Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 1119

CATCHWORDS: claim of unfair dismissal - time limit on application - out-of-time application - discretion to admit out-of-time application exercised - pending criminal charges

LEGISLATION CITED: Industrial Relations Act 1996

Brady v. Kennedy, trading as 'Sardines' (1999) 91 IR 258 Burns v. Grigg (1967) VR 871 Coles Myer Lmited v. Shop, Distributive and Allied Employees' Association (1989) 27 IR 299 Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 CASES CITED: Mitchelson v. Mitchelson (1979) 24 ALR 522 Sebastian v. Roads and Traffic Authority of New South Wales (1995) 62 IR 190 Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Waine v. BHP Steel - unreported Pyneboard v. Trade Practices Commission (1983) 152 CLR 328

APPLICANT Tom Sherley Hansons Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Cathryn Hellams South Eastern Sydney and Illawarra Area Health Service

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Joris Zonneveld and the South Eastern Sydney and Illawarra Area Health Service

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

1 Mr Joris Zonneveld was employed as a registered nurse by the South Eastern Sydney and Illawarra Area Health Service. He was employed in the Wollongong Hospital. His services were terminated on Monday, 19 May, 2008 after nineteen years of employment over allegations of inappropriate behaviour with a patient, which he denies but over which at the present time there are unresolved criminal charges. He subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, primarily seeking his reinstatement.

2 The matter was allocated to me and I set it down for a preliminary hearing on Monday, 22 September, 2008 (in the Commission's premises at 90 Crown Street, Wollongong) and adjourned it for hearing on a preliminary issue on Friday, 31 October, 2008. Mr Zonneveld's Part 6 application was lodged on Tuesday, 26 August, 2008, ie substantially outside the 21 day time limit prescribed by S.85(1) and the SESIAHS has opposed Mr Zonneveld's Part 6 application on that basis. In the proceedings on Friday, 31 October, 2008, Mr Sherley represented Mr Zonneveld and Ms Hellams represented the SESIAHS.

"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. In determining whether there is sufficient reason to hear an out-of-time Part 6 application, S.85(3) directs me to have regard to a number of specific matters: (i) the reason for, and the length of, the delay, (ii) any hardship that may be caused to the applicant if the claim is denied or the employer if it progressed and (iii) the conduct of the employer. All relevant considerations should be taken into account in determining whether to grant an application to proceed out-of-time [ Brady v. Kennedy, trading as 'Sardines' (1999) 91 IR 258].

4 Mr Zonneveld has given essentially two reasons for his delay in lodging his Part 6 application, viz:

(i) that he was not aware of the time limit imposed for Part 6 applications; and

(ii) that he, and his legal representatives, had been concentrating on the criminal charges laid against him. 5 Mr Zonneveld is a member of the New South Wales Nurses Association. He approached the Nurses Association which at first represented him in negotiations with the SESIAH and, according to Ms Hellams, initially indicated its intention to pursue a claim for Mr Zonneveld's reinstatement. It did not do so, however, and Mr Zonneveld asserted that it ultimately declined to assist him. He only obtained legal advice concerning the Part 6 application from his current legal representatives concerning his position on Tuesday, 19 August, 2008. His legal representatives lodged a Part 6 application seven days later. So the delay in this case is essentially for the period from his dismissal on Monday, 19 May, 2008 to Tuesday, 19 August, 2008.

6 Ordinarily, where the incident or incidents from which an employee was dismissed also involve criminal proceedings against him, any Part 6 application would be delayed to await the outcome of those criminal proceedings. There are a number of reasons why such a delay of Part 6 proceedings is appropriate. For one thing, the standard of proof before the Commission is the civil standard of the balance of probability and not the criminal standard of proof beyond reasonable doubt [Coles Myer Limited v. Shop, Distributive and Allied Employees' Association (1989) 27 IR 299 at pp.303 and 304]. If a dismissed employee proceeded under Part 6 prior to his criminal prosecution, he may, in fact, have his guilt determined on the less onerous civil standard. Furthermore, there would be considerable logistical difficulties for a Part 6 applicant in properly advancing a case, with the criminal proceedings hanging over his head. He would have a right of silence - a right to refuse to answer any questions in the Part 6 hearing which may serve to incriminate him [Pyneboard v. Trade Practices Commission (1983) 152 CLR 328] - but the question remains whether, in the light of his right to remain silent, he would be in a position to present proper argument in his own behalf.

