Speer v St George Private Hospital

Industrial Relations Commission (NSW)|1999-11-11|Before: Sams DP, Harrison DP, Wright J

CITATION : Berg and Others and Sanstowe Pty Limited t/as D Williams Contractors [2002] NSWIRComm 110 APPLICANTS: Anthony Paul Berg PARTIES : Trevor Wayne Bird Graham John Buss RESPONDENT Sanstowe Pty Limited t/as D Williams Contractors FILE NUMBER: 3448, 3160 and 3196 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - redundancies in the Broken Hill mining industry - selection process - applications not filed within twenty-one days - whether sufficient reason for delay - Commission's discretion under s85(3) of the Act - hardship to employer - principles considered. CATCHWORDS : Held, redundancy payments made - genuine redundancies - hardship to employer established - applications would not succeed on merit - exercise of discretion a futility - applications dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Construction, Forestry, Mining and Energy Union (New South Wales) and Pasminco Broken Hill Mine [2001] NSWIRComm 215 Speer v St George Private Hospital [1999] NSWIRComm 442 Graham v Micromex [2001] NSWIRComm 123 Maity and Express Publications Pty Ltd [2001] NSWIRComm 169 Griffith Ex Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) on behalf of Vian, 51 IR 186 Kent Gorrell v Uwatec Pty Ltd (unreported, Sams DP, IRC1700 of 1999, 11 November 1999) Skelly v Prouds Jewellers Pty Ltd, 53 IR 3 Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported, Harrison DP, IRC829 of 1999, 17 March 1999 CASES CITED : Herrera and Creative Packaging Services Pty Ltd (unreported, Sams DP, IRC2108 of 1999, 11 November 1999) Brisbane South Regional Health v Taylor, 186 CLR 541 New South Wales Teachers' Federation and Others and New South Wales Office of the Board of Studies (unreported, Wright J, President, Matter IRC145 of 2000, 31 January 2000) Waine v BHP Steel (unreported, Connor C, Matter IRC3138 of 2001) Schwager v Church Stores Pty Ltd (unreported, Cambridge C, Matter IRC711 of 1999, 4 November 1999) Application for Redundancy Awards, 53 IR 419 Outboard World v Muir, 51 IR 167 Shop, Distributive and Allied Employees Association, New South Wales and W D & H O Wills [2000] NSWIRComm 98 Reed v Southstate Industrial Supplies Pty Ltd [2001] NSWIRComm 185 HEARING DATES: 04/09/2002 DATE OF JUDGMENT: 05/23/2002

APPLICANTS Mr W Jones, Solicitor Austen Brown Thompson Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mrs K Keady, Solicitor Buckworth Keady Lawyers

JUDGMENT: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

ANTHONY PAUL BERG AND SANSTOWE PTY LIMITED t/as D WILLIAMS CONTRACTORS

Matter No IRC01/3160 TREVOR WAYNE BIRD AND SANSTOWE PTY LIMITED t/as D WILLIAMS CONTRACTORS Matter No IRC01/3196 GRAHAM JOHN BUSS AND SANSTOWE PTY LIMITED t/as D WILLIAMS CONTRACTRS Applications re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 These are applications filed by Anthony Paul Berg, Trevor Wayne Bird and Graham John Buss ("the applicants") alleging they were unfairly dismissed by their former employer, Sanstowe Pty Limited ("the respondent"). The three applications were filed outside the twenty-one day time limit set by s85(1) of the Industrial Relations Act 1996 ("the Act"). The Commission has been asked to exercise its discretion, pursuant to s85(3) of the Act, to allow the applications to be admitted "out of time". This decision relates only to this question.

2 The factual matrix relevant to this matter is largely uncontested. The respondent is a contractor to Pasminco Broken Hill Mine Pty Limited and supplies various services to the mine, including truck and loader operators. At the time of each of the dismissals, Mr Don Williams (the respondent's Managing Director) gave each applicant a letter citing the reason for dismissal as redundancy due to the scaling down of Pasminco's operations.

