Industrial Relations Commission of New South Wales CITATION: Brennock vFyvit Pty Limited [2005] NSWIRComm 1008 APPLICANT: Mr. Justin Brennock PARTIES: RESPONDENT: Fyvit Pty Limited FILE NUMBER(S): 2902 of 2004 CORAM: Ritchie C Unfair Dismissal Claim Terminated for abandonment of employment Dispute over dates of employment Application filed over 14 months late Applicant unaware of ability to claim unfair dismissal Whether sufficient reason for delay-s85(3) of the Act. CATCHWORDS: Hardship to applicant or respondent Held-delay significant almost fatal to application Prejudice to respondent due to death of owner in the intervening period Very limited period of employment Application refused Application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Hurrell and Queensland Cotton Corporation Limited[2003] NSWIRComm139 CASES CITED: Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 HEARING DATES: 11/16/2004; 12/15/2004 DATE OF JUDGMENT: 02/01/2005 Mr. G. Archer of Archer and Archer Solicitors LEGAL REPRESENTATIVES: Mr. M. Easton of Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 1 February 2005 Matter No IRC 2902 of 2004 IN THE MATTER OF: Justin Brennock and Fyvit Pty Ltd Application by Justin Brennock re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1008 Background. 1 Mr. Justin Brennock (the applicant) filed a claim for unfair dismissal on 19 May 2004. In his application the applicant stated that he commenced employment with Fyvit Pty Limited (the respondent) on 17 July 2002 and was terminated on 14 March 2003. The application was directed to Redman C. who held a conciliation/directions on 4 June 2004 and by teleconference on 26 July 2004. As no settlement was reached between the parties the Commissioner provided the parties with a timetable for the filing and serving of affidavit material. In addition the parties were directed to file and serve an outline of their respective cases by the same dates. By agreement between the parties the documentation to be filed only went to the threshold issue of the application being out of time. 2 As a consequence of Redman C. proceeding on extended leave prior to retirement the matter was reallocated to the Commission as presently constituted. The matter was listed for hearing for ½ a day on 16 November 2004. 3 Neither party complied with Redman's C. timetable . The applicant filed an Outline of Submissions and a Response to the respondent's submissions. The respondent filed their Outline of Submissions and on the day before hearing filed an affidavit by Mrs. Bridget Brennock. As a consequence of the parties failing to comply, the hearing was not completed on 16 November and another hearing date of 15 December 2004 had to be set. The preliminary hearing was completed on that date and the decision was reserved. 4 In the hearing the applicant was represented by Mr. J. Archer solicitor, and the respondent by Mr. M. Easton of Counsel. Applicant's Case 5 The applicant filed his claim through his solicitor on 19 May 2004. In his application he stated that he commenced employment with the respondent on 17 July 2002 and was terminated on 14 March 2003. During the hearing of this threshold issue the applicant's legal advisor stated that his client now sought monetary compensation as the relief sought. 6 In response to question 34 the applicant stated : I was working for my (late) fathers business and I thought that it would be possible to sort this matter out . As my father was suffering from terminal cancer at the time of my dismissal it was not possible to approach him as he was very sick and no one else at the business wanted to speak to me. I was then involved in a serious car accident approximately three weeks after being dismissed and my collar bone was broken . As well as this I suffered serious head injuries and my cochlear implant was damaged in the accident, which made it difficult to commence any proceedings until the present time . In the meantime my father passed away on 3 December 2003. 7 The applicant gave evidence by answering questions in chief and in cross examination. He did not file a witness statement. The applicant stated that in February/March 2004 he attended the offices of Archer & Archer Solicitors as a consequence of having an AVO served against him by his step mother Mrs. Brigit Brennock. During that meeting he was made aware of his rights under the unfair dismissal legislation. A claim for unfair dismissal was eventually filed. 8 It was the primary position of the applicant that he was unaware of his rights to claim unfair dismissal. The applicant advised that since an early age he had suffered from severe deafness which resulted in a substantial loss of time at school which culminated in 1999 in the applicant being totally deaf and unable to use hearing aids. In 2002 he had a cochlear implant inserted which became infected and had to be replaced. Without the cochlear implant the applicant was unable to hear anything. 9 The applicant stated that on the day he was terminated he went to work at the North Entrance site where he was met by a Mr. John Smith an employee of the respondent who advised the applicant that he was no longer needed on this job, that he was sacked. The termination had come out of the blue. He then sought to contact the respondent's office but no one had the time to talk to him so he sought to contact his father who was the sole director of the respondent but Bridget Brennock would not let him through the gate to speak to him. That was the first time that the applicant became aware that he had been terminated. He had sought to speak to his father to find out why he had been terminated. He did not believe he had been treated fairly. 10 During examination in chief the applicant stated that he had not seen a document dated 6 February 2003 titled "STATEMENT OF TERMINATION" nor a similar entitled document dated 30 October 2002. 