Graham v Micromex [2001] NSWIRComm 123

Industrial Relations Commission of New South Wales

CITATION : Graham v Micromex [2001] NSWIRComm 123 PARTIES : Heather Ann Graham Micromex Marketing Services FILE NUMBER: 2821 of 2000 CORAM: Harrison DP CATCHWORDS : Application to accept out of time - principles discussed - application refused LEGISLATION CITED : Industrial Relations Act 1996 Spear v St George Private Hospital and Medical Centre (47 AILR 5-234) Jellett v Phillps Compositors (47 AILR 5-234) CASES CITED : Thomas v Repco Auto Tech (46 AILR 5-212) Bagnet v Ian Liddell Pty Ltd (48 AILR 5-265) Adam-Smith v Australian Meat Holdings (48 AILR 5-274) HEARING DATES: 05/07/2001 DATE OF JUDGMENT: 06/08/2001

THE APPLICANT Ms Heather Graham

LEGAL REPRESENTATIVES: THE RESPONDENT Mr R Ford Solicitor of Aubrey Brown Partners

JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 8 June 2001 Matter No IRC 2821 of 2000

HEATHER GRAHAM & MICROMEX MARKETING SERVICES

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE APPLICATION OUT OF TIME 1 The application in this matter was filed out of time. The applicant seeks an exercise of discretion pursuant to s85(3) of the Industrial Relations Act 1996 ('the Act') to accept the application out of time. This is opposed by the respondent. 2 The matter was listed for hearing of the application to accept out of time as a threshold issue on 7 May 2001. Ms Heather Graham, the applicant, appeared on her own behalf. Mr R Ford, solicitor of Aubrey Brown Partners appeared on behalf of Micromex Marketing Services, the respondent. 3 Ms Graham provided an affidavit of evidence (exhibit 1) which she confirmed under oath and was subject to cross examination by Mr Ford. Mr Ford relied upon the evidence deduced from Ms Graham. 4 Ms Graham commenced employment with the respondent on 31 January 2000 as an Administrator/Marketing Assistant responsible for general office duties and assisting the Managing Director in sales and marketing. The letter of appointment, attached to the application, states that the appointment was offered for a trial period of three months. 5 The employment was terminated on 12 May 2000 and the application in this matter filed on 21 June 2000. 6 In preliminary hearings before Mr Commissioner Cambridge on 7 September 2000 it was established that the matter could not be resolved by agreement between the parties and the applicant sought an opportunity to consider her position. The proceedings were stood over subject to advice from the applicant within 28 days. The matter was subsequently relisted before Cambridge C on 22 November 2000 on advice from the applicant that she wished to press her application. Directions were given to bring the threshold issue of the application to accept out of time to hearing. 7 Section 85 of the Act states: 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. … … (3) The Commission may accept an application this 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