Rhonda Anne Patricelli v Glenis Stephenson trading as L. J. Hooker Real Estate [1995] IRCA 715

DECISION NO: 715/95 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for unlawful termination - application for extension of time in which to file claim. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DE Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Transport Workers Union of Australia v National Dairies Limited No 2 (1994) 57 IR 186 Turner v K & J Trucks Coffs Harbour Pty Limited, IRCA No 360 of 1995, Beazley J, 10 August 1995, unreported Porter v Environmental Recovery Services Ltd IRCA No 147 of 1995, Boon JR, 12 April 1995, unreported RHONDA ANNE PATRICELLI -v- GLENIS STEPHENSON TRADING AS L.J. HOOKER REAL ESTATE - WI95/1674 BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 NOVEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1674 BETWEEN: RHONDA ANNE PATRICELLI - Applicant AND: GLENIS STEPHENSON TRADING AS L.J. HOOKER REAL ESTATE - Respondent MINUTE OF ORDERS BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The time for the applicant's filing of the notice of motion be abridged. 2. The time in which the application under section 170EA of the Industrial Relations Act 1988 may be filed be extended to 9 June 1995. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1674 BETWEEN: RHONDA ANNE PATRICELLI - Applicant AND: GLENIS STEPHENSON TRADING AS L.J. HOOKER REAL ESTATE - Respondent BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 NOVEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Rhonda Anne Patricelli ("Ms Patricelli"), by the respondent, Glenis Stephenson trading as L. J. Hooker ("L.J. Hooker"). Reinstatement is not sought. The Application The applicant in this matter has filed a notice of motion seeking an order that an extension of time be granted for the making of her application. The relevant provision is subsection 170EA(3) of the Industrial Relations Act 1988, which provides that: "an application must be made; (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the court allows on an application made during or after those 14 days". If the court were to find a termination at the initiative of the employer in this case, then the document which would constitute written notice (Exhibit P12) is dated 3 March 1995 and, according to the applicant, was received by her on Tuesday, 7 March 1995. If notice of termination was received on 7 March 1995 then the time for filing the application expired on about 22 March 1995. The application was not in fact filed until 9 June 1995, a delay of some 2˝ months. The application to extend time appears not to have been filed until 14 November 1995 but I place no weight on that whatsoever, other than to observe that leave is probably also required to consider the application to extend time. While this was not the subject of argument, I noted no objection to the application being considered and I propose to grant that leave. That will be the first order. The Principles The relevant principles were set out in the judgment of Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344. They were cited by Keeley J in Transport Workers Union of Australia v National Dairies Limited No 2 (1994) 57 IR 186 and were adopted by him as the principles to be applied in exercising the discretion whether to grant an extension of time under Section 170EA: "1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 69 FLR 328 at 343-344). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation' of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duffy v Freijah (1982) 62 FLR 280 at 287; Chapman v Reilly (unreported, Federal Court, Neaves J, 9 December 1983) at 7). 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of General Staff (1982) 71 FLR 56 at 59-60) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 292-293. The reasons for this distinction are not only the 'need for finality in disputes' (see Lucic at 410) but also the 'fading from memory' problem referred to in Wedeswiller v Cole (1983) 71 FLR 256. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 59-60, Duff at 286-287, Hickey at 298-301 and Wedesweiller at 260-262. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas. Lucic at 416, Hickey at 296-297. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 343-344, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of the exercise of the Court's discretion: Wedesweiller at 261-263." There has been some further consideration of the relevant principles by Justice Beazley in the decision of Turner v K & J Trucks Coffs Harbour Pty Limited (IRCA decision No. 360 of 1995, delivered on 10 August 1995, unreported at p14). She quotes Justice Keeley in Transport Workers Union of Australia v National Dairies Limited No 2 where he says that: "The wording of section 170EA(3) is such that it may well be easier for an applicant under the subsection to persuade this court to allow a "further period" than it is for an applicant under section 11 of the Judicial Review Act to persuade the Federal Court, that is on the principles distilled by Wilcox J in Hunter Valley at 348 "to guide, not in any exhaustive manner, the exercise of the court's discretion" under the Judicial Review Act. In stating that, I am referring in particular to the statements in principle that (a) the court will not grant the application unless positively satisfied that it is proper so to do, (b) it is the prima facie rule that proceedings commenced outside that period will not be entertained, and (c) it is a precondition that the applicant show an acceptable explanation of the delay. As the matter has not been argued I shall not express an opinion on the question." Having considered Justice Keely's view, Justice Beazley goes on to say: "In my opinion there is force in his Honour's prima facie view. Whilst the scheme of Part VI Division 3 of the Industrial Relations Act is to provide for quick and inexpensive resolutions of claims for unjust dismissals the Act does not involve the same considerations of public administration as are inherent in applications to review administrative decisions. In any event in Lovatt v Legall (1975) 10 SASR 479 Chief Justice Bray stated at 485: 'If the defendant has suffered no prejudice it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant an extension.'" Overview of Application of the Principles. I propose to broadly give some indication of the way in which I will deal with these matters. It seems to me that the first step is to weigh up the merits of the applicant's case against any prejudice to the respondent. Assuming that there is merit and there is not a countervailing prejudice to the respondent then the application will be granted subject to one proviso, and that is that there must be an acceptable explanation for the delay; an applicant cannot merely sit on their hands knowing