William John Healey v HPA

LEGAL REPRESENTATIVES: RESPONDENT: Ms N Rutherford Printing and Allied Trades Employers Association of New South Wales

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WALTON J, Vice-President BOLAND J O'NEILL C

Matter No IRC 1793 of 2003 WILLIAM JOHN HEALEY AND HPA PTY LTD

Appeal from a decision of Commissioner Murphy given in Matter No. IRC02/3671 on 10 March 2003. DECISION (Extempore) [2003] NSWIRComm 195

1 This matter concerns an application for leave to appeal and, if granted, an appeal by William John Healey ("the appellant") against a decision of Commissioner Murphy delivered extempore on 19 February and published in writing on 10 March 2003.

2 The appellant had brought an application pursuant to s84 of the Industrial Relations Act 1996 ("the Act") concerning his dismissal from employment with HPA Pty Ltd ("the respondent"). The application was filed on 24 June 2002. The primary issue in the proceedings at first instance was whether the application was filed out of time. That issue had two elements, whether the application was, actually out of time and if it was, whether the Commissioner should exercise the discretion under s85(3) of the Act to grant an extension of time. The appellant contended that his termination took effect on 2 June 2002 (which if correct, would result in the appeal being within the statutory time period) whilst the respondent contended that termination occurred on 2 May 2002 when notice of termination was given to the appellant. The Commissioner, in exercising his discretion under s85(3) of the Act, dismissed the substantive application on the basis that it was lodged out of time.

3 The appellant was self-represented both at first instance and on appeal. Ms Rutherford and Ms Hyde appeared for the respondent.

4 Leave to appeal was granted by the Full Bench on 2 June 2003. The hearing as to the merits of the appeal was stood over until today, as the respondent had not (contrary to earlier directions given by Walton J) filed written submissions on the merits of the appeal. We now give reasons for our decision on the question of leave and our decision on the merits of the appeal.

5 In this matter we do not propose to summarise the Commissioner's decision although we have referred to the various aspects of the judgment during the course of our decision.

6 We have had close regard to the parties' written submissions and also had the benefit of hearing the parties in oral submission on 2 June 2003 and today. We do not propose to recount those submissions in full but will summarise them briefly. The appellant's two key contentions were that firstly, his application under s84 of the Act was, in fact, lodged within time and, secondly, if the application was filed out of time, the Commissioner failed to properly exercise his discretion in refusing the application. In particular, the appellant challenged, in this latter respect, the Commissioner's rejection of his evidence as to the receipt of incorrect "advice" as to the filing of his application and the date of his termination.

7 On the issue of the prospects of success of the unfair dismissal application, the appellant submitted that the selection process for redundancy was unfair. In particular, the appellant referred to the appointment of another officer in a position he could have been transferred to, that he received less training than other employees and raised discrimination and occupational health and safety issues.

8 The respondent's contentions were that the Commissioner's decision was within his discretion and that the decision did not display any appellable error. In particular, the respondent submitted that the Commissioner's finding was proper given the weakness of the appellant's evidence on the reasons for delay such as the lack of direct evidence from the union that had represented in negotiations with the respondent (as to the question of any advice given to the appellant) and the lack of medical advice as to the appellant's distress at termination. The respondent also submitted that the appellant did not face any particular hardship above and beyond that which any applicant would face if the extension of time was refused. The respondent submitted that leave should be refused, as it would be contrary to the public interest to consider a claim that had little merit and a distinct lack of prospects of success. We have also had the benefit of written submissions filed by the respondent on the prospects of the appellant succeeding on appeal. In brief, the respondent submitted that there was no unfairness in the dismissal as the appellant was selected for redundancy because of his comparative skill level, which was determined by a system of reviews and skill assessments.

9 The respondent also submitted that the appeal itself was out of time although the respondent's advocate abandoned this submission during the hearing on leave in response to the issues raised by the Bench. In light of this, we propose only to make some brief observations as to that issue.

10 Rule 42(1) of the Industrial Relations Commission Rules 1996 (the Rules) states that an appeal must be made within 21 days after the date of the decision appealed against. "Decision" is defined in Rule 4(1) as: …in relation to determining the period within which an appeal may be made, means the date on which the decision is announced, or where it is indicated that a written decision or reasons for decision are to be issued, the date when the written decision or reasons are made available, whichever is the later. (our emphasis)

11 The words which have been emphasised in the Rule are the applicable part of the definition in this case. It is conceivable that an issue may arise in a particular case as to whether the appeal time would run from the date of an extempore decision which was delivered orally and in essentially the same terms as a later version of that decision published in writing. However, there is no need to decide that matter here as different circumstances exist. The Commissioner, in his extempore decision, clearly stated that he "reserve(d) the right" in the release of his later written decision to outline further matters in relation to the findings he made. In that event, the relevant decision for the purposes of Rule 42(1) was, in our view, the later written decision delivered on 10 March 2003.

