Mr T Pacey (Respondent)
File Number(s): 2018/00099587
[2]
EX TEMPORE DECISION
This is an unfair dismissal application by Jessica Xiao. The applicant commenced employment on 29 January 2018 as the tipstaff to the Honourable Justice Gleeson of the NSW Supreme Court. Following a meeting with Justice Gleeson on 28 February 2018, a letter dated 2 March 2018 signed by Mr Chris D'Aeth, Executive Director and Principal Registrar of the Supreme Court, was sent to the applicant informing her that Justice Gleeson had decided to terminate her appointment as his tipstaff with effect from 28 every 2018.
On 29 March 2018, the applicant filed in the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal. That application was allocated to me and I conducted a conciliation and directions conference on 17 April 2018. During that conference the respondent, the Secretary, Department of Justice, raised two preliminary issues affecting the applicant's unfair dismissal application. The first issue was an assertion that employment arrangements of the applicant were exempted from Part 6 of Chapter 2 of the Industrial Relations Act 1996 ("the Act") in that the applicant was engaged under a temporary contract of employment for a specified period of time and fr a specific task. The second preliminary issue raised was that the application had been filed out of time.
Clause 6 of Practice Note No. 17A of the Commission's practice directions deals with unfair dismissal applications and is in the following terms:
(a) If a preliminary issue, for example, a jurisdictional challenge, is raised at or before the conciliation conference, the Member allocated to undertake the conciliation of the matter shall determine whether the matter shall be heard as a threshold issue or be dealt with after conciliation. If the Member determines that the issue should be heard before conciliation then the Member shall make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required. In cases where the Member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, the Member shall then forward the matter to the Industrial Registrar for the purposes of a date being fixed for the hearing of the preliminary issue. Directions will be made by the Member allocated to hear the preliminary issue in order to dispose of the question.
I formed the view that I should hear and determine the preliminary issues raised by the respondent before embarking upon any conciliation of the application and made directions for the filing and serving by the parties of written submissions dealing with the preliminary issues.
I convened a hearing today to give the parties an opportunity to speak to their written submissions. I propose to deal with the out of time issue first.
Section 85 of the Act is in the following terms:
85 TIME FOR MAKING APPLICATIONS
(1) An application under this Part must be made not later than 21 days after the dismissal of the employee.
(2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and:
(a) the similar application was made within the time required by that Commonwealth law, and
(b) the similar application has not been settled or determined, and
(c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part.
(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.
This section was considered by Newall C in Isaac v Department of Family and Community Services ([2018] NSWIRComm 1008) wherein the Commissioner stated:
4. It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal.
5. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission.
6. As Ms Isaac did not lodge any application with the Fair Work Commission in relation to her dismissal, this matter falls to be determined solely under subsection 85(3) of the Act.
7. That subsection provides no more than that the Commission 'may' - that is, as a matter of discretion - accept an application which is made out of time but which is not required to be accepted for the reasons set out in sub-section (2).
8. The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3).
9. It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only those matters to which the Commission is to have particular regard.
10. Each case in which subsection 85(3) is invoked is decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190.
11. Given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416.
12. The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]:
[12].... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way:
"Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 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 formulation of the view."
[13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".
13. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. That has a particular relevance to his application, as Ms Isaac's case before the Commission in these interlocutory proceedings was argued in good part, although not wholly, on the basis that the Department had failed correctly to follow its own policy document, Procedures for managing non-work related injuries or health conditions, in the process which led to Ms Isaac's dismissal.
14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others.
15. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13].
16. And fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t represents the legislature's judgment 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.' Brisbane South Regional Health Authority v Taylor loc cit at 553.
I propose to adopt and follow the approach of Newall C in this matter.
The applicant accepts that she received the letter of termination signed by Mr D'Aeth via email on Friday 2 March 2018. However she claims that in the early hours of the morning on that day she was admitted to St Vincent's Hospital with acute liver failure following a paracetamol overdose. She claims that she became aware of the letter of termination shortly before being discharged from hospital on the afternoon of Friday 9 March 2018.
It is common ground that on Friday 16 March 2018, the applicant met with Mr D'Aeth and sought clarification about the basis for her dismissal. It is also common ground that the applicant was aware of the 21 day time limit for her to file an unfair dismissal application. At that point the applicant still had at least a full week to file her unfair dismissal application
However, that was not done until a further 13 days had elapsed putting the application, on the most generous view to the applicant, 27 days after the notice of her dismissal was communicated to her. The applicant has offered no reason whatsoever, let alone a sufficient reason, for her failure to file her unfair dismissal application within the statutory time limit after she became aware of her dismissal. For this reason the application that this Commission accept the applicant's unfair dismissal application out of time is rejected
I accept that the dismissal of the applicant's unfair dismissal application will visit some hardship upon her but this consideration does not outweigh the statutory requirement for there to be a sufficient reason for non-compliance with the 21 day time limit for the filing of such an application.
I note that there is no suggestion that any conduct of her employer relating to her dismissal played any part in the delay in her filing her unfair dismissal application.
I also observed, without expressing any final view, that the applicant's prospects of success in this application appear to be slim, given the short length of time of her employment as a tipstaff and the number of issues that had arisen during that short period.
Given that I have determined to reject this application on the basis that it was filed out of time, it is unnecessary for me to consider and determine the other jurisdictional objection raised by the respondent.
[3]
Orders
I make the following orders:
(1) The application by Jessica Xiao that the Commission accept her unfair dismissal application out of time is rejected.
(2) The unfair dismissal application by Jessica Xiao is dismissed.
John Murphy
Commissioner
[4]
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Decision last updated: 10 May 2018