3 The reasons for Pasminco's difficulties are well known and were referred to in Construction, Forestry, Mining and Energy Union (New South Wales) and Pasminco Broken Hill Mine [2001] NSWIRComm 215. It is sufficient to note that the Broken Hill mine has been undergoing significant cost cutting and restructuring by Pasminco, including the announced sale to Perilya Pty Ltd. The effect of Pasminco's decisions has resulted in the respondent being forced to make a number of its own employees redundant. During 2001, twenty-five of the respondent's employees were made redundant as a direct consequence of Pasminco cutting back on contract hours. The applicants were among those selected for redundancy.

4 All three employees provided affidavit and oral evidence.

5 Mr Anthony Berg had four years and ten months' service and was employed as a Dump Truck Driver. He was dismissed on 12 February 2001. Mr Trevor Bird was employed as a Loader Driver and had eight years and one month's service. Mr Graham Buss was employed as a Loader Driver and had five years and ten months' service. Mr Bird and Mr Buss were dismissed on 6 April 2001. The three employees were paid $1,125 per week.

6 Messrs Bird and Buss deposed that the delay in filing their applications was a result of being informed that the Union's solicitor had a conflict of interest and couldn't act for them (his wife was acting for the respondent). They were then referred to Mr Bill Jones of Austen Brown Thompson, Solicitors. Mr Jones submitted both applications to the Commission within the twenty-one day time limit. However, the applications were rejected by the Industrial Relations Commission Registry as not being on the prescribed form (Form 7A), according to the Commission's Rules.

7 The forms were returned with an explanation and subsequently re-filed on the correct form. This delay resulted in the twenty-one day time limitation being exceeded by eleven and twelve days respectively.

Graham John Buss 8 As to the reasons for his dismissal, Mr Buss gave evidence that he was told by Mr Williams that "he had to be let go" due to the scaling down by Pasminco. Later, Mr Williams told him "it basically came down to picking names out of a hat". Mr Buss believed he was selected for redundancy because of his union involvement, his work injury and for complaining about shoddy machinery.

9 In cross examination, Mr Buss gave evidence that, at no time after his dismissal did he inform the respondent, or instruct his solicitor to do so, of his intention to initiate unfair dismissal proceedings. He accepted that a few days after his dismissal, he received and signed for a cheque from the respondent which included 17.5 weeks' redundancy pay and 4 weeks' pay in lieu of notice, totalling $25,312.50.

10 Mr Bird believed he was dismissed because of his attitude. He said that other employees, with shorter service and less experience, had been kept on.

11 In cross examination, Mr Bird gave evidence that he was aware of the twenty-one day time limit for filing an application for alleged unfair dismissal. He conceded that at no time during this period, or after he became aware that his application had been rejected, did he approach the respondent to seek reinstatement, or advise of his intention to initiate unfair dismissal proceedings. A few days after termination Mr Bird received, and signed for, his termination pay which included sixteen weeks' redundancy pay and four weeks' pay in lieu of notice totalling $22,500.

12 Mr Berg deposed that he was also referred to Mr Jones after being dismissed on 12 February 2001. An appointment was made for 14 March. Mr Berg travelled to Adelaide on 9 or 10 March. However, as a result of mechanical problems with his car, he was delayed in Adelaide and missed the appointment.

13 Upon his return, he said he was depressed and felt it was too late to do anything about his dismissal.

14 However in May 2001, after speaking to two former employees of the respondent, he was urged to file a claim for alleged unfair dismissal. He saw Mr Jones on 16 May. His application was date stamped 23 May 2001; seventy-nine days out of time.

15 As to his dismissal, Mr Berg said he injured his back at work on 27 January 2001 and was off work until 11 February. On the next day, while filling in his workers' compensation forms, Mr Williams told him, he was sacked because he was not a miner and the respondent needed mine work done. Mr Berg claimed that he was not redundant because someone else had replaced him in his position.

16 In cross examination, Mr Berg deposed that while he knew there was a deadline for filing a claim of unfair dismissal, he didn't know it was twenty-one days. He conceded that while he knew he was too late to file in March 2001, he didn't do anything about it until May.