12 This approach is not inconsistent with the decision of Wright J, President in LEP International Pty Ltd v Roger Caine (2000) 97 IR 35. In that case, his Honour limited his consideration of the term "decision" to the particular circumstances of that case, that is, an appeal from a decision of the Court in judicial proceedings pursuant to s106 of the Act. Further that matter was concerned with the difference, for the purposes of determining when time for lodging an appeal begins to run, between delivery of a judgment and orders giving effect to the judgment, and therefore may be distinguished from this matter.

13 The principles to be applied in determinations of leave to appeal are well established. Leave to appeal will not be lightly or automatically be granted and will be restricted to the class of cases referred to in Knowles v Anglican Property Church Trust (No 2) (2000) 95 IR 380 at 381 - 382 (see also King v State Bank of New South Wales [2002] NSWIRComm 353 at [52] - [55]).

14 We determined to grant leave in this matter as the appeal raised significant questions going to the proper exercise of the Commission's discretion under s85(3) of the Act.

15 The principles governing an appeal from a discretionary decision were recently considered in King v State Bank of New South Wales at [58] to [77]. We consider that the exercise of the discretion by the Commissioner was attended by appellable error of the type identified in House v The King (1936) 55 CLR 499.

16 The principles to be taken into account in determining an extension of time application are well established: see for example the recent Full Bench's decision in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 and Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. It is essential in such cases to consider the various reasons advanced for a delay. In this case, the appellant submitted that the delay was due firstly to incorrect advice he received from his union, the Australian Manufacturing Workers' Union, and from an officer of the Registry as to when the time, for the purposes of making an application under s84 of the Act, begins to run and secondly, that he was suffering from stress. We consider that the Commissioner erred in both the application of principle and findings of fact in relation to these matters.

17 Both of these explanations were relevant to the determination to be made under s85(3). In particular, we consider the fact that the delay occurred by a mistake or error of advice from a person acting in a representative capacity may be a relevant consideration, particularly, as in this case, there was a real issue as to the actual date by which the application was due. We refer by analogy to Cavacuiti and Anor v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341.

18 We consider that there was no proper basis for the Commissioner to reject the appellant's evidence that he received incorrect advice. The appellant gave evidence that he had received advice from his union that he had 21 days from 2 June 2002 to file the application. The Commissioner considered that there was a "lack of specificity of who he [the appellant] spoke to, what was said" and that the applicant should have brought "evidence from the union in respect of that matter". The appellant gave direct evidence of his discussions with the union. During the cross examination of the appellant there was no suggestion that his version was incorrect nor was any evidence called in rebuttal. In fact, the evidence from the cross examination served to substantiate the appellant's contention. In those circumstances and in particular, considering that the appellant's evidence of the discussions with an officer of the union (who was then representing him) was the only evidence before the Commission, the Commissioner erred, as a matter of law, in rejecting this evidence. He further erred in finding that, in order to accept this evidence, the Commissioner required corroborating evidence from a union officer. No such requirement arose in law or principle.

19 We note that this aspect of the Commissioner's decision was attended by another error. In our view, the Commissioner failed to follow appropriate principles as to the conduct of proceedings involving an unrepresented litigant. In such cases, a Member of the Commission has a duty to ensure that the person receives a fair hearing. The fulfillment of this duty involves the provision of some minimum levels of assistance, such as the provision of information to the unrepresented party as to their rights in order that they may determine how to conduct their case: see Parkinson v Mayne Group Ltd (t/as Mayne Express) [2003] NSWIRComm 132 at [42] and the references cited therein. The Commissioner should have drawn to the appellant's attention that he would have regard to the absence of corroborative evidence in assessing his evidence that he received wrong advice at the time the appellant was presenting his case.

20 We also note that the Commissioner raised, in this respect, the question of the appellant's credit. However, the Commissioner's adverse findings as to the appellant's credibility appear to have been founded solely upon one issue, that is, the appellant's submission that his employment continued beyond 2 May 2002. We cannot accept the respondent's submission that this credit finding can then be applicable to the issue of wrong advice. This imputation is not permissible in law or in principle in the absence of an express finding by the Commissioner. In any event, as we will discuss shortly, we have some reservations as to the Commissioner's credit findings as to the appellant's evidence on the date of termination.

21 We also note the Commissioner's comments in relation to the appellant's evidence of his conversation with an officer of the Registry, in particular that he "could take judicial notice of the fact that registry staff are most careful in the manner in which they advise applicants" was an impermissible use of judicial notice: see for example Holland v Jones (1917) 23 CLR 149 at 153 per Isaacs, J. This error was not saved by the Commissioner's reflection that he "did not rely" on this observation as it clearly was a factor considered by him. It was the only aspect of his judgment dealing with this aspect of the appellant's evidence that he received incorrect advice.

