Industrial Relations Commission of New South Wales CITATION : Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 APPELLANT Neil Francis Smith PARTIES : RESPONDENT New South Wales Police Service FILE NUMBER: IRC 1564 of 2004 CORAM: Wright J President; Harrison DP; Redman C Appeal - Unfair dismissal - Police officer resigned from Police Service in 1994 - Constructive dismissal alleged - Reinstatement claimed - Out of time application - Extension of time sought - Additional evidence on appeal - Principles on appeal - Leave to appeal granted - Appeal dismissed. CATCHWORDS : Practice and procedure - Extension of time - Appeal - Unfair dismissal - Police officer resigned from Police Service in 1994 - Constructive dismissal alleged - Reinstatement claimed - Out of time application - Extension of time sought - Additional evidence on appeal - Principles on appeal - Leave to appeal granted - Appeal dismissed. LEGISLATION CITED : Industrial Relations Act 1996 s 85 s 191 Allied Express Transport Pty Ltd v Emerton [2003] NSWIRComm 133 Antonakopoulous v State Bank of New South Wales (1999) 91 IR 385 Berg and Others and Sanstowe Pty Limited t/as D Williams Contractors [2002] NSWIRComm 110 Big W Discount Stores v Donato (1995) 58 IR 239 Bowden v BHC Stokes and Workcover Authority [2001] NSWCC 185 Brady v Kennedy t/as Sardines (1999) 91 IR 258 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Caine and State Transit Authority of NSW PR941069 (AIRC, Cargill C, 27 November 2003) Colleen Joy Schwager v Church Stores Pty Ltd (Matter No IRC 711 of 1999, Cambridge C, 4 November 1999, unreported) Dorothy Jonns Beauty and Slimming Centre Pty Ltd and Goode [2001] NSWIRComm 34 CASES CITED : Fellows v Knight Frank (NSW) Pty Ltd [2003] NSWIRComm 41 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 51 IR 186 Herron v McGregor (1986) 6 NSWLR 246 Hurrell and Queensland Cotton Corporation Limited (2002) 125 IR 145 Law Society of New South Wales v Marcus Stephen Boland [2001] NSWADT 35 Martin v Nominal Defendant (1957) 74 WN(NSW) 121 Maunder and Rane Brothers Pty Ltd t/a ABD Poultry (Ashbury C, Qld Industrial Relations Commission, B699 of 2002, 10 March 2003, unreported) National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 Nelson and River Boat Bungalow Back Packers PR937690 (AIRC, Simmonds C, 10 September 2003) Police Service of New South Wales v Batton (1999) 98 IR 154 Rea and Challenge Co-operative Ltd PR937508 (AIRC, Thatcher C, 5 September 2003) Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Smith and NSW Police Service [2004] NSWIRComm 44 HEARING DATES: 08/20/2004 DATE OF JUDGMENT: 10/28/2004 APPELLANT Neil Francis Smith representing himself LEGAL REPRESENTATIVES: RESPONDENT Mr R Reitano of counsel Legal Services New South Wales Police (Mr E Lynch) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President HARRISON DP REDMAN C Thursday 28 October 2004 MATTER NO IRC 1564 OF 2004 NEIL FRANCIS SMITH AND NEW SOUTH WALES POLICE SERVICE Application by Neil Francis Smith for leave to appeal and appeal against a decision of Justice Boland given on 11 March 2004 in Matter No IRC 6948 of 2003. DECISION OF THE COMMISSION [2004] NSWIRComm 311 1 This is an application for leave to appeal and appeal against the decision of Boland J of 11 March 2004 in which his Honour declined to exercise the discretion pursuant to s 85 of the Industrial Relations Act 1996 to admit the application by the appellant for relief from unfair dismissal out of time: Smith v NSW Police [2004] NSWIRComm 44. 2 The appellant, Neil Francis Smith, was employed as an officer of the New South Wales Police Service. The appellant resigned from that employment in August 1994 in a state of depression and anxiety, which he contended arose as a result of his treatment by other officers consequent upon a stand he took against misconduct and corruption in the Police Service. 3 The appellant contends that he was constructively dismissed and was prevented from making an application for relief as he was initially unaware of any right to do so; and further that he had been on constant medication for the treatment of Post Traumatic Stress Disorder, anxiety, depression and panic attacks. DECISION AT FIRST INSTANCE 4 In the decision of Boland J consideration is undertaken of authorities such as Hurrell and Queensland Cotton Corporation Limited (2002) 125 IR 145; Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 51 IR 186; Martin v Nominal Defendant (1957) 74 WN(NSW) 121; Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3; Brady v Kennedy t/as Sardines (1999) 91 IR 258 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. His Honour said, after referring to the appellant's contention that he had been unable to bring the proceedings earlier than he had because of " 'serious incapacity' due to mental illness and ignorance of remedies available": 20 The applicant's ignorance of the remedies available to him in relation to unfair dismissal derives from the fact that he considered that he had resigned from the NSW Police and, therefore, there was no question of him being able to bring a claim for unfair dismissal. It appears, however, that at some time between 1994 and 2003, the applicant became aware of the concept of constructive dismissal. He believed that because of the alleged harassment and intimidation he and his wife suffered at the hands of other police officers - especially during the early part of 1994, his consequent anxiety and depression and the fact that he was offered no counselling or support by his employer, that he had no alternative but to resign. These circumstances, he submitted, amounted to constructive dismissal. 