Industrial Relations Commission of New South Wales CITATION: Ormonde and New South Wales Department of Environment and Conservation [2005] NSWIRComm 286 APPLICANT Mr Peter James Ormonde PARTIES: RESPONDENT New South Wales Department of Environment and Conservation FILE NUMBER(S): 33 of 2005 CORAM: Sams DP Termination of employment - unfair dismissal - out of time application - whether Commission should exercise its discretion to allow the application - whether sufficient reason established - unrepresented litigant. CATCHWORDS: Held, no doubt as to dismissal - application out of time - failure to focus on correct issue - difficulties with unrepresented litigants - no reason established for late claim - no medical evidence provided - focus on irrelevant matters - discretion refused to be exercised - application dismissed - proceedings concluded. LEGISLATION CITED: Industrial Relations Act 1996 Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150 Brisbane South Regional Health Authority v Taylor (1996) CLR 541 Gorrell v Uwatec (unreported, Sams DP IRC 1700 of 1999, 11 November 1999) Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 Herbert and Warrah Ltd [2001] NSWIRComm 109 CASES CITED: Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Nicholls and Central Sydney Area Health Service (unreported, Sams DP IRC 4131 of 1999, 25 August 2000) Notaras v Armstrong [2005] NSWIRComm 208 Stephan and R L Whyburn and Associates [2000] NSWIRComm 154 Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 HEARING DATES: 08/04/2005 DATE OF JUDGMENT: 08/17/2005 APPLICANT Mr P J Ormonde, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus, of counsel Instructed by Department of Environment and Conservation JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 17 August 2005 Matter No IRC05/33 Peter James Ormonde and New South Wales Department of Environment and Conservation Application by Peter James Ormonde re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 286 1 Peter James Ormonde ('the applicant') was dismissed from his employment as a Senior Policy Officer with the Department of Environment and Conservation ('the respondent') by letter dated 26 November, 2004. The terms of the letter were expressed as follows: Dear Mr Ormonde I refer to my letter of 1 November 2004 where I advised you I had formed the opinion you had engaged in misconduct and I was considering imposing disciplinary action. I have now considered the information provided by you and I have decided, with effect from Monday 29 November 2004 to take disciplinary action as follows: Dismissal from your position of Senior Policy Officer, Conservation Economics Group, National Parks and Wildlife Service (Note - The National Parks and Wildlife Service has been part of the Department of Environment and Conservation since September 2003 and is now known as the Parks and Wildlife Division). Yours sincerely, Terry Korn Director Western Field Branch. 2 The applicant's claim for relief from alleged unfair dismissal, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act') was filed on 5 January 2005. In his application the applicant cited the date of his dismissal as 3 December; thereby placing the application 12 days outside the 21 day time limit imposed by s 85 (1) of the Act. 3 However, the applicant later claimed that he was not truly dismissed on 3 December because the dismissal letter did not provide the reason for his dismissal or give him information on his appeal rights. He conceded that this information was conveyed to him on 8 December. 4 It hardly needs to be said that the letter of dismissal was in unequivocal and unambiguous terms. There could be no possible misunderstanding that he had been dismissed. This letter was the effective trigger for any claim of alleged unfair dismissal. In other circumstances, the date an employee receives a dismissal letter might be relevant to when an application for unfair dismissal is filed. However, in this case, be it the 26 November, 3 December or 8 December, the applicant's unfair dismissal claim was still filed outside the statutory time limit - a fact which he seemed to lose sight of. 5 The applicant said he continued to receive pay slips showing $0.00 from 12 May 2003 to 30 December 2004. In a letter to the Commission dated 10 January 2005, the applicant said, inter alia, "Obviously news of my dismissal has not filtered through to the pay department, but according to Mr Terry Korn the Director General's delegate in these disciplinary proceedings, his decision to terminate my employment was to take effect from 24 November". This admission plainly demonstrates that the applicant knew he had been dismissed when he received Mr Korn's letter. 6 It is unnecessary for the purposes of this decision, to detail the circumstances surrounding the applicant's dismissal. It is sufficient to note, that despite the limited scope of the issue to be determined in this case, the applicant's submissions went entirely to his allegations against certain officers of the Department for allegedly acting unlawfully and abusing their authority in respect of his dismissal and his determination to pursue these officers for damages. I note that during conciliation proceedings he had refused to sign a deed of release settling all claims against the Department and its officers in exchange for six months salary. 