22 The appellant's second submission on the reasons for delay was that he was suffering from stress and thus unable to act promptly in making his application. The Commissioner accepted that the appellant was upset but concluded that there were no factors giving rise to the stress beyond what an ordinary person in a similar situation would have suffered. We consider that the Commissioner erred in applying what was, in essence, an objective, reasonable person test in this regard. The correct test is whether the applicant was affected to such an extent as to adversely affect his capacity to file the application on time. It may well be the case that ordinarily the disquiet experienced by a dismissed employee will not be enough to warrant the exercise of the Commission's discretion to extend time to bring a late application. However the assessment must be made against the state of the individual applicant. 23 Before turning to some other aspects of error in the decision at first instance we would observe that we have some reservation as to whether the application was actually out of time.

24 The Commissioner's determination of the date of termination was essentially based of findings of credit, that is that the appellant gave "silly answers" and "certainly unconvincing" responses to questioning in this respect. We consider, however, that there was significant evidence before the Commissioner, which did not rely upon the applicant's oral evidence and which indicated that the date of the applicant's termination was 2 June. In short, there was material before the Commissioner which, upon the principles in Siagian v Sanel Pty Limited (1994) 54 IR 185, warranted a finding that the employment ceased on 2 June 2002, and hence, a finding that the application was brought within time. For example, there was documentary evidence before the Commission that constituted clear indicia of a continuation of some form of employment until 2 June 2002. A letter was handed to the appellant on 2 May 2002, signed by the respondent's Technical Operations Manager, Ms Kenyon, with the subject heading "Redundancy of your position of technical support analyst". The letter stated that the respondent was retrenching the appellant, giving him "1 months notice from today the 2nd May 2002." The letter further stated: During your period of notice, you may use your mobile and we can make arrangements for you to have a pc at home for the purposes of applying for positions, writing your resume etc. However we will have no work for you during that time and so we require you to leave HPA today after you have said your farewells.

Additionally we would like to give you $250 towards a farewell party.

25 Further, the Commissioner's adverse findings of credit do not warrant a contrary conclusion in this case. It is well settled that an appeal court can intervene to correct erroneous conclusions, even where they are based substantially on credibility findings: Fox v Percy (2003) 197 ALR 201 at 208-209, Wilson v Department of Education & Training (2000) 100 IR 1 at 12, State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at 328-330 and Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 44. It is clear from the authorities that where an appellate court concludes that a finding at first instance is erroneous because it was wrongly made or not reasonably open on the evidence, and proper allowance is made for the advantages enjoyed by the trial judge, the appellate court is authorised, and indeed obliged to reverse such conclusions. This is particularly so where the findings depend, in part, upon evidence not directly concerning the credit of a witness. In this case there was clear documentary evidence which did not require an examination of credit to resolve the issue.

26 We also observe that we have grave doubts about the validity of credit findings per se. The Commissioner made adverse credit findings based on the appellant's evidence that his employment did not terminate until 2 June 2002. The determination of when the employment was terminated involved mixed questions of fact and law. Hence, merely because the appellant provided what the Commissioner thought were "silly answers", it did not necessary follow that he lacked credibility. In order to reach that conclusion, it would be necessary to impute a state of knowledge of the law, in this case the law relating to the termination of employment, to the applicant; something for which there is no fair and reasonable basis in this case. The fact of the appellant's involvement in Family Court proceedings (which was taken into account by the Commissioner) could hardly warrant such an imputation.

27 There are three further matters raised by the decision at first instance about which we propose to make brief observations. First, the Commissioner erred by intertwining his consideration of the failure of the applicant to follow the Commission's directions as to the filing of witness statements and the lateness of the application itself. These are discrete matters which should not have been considered together. The lateness of the rebuttal evidence was an irrelevant consideration to the consideration of the issues arising under s85(3).

28 Secondly, in our view, the Commissioner failed to give sufficient consideration to the shortness in the length of the delay.

29 Thirdly, the Commissioner did not address the issue of the appellant's prospects of success in any substantial way. However, we do not consider that, on the basis of the material thus far before the Commission, it may be concluded that the appellant's prospects of success in this matter were sufficiently poor as to warrant a refusal of the application under s85(3). We note that the respondent contended that a number of issues raised by the appellant on the appeal concerning the prospects for success were not put before Murphy C. We have examined the record of proceedings at first instance in the light of this submission. We disagree.

30 We consider the aforementioned errors constitute errors of the kind warranting appellant intervention under the principles in House v The King. There were errors of law and principle, a failure to have regard to relevant considerations and the consideration of irrelevant matters. In the result, we consider that the appeal should be upheld. Further, we consider that, in all the circumstances, it is appropriate that, to the extent required, we make our own determination of the application to extend time. We note in this respect we have made some observations that the application may have been within time but have found it unnecessary to finally decide that question.

31 We consider that, having regard to the extent of the delay in the bringing of the application, and the evidence of wrong advice received by the appellant as to the time for the filing of his application (when combined with a real question as to the due date for the filing of the application), the application to extend time pursuant to s85(3) of the Act should be granted.

32 The Full Bench orders: 1. Leave to appeal granted. 2. The appeal is upheld. 3. The application to extend time is granted. 4. The matter is remitted for hearing to Commissioner O'Neill .

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.