21 In addition to his ignorance of a potential remedy the applicant submitted that he was incapacitated due to mental illness from 1994 to 2003 and that this affected his ability to consider and pursue a remedy for the alleged unfair dismissal. In support of this contention Mr Smith relied on a decision by Arbitrator Bell in contested proceedings in the Workers Compensation Commission (unreported, matter no. WCC 11670-2003, 24 December 2003) where the Tribunal accepted that the applicant's experience in 1994 caused him stress, that the applicant sustained an injury, namely panic/anxiety disorder, arising in the course of his employment with the respondent and that "the applicant was partially incapacitated from 8 September 1994 to 24 February 2003." ... 28 The applicant has contended that he was forced to resign and that this came about because he was considered by other police officers as a pariah due to his campaign against police corruption. The applicant contended that psychologically he was unable to deal with this treatment and was left with no option but to resign. Further, that the NSW Police effectively stood by and let him resign without the benefit of any support or counselling. It is true that the applicant will bear the onus of proof in any proceedings but in order to properly defend the claim it will not be simply a matter for the respondent of digging out old files. The respondent would need to locate relevant officers who may have had some connection with the applicant's complaint and the respondent may no longer employ some or all of these persons. If they were to be located they could be called upon to recollect events and conversations that are now nearly ten years old and which related to allegations by the applicant that were general in nature, for example, "The contempt which other officers displayed towards me, continued and I became very depressed and anxious." I consider the respondent would be seriously prejudiced if the out of time application was accepted. 29 I have given careful thought to the competing considerations in this matter and I have come to the view that, on balance, I should not accept the applicant's application. In particular, the prejudice likely to be caused to the respondent by the period that has elapsed since the resignation of the applicant outweighs those considerations in favour of the applicant. I order that the application in this matter is dismissed. 5 His Honour also said he was prepared to proceed on the basis that "it could not be said that the applicant [had] no prospect of success", adding however that: 23 It seems to me that if the applicant in these proceedings had been late in filing his unfair dismissal claim by only a few weeks, or even a few months, given the reasons for the late filing, there would have existed reasonable grounds to exercise discretion in favour of accepting his out of time application. ... and 24 This is not to say I have no reservations about the merits of the applicant's application. Firstly, whilst the applicant contended that it was his mental state that contributed to his failure to seek a remedy, I note that his mental state was not such as to inhibit him pursuing a very vigorous (but largely unsuccessful) campaign with politicians and the media in relation to his allegations of corruption in the Police Service. Secondly, on 17 February 2004 the applicant amended his application to seek reinstatement as well as compensation notwithstanding the fact that Arbitrator Bell [sitting in the Workers' Compensation Commission] recorded in his decision that a psychiatric specialist who examined the applicant did not believe the applicant could function as a police officer due to his alcohol dependence. Thirdly, I am not entirely convinced that the applicant's objective in making his application is confined to seeking relief for unfair dismissal but that the applicant sees it as an opportunity to vindicate his long-standing campaign against police corruption. 