7 Nevertheless, it is customary that employees facing criminal charges arising out of the circumstances surrounding their dismissal to still immediately lodge a Part 6 application but seek adjournment of the matter to await the resolution of any criminal proceedings. The fact remains that in this case from Monday, 19 May, 2008, when Mr Zonneveld was dismissed to Tuesday, 26 August, 2008 when the Part 6 application was finally lodged on his behalf the SESIAH would have been entitled to form the view that Mr Zonneveld was no longer contemplating a claim for his reinstatement or any other remedy under Part 6.

8 The prospects of ultimate success for a Part 6 applicant is also a factor which may be taken into account in any determination of a member of the Commission under S.85(3) to admit an out-of-time Part 6 application. The Full Bench of the Commission (Wright J - President, Walton J - Vice President and McKenna C) in Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 commented in that respect (at pp.151 and 152) as follows:

"...In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospect of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a 'sufficient reason' has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits.

Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion... Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary consideration: Sebastian v. Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at pp.193 to 194. It should be emphasized, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature..."

And in my unreported decision of Monday, 8 October, 2001 in Waine v. BHP Steel [Matter No.IRC 3138 of 2001] I also commented on an out-of-time Part 6 application (at p.4) that:

"…whilst it is not specifically referred to in S.85(3), it seems to me that one of the factors which I must take into account in determining whether or not to exercise my discretion and admit an out of time Part 6 application, is the prospect of such a Part 6 application ultimately succeeding if it is considered on its merits. That is a common approach by courts and tribunals [ Burns v. Grigg (1967) VR 871 at p.872 and Mitchelson v. Mitchelson (1979) 24 ALR 522 at p.524]. Essentially, if an out of time Part 6 applicant is unlikely to succeed, it goes without saying that to refuse his claim will not, in fact, constitute the type of hardship to the dismissed employee referred to in S.85(3). It would do nothing more than delay the inevitable and (avoid) considerable cost and inconvenience to both parties…"

In this case, Mr Zonneveld's Part 6 application centres on the incident out of which the criminal charges against him have been laid. Mr Sherley has suggested that he expects a no bill for those criminal charges against Mr Zonneveld but there must at this stage still be a level of speculation concerning the criminal proceedings and consequently it is not something on which I may rely in determining this issue on the out-of-time Part 6 application.

9 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 (at p.148).

10 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. But, as I see the position, in exercising my discretion under S.85(3) it is a question of determining where the balance of convenience lays: whether a late applicant employee should be denied a remedy or the respondent employer be put to any inconvenience which may arise for him from a late application [Griffith Ex-Services Club Limited v. Federated Liquor and Allied Industries Employees' Union of Australia (1993) 51 IR 186 at p.191]. In Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 I stated (at p.101) that:

"…in my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)…"

11 I believe the balance of convenience favours Mr Zonneveld in this case and, notwithstanding the very lengthy delay in a Part 6 application being lodged on his behalf, I should permit his Part 6 application to proceed. He would certainly be prejudiced if his Part 6 application was aborted without his being given the opportunity to present his case (and ahead of the resolution of the criminal charges against him with respect to which he claims innocence and which appears to be the sole reason for his dismissal). The SESIAHS was initially made aware from the Nurses Association that it would be pursuing a claim for his reinstatement, albeit that it did not proceed at that time and I see no difficulties for it if Mr Zonneveld's Part 6 application is now permitted to go forward.

12 In those circumstances, I propose to exercise my discretion under S.85(3) in favour of Mr Zonneveld's Part 6 application and permit it to go forward. I will set this matter down for a further mention on Monday, 1 December, 2008 (in Wollongong) for a mention and further programming of the matter.

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