Williams v. Usher, trading as Platinum Fencing [2009] NSWIRComm 1018

Attorney General v. Wentworth (1988) 14 NSWLR 491 Brady v. Kennedy, trading as "Sardines" (1999) 91 IR 258 Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 Killington v. News Limited (1993) 51 IR 307 CASES CITED: Luke v. Handicapped Children's Centre - unreported Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Tseros v. Valudev Pty Limited - unreported Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 1119

APPLICANT Katie Foreman R and M Legal, Solicitors and Attorneys LEGAL REPRESENTATIVES:

RESPONDENT Mark McDonald Maguire and McInerney Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Reginald Keith Williams and Raymond Usher, trading as Platinum Fencing

Application under S.84 of the Industrial Relations Act, 1996

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr R K Williams lodged an application concerning the termination of his services as a fencing labourer with Mr Raymond Usher, trading as Platinum Fencing. Mr Williams has sought monetary compensation in his Part 6 application. The matter was initially allocated to Murphy C who proposed a teleconference on Friday, 13 January, 2009 but Mr Usher's legal representative, with the concurrence of Mr Williams' legal representative, requested that the matter be reallocated so that it could be dealt with regionally, ie in the Commission's premises at 90 Crown Street, Wollongong.

2 The matter was therefore reallocated to me and I set it down for a preliminary hearing on Monday, 19 January, 2009 for conciliation in Wollongong. I adjourned the proceedings for a mention on Tuesday, 27 January, 2009 but vacated those proceedings to permit further discussions between the parties in an effort to settle the matter. I set the matter down for a further mention on Tuesday, 3 February, 2009. An offer had been made by Mr Usher to Mr Williams for a monetary settlement of his claim but that offer was rejected by Mr Williams. I programmed the matter for arbitration.

3 There were two threshold jurisdictional issues raised on behalf of Mr Usher - the delay in Mr William's lodging his Part 6 application and the casual nature of his employment, viz:

• Mr Williams asserts in his Part 6 application that his services were terminated on Thursday, 25 September, 2008 after twelve months of employment. That is the last day that Mr Williams actually worked for Mr Usher. On that basis, Mr William's Part 6 application, which was not lodged until Friday, 19 December, 2008, was outside the 21 day time limit prescribed by S.85(1).

• Mr Usher has claimed that, in fact, Mr Williams ceased working for him in the middle of 2008 on a full time basis but he was engaged on a casual basis from time to time after that date, sometimes accepting work offered to him and sometimes rejecting it. According to Mr Usher, on Friday, 19 December, 2008 Mr Williams was offered work but he did not accept it on that occasion.

Those jurisdictional issues were scheduled for hearing on Tuesday, 31 March, 2009.

The Alleged Delay in Lodging the Part 6 Application

"Any application under this Part must be made not later than 21 days after the dismissal."

Nevertheless, under S.85(3) members of the Commission hold a discretion to accept an out-of-time Part 6 application if they consider that there is sufficient reasons for doing so [ Brady v. Kennedy, trading as "Sardines" (1999) 91 IR 258].

5 In his Part 6 application Mr Williams has asserted that Mr Usher had not informed him of his dismissal and he was totally unaware of the time limit imposed for the lodgement of Part 6 applications. As I indicated in my unreported preliminary decision of Wednesday, 12 November, 2008 in Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [Matter No.IRC 1409 of 2008 at p.5]

"...The rights of employees to pursue claims for unfair dismissal, and the 21 day time limit for such claims, have been a feature of the industrial landscape for at least seventeen years. I would therefore expect that by this time the general nature of the unfair dismissal regime would be common knowledge. But the legal maxim ignorantia juris quod quisque scire tenetur non excusat (ie ignorance is no defence) has not been accepted as a factor in the Part 6 jurisdiction [ Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 at p.148.

That having been said, I would still regard, as the prima facie position, that Part 6 applicants be obliged to follow the 21 day time limit prescribed by S.85(1): it is a clear instruction of the legislature that such a time limit be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [ Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. Otherwise the time limit in S.85(1) would be meaningless..."

6 It would appear to me that Mr Williams is seeking with his Part 6 application to preserve full-time employment with Mr Usher. According to Mr Usher, that full-time employment for Mr Williams ended in the middle of 2008. It is not something which may be preserved with his Part 6 application at this late stage, particularly in view of the jurisdictional restrictions of S.85(1). Such a claim would be over four months outside the 21 day time limit imposed by S.85(1). Since the middle of 2008 Mr Williams has apparently accepted employment with Mr Usher on a casual basis, sometimes accepting work and sometimes rejecting it. It is the employment at the point of the termination of Mr Williams' services which is relevant in this hearing. 7 And, whilst Mr Williams claims in his Part 6 application that the last occasion he actually worked for Mr Usher was Thursday, 25 September, 2008, I do not regard that as the date of the termination of his services. The fact remains that on Friday, 19 December, 2008 Mr Usher had offered Mr Williams employment, which he declined. That must mean that there was an ongoing employment relationship between the two men at that time, albeit one of a very casual nature indeed. Mr Williams actually lodged his Part 6 application on Friday, 19 December, 2008. It must follow therefore that it is not out-of-time.