25 The other matter to be considered is that it is nearly ten years since the applicant resigned his employment. The Commission must consider the hardship that may be caused to the respondent if the out of time application is not rejected. ... CONTENTIONS OF THE PARTIES 6 The appellant, appearing on his own behalf, submitted that leave to appeal should be allowed and the appeal upheld on the basis that Boland J did not appropriately consider the conduct of the employer or hardship to the appellant in applying the tests set out in s 85(3) of the Act. The appellant further submitted that Boland J had erred in considering the prejudice to the respondent rather than the term "hardship" which is the relevant expression used in s 85(3)(b) of the Act. 7 The appellant took exception to the view expressed by his Honour that "if he could write letters of complaint he could put in an application for unfair dismissal". The appellant emphasised that it was not until 2002 when he came under the treatment of Dr Soraya Felix that he became capable of taking action to retaliate against his tormentors. 8 We note the appellant's submission that on 24 December 2003 the New South Wales Workers' Compensation Commission held that he had sustained psychological injuries whilst on duty at Cabramatta Police Command in 1994, continuing until 2003 and beyond. 9 The appellant sought to bring additional evidence to further explain the circumstances suffered by himself and his wife subsequent to the termination of his employment. 10 The appellant argued strenuously that his Honour had considered irrelevant and inappropriate case law in coming to his decision. In particular, the appellant put that the judgment of the High Court of Australia in Brisbane South Regional Health Authority v Taylor was an inappropriate authority as it dealt with the Queensland Limitations of Actions Act 1974, which he characterised as a far less flexible and generous statute that s 85(3) of the Industrial Relations Act. 11 The appellant further submitted that reliance by his Honour upon Herron v McGregor and Others (1986) 6 NSWLR 246 was also inappropriate as that matter dealt with what he described as the "infamous" Chelsmford Private Hospital matter and that the conclusions came from consideration of civil and criminal law, which he put are foreign to the requirements of s 85(3) of the Act. 12 The appellant submitted that a proper and full application of the decisions of the Full Bench of this Commission in Hurrell and Others v Queensland Cotton Corporation Limited and Police Service of New South Wales v Batton (1999) 98 IR 154 would lead to the exercise of the discretion to allow his application to proceed out of time and also to success in the application itself. 13 The appellant referred to a number of other decided cases which he asked to be taken into consideration. They included Berg and Others and Sanstowe Pty Limited t/as D Williams Contractors [2002] NSWIRComm 110; Colleen Joy Schwager v Church Stores Pty Ltd (Matter No IRC 711 of 1999, Cambridge C, 4 November 1999, unreported); Tracey Robin Nelson and River Boat Bungalow Back Packers PR937690 (AIRC, Simmonds C, 10 September 2003); Trevor Rea and Challenge Co-operative Ltd PR937508 (AIRC, Thatcher C, 5 September 2003); Milton Clive Caine and State Transit Authority of NSW PR941069 (AIRC, Cargill C, 27 November 2003); Law Society of New South Wales v Marcus Stephen Boland [2001] NSWADT 35; Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298; Geoffrey Maunder and Rane Brothers Pty Ltd t/a ABD Poultry (Asbury C, Qld Industrial Relations Commission, B699 of 2002, 10 March 2003, unreported); Bowden v BHC Stokes and Workcover Authority [2001] NSWCC 185 and Big W Discount Stores v Donato (1995) 58 IR 239. 14 Mr Reitano of Counsel, appearing on behalf of the respondent, opposed the introduction of further evidence. Counsel also submitted that there was no appellable error in the determination of his Honour. CONSIDERATION AND CONCLUSIONS 15 The appellant is plainly a person of strong principles who understands and respects the law. It seems that he has suffered for his principles and been said to be a whistleblower by those from whom he was entitled to expect support. 16 The relevant statutory provisions are ss 85 and 191 of the Industrial Relations Act which relevantly state: 85 Time for making applications (1) An application in this part must be made no later than 21 days after the dismissal of the employee. … (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. and 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Note . The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders. 17 The appellant demonstrated that he had carefully researched a number of decided cases in this and other jurisdictions dealing with the acceptance of applications out of time. 18 An important consideration in these proceedings is the statutory scheme relevant to appeals of the present kind. First, it is important to note, as has been accepted many times in appeals in this Commission, that the statutory scheme as to appeals under the present legislation gives primacy to first instance decision-making in a manner not earlier found in industrial legislation in this State: see, for example, Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, Dorothy Jonns Beauty and Slimming Centre Pty Ltd and Goode (2001) 103 IR 117, Fellows v Knight Frank (NSW) Pty Ltd (2002) 124 IR 206, Allied Express Transport Pty Ltd v Emerton (2003) 125 IR 204, National Australia Bank Ltd v Cassino [2002] NSWIRComm 241. 