7 In his written submissions, the applicant criticised the manner in which he was dismissed and claimed that these proceedings were an attempt to "have the matter silenced". The "matter" he referred to were sweeping, generalised allegations against unnamed middle and senior managers who he said "lack basic knowledge of their legal and contractual obligations towards employers (sic) in their care". He said the Commission's discretion should be exercised "given the serious nature of the issues at stake". 8 When pressed by the Commission to focus on the reasons why he had not filed his application within time, the applicant claimed he had been ill and stressed at the time and was confused with dates. He claimed to have been operating at "twenty per cent capacity". It must be emphasised that the applicant provided no medical evidence to verify his claims of illness. Nor, I note, did he mention any stress or illness in his originating application or in his written submissions for these proceedings. 9 Ms E Brus of counsel, for the respondent, opposed the exercise of the Commission's discretion in the applicant's favour and submitted that he provided no reason, let alone a sufficient reason, for his late application. She relied on the principles discussed in Gorrell v Uwatec (unreported, Sams DP IRC 1700 of 1999 11 November 1999) and Notaras v Armstrong [2005] NSWIRComm 208. CONSIDERATION Relevant principles 10 The relevant legislative provisions dealing with the Commission's discretionary powers to allow unfair dismissal applications to be filed out of time are found at s85(3) of the Act. 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. 11 The general principles applying to the waiver of time limits for the filing of civil claims are helpfully discussed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case McHugh, J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It 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. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. 12 In 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, the term "sufficient reason" is not defined in the Act - and for very good reasons. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 where a Full Commission observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121. 13 The Commission however, may be guided as to the matters to be taken into account, by specific reference to sub clauses (a), (b) and (c) of s85. It may be appropriate for an applicant to address each of the criteria in the sub clauses. However, for the Commission to be satisfied its discretion should be favourably exercised, requires the balancing of a range of considerations, including, but not limited to, the specific matters identified in s85(3)(a)(b)(c). 14 In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139, the Full Bench of the Commission granted leave to appeal having being satisfied that the appeal raised important questions relating to the principles applicable in the determination of an application under s85(3) of the statute. 15 The Full Bench went on to say at para 12-13: Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. 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. 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". Unrepresented Litigants 16 This case was a classic example of the difficulties faced by unrepresented litigants in understanding the nature and scope of the case they must meet and being able to properly prosecute such a case. 17 At this juncture, I would refer to the role of the Commission in respect to assisting unrepresented litigants. In Nicholls and Central Sydney Area Health Service (unreported) Matter IRC4131 of 1999, 25 August 2000, I said this: Sadly, this case starkly demonstrated one of the major problems with cases involving unrepresented parties; namely, that such parties are usually so emotionally and subjectively involved that a rational and dispassionate approach to preparing for, and conducting a proper case, is all but a forlorn hope. .... In view of these circumstances, it is appropriate that I should refer to the principles that the Commission should adopt in litigation involving an unrepresented party. The guiding principle is a simple one: " to ensure all parties are afforded the benefits of the rules of natural justice ". For a helpful discussion of the term 'natural justice' in the context of an unrepresented litigant see Davidson v Aboriginal & Islander Child Care Agency ( Ross VP, Watson SDP and Eames C) Print Q0784, 12 May 1998. While the principle of natural justice might seem simple enough, its application in an intensely emotional and difficult litigation is not always so. It is often a delicate balance involving a number of sensitive issues such as ensuring an unrepresented litigant is aware of his or her rights, ensuring the trial judge does not become an adviser or advocate and ensuring an orderly and sensible conduct of the proceedings. Two authorities are apposite. In Regina v Gidley , 3 NSWLR 168, the Court of Criminal Appeal said: The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case. In Regina v Zorad , 19 NSWLR 91, the New South Wales Court of Appeal held that: 1. An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person. 