17 Mr Berg deposed that, at no time after his dismissal on 12 February 2001, did he ask the respondent to be reinstated. At no time did he inform the respondent, or instruct Mr Jones to inform the respondent, of his intention to file for unfair dismissal. Mr Berg acknowledged that four days after his dismissal, termination pay went into his bank account, which included 12 weeks' redundancy pay and 4 weeks' pay in lieu of notice, totalling $16,875.

18 Mr Williams filed identical affidavits in respect of all three matters. He deposed that it wasn't until the time of the filing of the applications that he was aware that he would be facing unfair dismissal claims. He believed the applicants would have been aware of the twenty-one day time period for filing a claim. He said the employees were made redundant and paid redundancy benefits. Mr Williams believed it would be prejudicial to the respondent for the applications to be accepted "out of time".

19 In cross examination, Mr Williams said that a number of employees were made redundant on 12 February 2001 and that Mr Berg was dismissed because "he had the least skills". Mr Williams said the decision was final as he had run out of options and wanted to "keep the best people".

20 In respect to Mr Buss and Mr Bird, Mr Williams said that after Pasminco reduced its contract hours, he was forced to cut his trucking fleet in half again in April 2001. He received two days' notice of Pasminco's intentions. All the employees were of equal standing as qualified miners and choices had to be made.

21 Mr Williams deposed that nothing had changed since April 2001. His workforce numbers had remained static.

22 Mr Jones, for the applicants, referred the Commission to the discretionary powers of the Commission to accept an "out of time" application pursuant to s85(3) of the Act. He submitted that Mr Bird and Mr Buss had attempted to make their application in a proper fashion within twenty-one days - but their original forms were rejected by the Registry for not conforming to Form 7A. He said this was an administrative delay, not the fault of the applicants' making.

23 In any event, Mr Jones put that the length of delay was not significant. Combined with the reason for the delay, it would be open for the Commission to exercise it's discretion in the applicants' favour.

24 Mr Berg's case was somewhat different. Mr Jones said that Mr Berg had initially sought legal advice. However, through misadventure he missed a solicitor's appointment - believing then that he was too late to lodge a claim. Sometime later, he spoke to other employees and was encouraged to make a claim. It was three and a half months late.

25 Mr Jones submitted that the fact the respondent paid redundancy benefits within a short period, had nothing to do with any prejudice to the respondent.

26 Mr Jones referred to Mr Williams' evidence that the dismissal decisions were final and nothing had changed since. It followed, Mr Jones said, that there can be no hardship to the respondent if the applications were tested on their merits.

27 Mrs Keady, for the respondent, submitted that the intention of the Act's unfair dismissal provisions, including s85(3) was to ensure "bilateral procedural fairness", ie procedural fairness to both employees and employers.

28 She said the respondent had always acted in good faith and had paid significant redundancy benefits. Twelve months later the respondent was still faced with claims of unfair dismissal.

29 Mrs Keady said that at all times, the applicants had union and legal advice. However, no one spoke to the respondent about the claims, or the reasons for the delay in filing the applications.

30 Mrs Keady submitted that the applicants had not discharged the onus of proving hardship or disadvantage. There was no offer to repay the redundancy pay or place it in a trust fund pending determination of the merits of the claims. This was a matter the Commission should take into account, pursuant to s88 of the Act. Such payments may well be found to be ex gratia and might be set off against any future unfair dismissal orders for compensation.

31 Mrs Keady cited three authorities where fairness to the employer and the applicant's onus were issues raised pursuant to s85(3) of the Act - Speer v St George Private Hospital [1999] NSWIRComm 442, Graham v Micromex [2001] NSWIRComm 123 and Maity and Express Publications Pty Ltd [2001] NSWIRComm 169.

32 Section 85(3) of the Act is expressed as follows: 85(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.

33 It is plainly obvious that the key to the exercise of the Commission's discretion to allow an "out of time" application, is whether the applicant establishes "a sufficient reason" for the delay in filing his/her application. The onus rests on the applicant to establish "a sufficient reason".

