedies in relation to damage suffered as a result of this conduct, namely pursuit of a workers compensation claim and or a common law action for negligence against RailCorp." [4]

[8] Taking these matters into account the Vice President concluded that the application was manifestly untenable. There are some difficulties with the Vice President's approach. In particular we refer to the assumption which underlies his decision, namely, that the medical condition which rendered the appellant unfit for work in the respondent's business had been caused by the respondent. That assumption having been made, it seems to us that there was a possibility that when all of the evidence was considered, the conclusion might be reached that the termination of the appellant's employment was harsh, unjust and/or unreasonable. It is conceivable that there might be circumstances in which it would be unfair for an employer to take advantage of its own unlawful conduct to terminate an employee's employment. It is possible to construct extreme examples to illustrate the point, but one example is probably sufficient. Take a case of physical assault by an employer resulting in an incapacitating injury. In such a case termination of the employee's employment by reason of inability to work could, depending on the separation terms, be unreasonable. It is of course not necessary that we make a finding in this case. It is sufficient that there be a reasonable chance of such a finding. In our view there is nothing in the Vice President's conclusions which necessarily excludes the possibility that the termination was harsh, unjust or unreasonable. The possibility of a finding to that effect remains open.

[9] The significance of the Vice President's conclusion that the appellant would have remedies in other jurisdictions is also open to question. Other remedies may not be sought, or may not be obtainable, for reasons unrelated to the merits of the claim. In any event we do not accept that because there may be remedies in other jurisdictions the appellant's claim should fail. While we do not understand the Vice President to have gone that far, it is clear that the availability of other remedies is not, generally speaking, a matter which would be relevant to an assessment of the merits of a particular application.

[10] For these reasons we have decided that the Vice President's decision is affected by a relevant error. Accordingly leave must be granted to appeal and the appeal upheld. In the circumstances the most practical course is that we decide the appellant's application for an extension of time in which to lodge, and the respondent's application to dismiss the proceedings, ourselves.

[11] The question is whether we should allow the appellant an extension of time within which to lodge her application pursuant to s.643(14). That section reads as follows:

"643 Application to Commission to deal with termination under this Subdivision

(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days."

[12] The matters which may be relevant when the Commission is considering whether to allow an application made out of time were set out in Brodie-Hanns v MTV Publishing Ltd [5] (Brodie-Hanns). The relevant passage is as follows:

"(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." [6]

[13] The Vice President approached the application by reference to the matters set out in the extract from Brodie-Hanns. In the event the most persuasive matter was his negative assessment of the merits - the matter dealt with in paragraph 5. We disagree with that assessment. In order to determine whether time should be extended it will be necessary to consider the matters adverted to in the other paragraphs of the extract from Brodie-Hanns which we have just set out. In this respect we adopt the Vice president's finding, which are as follows:

"[4] I accept Ms Iliadis' evidence that, although she knew about the 21 day time limit for the filing of her application for relief, she miscalculated the cut off date for filing her application for relief and, in any event, because of her medical condition, she found it extremely difficult to attend to the things that needed to be done in order to complete her application. There is an acceptable explanation for the very short delay in filing the application for relief.

[5] Although Ms Iliadis may not have taken particular steps to contest the termination in the period following 2 March 2007 it was undoubtedly clear to RailCorp that Ms Iliadis would challenge her termination.

[6] There is no prejudice to RailCorp, caused by the delay or otherwise, other than the prejudice that accrues in every case where time is extended, namely the trouble and cost of defending the application for relief.

[7] There is no suggestion that criterion 6 in Brodie-Hanns is relevant in this case."

[14] In summary, there was a reasonable explanation for the short delay, it was clear to the respondent that the appellant would challenge the termination of her employment and there would be no relevant prejudice to the respondent if the application for late lodgment were to be granted. We have already decided that the application was not without merit. To that conclusion we would add the observation that if the appellant were able to demonstrate that her incapacity for work arose through the fault of the respondent, a finding that the termination was unreasonable would be open, subject of course to the circumstances overall. The evidence before us, including as yet unsworn evidence about the appellant's medical condition, indicates that there are issues to be decided concerning the cause, nature and extent of that condition. It would be inappropriate to decide those issues at this stage of the proceeding. In the circumstances it is appropriate to extend the time for filing pursuant to s.643(14).

[15] Our order will be that leave be granted to appeal, the decision and order made by Vice President Lawler on 24 July 2007 be quashed and that the time for lodgment of the application be extended to 26 March 2007.

T Saunders of counsel with D Mehendra for Rail Corporation New South Wales.

[1] [2007] AIRC 601; PR977763.

[3] [2007] AIRCFB 780.

[4] [2007] AIRC 601 at para 29.

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