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

Appeal - termination of employment - extension of time to lodge application - whether error - 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 made by Vice President Lawler on 24 July 2007. [1] The appellant made an application for a remedy in relation to the termination of her employment pursuant to s.643(1) of the Workplace Relations Act 1996 (the Act). The application was lodged 22 days after the termination took effect. Section 643(14) provides that such an application should be lodged within 21 days of the termination of employment taking effect or such further period as the Commission allows. In the decision of 24 July 2007 the Vice President declined to extend the time for lodgment of the application and on the same day made an order dismissing the appellant's application.[2]

[2] We have dealt with the appellant's application for leave to appeal on the basis that the Vice President's decision may be appealed against under s.120 of the Act. An appeal can only be made on the grounds that the Commission was in error. [3]

[3] A decision under s.643(14) is a discretionary one. The ways in which an appellate body might identify error in a discretionary decision are described in the following passage from House v The King:

"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." [4]

[4] The Vice President's decision hinges on the correctness of his conclusion that it was not sufficiently arguable that the appellant's termination by the respondent was harsh, unjust or unreasonable and that as a consequence, her application for a remedy was "manifestly untenable." The Vice President took into account, among other things, uncontested medical evidence from the appellant's medical practitioner that:

(a) the appellant would never be able to follow what had been her usual

(b) termination of employment was in the appellant's best interests; and

(c) the appellant's medical condition leads to hostile outbursts on her

part and that the respondent would properly be concerned at the potential

adverse effects of those outbursts on other employees.

[5] The appeal was listed for hearing on 26 September 2007. The appellant was notified of the listing on or shortly after 16 August 2007. She therefore had some 6 weeks notice of the hearing date. On 24 September 2007 the appellant sent an email to the Commission seeking an adjournment of the appeal on the basis that her counsel was unavailable and that she was unable to appear and represent herself. It was indicated to her that she should nevertheless appear before the Full Bench on 26 September. This she failed to do.

[6] The respondent submitted that leave ought not be granted to appeal or that in the alternative the appeal should be dismissed. The submission was put on two bases. The first was that the appellant had failed to appear to prosecute the appeal. The second basis was that the Vice President's decision was free of appealable error.

[7] The material before us, including the appellant's notice of appeal, has not cast doubt on the correctness of the Vice President's findings. Nor has it demonstrated an arguable case that the Vice President made any other relevant error in exercising the discretion afforded to the Commission by s.643(14). As things stand we would not grant leave to appeal. We are reluctant to make such an order without providing the appellant with a further opportunity to make a submission in support of her appeal.

[8] We shall order that the appellant file in the Commission and serve on the respondent any submission she wishes to make in support of her appeal by 17 October 2007. This should allow ample time for the appellant to have access to the transcript of the respondent's submissions. We note that the respondent's outline of submissions has already been served on her. We shall allow a further period of 14 days for the respondent to file and serve any reply. We shall then determine the appeal on the basis of the material then before us.

[9] If no submission is received from the appellant by 17 October 2007 we shall make an order dismissing the appeal.

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

[1] [2007] AIRC 601.

[3] See: s.685(2) of the Workplace Relations Act 1996.

[4] [1936] HCA 40; 55 CLR 499 at 505.

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