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[2011] NSWIRComm 1054
Industrial Relations Commission (NSW)
2011-11-25
Original judgment source is linked above.
Background 1Mr Stephen York filed an application for unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996 (the Act) on 17 May 2011, claiming he was unfairly dismissed from the Department of Education and Training. 2The application came before Macdonald C for conciliation on 20 June 2011 by teleconference. The conciliation was not successful and a one day hearing was set down to be held at Bourke. Whilst directions for the filing and serving of evidentiary material were provided to the parties these were later varied and the hearing was held at Dubbo on 15 and 16 November 2011. At the conclusion of the hearing the Decision was reserved. 3In his Application for Relief to Unfair Dismissal the applicant stated that the type of employment was full-time, that he commenced with the employer on 3 March 2010, and his date of termination was 17 December 2010. Whilst he noted that the respondent did not provide a reason for termination, he stated it was a constructive dismissal. 4The respondent stated that they had objections as to the form of the applicant's statement in that it contained submissions. As a consequence objections to particular parts of the statement were deleted. 5The respondent stated that there existed two threshold questions to be determined. The first was that the application had been filed out of time and the second was that the applicant had been employed for a specific period of time. The respondent sought for those two questions to be heard and determined prior to the substantive issue. This was not accepted as the hearing had been set down by Macdonald C to hear all matters at once.
Applicant's case. 6The applicant commenced employment with the respondent on 3 March 2010 in the position of Student Welfare Consultant located at Bourke. Whilst the applicant stated that he should have been employed as a temporary employee he was paid as a casual. In carrying out this role working five days a week, he was replacing an officer who was on maternity leave. He stated that in July 2010 he worked only three days a week with Ms Lisa Cannon returning from maternity leave working two days a week. He stated that from March 2010 to September 2010 he was paid as a casual. 7On 17 December 2010 term four finished. He stated that he still continued carrying out the role of a student welfare consultant working three days a week from January to February 2011 but ceased in February 2011 because he was not being paid by the respondent. That in his view resulted in his constructive dismissal. In late January 2011 he stated that he taught swimming at the local Brewarrina swimming pool receiving $50 a day. He carried this teaching out for approximately two weeks. In the month of March 2011 he drove a school bus to sporting events and on 9 June 2011 he was appointed as a temporary full time teacher at the Brewarrina Central School. 8Ms Cathy Clark filed a statement but was not required for cross examination. Ms Clark gave an overview of her contact with the applicant during his employment with the respondent in her role as Deputy Principal of Brewarrina Central School. Ms Clarke stated that she had a meeting with him on 3 September 2010 concerning an email sent to Joy Rich of the respondent's Dubbo office. He raised the issue of receiving a contract two months into the job. She stated that sometimes DET had their own time frames which employees must adjust to. She stated that she also gave advice on the termination of an employment agreement. She did state that a temporary employee usually had a commencement and end date on their form. 9It was the submission of the applicant that because he did not sign the Acceptance of Offer form of temporary employment, he did not agree with it, therefore he was not bound by it. He agreed to be employed but not by the agreement. He did not accept the contract. He received his last pay on 5 January 2010 for work carried out in 2010. 10With respect to the out of time application, the applicant stated that as he had not signed the contract between the parties agreeing to a specific period of employment and no signed contract agreeing to the termination date of employment , the date of termination could be one of many. It could have been the date of 6 March 2011, six months after 6 September 2010 date "the Acceptance of Offer". This could have been considered the implied date. 11The applicant received no formal letter of termination from the respondent. He received no phone call, no farewell in any form. The applicant had sought information on his conditions of employment back in September 2010 from Ms Rich but had not received the required information. If his application was rejected it would cause injustice to him, but no prejudice to the respondent. 12The applicant sought reinstatement to the position of Student Counselling Consultant working three days a week.