34 Each case will turn on its own particular facts and circumstances. It would be inappropriate and inconsistent with discretionary power for the Commission to adopt a definitive, or rigid view as to what constitutes "a sufficient reason". So much so is evident in the reasoning of the Full Commission in Griffith Ex Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) on behalf of Vian, 51 IR 186: Those subsections, in our view, are procedural and expressly grant the Commision 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 extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of a view that there is "sufficient reason". Factors going to the formation of a view of sufficient reason are outlined in s246(4) (a) to (d). It is not appropriate to attempt to formulate any definition as to 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 formation of such a view.

35 On the other hand, it is not too difficult to imagine a set of circumstances which, prima facie, readily meet the test of "sufficient reason". For example, the failure of an applicant's legal representative to lodge a claim within time where the applicant has diligently applied him, or herself, to obtaining advice; where the employee is seriously incapacitated or hospitalised for an extended period; or where an unrepresented applicant lodges a claim of unfair dismissal in the wrong jurisdiction.

36 The circumstances described above might broadly be viewed as delay beyond the applicant's control, for which the applicant could not reasonably be held responsible.

37 In this case, two of the applicants, Messrs Bird and Buss argue that their applications were lodged within time, but rejected by the Registry for not conforming with the appropriate form - Form 7A. A re-filing of the applications resulted in the twenty-one day time period being exceeded. This dilemma may well have been exacerbated by the distances between Broken Hill and the Sydney Registry.

38 It seems to me if the Commission applied the test of circumstances beyond the applicant's control, that these applications would (save for any other considerations) be likely candidates for a favourable exercise of the Commission's discretion.

39 However, applying the principle of each case being determined according to its own set of facts and circumstances, and taking into account the specific provisions of subsection (b) of s85(3), a different conclusion might result.

40 In Kent Gorrell v Uwatec Pty Ltd (unreported Sams DP, IRC1700 of 1999, 11 November 1999), the Commission as presently constituted, summarized the principles to be considered in respect to "out of time" applications: 1. The Commission's power to accept out of time applications is discretionary. 2. The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3. It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances.

There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing.

There is a public interest in the prompt institution and prosecution of litigation before the Commission.

The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties.

Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8. Ignorantia legis neminem excusat (ignorance of the law excuses no one).

See also Skelly v Prouds Jewellers Pty Ltd , 53 IR 3; Baxter and Charlestown Shopping Centre Holdings Pty Ltd (unreported Harrison DP, IRC829 of 1999, 17 March 1999); Herrera and Creative Packaging Services Pty Ltd (unreported Sams DP, IRC2108 of 1999, 11 November 1999); Maity and Express Publications Pty Ltd ; and Graham v Micromex .

41 These principles were distilled from the relevant Full Bench authorities of this Commission and from High Court authority in Brisbane South Regional Health v Taylor, 186 CLR 541, where McHugh J said at 551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)…

and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision 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". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. 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 the extension.

42 Mrs Keady correctly, in my view, placed emphasis on the legislative intention to ensure the balance of justice is fairly applied to both the applicants and the respondent. This intention obviously arises from the expression "any hardship that may be caused to the applicant or the employer" should the applications be accepted "out of time".

43 I would not, however, define this principle as "bilateral procedural fairness". It is no more than the sound and fundamental legal principle of ensuring justice is afforded to both parties. I refer to Wright J's succinct remarks in New South Wales Teachers' Federation and Others and New South Wales Office of the Board of Studies (unreported, Wright J, President, Matter IRC145 of 2000, 31 January 2000) at p8: However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties.