19 Further, the Full Bench sitting on appeal should not substitute its own views as to a decision which was reasonably open at first instance: Antonakopoulos v State Bank of New South Wales. Particularly is this so when, as here, the appeal is from the exercise of a discretion (see, for example, National Australia Bank Ltd v Cassino at [9] and the cases there cited). 20 We are of the view that leave to appeal should be allowed as this matter raises the application of s 85(3) of the Industrial Relations Act in a timeframe not previously encountered in a very unusual set of factual circumstances. Leave to appeal is therefore granted. 21 It is relevant to observe that Boland J accepted and acted upon a factual matrix which involved the acceptance of a number of factors in favour of the appellant; for example, that he had an arguable case in terms of unfairness in his resignation being a constructive dismissal and the arguably constructive dismissal might have been unfair. His Honour also rejected a jurisdictional issue raised by the respondent Police Service that there was no jurisdiction to hear the appellant's claim because his alleged dismissal preceded the enactment of the Industrial Relations Act in 1996 (the respondent has not challenged that ruling in the appeal). 22 The evidence that the appellant sought to place before the Commission on appeal related to (as the appellant said in his submissions, it "goes directly to the heart of the matter"): Why I waited ten years to lodge an application. It shows that in the period of intervening time when I resigned from the Police Service and eventually came to the Industrial Relations Commission, there was much happening. Those documents were merely an example of some of the things that we had to cope with and it all comes down to section 85(3) again - where there is a good enough reason or a sufficient reason for the delay. The appellant added that "there is very good reason why it [the delay in making the application] has been nine years". He said that he was mentally ill at the time and his wife was under great pressure; that he had spoken to a member of Parliament (who had since died) "and this is the first opportunity in a half sane manner that I have had to bring an action against my tormentors, as I see them. This is so terribly much in the public interest". 23 We do not consider that the additional evidence which the appellant seeks to adduce and rely on in the appeal would, if admitted, add to or affect the nature of the case the appellant put before Boland J at first instance. Although the further evidence adds to the extent of the evidence available to the appellant and casts it in perhaps a more stark and dramatic way, we do not consider that it adds to the substance of the case considered by Boland J. We therefore do not consider that it meets the criteria set out in s 191(2) of the Industrial Relations Act. The application that further evidence should be received under that provision should be rejected. 24 We do not consider that Boland J acted on incorrect principles in considering the particular circumstances of the matter before him or that the authorities referred to by his Honour were inappropriate for consideration in the proceedings at first instance. Further, the reference by his Honour to the judgment of the Court of Appeal in Herron v McGregor cannot be criticised. A proper reading of his Honour's decision in that respect shows that reference to that judgment is limited to passages which refer to the public interest considerations in, and practical implications of, very late applications being accepted and considered many years after relevant events have occurred. 25 An application for relief from unfair dismissal pursuant to Part 6 of Chapter 2 of the Act has time of the essence. The initial obligation is upon the applicant to file his or her application within 21 days. The discretion to be exercised by the Commission under s 85(3) must be viewed within the framework of the legislative intention expressed by that requirement. 26 In considering the reason for delay, hardship to both applicant and respondent and the conduct of the employer, there may come a point when the length of delay outweighs in a substantial way other considerations. This is such a matter. Further, we do not consider that Boland J erred in the use of the word "prejudice" at para [29] of his judgment rather than using the term in s 85(3), "hardship". 27 Close examination of the reasons of Boland J and the thoughtful case mounted by the appellant on appeal before the Full Bench does not in our view demonstrate that Boland J committed any error of principle or approach nor has it been shown that his Honour's decision was not reasonably open at first instance, in terms of the applicable principles which bind the Full Bench in hearing appeals. Notwithstanding the considerable sympathy we have for the appellant we do not consider that we are able to uphold the appeal. 28 Accordingly, although leave to appeal is granted, the appeal 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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