of their rights and expect an application to be granted. In my view, the other factors, such as the quantity of time that has elapsed and whether the applicant has made it known to the employer that they contest the dismissal, merely inform the question of prejudice. Whether an Application to Extend Time Should be Decided as a Preliminary Matter The other matter upon which I wish to make some general observations is the question of whether it is desirable that the discretion be exercised as a preliminary matter. The problem arises because the merit of the application is obviously a key matter to be taken into account in deciding whether to extend time, and the Court cannot have a full appreciation of the merits until the case is concluded. There have been judicial pronouncements to the effect that it is undesirable to decide applications to extend time as preliminary matters and I can see that there are problems in doing so. However, it is also true that if the Court refuses to decide the issue of extension of time until the conclusion of the hearing of the merits, then there is an element of artificiality in the process, and the Court is requiring respondents to run their case in full regardless of how great their prejudice and how flimsy the merits of the substantive application, even on the applicant's version of the facts. I propose to deal with these applications in the following manner. I will make it clear to the parties that, if they wish me to decide the application as a preliminary matter then, where there are differences on the facts, they will be resolved in the applicant's favour for the purposes of the exercise of the discretion. If the respondent nevertheless wants to have the application dealt with as a preliminary matter, then it seems to me the Court should be ready to do so. The Merits Accordingly I advised the parties in this case prior to considering the application that, if we were to deal with the application as a preliminary matter, I would do so on the basis that, where there was conflict between the evidence of the parties going to the substantive merits, I would resolve that conflict in the applicant's favour for the purpose of resolving this preliminary matter. As I have explained above, it would be inappropriate to do otherwise in circumstances where I had not heard the full evidence as to the merits. Both parties were prepared to proceed on that basis. The key issue in this matter is whether there was a termination at the initiative of the employer. The applicant says there was and has led some evidence to support that conclusion. The employer says there was not, but that the applicant, to put it colloquially, "jumped rather than was pushed". The employer says, therefore, that this is not a termination with which the court can deal. It is the applicant's case that, if there was a termination at the initiative of the employer, then there was no valid reason for the termination. Having taken the position that it did not "push" the applicant, the employer has not in any concerted way sought to establish reasons why, had it chosen to push her, it would have been entitled to, and that is not surprising. For the purposes of this preliminary matter, I am proceeding on the basis that my finding on the merits would be for the applicant; that is that there was a termination at the initiative of the employer and that the employer could not satisfy the onus of providing a valid reason. Explanation of Delay Turning then to the question of whether there has been an acceptable explanation of the delay, the explanation offered by the applicant is squarely based on a claim of ignorance of her obligations under the Act to commence the application in time. Up to the point where the applicant first made contact with an industrial advocate, Mr Crossley, I have no difficulty accepting her evidence that she was not aware that an employee in her position, being an employee who is employed on a commission only basis, might have some recourse where they were dismissed. I accept her evidence that she learned of the potential remedies available to her on reading about the case of an employee in a similar "commission only" position in the local newspaper. She made efforts through an association of similar employees to make contact with Mr Crossley at some time in April. Mr Crossley and the applicant gave evidence as to the ensuing conversation between them. Mr Crossley's evidence was to the effect that he believes that he advised the applicant that she had no remedy in the WA Industrial Relations Commission because the time for filing a claim had lapsed and there was no possibility of extending it. However, it appeared to him that the applicant's primary concern was to claim contractual benefits in the form of outstanding commissions she believed were owing to her, and as a result he focused on that aspect of the claim. Incidentally, this was a matter he believed he could help her with, given that it could be pursued in the W.A. Industrial Relations Commission, a forum in which he was entitled to appear as a lay advocate. Mr Crossley said in his evidence that he did not refer in any detail to her potential remedies in the "Federal Court", by which I have assumed he meant this Court. He did say that he believed he conveyed to her the fact that there was a time limit in the Federal Court. I note, given his evidence that he could not himself represent her in that forum, that he did not refer her to someone else who could. I find that, if Mr Crossley did refer to time limits, he did not do so in a way that effectively alerted the applicant to the urgency of the situation. I accept that she left that brief conversation with Mr Crosley effectively unaware that the onus was on her to urgently do something about pursuing the "Federal Court" proceedings. The fact that the applicant acted with all urgency following a conversation much later with Mr Crossley's wife tends to support my finding. It appears that at that point it became clear to her that there was an obligation on her to act urgently and she did so at that point. When the applicant consulted her solicitor he acted with admirable haste in having the application filed. If ignorance on the part of the applicant of her obligations is an acceptable explanation, then I accept that that explanation has been made out. Approaching the matter as I am for the first time, it has occurred to me that it might be thought to be surprising that ignorance by an applicant of their obligations of the Act could be relied upon to relieve them of those obligations, in circumstances where, for an employer, ignorance of their obligations under the Act provides no such excuse or relief. I have had regard to the authorities on the question and it is clear that ignorance by an applicant of their obligations under the