s.45 appeal against decision Print R5261

s.170CE application for relief in respect of termination of employment

Alleged unlawful termination - extension of time.

[1] Mr Zammit commenced employment with MM Cables on 2 June 1969.

[2] On 14 October 1997 he suffered an injury to his right shoulder in the course of performing his duties. As a result of this injury Mr Zammit participated in a rehabilitation program. According to Mr Zammit's statement this involved working on different machines for different periods in accordance with his physical capabilities - he was working eight hours per day, five days per week. While he received some assistance from other employees to undertake heavy tasks, this assistance was said to be limited to only a few occasions per week.

[3] Mr Zammit says that he received no complaints about his work performance or conduct during his employment with MM Cables.

[4] On 5 February 1999 Mr Zammit received a letter from the Human Resources Administrator of MM Cables, Ms Michelle Butterworth, terminating his employment. A copy of this letter is attached to Mr Zammit's application for relief and is in the following terms:

"You are hereby advised that your employment with this company will terminate on 5 February 1999 by 5 weeks pay in lieu of notice.

Your employment is terminated based on medical advice regarding your medical condition.

This termination is in accordance with the rehabilitation programme and termination procedures in place at MM Cables."

[5] On 5 March 1999 Mr Zammit's solicitors filed an application pursuant to s.84 of the NSW Industrial Relations Act 1996 (the NSW Act).

[6] On 1 April 1999 MM Cables was acquired by Pirelli Cables Australia Limited (Pirelli).

[7] On 12 April 1999 the solicitors acting for MM Cables wrote to Mr Zammit's solicitors in the following terms:

"MM Cables ATS Victor Zammit - No IRC 998 of 1999

As an employee at our client's Liverpool site, Mr Zammit's employment was covered by the terms of the MM Cables Energy Products Liverpool and Fairfield Interim Award 1994. This is a Federal Award, and accordingly, the New South Wales Industrial Relations Commission has no jurisdiction to hear Mr Zammit's claim for relief regarding the termination of his employment.

In order to avoid unnecessary costs, we invite you to file a Notice of Discontinuance with the Commission by this afternoon. If you do not do so, we will be making an application for costs during the Preliminary Hearing before Commissioner Connor on 13 April 1999.

Should you wish to discuss this matter, please contact our office."[1]

[8] A preliminary hearing took place before Commissioner Connor of the NSW Commission on 13 April 1999. At that hearing the Commissioner apparently expressed some views regarding the operation of Part 7 of the NSW Act. A letter sent by Mr Zammit's solicitors to the solicitors acting for MM Cables, dated 10 May 1999, states:

"Notwithstanding the views expressed by Commissioner Connor on 13 April 1999, in regards to the injured worker provisions, we propose to discontinue proceedings in the New South Wales Industrial Relations Commission with each party paying their own costs.

Please advise of your client's instructions and, if appropriate, we will mention the matter on behalf of both parties this afternoon . . ."[2]

[9] On 10 May 1999 Mr Zammit filed an application for relief in respect of the termination of his employment pursuant to s.170CE(1) of the Workplace Relations Act 1996 (the Act).

[10] Section 170CE(7) requires that such an application for relief must be lodged within 21 days after the day on which the termination took effect.

[11] Mr Zammit's application was filed about ten weeks out of time.

[12] Section 170CE(8) provides that an application that is lodged out of time may be accepted if "the Commission considers that it would be unfair not to do so."

[13] On 26 May 1999 Commissioner Harrison heard the s.170CE(8) application to extend the time period in s.170CE(7) and accept Mr Zammit's application for relief. At the conclusion of the proceedings on that day the Commissioner gave a decision in transcript in the following terms:

"This matter concerns an application for an extension of time pursuant to section 170CE(8) of the Workplace Relations Act. I am satisfied that the reasons given by Mr Rothman in these proceedings that the applicant has a reasonable explanation for the delay and that the substantive application is not without merit. There is some evidence of prejudice to the employer but I accept the submission of Mr Rothman that in a company of this size there would surely be other relevant people who could give evidence on behalf of the employer if the matter goes to arbitration.

Accordingly I will order that the application be accepted out of time pursuant to section 170CE(8). I will issue an order in respect of this decision today."[3]

[14] An order giving effect to the Commissioner's decision was issued on the same day.[4] The matter before us is an appeal against that order.

[15] The principles applicable to the exercise of the Commissioner's discretion under s.170CE(8) were considered by a Full Bench of the Commission in Telstra - Network Technology Group v Kornicki.[5]

[16] At page 10-11 of that decision the Commission said:

"The prima facie position is that the legislative time limit should be complied with and an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise the discretion in s.170CE(8) in their favour.