44 Another relevant principle arises from the facts and circumstances of this case. "Out of time" applications should not be accepted if the Commission is able to make a positive finding that the claim would ultimately fail on its merits. This proposition was discussed by Connor C in Waine v BHP Steel (unreported Matter IRC3138 of 2001): … Whilst it is not specifically referred to in s85(3), it seems to me that one of the factors which I must take into account in determining whether or not to exercise my discretion and admit an out of time Part 6 application, is the prospect of such a Part 6 application ultimately succeeding if it is considered on its merits. That is a common approach by courts and tribunals ( Burns v Grigg (1967) VR 871 at p872 and Mitchelson v Mitchelson (1979) 24 ALR 522 at p524). Essentially, if an out of time Part 6 applicant is unlikely to succeed, it goes without saying that to refuse his claim will not, in fact, constitute the type of hardship to the dismissed employee referred to in s85(3). It would do nothing more than delay the inevitable and involve considerable cost and inconvenience to both parties … and by Cambridge C in Schwager v Church Stores Pty Ltd (unreported Matter IRC711 of 1999, 4 November 1999): In this instance the employer sought to include an additional factor involving the potential outcome that might follow if the matter was allowed to proceed. There is considerable Authority for the inclusion of the potential outcome as a factor, and in particular I refer to the Decision of the Full Commission in the case of Bateman v Royal Alexander Hospital for Children and the following extract from that Decision is relevant: In considering the application to extend time it is necessary to consider the prospects of the parties on appeal. In regard to the factual circumstances of the alleged unfair dismissal and the authorities relevant to the reinstatement jurisdiction under the Act, we seriously doubt Ms Bateman's likelihood of success. The question of the extension of time will not normally fully expose the merits of the matter generally. However if evidence emerges which provides for some obvious outcome of the matter, such that it would be a complete futility to permit the matter to proceed, then there would be no practical utility in exercising the discretion to extend time.

45 In some cases, the "out of time" application will be considered concurrently with the merits of the dismissal. However, there may be other cases where, from the evidence available, or the uncontested facts, the Commission is able to positively conclude that it would be a futility to allow the applications to be admitted. Care of course must be taken to ensure that such a finding is not made too early in the proceedings, or where there may be some doubt about the issues in contention.

46 Nevertheless, the self evident advantage of applying this principle is that costly and time consuming preparation and court time will be avoided if a claim is able to be properly dismissed on an interlocutory basis. Such an outcome must surely be in the interests of "enabling justice to be done between the parties".

47 I have approached the matter in this way by relying on undisputed evidence and making findings on the evidence as to whether the applicants were unfairly selected for redundancy. The resultant conclusion is as follows.

48 One applicant, Mr Berg, was made redundant on 12 February 2001 and the other two applicants were made redundant on 6 April. The three applicants received four weeks' pay in lieu of notice and redundancy payments pursuant to an agreement between the respondent and the Union. This agreement is itself a reflection of the minimum standards of redundancy pay under the Commission's test case standards (see Application for Redundancy Awards, 53 IR 419).

49 The total amounts received by way of notice and redundancy payments were Mr Berg - $16,875; Mr Bird - $22,500 and Mr Buss - $25,312.50. These were in addition to accrued entitlements to annual leave and long service leave.

50 At this juncture, it is trite to observe that the mere fact a genuinely redundant employee receives a redundancy payment does not necessarily result in a finding that the dismissal was fair (See Outboard World v Muir, 51 IR 167).

51 I discussed this question in Shop Distributive and Allied Employees Association, New South Wales and W D & H O Wills [2000] NSWIRComm 98. Even in circumstances of genuine redundancy, there are obligations on the employer to ensure that employees are treated fairly in terms of notice, offers of alternative employment (if available) and redundancy benefits. A failure to do so might render the dismissal as unfair, or in the words of the statute "harsh, unreasonable, unjust". See also Speer v St George Private Hospital.

52 Nevertheless, it would seem inconsistent with the spirit and intent of Pt 6 ch 2 of the Act and, in particular, s88(f) for the Commission to ignore the quantum of redundancy payments made in respect to the termination of employment giving rise to an allegation of unfair dismissal.

53 I accept the force of Mrs Keady's argument that this is a factor apposite to the test of hardship on the employer were the applications to proceed on their merits.

54 The applicants claimed they were unfairly selected for redundancy. Workplace injury, union involvement and attitude were variously described by them as the real reasons for dismissal. Mr Williams honestly conceded that, particularly in respect to Mr Berg, he selected employees with the necessary skills because he wanted the "best people". It is a fact of industrial life that in any redundancy selection process, the employer will make choices based, inter alia, on retaining the highest levels of employee skill, competency and attitude. I accept that Mr Williams is a responsible employer. I believe he would not have made long standing employees redundant, or made decisions as to who should be selected, unless he believed he was acting in the company's long term interests.