8 But what was the actual nature of the employment relationship between Mr Williams and Mr Usher at the point when that employment relationship actually ended? A casual employee may still have something in the nature of an ongoing employment relationship with a former employer to constitute a dismissal for the purposes of Part 6 when the employer unilaterally brings that contract of employment to an end [Killington v. News Limited (1993) 51 IR 307 and Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 at p.399]. But I do not see Mr Williams' contract of employment with Mr Usher in that light. Frankly, the employment relationship between Mr Williams and Mr Usher at the point of its termination was so casual as, in my opinion, to fall entirely beyond the scope of Part 6.

9 Reg.6 excludes from the Part 6 jurisdiction certain casual employees, viz:

"…employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer…"

In my unreported decision in Tseros v. Valudev Pty Limited [Matter No. IRC 1045 of 1999] I described Reg.6 (at pp.5 and 6) as excluding:

"...a certain class of casual employees engaged for an undefined '...short period...' from Part 6 unless they fall into two exceptions which would then act to reverse the exclusion and bring them again within jurisdiction under Part 6: (i) where the casual employment is on a regular and systematic basis for at least six months and (ii) where the employee had a reasonable expectation of continuing employment. Those two conditions are cumulative and, as the linking word 'and' indicates, the exception from the exclusion to Part 6 is only available if both conditions are satisfied..."

Mr Williams' employment with Mr Usher at the point of the termination of his contract of employment was far from "...regular and systematic..." for the purposes of Reg.6. It did it apply for a period of six months. Nor do I believe that Mr Williams was entitled to have any expectation of continuing employment with Mr Usher. It must therefore fall outside the jurisdiction of Part 6.

10 In the hearing on Tuesday, 31 March, 2009 Mr McDonald represented Mr Usher. I had directed that he provide written submissions by no later than Tuesday, 17 February. He provided those written submissions on Thursday, 26 February, 2009. Ms Foreman had represented Mr Williams in earlier proceedings but she did not appear in the hearing on Tuesday, 31 March, 2009. Nor did Mr Williams or any other representative for him appear in the hearing on Tuesday, 31 March, 2009. Although I have received no confirmation of the fact from Ms Foreman, Mr McDonald asserted that she had informed him that she was ceasing to act for Mr Williams.

11 Written submissions from Ms Foreman were to be provided no later than Tuesday, 10 March, 2009 (although, in view of the delay of Mr McDonald to provide written submissions on behalf of Mr Usher, some delay in her providing written submissions in reply would have been expected and was accepted by Mr McDonald). But, in fact, no written submissions from her were forthcoming. Consequently, on Friday, 27 March, 2009 Mr McDonald wrote to Ms Foreman in the following terms:

"....Your client applicant was directed to have filed and served its submissions as to jurisdictional issues by Tuesday, 10 March, 2009 and to date those submissions have not been received. In accordance with the timetable, the matter had then been listed for hearing as to the jurisdictional issues on Tuesday, 31 March, 2009.

In view of your client's failure to provide any submissions as to jurisdiction, this is a matter that not only cannot proceed, but it is a matter in which we will be making application to the Commission to have the application struck out for want of prosecution..."

And Mr McDonald made an application that I dismiss Mr Williams Part 6 application. In the circumstances, I do so pursuant to Rule 146. I reject Mr McDonald's subsequent application for costs against Mr Williams, however.

12 Costs in Part 6 proceedings fall under S.181(1)(2)(c), ie on the basis of either an unreasonable failure to agree to a settlement of a claim or where the claim was frivolous or vexatious. As I indicated in my unreported decision of Wednesday, 4 May, 1994 in Luke v. Handicapped Children's Centre [Matter No.IRC 2586 of 1994 at p.5], I consider that an order for costs on the grounds of an "unreasonable" failure to settle a matter should be contemplated only where there is an obdurate refusal to participate in discussions to the extent of total frustration of the conciliatory processes. It must be remembered that any party has a right to have his case presented in court without compromising it. 13 And whilst I believe that Mr William's Part 6 application was entirely without merit, I do not regard it as either frivolous or vexatious. In order to bring a Part 6 application within the description of frivolous and vexatious it is not sufficient merely to say that the applicant has no cause of action. It must appear that the cause of action is, on the face of it, clearly one which no reasonable person could properly treat as bona fide and contend that he has a grievance which he was entitled to bring before the court [Attorney General v. Wentworth (1988) 14 NSWLR 491].

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