The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extend the time limit. We note that such a consideration necessarily involves the exercise of a general discretion. The following guidelines may assist in determining whether it would be unfair not to grant an application to extend time:

A. Primary consideration should be given to two factors:

s Is there an acceptable explanation for the delay_? It would generally not be unfair to refuse to accept an application lodged out of time where no acceptable explanation for the delay exists:_ Alonzo v. Harvey Norman-Fyshwick [print P0319, 21 April 1997 per Ross VP, Watson DP and Gay C]. However, consistent with the view of Brooking J in Dix v. Crimes Compensation Tribunal_, while the existence of an acceptable explanation for the delay is relevant to the_ exercise of the discretion under s.170CE(8), it is not a condition precedent to the exercise of that discretion; and

s The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.

B. Depending on the circumstances of a particular case the provision of a `fair go all round' may also allow regard to be had to the following considerations:

s Whether the applicant actively contested the decision to terminate his or her employment prior to lodging the application for relief; and

s Prejudice to the respondent caused by the delay in filing the application.

We note however that these considerations are very much secondary in nature and are, of themselves, unlikely to be determinative of an application.

We emphasise that the matters set out above are guidelines only_. In taking into account any of the factors identified the Commission will be cognisant of the prima facie position that the legislative time limit be complied with and in deciding whether to accept a late application the central consideration is whether it would be unfair to the applicant not to accept the application."_

[17] The issue of representative error may also be relevant to the determination of the matter before us. In Clark v Ringwood Private Hospital[6] a Full Bench of the Commission considered whether an error by an applicant's representative constituted an acceptable explanation for delay in filing a s.170CE(1) application for relief. In that case the Commission said:

"In our view the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:

1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged . . .

2. A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. . .

3. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicants efforts to ensure that the claim is lodged.

4. Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8)."

[18] Four broad arguments were advanced by the appellant:

[19] We propose to deal with each of these issues in turn. Before turning to the particular issues raised we wish to make some general observations regarding the Commissioner's reliance on "bar table statements".

[20] The extent to which the Commission may rely on bar table statements or unsworn evidence was considered by the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne Metropolitan Tramways Board[7]. In that case Barwick CJ said, at page 243:

"The Commissioner was not disentitled to act upon the assertions of the Union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them. No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the Commissioner not to have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given. But there was nothing in the instant case which, it seems to me, the Commissioner might not properly regard in the circumstances as sufficiently "evidenced" by the statements of the Union advocate."

"The first contention was that the award was not an arbitral award because the Commissioner who made it relied upon the representations of those appearing before him rather than upon evidentiary material to support those representations. This is, I think, obviously wrong. An arbitrator would, no doubt, usually refuse to act merely upon the representations of parties made before him if there were a genuine dispute about the relevant facts, but it is a far cry from such a rule of fairness and prudence to an insistence that there cannot be arbitration within the meaning of s.51(xxxv) of the Constitution unless the arbitrator hears and decides upon sufficient evidentiary material submitted to him by the parties."

[22] These observations were applied by a Full Bench of the Commission in Re Furnishing Trades Award.[8] In that case the Commission said, at page 4:

"Section 110(2)(b) of the Act provides that in proceedings before the Commission `the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just . . .'. In accordance with this authority, it was quite proper for Commissioner Turbet to receive the statements made by the Society's advocate, and in the absence of any objection during the presentation of the Society's case, to assume that the assertions being made could be treated as evidence. This conforms with the well-established practice in the Commission that statements which detail facts will become evidence unless objection is taken by opposing parties. to remain mute while assertions are being made is to invite the Commission to treat the assertions as evidence."[9]

[23] Section 110(2)(b) of the current Act is in the same terms as the provision considered by the Commission in Re: Furnishing Trades Award.

[24] In our view the Commission is entitled to rely on uncontested statements which are either made from the bar table or are contained in an unsworn statement. The failure to contest such statements when they are made effectively invites the Commission to treat the assertions as evidence.

[25] In the proceedings below the Commissioner had before him an unsworn statement by Mr Zammit and an affidavit of Ms Jodie Bonner - filed by the respondent.

[26] Mr Zammit's statement was attached to his application for relief and it deals with the reasons for the delay in filing his application in the following terms:

"14. As a result of my termination, I sought legal advice concerning my entitlements.

15. I was informed that I may have entitlements in respect to unfair dismissal under either the Federal or State Acts.

16. My solicitors were unsure as to whether I was covered by a Federal or a State Award.

17. Application was made to the State Commission and has been or is being discontinued because a Federal Award and/or agreement applies."

