Industrial Relations Commission of New South Wales CITATION: Samaan v Astra Zeneca Pty Ltd [2005] NSWIRComm 1090 APPLICANT Aneis Michael Samaan PARTIES: RESPONDENT Astra Zeneca Pty Ltd FILE NUMBER(S): 757 of 2005 CORAM: McLeay C CATCHWORDS: Termination of employment - unfair dismissal - breach of code of conduct - out of time - conflicting statements - insufficient reason for lateness - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 CASES CITED: Gorrell v Unwatec Pty Ltd (IRC 99/1700) Zerafa v Fairfield City Council [2004] NSWIRComm 103 at [90[ HEARING DATES: 06/14/2005 DATE OF JUDGMENT: 06/14/2005 APPLICANT: Ms T Gray, solicitor Legal Services Group LEGAL REPRESENTATIVES: RESPONDENT: Mr A Britt of Counsel SOLICITORS Allens Arthur Robinson DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 14 June 2005 Matter No IRC 757 of 2005 Aneis Michael Samaan and Astra Zeneca Pty Ltd Application by Aneis Michael Samaan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1090 1 This is an application by Aneis Michael Samaan against Astra Zeneca Pty Ltd re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). Mr Samaan was employed as a medical sales representative from 19 April 2004 until 15 December 2004. He was dismissed for allegedly breaching the respondent's Code of Conduct. 2 Mr Samaan had not been the subject of any performance issues prior to the issue which resulted in his dismissal. His role was to market and sell the respondent's prescription pharmaceutical products to general practitioners ("GPs"), by visiting GPs at their practices and, from tine to time, visiting conferences and other industry events attended by the doctors. The respondent described the sales representatives' role as being responsible for developing and maintaining the company's relationship with GPs and the medical profession generally. 3 During one such industry event, it was alleged that Mr Samaan was smoking marijuana. This was reported to the company only after a work colleague, who had witnessed the event, had further concern about Mr Samaan's behaviour and its effect on his work performance at another industry event the following month. The work colleague did not report Mr Samaan's conduct after the initial event, hoping that it was a one-off situation. It was only after a second incident that he spoke to the respondent's Employee Assistance Program ("EAP") provider and then, with the encouragement of the EAP provider, to his line manager. 4 Mr Samaan strenuously denied any misconduct on his part, relying on numerous occasions of positive feedback from his field coach, manager and sales training staff, the results of his studies as well as his personal background and family upbringing. 5 As the application to the Commission had been filed out of time, the matter was listed for hearing of the jurisdictional issue and the substantive case today. Ms Gray for the applicant opened with submissions in favour of the application being accepted out of time in accordance with section 85(3). Mr Britt for the Respondent provided and spoke to comprehensive written submissions on the jurisdictional issue. 6 The relevant legislation is as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) ... (3) 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 . 7 As is well established by the Commission, the time limits are set by the legislation and the discretionary power to accept an application out of time is dependent on the applicant establishing that there is sufficient reason to do so. It is not automatic. In this case Mr Britt argued that the applicant did not fulfil the onus upon him. 8 Mr Britt cited Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 where the Full Bench held at [12]: 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 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. 9 While it was not argued that Mr Samaan was ignorant of the 21 day time limit, it was submitted that special consideration should be given to the time of the year when he was dismissed, being shortly before Christmas, and the shock he felt on being accused of being a drug user. The respondent submitted that both these submissions were contrary to other documents before the Commission. The application shows, in response to question 34 that the applicant attended upon his solicitor "soon after he was dismissed", contrary to Ms Gray's assertion that he was too shocked to deal with it. The applicant's affidavit in reply states that he has smoked marijuana ("but only whilst I was in Holland, where it is legal") which is contrary to his claim of being shocked at being accused of smoking marijuana. 10 My concern is that these are not the only conflicting statements provided to the Commission. The application infers representative error in the late filing of the claim. There was no submission made today in that regard. 11 I agree that the applicant's shock was not sufficient to cause him to file his claim almost two months after his dismissal when he was able, in accordance with the application, to provide a written response to his employer at the time that the allegations were put to him and to visit his solicitor soon after the dismissal. The consideration of his written response was part of the investigation carried out by the respondent when the allegations were made known to them and prior to a decision being made to terminate Mr Samaan's employment. Against this is a contrary, and unsubstantiated, submission that the respondent did not carry out an investigation. 12 For the respondent, it was submitted that there was no reason not to rely on the evidence of Mr Samaan's work colleague who had raised the allegation against him. I agree based on the witness statements provided to the Commission that the work colleagues' allegations appear genuine. On the contrary there are inconsistencies in the documents provided in regard to the applicant's history of marijuana use. 13 Ms Gray for the applicant submitted that Mr Samaan had not been given sufficient information in regard to the allegation before him to respond to it adequately. I reject this submission on the basis of the information provided to him and in particular to his written response which acknowledges that the issues of marijuana smoking were raised squarely with him and the breaches of the respondent's code of conduct were also squarely raised. As to the opportunity to seek legal advice, the meeting held between Mr Samaan, the Regional Sales Manager and the Human Resources Manager was held on Tuesday 14 December. The notice of the meeting was given on the previous Friday although the purpose of the meeting was not provided to the applicant until he arrived at the meeting. A second meeting was held on 15 December at 4pm following the receipt of Mr Samaan's written response. There was no evidence of any request to delay either of the meetings in order to seek legal advice or assistance, although it was available to Mr Samaan to do so. The respondent acknowledged that Mr Samaan's performance in other areas was good and that the concern was limited to the allegation that he smoked marijuana at work, that being a serious offence which breached the respondent's code of conduct and was in fact a criminal offence. 14 The Full Bench in Hurrell referred to the applicant's prospects of success. While the witness statements are not yet before me in evidence they were referred to by both the applicant's and the respondent's representatives in their submissions without objection and so I have referred to them in part. It would appear that the applicant's prospects of success are insufficient to satisfy the requirement of s85(3), given the seriousness of the allegations against him, the investigation by the respondent, the clear requirements of the respondent's Code of Conduct and the short period of his employment. 15 The degree of seriousness of the alleged behaviour, in my view, is compounded by the particular circumstances of the respondent's industry of prescription pharmaceutical products and the applicant's role in developing the company's relationship with the medical profession. The illegal use of drugs is not conduct that could be condoned, or be seen to be condoned, by the respondent. 16 It was submitted that Mr Samaan's reputation had been maligned and that his good name means everything to him. In considering this aspect of potential hardship to the applicant I am mindful of the further submission that he is no longer seeking reinstatement or re-employment and that he has achieved employment elsewhere in the meantime. I refer to the decision of Sams DP cited by Mr Britt in Gorrell v Unwatec Pty Ltd (IRC 99/1700) in which he said at p17: There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, emotional or financial...In my view, s85(3)(b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing varying degrees of hardship, nevertheless, are able to file within time. 17 In all, the reason for the delay has not been well made out. The length of the delay being 31 days beyond the time allowed (allowing for the Christmas-New Year period in accordance with Rule 136) is significant: Zerafa v Fairfield City Council [2004] NSWIRComm 103 at [90]. There is no evidence of hardship to the applicant beyond his apprehension about his reputation. In fact he is currently in employment. The employer has not conducted itself in any way that would give rise to any concern by the Commission. 18 I am satisfied that there is not a sufficient reason to accept the application out of time. The application is dismissed. *** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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