Act can be an acceptable explanation for delay. The decision of Beazley J in the Turner case, to which I referred earlier, is an example of judicial authority to that effect. There are rationales for this position. There is specific provision under the Act by way of subsection 170EA(3) for leave to be extended. It would seem that the usual circumstances in which that provision would need to be availed of would be where an applicant is ignorant of the need to file within time. Also, it might be argued that questions of extension of time have traditionally been seen as procedural issues rather than substantive issues. It has been seen to be appropriate where one is dealing with a procedural issue to make some allowance for ignorance, where on the matter of substantive obligations it is generally accepted that such allowances are not appropriate. Respondent's Awareness That Decision Contested. The Court must consider whether Ms Patricelli has, by non-curial means, continued to make the decision-maker aware that she contests the finality of the decision. It is clear that in this case she did not do so and that at no stage prior to filing the claim did she bring it to the respondent's attention that she intended to challenge the lawfulness of her dismissal. Prejudice to the Respondent It is clear on the authorities that mere absence of prejudice to the respondent is not enough for an applicant to succeed. As I have noted earlier, in my view, the issues of: · the sheer quantity of time that has elapsed - whether it is 2˝ months or 6 months or 1 month; and · whether the applicant has made known by non-curial means the fact that they contest the finality of the decision are issues informing the factor of prejudice to the respondent. I conclude that there is no significant prejudice to the respondent in this case as a result of the application being filed late. I accept that there are some issues of failure of memory but the matter in dispute between the parties (ie. whether there was a termination at the initiative of the employer) is a broad question and the limited extent to which memories will have failed as a result of a 2˝ month delay do not seem to me at this point to have significant weight in the application of the principles to this matter. There was some evidence that witnesses have left the company in the interim since the applicant's employment relationship ended but it is clear that one of them, Mr Drew, had left prior to the applicant leaving the company, and it was not clear to me on the evidence at what point Mr Orr left and whether or not he would have left by the time of the hearing anyway had the application been filed on time. In any event these witnesses remain available to give evidence. This is not a case where reinstatement is sought and so there is no prejudice to the respondent on that basis. The final matter that I have considered in this context is the possibility that the delay had the effect of denying the respondent the opportunity of resolving the problem cheaply at an early stage. The Act provides for conciliation almost immediately upon the filing of the application and I have turned my mind to whether, had the respondent become aware of the applicant's concerns and her version of events through conciliation or even through the applicant raising it informally, it might have stepped in and remedied the situation either by reinstating the employment relationship at an early opportunity or, in the context of a conciliation conference, by reaching some settlement of the matter in recognition of any strength to the applicant's claim. At that early stage the loss suffered by the applicant would have been minimal and the respondent could have averted further loss to the applicant. As it is, the delay has meant that the applicant by now claims to have sustained a loss justifying a significant award of compensation. I find on the evidence that the filing of an application on time would not have resulted in the voluntary reinstatement of the applicant. I was left with the impression after the evidence of Mrs Stephenson, the manager of the respondent, that she had viewed the conflict between the applicant and her immediate supervisor as being effectively incapable of resolution. While she might have looked at the possibility of reinstatement as an opportunity for renegotiating other arrangements that she had in place in terms of payment of commission, ultimately I am not satisfied that she would seriously have contemplated reinstating the applicant, given the obvious deterioration in the relationship with Mr Orr. Had I reached a different conclusion on that question then I may well have found that there has been significant prejudice to the respondent. Any finding on the question of a possible settlement and payment of compensation had the application been filed on time seems to me too much a matter of supposition. I cannot reach any conclusions on the evidence before me as to what the position might have been. Having considered all the matters raised in evidence, I therefore find there is no significant prejudice to the respondent. Conclusion Having considered all the circumstances of this matter and assuming that all matters in issue between the applicant and the respondent as to the substantive merits of the claim were resolved in the applicant's favour, I am satisfied that it is fair and equitable in all the circumstances to the allow the extension of time sought. I referred the parties, in the course of submissions, to the decision of Judicial Registrar Boon in the case of Porter -v- Environmental Recovery Services (IRCA decision No. 147 of 1995, delivered on 12 April 1995, unreported). That was a case in which, in summary, there was a slightly greater delay which was the fault of the solicitors of the applicant. In that case an extension of time was not granted. While I am not bound by the decision of other judicial registrars, I recognise it is desirable that decisions have a broad level of consistency. It seems to me the key difference between the cases is that Judicial Registrar Boon made a negative assessment of the merits in the Porter case. The orders I make in this case are first that the necessary abridgments of time be given as to the filing of the notice of motion, and secondly, that the time in which the application under section 170EA of the Industrial Relations Act 1988 may be filed be extended to 9 June 1995. I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of Judicial Registrar R.D. Farrell. Legal Assistant: Date: 23 February 1996 Counsel for the applicant: Mr S Kawalsky Solicitors for the applicant: Dwyer Thomas Counsel for the respondent: Mr D M Jones Solicitors for the respondent: Chamber of Commerce & Industry of Western Australia (Inc) Hearing date: 15 November 1995 Judgment date: 16 November 1995