[27] In the matter below Mr Zammit's counsel, Mr Rothman, addressed the reasons for the delay in filing the application at three points during the proceedings. In his opening submissions Mr Rothman said:

"The situation is this, that notwithstanding the fact that my instructing solicitors did take some steps to find out whether or not there was a federal award or agreement in place in relation to it, they were unsure of whether or not that was the case and they filed into the State Commission. The day before the matter was listed in the State Commission we received from the respondent a letter to the effect that the applicant had been during his employment covered by a federal award or agreement and the Commission will see attached to the affidavit of Ms Bonner an Annexure C which is a letter dated 12 April 1999 which makes it clear that Mr Zammit's employment was covered by the terms of the MM Cables Energy Products Liverpool and Fairfield Interim Award 1994. This is a federal award. In fact we have subsequently learned also there is an enterprise agreement in place, or was.

The position is this, that on learning that and after some discussion with Commissioner Connor of the State Commission, the matter was adjourned because there was a question which arose as to whether or not, notwithstanding the applicability of a federal award, the Injured Workers provision of the State Act may have applied. The matter was stood over until May and prior to that date the applicant contacted the respondent and made it clear that the applicant would not be proceeding on the Injured Workers provisions of the State Act and would be discontinuing. That was done on 10 May.

The situation is that within two days of that this application was filed. The situation is that the delay is due inter alia by the inability to finalise prior to the application to the State Commission that the person was employed under the terms of a federal award and a federal agreement and then ascertaining what rights, if any under which act applied and as soon as discontinuance of a State Commission proceedings occurred application was filed here and we seek an extension of time on that basis."[10]

[28] The respondent submitted that there was no acceptable explanation for the delay. The respondent argued, among other things, that there was no acceptable explanation for the delay between 12 April - when the applicant's solicitors were informed that Mr Zammit had been covered by a federal award - and 10 May, when the s.170CE(1) application for relief was lodged.

[29] In reply Mr Rothman said, among other things:

". . . the delay is due totally to (a) the question of an application in the wrong jurisdiction and (b) then an examination between 13 April and 10 May of what rights accrue in relation to a Federal Award employee in circumstances where there had been an intervening redundancy situation for all of the persons at MM Cables taken over by Pirelli as to what impact all of that had on the Injured Worker Provisions of the Industrial Relations Act. It is not an uncomplicated question.

The position with respect is that is, in my respectful submission, an acceptable delay in relation to the proceedings."[11]

[30] Mr Rothman is subsequently questioned by the Commissioner as to the reasons for the delay between 12 April and 10 May 1999:

"The Commissioner: Mr Rothman, I really can't understand why there was a delay between 12 April when the applicant's solicitors were advised that the federal award applied, to 10 May when an actual application was lodged. Am I right in those dates?

Mr Rothman: Yes, you Honour. The Injured Workers Provisions have been held to apply to persons covered by federal awards, that is, the Injured Worker Provisions of the State Act. There are a number of significant decisions going to the question of whether the job has to be available. What actually occurred in this instance was the employer that dismissed was taken over by Pirellis some two weeks or so after the dismissal. It will be alleged in the proceedings that all the persons who were on `light duties', and we will query that term, that all the persons on light duties were dismissed `because they were unfit'.

Everyone else was given a redundancy package on 1 April and were rehired by Pirellis the next day. One of the provisions of the State Act requires the job to be available with that employer and inquiries had to be made as to whether or not MM Cables had any other manufacturing establishments either in Sydney or elsewhere which were available and in which the same work was being performed such that there was a job available and into which reinstatement could occur because reinstatement is the only remedy available under the Injured Workers Act provisions. Those inquiries as to whether or not there were other factories took some time and that effectively is the delay."[12]

[31] On appeal the appellant deals with the reasons for the delay in filing the application in its written submissions, in the following terms:

"12. In other words Zammit and his solicitors were aware on and from 12 April 1999 that the application as made could not be sustained and that prima facie the appropriate tribunal was the federal commission.

13. Given this it takes another 28 days for application to be made to this Commission.

14. With respect to Senior Counsel who appeared for Zammit below there is no evidence which was properly before the Commissioner such as to support the argument advanced at page 7 lines 30 to 40 of the Transcript, in particular that put as (b).

15. The Commissioner at page 8 lines 29 to 32 of the Transcript returned to this matter or issue. Again, with respect to Senior Counsel who appeared below, the question posed by the Commissioner was not answered. Instead a further submission was made, once again unsupported by evidence, as to certain inquiries which were allegedly made on Zammit's behalf together with an outlining of what matters will be alleged at hearing of the claim as against the Appellant. At no time prior to this recounting by Senior Counsel from the bar table was any evidence put on as to these matters, most importantly, at no time was any such identification made within the application."