11 It was the applicant's evidence that it was not until he caught his father at a construction site that he actually spoke to him. His father was not aware that the applicant had been terminated. 12 Three weeks after his termination the applicant was involved in a car accident that resulted in the applicant suffering a broken collar bone and injuries to his head and the cochlear implant. He spent one night in hospital. The applicant agreed that the date of the accident was 28 February 2003. 13 After he was terminated the applicant went and worked commencing sometime in 2003 for Drew Construction which was owned by his half-brother. 14 The applicant in cross examination whilst at first stating he had not spoken to his father about his termination during the period prior to commencing with Drew Construction later admitted speaking to his father. 15 The applicant at a point provided the respondent with a medical certificate from Dr. Kenny dated 22 /1/03 putting the applicant off work from 22/1/03 to 24/1/03 inclusive. The medical certificate stated that the applicant was suffering from reflux oesophagitis. 16 The applicant advised that he had commenced with the respondent in July 2002 and worked continuously until he was terminated in 2004. He denied he had been terminated on 30 October 2002 and then employed again on 6 January 2003. 17 The applicant said that he first saw his solicitor in March 2004 but he was unsure when he first raised the unfair dismissal issue. He believed it was a period of weeks after but could give no reason why it was not filed until 19 May 2004. He had not contacted his solicitor to find out why there had been no movement in his claim. Respondent's Case. 18 The respondent's witness was Mrs. Bridget Brennock( Brennock) who was the wife of Mr. Chris Brennock and the applicant's step mother. She filed an affidavit on 15 November 2004 . It became Exhibit 1. 19 It was her evidence that the applicant commenced employment on 15 July 2003 and ceased work on 30 October 2003. He was issued with a statement dated 30 October 2003 confirming his termination (annexure C). He was then given another chance by his father and commenced a new contract on 6 January 2003. A letter of appointment stating rate of pay, three month probationary period, comments on standards of acceptable work and behaviour were expressed (annexure D). Brennock stated that the letter of appointment was provided to the applicant as part of a package when he commenced in January 2003. All new employees received such a package. From 8 January to 20 January 2003 the total hours worked by the applicant was 49.5 hours. 20 Brennock said that the applicant came into the office on 23 January 2003 and provided the doctors certificate from Dr. Kenny. The applicant did not return to work again. Brennock said that both she and his father had gone to his residence because he had not turned up for work but he was not home. On 6 February 2003 the applicant had not contacted the respondent as to his non return to work so he was terminated and a letter of the same date was posted to his residence. 21 It was Brennock's evidence that the applicant saw his father on a number of occasions between January 2003 until his father's death. 22 Brennock confirmed that the applicant worked one more day on 6 November 2003 as a casual labourer. She said that a new site supervisor had employed him without his father's knowledge. Her husband objected severely to his employment and advised that the applicant was not to be employed by the respondent again. 23 Prejudice had been caused to the respondent by the delay because of the death of Mr. Chris Brennock and therefore deprived of his direct evidence ,the fading memory of witnesses and employees who could have given evidence have since left the respondent. Considerations and Decision. 24 As a consequence of the failure of both parties to comply with the clear instructions of Redman C. for the filing and serving of affidavit evidence, this case went longer than it should have and was difficult to consider because of the lack of specific dates by the applicant. 25 To determine this threshold issue I believe I must make findings with respect to employment dates of the applicant. The applicant had stated his dates of employment. The respondent had a completely different set of dates. The applicant agreed that he had a car accident three weeks after he was terminated by the respondent. The applicant agreed the car accident occurred on 28 February 2003. I therefore have to accept the date of termination being 6 February 2003. Based on the evidence that has come before this Commission I accept the dates of the respondent with respect to his commencement date of 6 January 2003. 26 On that basis the applicant filed his claim for unfair dismissal some one year two months and 22 days out of time. 27 Section 85(3) of the Industrial Relations Act 1996 states: The Commission may accept an application that is made out of time if the Commission considers there is 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. 28 It was the applicant's case that the applicant was not aware of his right to apply for a claim for unfair dismissal and in that he relied upon Hurrell and Queensland Cotton Corporation Limited NSW IRComm139. The applicant also raised the employment contract of one day on 6 November 2003 and that if that is taken into consideration then the period of out of time is greatly reduced. 