2. The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial: a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused. b) would include the giving of advice that, notwithstanding a ruling on the voir dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done. c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn , advice of the existence to that rule. See also Herbert and Warrah Ltd [2001] NSWIRComm 109 and Stephan and R L Whyburn and Associates [2000] NSWIRComm 154. 18 In Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150, where the appellant appeared unrepresented, the Full Bench said: [6] It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing. 19 For completeness, I cite the passage referred to by the Full Bench above in Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd: The Commissioner refused to let her re-open her case. We agree in the circumstances of this case with the Commissioner's action. There must be an end to litigation and in this case the applicant had had ample opportunity to make out and present her case. In fact, the Commissioner was at pains to make sure that she understood the process and he was generous in the guidance which he gave her as to the conduct of her case. The appellant made strong representations that the Commissioner erred in that he did not give the appellant all the help he should have given her as an unrepresented litigant. We do not share that view. Whether a person be represented or not, the responsibility for the conduct of their case remains with them. Whilst we agree that in the case of an unrepresented party the Commission should be prepared to assist with appropriate guidance and advice and give a measure of guidance as to the conduct of their case, that advice and guidance must not jeopardise or in any way compromise the independence of the Commission. Secondly, we share the Commissioner's doubts that her case would be materially advanced by her calling the respondent's witnesses. 20 In three earlier conciliation proceedings (21 February, 28 March and 27 April) the applicant was reminded that his application appeared to be out of time and in setting the matter for hearing on 27 April the Commission made clear what the issue was which would need preliminary determination. The Commission is satisfied that the applicant was well aware of his rights and obligations under the Act. In fact, at one point he informed the Commission that he had taken legal advice in respect to s106 and s154 of the Act. 21 Despite the irrelevance of most of the applicant's submissions, I am also satisfied that he put before the Commission all of the matters he wished the Commission to consider. I do not know what more the Commission could have done to focus the applicant's attention on the issues he needed to address in the proceedings. He simply failed to do so. 22 In my view, this case can only have one result. The applicant could not offer any reason for his late application; let alone a sufficient one. For reasons best known to himself he preferred to focus on the alleged unfairness of his dismissal and made wild, unsubstantiated allegations against the Department's management. 23 The belated explanation of illness and stress as the reason for his late filing, sits rather oddly with his confident and robust attacks on the respondent in the conciliation and arbitration proceedings and in the communications he was having with the respondent in the months prior to his dismissal. The applicant had ample opportunity to bring medical evidence to substantiate this claim. He did not do so. 24 Viewed in this way, there can be no grounds upon which the Commission could be satisfied to exercise its discretion to allow the applicant's claim to be accepted out of time. Moreover, I do not believe it would serve the course of justice to allow this application to be accepted out of time. 25 That being said, I have also had regard for the applicant's prospects of success with his substantive claim. The Commission is familiar with the applicant's claims of unfairness and the other allegations made by him prior to, and during these proceedings. In my opinion, there is little to justify any claim of the applicant being treated unfairly. On the contrary, it might well be said that the respondent displayed considerable restraint and patience in dealing with the applicant. 26 After a long period of non co-operation, the respondent's offer to settle the matter was, in my assessment, a genuine attempt to provide the applicant with a not insignificant financial settlement. Unfortunately, he chose to squander that opportunity. CONCLUSION 27 The applicant has not discharged the onus of establishing a sufficient reason for failing to lodge his claim of alleged unfair dismissal within the prescribed time period required by s85 (1) of the Act. 28 It follows that the Commission declines to exercise its discretion pursuant to s85 (3) of the Act such as to allow matter IRC 33 of 2005 to be accepted out of time. The application is dismissed and the proceedings concluded. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.