[32] It is clear from the submissions put below that the delay in filing Mr Zammit's application in this jurisdiction was said to be a result of:

* an application being filed in the wrong jurisdiction; and

* the period between 13 April and 10 May being taken up with seeking advice from counsel on the operation of Part 7 of the NSW Act and ascertaining whether an alternative position was available for Mr Zammit within MM Cables.

[33] The first factor relates to an error on the part of Mr Zammit's solicitors. A federal award employee cannot pursue an application for relief in the NSW Commission.[13]

[34] On the material before us it is not clear what steps, if any, Mr Zammit's solicitors took to ascertain whether or not he was a federal award employee. It would have been prudent to at least make enquiries of MM Cables as to the question of award coverage. There is no suggestion that this was done.

[35] But delay occasioned by solicitor error need not be visited upon a client.[14] In this case there is no material which suggests that the error in filing in the wrong jurisdiction was a result of Mr Zammit's conduct.

[36] In a number of first instance decisions the Commission has concluded that filing an application in the wrong jurisdiction constituted an acceptable explanation for delay.[15] However in those cases the applicants had lodged in this jurisdiction shortly after they became aware of their error. In the matter before us there was a further delay - between 12 April and 10 May - of about one month - before the s.170CE(1) application was lodged. This brings us to the second reason advanced for the delay.

[37] In the proceedings below, and on appeal, it was submitted that the delay between 12 April and 10 May was a result of seeking advice from counsel on the operation of Part 7 of the NSW Act and ascertaining whether an alternative position was available for Mr Zammit at MM Cables.

[38] Part 7 of Chapter 2 of the NSW Act is entitled "Protection of Injured Employees". An "injured employee" is defined as an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998 or the Workers Compensation (Dust Diseases) Act 1942[16].

[39] Pursuant to s.92(1) an injured employee who has been dismissed on the basis of his or her unfitness for employment as a result of their injury can apply to the employer for reinstatement. The employee may specify the kind of employment sought, but it cannot be "more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury."[17]

[40] If an employer refuses to reinstate an employee who has applied for reinstatement pursuant to s.92 then the employee may apply to the Commission for a reinstatement order[18]. After hearing the application the Commission may order the reinstatement of the employee on such terms as the Commission directs.[19]

[41] The key provisions of Part 7 - for present purposes - are:

"Section 92 Application to Employer for Reinstatement of Dismissed Injured Employee

(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement.

Section 93 Application to Commission for Reinstatement Order if Employer Does Not Reinstate

(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the employee.

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured employee was dismissed.

(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being:

(a) employment of a kind that is available but that is less advantageous to the employee, or

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation).

(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission."

[42] Two points are readily apparent from the terms of Part 7.

[43] First, a claim under Part 7 can only be made against the employer in whose employment the injury arose. Section 91(2) provides:

"91(2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person."

[44] Second, the Commission's jurisdiction is limited. Upon an application being made pursuant to s.93 the Commission may order reinstatement to employment of the kind for which the employee has applied. If the employer does not have employment of that kind available then the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being:

* employment of a kind that is available but that is less advantageous to the employee; or

* employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part time employment or employment in which the employee may undergo rehabilitation).

[45] There is no power to order an employer to pay compensation in lieu of reinstatement. An order for lost remuneration pursuant to s.94(4) can only be made if an order for reinstatement is made. Further, reinstatement can only be ordered if a position is available or can reasonably be made available.

[46] There is some authority in support of the view that federal award employees may take advantage of the provisions of Part 7 of the NSW Act.[20] But the nature of the remedy afforded by Part 7 is limited. In this context it would seem that no remedy would be available if there was no position for Mr Zammit at MM Cables. Given that MM Cables had been acquired by another company after the applicant's termination it is reasonable to assume that the existence of such a position would be in doubt.

[47] In these circumstances we think that it was reasonably open to the Commissioner to conclude that the applicant had provided an acceptable explanation for the delay in lodging his application in this jurisdiction.

[48] We note that in the proceedings below the respondent did not contest the facts relied on by the applicant in support of his acceptable explanation submission. Rather the respondent submitted that those facts did not constitute an acceptable explanation for the delay. On appeal it was submitted that the respondent was denied the opportunity to respond to Mr Rothmans' submissions in reply on this point because the Commissioner immediately proceeded to give his decision at the conclusion of Mr Rothman's submission in reply.