29 What also should be taken into consideration was the serious disability suffered by the applicant. The applicant advised the respondent that as a consequence of getting cement dust in his Cochlear Implant it caused an infection of his inner and middle ear, his injury at the time of termination and sought light duties. As a consequence of his termination the applicant was forced to seek Centrelink assistance in the form of a disability support pension. As the applicant had already worked part of the financial year his earnings were over the Centrelink limit and Centrelink are now seeking that the applicant repay some $6494. 30 The applicant never received any formal correspondence concerning his termination and his letter of offer of employment had not been signed by the applicant. 31 The applicant also submitted that what also must be considered is the conflict between the contract of employment and the family connection. This made it hard for the applicant to separate the two. The applicant was concerned about taking action against his father. 32 It was the respondent's submission that the applicant had not provided a sufficient reason for the out of time application to be accepted. At no time until May 2004 was the respondent put on notice concerning a claim for unfair dismissal. 33 The applicant had ample opportunity to discuss his termination with his father as the applicant admitted to such opportunities. 34 The onus lies on the applicant to prove to the Commission that there is a "sufficient reason " to accept a late application and discretion lies with the Commission to allow an out of time claim, if that is so proved. 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. 35 An authoritative judgement on the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 where 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 9usually 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 ids oppressive , even "cruel", to a defendant to allow an action to be brought 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 judgement 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 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 an extension. 36 This application is significantly out of time and the Commission is obliged to consider the length of the delay in deciding whether to exercise its discretion. In my view the longer the period beyond the 21 days the greater the difficulty the applicant has to have their application accepted. In this case the delay amounted to over 14 months and in my view nearly fatal to the claim. The reasons given by the applicant for the delay were ignorance of the law and the difficulty of separating his personal feelings for his father from the business. It is clear in my view that the applicant had and took the opportunity to speak with his father post his termination. He stated in response to questions from the Commission that he raised the subject of his termination with his father but his father would not discuss the subject at all. It is therefore clear that his father was aware of the applicant's termination. 37 Whilst the applicant said that he went to see his solicitor in March 2004 and directed his solicitor to take action for unfair dismissal against the respondent ,there was no reason given to the Commission for the delay in not filing the claim until 19 May 2004. That application covered only his period of employment that ended in March 2003. It made no mention of his one day of employment in November 2003. Even if the Commission took that one day of employment into account , his application is still out of time. 38 Whilst the applicant stated that at the time of termination he was suffering from an injury sustained at work , he had not filed a claim for workers compensation. 39 The hardship that would be experienced to the applicant if his application was not accepted would be that he could not be awarded monetary compensation if successful in the substantive case. The Commission was told he now had a debt with Centrelink. Even if he was successful the most he could be awarded would be for the brief period he last worked for the respondent, some 49.5 hours. He would also have to argue as to whether his employment was subjected to a three month probationary period. 40 The obvious hardship that the respondent would experience would be the inability to bring direct evidence from the then owner of the respondent Mr. Chris Brennock who unfortunately died in December 2003. The respondent could well look at such evidence as being critical for the success of their case. 41 The common hardship both parties would have to face would be that of preparing a case based partly on the memories of prospective witnesses. One of the difficulties both witnesses faced in this preliminary case was trying to answer questions both honestly and accurately. I found it difficult to obtain accurate dates from the applicant who had to go back in his memory over twenty months. 42 It was the respondent's case that when the applicant did not turn up for work in late January 2003, his father and step mother went to his home to find out where he was. The respondent finally sent a termination letter stating abandonment of employment dated 6 February 2003. Post that date as agreed by the applicant he spoke with his father. I did not find any evidence that the conduct of the respondent inhibited or prevented the applicant from filing the application within time. Conclusion 43 After considering all the evidence that has come before me I do not believe that the applicant has discharged the onus of establishing a "sufficient reason " for failing to lodge his claim of alleged unfair dismissal within the prescribed time period of the Act. 44 It follows that the Commission declines to exercise its discretion , pursuant to s85(3) of the Act, such as to permit IRC 2902 of 2004 to be accepted for determination. 45 The application is dismissed and the proceedings are concluded accordingly. D. RITCHIE COMMISSIONER 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.