55 While I accept the applicants may have believed they were unfairly selected, I cannot find any basis for concluding they were dismissed for reasons other than genuine redundancy. I am fortified to this finding by the fact that the other alleged reasons were never raised by the Union at the time of dismissal. One would have expected such a protest at the time - not many weeks or months later. 56 Mrs Keady also submitted that at no time, until the filing of the applications, was the respondent put on notice that the terminations of employment would be contested. She said this is a factor relevant to hardship on the employer. She cited Graham v Micromex in support of this proposition. I accept this submission for the following reasons.

57 In determining a claim of unfair dismissal, the Commission may take into account "whether or not the applicant requested reinstatement or re-employment with the employer" (s88(e)). The evidence on this issue is uncontested. The applicants were union members and the Union was representing them. It is also relevant to note that the redundancy benefits arose from a union negotiated agreement about which there appears to be no complaint.

58 At no time, until the filing of claims, was the respondent made aware that the terminations of employment would be contested. There is no evidence that, at the time of the dismissals, the applicants, and more importantly their Union, protested the dismissals, or the method of selecting redundant employees; let alone sought reinstatement or re-employment (notwithstanding this was very unlikely). The argument is a fortiori, in respect to Mr Berg, who waited over three months before filing his claim. During this time neither he, his Union or legal adviser made any contact with the employer.

59 To highlight this conclusion, I distinguish these circumstances to those in Reed v Southstate Industrial Supplies Pty Ltd [2001] NSWIRComm 185 where the Commission exercised its discretion pursuant to s85(3) on the basis that a sufficient reason had been made out. I said at para 47: In this case, I find in the applicant's favour and pursuant to s85(3), exercise my discretion in allowing his application to be filed outside the twenty one day time limit. The Commission believes the following matters constitute sufficient reasons: 1. The applicant was not derelict in seeking to pursue his claim for unfair dismissal through his solicitor shortly after his dismissal. 2. The applicant made clear to his employer, on the day he was dismissed, that he believed his dismissal was unfair when he said " Looks like I'll see you in the unfair dismissal court ". 3. The employer was sent a letter of claim from the applicant's solicitor on 17 November. Thus the employer at all times knew that it was likely to have to meet the claim of alleged unfair dismissal. 60 I would add the following observation. The future of the Broken Hill mine, the loss of jobs and the pending sale of the mine have been lively and controversial topics in Broken Hill for some time. It would not have come as a surprise to anyone, least of all the Union, that contractor redundancies were likely. In these circumstances, it seems curious that the Union (upon whose advice the applicants relied), did not take immediate action to ensure that any claim of unfair dismissal was not jeopardised by a failure to lodge a claim within the prescribed time of twenty-one days.

61 On balance, having particular regard to the quantum of redundancy payments made and the circumstances giving rise to the redundancies, I am not satisfied that the applicants' claims of unfair dismissal would succeed on their merits.

62 Accordingly, admitting the applications out of time would be a futility. The interests of justice would not be served by doing so. I find accordingly.

63 Notwithstanding the basis upon which all three applications have been determined, the claim filed by Mr Berg requires some additional comment.

64 Mr Berg had returned to Broken Hill from Adelaide in the middle of March 2001. He knew at this time he was too late to do anything about a claim of unfair dismissal. He deposed that it wasn't until talking about the matter with two former employees in May that he decided to file his application. In other words, for two months he took not a single step to lodge a claim or take advice about the matter. There was no medical evidence which disclosed he was indisposed to do so. He only decided to lodge a claim after hearing that other employees were intending to do so. His own words were "two of me(sic) workmates rung me up and said I am silly not to do it and I should go for it".

65 In these circumstances, I cannot accept that Mr Berg has established a "sufficient reason" for the delay in filing his application. The Commission could comfortably dismiss his application on this basis alone.

66 For the reasons expressed herein, I decline to exercise the Commission's discretion, pursuant to s85(3) of the Act, to allow matters IRC3448, 3160 and 3196 of 2001 to be filed out of time.

67 The applications are dismissed. These proceedings are concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

[1999] NSWIRComm 442

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Cases Cited (8)