[49] There is a dispute between the parties as to whether or not there was a pause in the proceedings between the conclusion of submissions and the Commissioner's decision. Such a pause would have afforded the respondent an opportunity to rise and challenge the applicant's submissions in reply.

[50] It is unnecessary for us to resolve this dispute. To the extent that it could be argued that the respondent was denied procedural fairness that denial has been remedied by the opportunity we have provided in these proceedings for the appellant to challenge the factual basis upon which the acceptable explanation submission was put on behalf of Mr Zammit. In this regard Mr Moore, counsel for the appellant, was asked if he intended to call any evidence to challenge what was put in the proceedings below. Mr Moore replied in the following terms:

"Now your question goes to me, quite simply. If what Mr Rothman has said is incorrect why is there not any evidence put on the appeal to show that what has been said as being the factual matrix is wrong. We have not progressed the appeal in that matter. Now whether that is an admission by us we just say, quite simply, that when one looks at what if matters were put below and the way in which it was conducted there are really two ways of proceeding with the matter and that is it should either go back and be done in the correct way with the right questions being done rather than have it done here. Now, we just have made the decision not to adduce any fresh evidence at all."[21]

[51] In our view any denial of procedural fairness in the proceedings below has been remedied by the opportunity provided - but not availed of - on appeal.[22]

[52] In the proceedings below the submission put on behalf of MM Cables in relation to the merit of Mr Zammit's substantive application was confined to the following observation:

"Another factor to be considered are the merits of the substantive application and that is the reason for annexure A to Ms Bonner's affidavit. It is my submission that this is an application which does not have merit and is not likely to succeed and that is a factor which you must take into consideration."[23]

[53] Paragraph 2 of Ms Bonner's affidavit states:

"I am instructed by the Respondent and verily believe that the Applicant's employment was terminated on 5 February 1999 on the basis of a medical report received from Dr Mark Burns, Consultant Occupational Physician. Annexed hereto and marked with the letter `A' is a copy of Dr Burns' report dated 22 January 1999."

[54] Annexure A is a letter from Dr Burns to Mr John Francois of MM Cables dated 22 January 1999. The letter concludes in the following terms:

". . . Mr Zammit has a permanent disability in his right shoulder from degenerative changes aggravated by a lifting incident at work in 1997. He is currently unfit for normal duties and will remain so for the foreseeable future."

"There was no evidence brought on Zammit's behalf as to his fitness to perform work on behalf of the Appellant. It is submitted that this is a necessary element of any case brought by Zammit before the Commission. On the basis of the absence of this evidence there could be no proper way in which the Commissioner could assess the merits of the case. To this extent the discretion miscarried as it was always open to Zammit to place such evidence in a cursory manner before the Commissioner in order to establish that any subsequent hearing in the matter would not be futile."[24]

[56] We do not agree with the appellant's submissions on this issue.

[57] A consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[25]

[58] In Austin v Qantas Airways Limited a Full Bench of the Commission made the following observations in the course of dealing with an appeal from a decision refusing to extend time pursuant to s.170CE(8):

"It is our view that in circumstances where a respondent asserts that an application is without merit and tenders unsworn material in support which is contested by the applicant, the benefit of the doubt should be given to the applicant. Such an approach is consistent with the central consideration in determining such applications, namely whether it would be unfair to the applicant not to extend the time limit. . .

Where there are conflicting assertions as to factual issues going to merit it would be generally unreasonable to conclude that an application is without merit in the absence of sworn evidence."[26]

[59] In the proceedings below Mr Zammit's unsworn statement contended that the termination of his employment was unfair for a number of reasons including:

"d) I was given no warning of my pending dismissal.

e) I was undertaking duties in accordance with my approved rehabilitation programme and had not been informed of any concerns regarding my performance under that programme.

f) I was given no opportunity to improve or address any perceived defects in my performance.

i) No weight or insufficient weight was placed on my length of service (29 years) or good performance with the company when determining that I should be dismissed.

j) No consideration was given to my personal circumstances or the effect the dismissal would have on me. In particular, the fact that I had suffered from a work injury and that I would be disadvantaged in finding a job on the open labour market as a result."

[60] These assertions were not challenged by the appellant in the proceedings below, or on appeal. In dealing with the merits of the substantive application the appellant only referred to Ms Bonner's affidavit and in particular to Annexure A to that affidavit. Three points may be made in relation to these matters.