Respondent's Case. 13It was the respondent's submission that the applicant was employed for a fixed period and therefore in accordance with s. 83(2)(a) was exempted from the unfair dismissal section of the Act. He had also filed his application on 17 May 2011 and therefore was well outside the 21 day time limit. 14Mr Paul Loxley filed an affidavit and was subject to cross examination. Mr Loxley stated that he holds the position of School Education Director, Western NSW, Bourke. He stated that he had been employed by the respondent since 1983 and had held his present position since the beginning of 2010. He stated he is responsible for exercising under delegation the employer's functions in relation to the management of staff in Western NSW, Bourke. 15Mr Loxley stated that he had made the decision to employ the applicant in the position of Student Welfare Consultant because he was aware that it was vacant as the holder of the position was on maternity leave. The position could only be offered on a temporary basis because there was no permanent vacancy in which he could be employed and the applicant had not been engaged through advertisement and merit selection. When the officer holding the substantive position returned for two days a week, Mr Loxley put out an expression of interest for the remaining 3 days a week. This action was done through the Teaching and Learning Coordinator, Student services Ms Pam Sharkey. The applicant applied and was successful now working three days a week for the period 21 July 2010 to 17 December 2010. At no time did he receive communication from the applicant stating he did not wish to accept the position. 16Mr Loxley stated that the applicant had not been terminated by the respondent from his employment as a temporarily employed Student Welfare Consultant. His temporary employment ceased on 17 December 2011. The applicant had accepted the contract that clearly expressed that it would cease on 17 December 2010. At no time did he approve any extension of the applicant's temporary employment beyond the end of term 4 of 17 December 2010.
Consideration and Decision. 17Attached to the applicant's statement were a number of annexures. One letter dated 28 June 2010 from Ms Sharkey to the applicant stated : Thank you for your EOI for the relieving Student Welfare position based at Bourke for terms 3 and 4 , 2010. All applications were considered by the panel. After careful consideration of your application in terms of the selection criteria for the position, I would like to offer you the position. 18On 30 June 2010 the applicant responded by email to Ms Sharkey and stated in part: In response to your e-mail, the offering of the position of SWC to me for Term 3-4, I would like to formally accept the position. Nothing further is stated in that e-mail that qualifies his acceptance with respect to working beyond term 4. In my view there was a clear offer and acceptance. 19The applicant directed correspondence dated 24 August, 2010 to Mr Paul Kelly. This correspondence centred on the question of whether the job he applied for and was offered and accepted, was casual or temporary and that he had not as yet been paid. He stated in part: The position I have accepted had set days(Wednesday, Thursday and Friday) and a specified starting and concluding date. Further e-mail correspondence from the applicant centred on his classification and failure to receive wages. E-mail correspondence dated 3 September 2010 from the applicant to Ms Sharkey sought further detailed information concerning his employment, but did not raise the issue of cessation date. 20Correspondence dated 9 September 2010 from Scott Dries- R/Manager, Corporate Employee Services to the applicant, formally approved his appointment to the temporary employment position of Student Welfare Consultant in accordance with Section 50 (1) of the Teaching Service Act, 1980 for a period from 21 July 2010 up to 17 December 2010. The correspondence goes on to state that " your final date will be 17 December 2010." Attached was an Acceptance of Offer form. It was this form that the applicant did not complete. 21The applicant's application form for unfair dismissal stated that his date of termination was 17 December 2010. He filed his application on 17 May 2011. The application was therefore filed some 130 days out of time. In his application the applicant stated the reasons for the delay as : Exceptional circumstances, constructive dismissal, failure by DET to provide information as requested to act in good faith. The denial of procedural fairness. In submissions the applicant stated that he was waiting for information from the respondent, that he had sought an internal request which was pending and that there had been a lack of co-operation from the respondent. 22It was the respondent's submission that the applicant did not receive payment for work beyond 17 December 2010 simply because he no longer worked for the respondent. His request for information from the respondent went back to 3 September 2010. 23Section 85 of the Act requires an application to be filed within 21 days. Section 85(3) provides the Commission to accept an application lodged 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. 24In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out . Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. The Commission, however is guided as to the matters to be taken into account by reference to sub clauses (a), (b) and (c). The following was expressed in Hurrell and Queensland Cotton Corporation Limited[2003]NSWIRComm139: 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 Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 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) 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 s246(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 s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 25In the hearing of this matter the jurisdictional arguments were very much interwoven with the substantive case. What had become clear in the consideration of this case is that the applicant rested his case on the issue that he did not sign the Acceptance of Offer form therefore he was not bound by it. As Ms Brus stated in her final submission this was not a claim for a breach of contract. I accept Ms Brus's submission. 26From correspondence from the respondent offering employment and by the applicant accepting the offer of employment, it is my finding that there clearly was a contract of employment formed. This was a contract to carry out particular work, for a rate of pay and for an expressed period of time. 27No evidence was placed before the Commission that expressed non acceptance by the applicant with respect to his final date of employment at the end of term 4 being 17 December 2010. Because it was expressed in such clear terms there was no requirement for the respondent to provide a letter of termination prior to 17 December 2010 stating that he was finishing on that date. 28The complaint by the applicant that at first instant he should not have been classified and paid as a casual is not relevant to this case. At the point of cessation the applicant was a temporary employee. 29It is my finding that taking into consideration all the evidence that fell in this case, the applicant was an employee exempt from the unfair dismissal part of the Act under section 83(2)(a) in that he was employed for a specified period of time. 30I should also state that taking into consideration the length of time that this application was filed out of time and the lack of any sound reasons which prevented the applicant filing his unfair dismissal claim, it is also my finding that there does not exist sufficient reason to have this claim accepted. 31I therefore dismiss this application for unfair dismissal.