[61] First, the Commissioner was entitled to take into account the unchallenged assertions made by Mr Zammit, for the reasons we have already given.[27]

[62] Second, Ms Bonner's evidence on this issue - at paragraph 2 of her statement - is hearsay. Ms Bonner is a solicitor in the employ of the solicitors representing MM Cables. In her statement Ms Bonner simply repeats the instructions she has been given by her client as to the reasons for Mr Zammit's termination. It is not suggested that Ms Bonner has any direct knowledge of the circumstances surrounding Mr Zammit's termination. Further, Annexure A to Ms Bonner's affidavit is not in the form of a sworn statement.

[63] Third, even if the material relied on by MM Cables in the proceedings below is regarded as cogent evidence that would not be the end of the matter. The material relied upon only goes to Mr Zammit's fitness to perform his duties. As such it goes to the question of whether there was a "valid reason" for his termination within the terms of s.170CG(3)(a).

[64] But the question of whether there was a valid reason for termination is no longer the critical question in determining whether a termination was "harsh, unjust or unreasonable". It is only one of four separately specified matters to which the Commission must have regard in accordance with s.170CG(3) of the Act.

[65] The fact that there may have been a valid reason for a termination does not necessarily mean that the termination was not harsh.[28]

[66] In our view the Commissioner's conclusions that "the substantive application is not without merit" was reasonably open to him.

[67] In Kornicki the Commission said that depending on the circumstances of a particular case regard could be had to the prejudice to the respondent caused by the delay in filing the application. But it also noted that:

". . . these considerations are very much secondary in nature and are, of themselves, unlikely to be determinative of an application."[29]

[68] In the proceedings below counsel for MM Cables advanced the following submission with respect to the prejudice caused by the delay:

". . . there is also the question of whether there is prejudice to the respondent caused by the delay in filing.

If the applicant had filed the application properly in the Federal jurisdiction even as out of time as he did in the State, a short period of time out of time, there would be no prejudice and we probably wouldn't be here today but it is some 72 days later. We say that the respondent is caused prejudice by the applicant's delay and failure to file even remotely within time. That delay is touched on in Ms Bonner's affidavit at paragraphs 11 and 12. The prejudice is that on 1 April the division which handled the applicant's employment was acquired by a third party Pirelli.

That subsequently means that there is no question of reinstatement of employment. But the prejudice lies in the fact that Pirelli then made redundant a number of other employees including the human resources manager who dealt with the applicant's employment and subsequent termination, that person has gone overseas and is uncontactable. It is my submission that had we had some notice that there were going to be Federal proceedings in this at least within a period of, say, 30 days we would have been in a position to at least make arrangements with Ms Heine to be contactable or for us to be able to reach her in some way but we are in a position where we are unable to get any information from the person who handled this matter most intimately.

The prejudice in my submission lies there and the prejudice in my submission in not immaterial. So those are the four criteria set out by the Full Bench, that is, acceptable explanation for delay which we say has not been provided; the merits of the substantive application which we say are dim; then minor factors, and active contestment of the decision to terminate, we concede that; but prejudice to the respondent which we say is significant."[30]

"If I could take the Commission to paragraphs 11 and 12 of the affidavit of Ms Bonner. Ms Bonner's affidavit is cleverly and quite precisely drafted. My learned friend asks the Commissions to draw an inference that the respondent's case would be prejudiced by the fact that Ms Heine is overseas but it doesn't say that. It doesn't say, as the statement my learned friend made in submissions, that Ms Heine was the only person or indeed the person most intimately connected with the dismissal provisions or decision.

It doesn't say anything of the kind, just that she's the human resources manager. It doesn't say they don't have 15 other witnesses who could give evidence as to why this man was dismissed and what the circumstances were. So that having gone to the trouble of putting on an affidavit and referring to the question of Ms Heine they deliberately, in my respectful submission, do not say that it prejudices their case."[31]

[70] Paragraphs 11 and 12 of Ms Bonner's affidavit state:

"11. I am instructed by the Respondent and verily believe that on 1 April 1999 MM Cables, the division of the Respondent in which the Applicant was employed, was purchased by Pirelli Cables Australia Limited (`Pirelli').

12. I am instructed by the Respondent and verily believe that Ms Anne-Marie Heine, who was the Human Resources Manager at MM Cables, was made redundant by Pirelli on 30 April 1999. Ms Heine is currently overseas and is uncontactable."

[71] There is no suggestion made by MM Cables either in the proceedings below, or on appeal, that Ms Heine is the only person in a position to give evidence on behalf of MM Cables in relation to the circumstances surrounding Mr Zammit's termination. Nor is it suggested that Ms Heine now resides overseas and will not be available to attend any future arbitral proceedings in relation to the substantive application.

[72] In the course of his decision the Commissioner acknowledged that there was some evidence of prejudice to the employer but he accepted the submission of Mr Rothman that given the size of the respondent employer there would "surely be other relevant people who could give evidence on behalf of the employer if the matter goes to arbitration". In our view the Commissioner's conclusion on this point was reasonably open to him.

[73] The appellant notes that in Kornicki the Commission said that in deciding whether to accept a late application "the central consideration is whether it would be unfair to the applicant not to accept the application." In relation to the question of unfairness the appellant submitted:

"19. The only evidence, which can be viewed to go to the questions of unfairness, is that as set out in paragraph 11 of the annexure to the application sub-paragraphs (a) to (j). There is no submission made by Senior Counsel as to why it would be unfair to the Applicant, Zammit not to accept the application. This is particularly so given that under Part 7 of the Industrial Relations Act 1996 (NSW) (`the 1996 NSW Act') Zammit would have an absolute statutory right to seek reinstatement under section 93 within two years of the dismissal provided he could satisfy the tribunal as to his fitness. It should be noted that `reinstatement' for the purposes of Part 7 includes `re-employment' (see section 91(3)). The available remedies are as set forth in section 94 of the Act and include compensation. There is no identification made as to the prejudice or unfairness Zammit would suffer should the legislative time limit be adhered to by this Commission and his application refused on the basis that the application is out of time.

20. There was no identification in any submission made to the Commissioner on behalf of Zammit as to why it would be unfair to restrict Zammit to such relief under the 1996 NSW Act.

21. To the extent there was no such submission the exercise of the discretion by the Commissioner miscarried. This is made more obvious as the Decision as made by the Commissioner is based on delay and merit as opposed to unfairness. To put the matter quite simply, whilst applying two of the guidelines as expressed in Kornicki the Commissioner erred in that he failed to make the central finding that it would be unfair to Zammit not to extend time. Nor does the Commissioner express any reasons upon which this finding is properly based."[32]

[74] We are not persuaded by the appellant's submissions on this point.

[75] It seems to us that the Commissioner was cognisant of the fact that he was exercising jurisdiction under s.170CE(8) of the Act, indeed he says so in his decision. The terms of s.170CE(8) are clear and the matters to which the Commissioner had regard - the explanation for the delay; the merits of the substantive application and any prejudice to the respondent - are all relevant matters in determining whether it would be unfair not to accept an application that is lodged out of time pursuant to s.170CE(8).

[76] In the matter below Mr Zammit's statement goes specifically to the question of fairness. In particular he says:

"18. If I were not permitted to bring this claim, it would cause me substantial hardship. This is particularly as I have been employed with the Respondent company for 29 years and as a result of my age and my work injury, I will have difficulty in finding alternative employment."

[77] The appellant made no submission as to fairness in the proceedings below. In particular the argument put on appeal, that no submission was put on behalf of Mr Zammit as to why it would be unfair to restrict him to the relief available under Part 7 of the NSW Act, was not put by the appellant in the proceedings below. In this context we note that it is not the function of an appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in the manner in which their case was run in the proceedings at first instance.

[78] In the context of s.45 appeals the Commission has refused leave to appeal in circumstances where the appellant's failure to fully debate an issue in the proceedings below meant that the decision subject to appeal was based on limited material and accordingly could have limited relevance elsewhere.[33]

[79] In any event we are not satisfied that there is any substance in the point advanced. Contrary to the suggestion in the appellant's submission the remedies available pursuant to Part 7 do not include compensation in lieu of reinstatement. Further in the circumstances of this case there is a significant doubt as to whether any relevant position is available to which Mr Zammit could be reinstated. The business formerly operated by MM Cables has been acquired by Pirelli. Further in the proceedings below Ms Painter, on behalf of MM Cables, submitted:

". . . on 1 April the division which handled the applicant's employment was acquired by a third party, Pirelli.

That subsequently means that there is no question of reinstatement of employment."[34]

[80] Section 45(2) of the Act provides that a Full Bench shall grant leave to appeal "if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted".

[81] Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted. In this regard the precedent or flow on implications of the decision under appeal are an important consideration.

[82] In order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal. As noted in Corporation of the Catholic Archdiocese of Brisbane v. Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union:[35]

"The formation of the opinion under s.45(2) leading to the grant of leave to appeal against a decision ordinarily requires considerably more than establishing a case that might have persuaded the full bench to exercise the discretion in another way as if the matter was being considered at first instance."