Application for Costs. 32Ms Brus for the respondent made application for costs in a brief submission. The Commission was taken to section 181(2) (a) (b) and (c) of the Act, that provided the Commission the power to award costs in this matter. I note that the respondent advised the applicant in correspondence dated 11 August 2010 the following in part : The Respondent equally has the right to seek a costs order against you at the conclusion of the hearing, and reserves its right to do so. 33The awarding of costs is not automatic upon any of the statutory criteria. The Commission has a discretion as to whether and what costs ought be awarded. Within the Industrial Relations Act, 1996 section 181 Costs, is the following: (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals ) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if: (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (3A) Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2. Note: This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 34It is noted that that paragraph (c) of section 181(2) specifically refers to unfair dismissal applications, whereas paragraphs (a) and (b) appear to be of general application to Commission proceedings. This gives rise to the initial question of whether paragraphs(c) are exhaustive of the powers to award costs in unfair dismissal proceedings , or whether paragraphs (a) and (b) also apply to unfair dismissal proceedings . In Bankstown City Council v Paris (1999) 93 IR 209, a Full Bench of the Commission said: Section 181(2) (c) on its face is a provision which is designed to apply only to unfair dismissal proceedings. It is the only designed to be applied specifically in that context. Also, when read in terms of the other provisions in the Act as to costs, it is one of only three provisions which may have application to unfair dismissal proceedings. The other provisions are paras (a)and (b) of 181(2). Proceedings will have been instituted without reasonable cause, if they are manifestly and utterly without merit. In General Steel Industries Inc. v Commissioner for Railways (NSW) (1964)112 CLR 125, Barwick CJ set out the various expressions of the test to be applied where there was an application for summary judgement to terminate a proceeding on the basis that there was no cause of action. These expressions included : "so obviously untenable that it could not possibly succeeded", " manifestly groundless" and "so manifestly faulty that it did not admit of argument". 35Where an applicant's case is doomed to fail even on the applicant's version of the facts, then it is open to find that the proceedings were instituted without reasonable cause. 36As Wilcox J said in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257: It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent at the time of instituting the proceedings, there was no substantial prospects of success. If success depends upon the resolution in the applicant's favour of one or more points of law, it is inappropriate to stigmatise the proceedings as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceedings must fail, it may properly be said that the proceedings lacks a reasonable cause. 37The tests for what is a frivolous or vexatious application focus upon the motive for the institution of the proceeding or its inherent lack of prospects of success. Thus in Attorney- General v Wentworth (1988) 14 NSWLR 481 the Supreme Court (Roden J) held that a proceeding was vexatious if it was instituted with the intention of annoying or embarrassing the respondent, if it was brought for a collateral purpose and not for having the court adjudicate on the issues, or irrespective of motive, if it was so obviously untenable or manifestly groundless as to be utterly hopeless. It must also be stated that just because the application of an applicant did not succeed, the application was frivolous. 38As expressed previously in this Decision, the applicant based the non signing of the Acceptance of Offer as the foundation of his case. That he did not sign the document in his view equated to him not agreeing to it. He agreed to be employed but not to the Acceptance of Offer. That was his genuine and strongly held view. Whilst I have rejected this submission within the unfair dismissal case I find that his unfair dismissal claim was neither frivolous or vexatious or without reasonable cause. 39I therefore dismiss the respondent's claim for costs.
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York
DET
(1993) 51 IR 186
(1982) 45 ALR 411
(1999) 93 IR 209
(1992) 43 IR 257
(1988) 14 NSWLR 481