[83] Further, in Kornicki the Commission said:

"Given the broad nature of the discretion in s.170CE(8) the question of whether or not an application for an extension of time should be granted in a particular case will largely be a matter for the impression and judgment of the Commission member at first instance. It follows that such decisions would only rarely be overturned on appeal."[36]

[84] Contrary to the appellant's submissions we are satisfied that the conclusion reached by Commissioner Harrison was reasonably open on the material before him and that his decision discloses no error of principle warranting correction on appeal.

[85] Given the absence of demonstrable error in the exercise of discretion at first instance we are of the opinion that the matter is not of such importance that, in the public interest, leave to appeal should be granted. Nor are there any other considerations which would lead us to grant leave in the circumstances of this case.

[86] We have decided to refuse leave to appeal and we dismiss the appeal.

[87] In view of the conclusion we have reached it is unnecessary for us to deal with the respondent's submission that the decision subject to appeal was interlocutory in nature.

Termination of employment - unfair dismissal -- appeal - full bench - claimed Commission erred in granting extension of time - Kornicki applied - evidence - submission from the bar table - R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne an Metropolitan Tramways Board applied - held Commission entitled to rely on uncontested statements which are either made from the bar table or are contained in an unsworn statement - The failure to contest such a statement when they are made effectively invite the Commission to treat the assertions as evidence - whether representative error, filing application in wrong jurisdiction reasonable explanation of delay - found in the circumstances decision reasonably open - noted that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits - it would be sufficient for the applicant to establish that the substantive application was not without merit - noted that the function of an appeal process is not to provide an avenue for unsuccessful parties to redress deficiencies in the manner in which their case was run in the proceedings at first instance - Commission's findings reasonably open - no demonstrable error - leave refused.

Appeal by MM Cables against a decision of Harrison C (Print R5261) issued on 26 May 1999.

Printed by authority of the Commonwealth Government Printer

[1] Annexure C to the Affidavit of Jodie Bonner in the proceedings below.

[2] Annexure D to the Affidavit of Jodie Bonner in the proceedings below.

[3] Transcript 26 May 1999 p.9 lines 15-26.

[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[6] Print P5279, 22 September 1997 per Ross VP, Drake DP and Deegan C.

[7] [1965] HCA 50; (1965) 113 CLR 228.

[8] Print J6764, 18 February 1991 per Ludeke J, Marsh DP and McDonald C.

[9] Also see Re: Northern Territory Electricity Commission (Employees) Award 1980, Print E6682, 22 June 1981 per McKenzie DP, Marks J and Neyland C.

[10] Transcript 26 May 1999 p.3 lines 1-31.

[11] Transcript 26 May 1999 p.7 lines 33-40 and p.8 lines 1-2.

[12] Transcript 26 May 1999 p.8 lines 29-38 and p.9 lines 1-13.

[13] Moore v Newcastle City Council; Re the Civic Theatre Newcastle (1997) 77 IR 210.

[14] Clark v Ringwood Private Hospital, Print P5279, 22 September 1997 per Ross VP, Drake DP and Deegan C.

[15] Nikulin v University of Newcastle, Print Q0800; Syme v Tharawal Aboriginal Corporation, Print Q0262; Scott v Rockmans Stores Limited, Print Q8915.

[20] Fabros v Hotel Intercontinental Sydney, (1993) 53 IR 193.

[21] Transcript 15 July 1999 p.15 at lines 11-20.

[22] Marks; ex parte Australian Building Construction Employees Builders Labourers Federation [1981] HCA 33; (1981) 147 CLR 471 at 484 per Mason J.

[23] Transcript 26 May 1999 p.6 at lines 9-13.

[24] Paragraph 21 of appellant's written submission.

[26] Print P4317, 21 August 1997 per Ross VP, Drake DP and Hodder C at p.2-3.

[27] See paragraphs 20-23 of this decision.

[28] See Windsor Smith v Liu and others, Print Q3462, 13 July 1998 per Giudice P, Polites SDP, and Gay C; Mollinger v National Jet Systems, Print Q5911, 8 September 1998 per Ross VP, appeal dismissed in Print R3130.

[30] Transcript 26 May 1999 p.6 at lines 18-38 and p.7 at lines 1-8.

[31] Transcript 26 May 1999 P.8 at lines 13-26.

[32] Appellant's written submissions at paragraphs 19 to 21.

[33] Brighton City Council v MOA, Print J7019, 7 March 1991 per Ludeke J, Moore DP and Cross C; Re: Nurses (South Australia Public Sector) Award 1992, Print L6610, 15 November 1994 per Riordan SDP, Harrison DP and Hingley C.

[34] Transcript 26 May 1999 p.6 at lines 26-30.

[35] Print K7698, 19 May 1993 per Moore VP, Keogh SDP and Bacon C