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 (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 8 In exhibit 1 Ms Graham set out the circumstances giving rise to delay in the following terms: 1. Under Section 85/3 the reasons for my delay in submitting my application is that I received conflicting information from A.S.U. Clerical and Administrative Branch of the NSW Clerks Award and referral to NSW Services Branch - The NSW Services Branch did not respond until 30/05/2000. (See Attachment A - Statement from Mr Graham Rowsell, Organiser, ASU Clerical & Administrative Branch.) 2. I had pressing medical priorities, such as medication for Thyroid Cancer, Specialist consultations and a Specialist Medical Scan at Royal North Shore Hospital requiring abstinence from medication for 6 weeks, resulting in anxiety and depression. This resulted in subsequent irradiation treatment and semi isolation for a period of four days and subsequent CT scan. See attached Instruction for follow up Radioiodine Scan - Attachment B. See Thyroid Tumour Survey - Attachment C. 3. I had pressing economic adjustments involving my visiting Centrelink to apply for assistance eg. Parenting Payment, Family Allowance which included 2 interviews of approx. 1 hour each and 2- 3 hours preparation time prior to each interview, this was finished on 23rd of May. 4. I commenced searching for other jobs on or about 07/06/2000 and I have lodged 4 (four) applications between 07/06 and 26/06/2000. See Attachment D. 5. I had concerns regarding my inability to pay for a Solicitor to advise me as to my rights. 9 Ms Graham further deposed that hardship arises pursuant to s85(3) of the Act as subsequent to the termination of her employment she had difficulty finding work. She deposed that she found some casual work, and from 20 November 2000 has been engaged in a permanent part-time position of some 20 hours per week, earning approximately half the salary of her former employment. Ms Graham put that this reduced income has placed hardship on her personal life as a sole parent of two children, aged 15 and 18 years of age. 10 In addressing s85(3)(c), conduct of the employer, Ms Graham contended that the employer unjustly criticised her performance in the workplace in a deliberate attempt to legitimise the decision to dismiss her. She further asserts that the respondent made no attempt to address performance issues during the course of her probationary period, nor sought an extension of it. 11 It is Ms Graham's contention that the respondent terminated her employment on 11 May 2000, 10 days subsequent to the completion of her probationary period on 1 May 2000 due to her medical condition. 12 In a chronology of post-termination events attached to exhibit 1 Ms Graham states that she spoke with the Australian Services Union, Clerical Division (ASU) at approximately 4.00 pm on 19 May 2000 to seek their advice and assistance. On 23 May 2000 she had an appointment at Centrelink concerning family allowance and parenting payments. On 24 and 29 May 2000 she attempted contact with Mr Foley of the ASU, which was unsuccessful; and on 30 May Mr Foley informed her that the ASU would not pursue her claim as he was of the view that there was no case and no chance of success. 13 Ms Graham deposed that from 30 May to 13 June 2000 she researched legal precedents on the internet, had several informal discussions with friends and family members regarding the viability of her claim, and pursuit of it independent of union representation prior to consulting Elizabeth Ellis, solicitor, on 14 June 2000. It is Ms Graham's evidence that the advice from Ms Ellis was that her case was uncertain. Ms Graham then completed the application herself and filed it on 21 June 2000. 14 In cross examination Mr Ford took Ms Graham to her application wherein she sets out the circumstances leading to and surrounding the conclusion of her employment. Ms Graham confirmed that in early May 2000 she was advised by treating medical practitioners that she would need to undergo certain medical procedures which required her to function without her usual thyroid medication. On receipt of this information, she conveyed this to her employer who was, she put, at first accepting and understanding of the need for some limited absenteeism and the possibility of her doing some work at home. Ms Graham put in her application that the employer then put to her that in view of the end of the trial period, which had elapsed some nine days prior, he wished to discuss issues of performance and his disappointment with the level of progress. She confirmed that she offered to resign which the employer declined, preferring further discussion the next day. 15 On 10 May 2000 further discussion took place between Ms Graham, the employer and his wife, also engaged in the respondent's business. Ms Graham made a further offer to resign, which she put the employer was reluctant to accept preferring her to "try harder". Ms Graham stated in her application that she perceived the criticism to be unjustifiably harsh and denied that "a general lack of initiative", as claimed by her employer, was a reasonable summation of her performance. 16 Ms Graham confirmed in cross examination that she had visited her general practitioner on the afternoon of 11 May 2000 and was diagnosed as suffering "acute reactive depression"; and was given a certificate excusing her from work from 12 May to 19 May 2000. Ms Graham confirmed that it was her intention to continue working to honour her commitment to the business, however if the office climate became too stressful and started to affect both her work and her emotional health she would take time off in accordance with the doctor's certificate. 17 Further in cross examination Ms Graham confirmed that on Friday 12 May 2000 she again offered to resign from her employment following an exchange between herself and her employer concerning work performance and issues described by her as the difficulties of office politics inherent with working with a married couple in a confined work space. Ms Graham confirmed that the employer again declined to accept her resignation, leaving the decision to her. She confirmed that she then stated she was not happy with the atmosphere in the office, was going home and would probably e-mail a letter of resignation from there. She offered the employer the doctor's certificate which was declined as unnecessary in the circumstances. The employer then replied that there was no need to do that and would make up her termination pay which she could take with her. The pay was made up, Ms Graham cleaned out her desk and work area and left without waiting for her pay which she asked to be mailed to her. SUBMISSIONS 18 Mr Ford submitted that the delay in filing the application was without good reason and should not give rise to an exercise of discretion by the Commission to accept the application out of time. Mr Ford put that a primary cause of delay was no more than the applicant's indecision. Mr Ford noted that despite health difficulties the applicant was able to pursue and keep appointments with Centrelink and other social welfare agencies, and did pursue alternative employment. Mr Ford further noted that the applicant was not prevented from contact with officials of the ASU and a legal representative during the 21 days for filing of the claim which expired on 2 June 2000. 19 Mr Ford submitted that the hardship put by the applicant is not sustained and that given her offer of resignation on three consecutive dates, the probationary nature of the employment and the length of employment, the application was poorly grounded and accordingly did not support an exercise of discretion. 20 Mr Ford relied upon a number of decided cases to support his submission that exercise of discretion pursuant to s85 of the Act is not exercised lightly and that the circumstances of ignorance of the law or emotional upheaval are not grounds upon which discretion will be exercised. 21 Mr Ford relied upon the decision of Deputy President Sams in the matter of Spear and St George Private Hospital and Medical Centre (47 AILR 5-234(9)) in which the application was filed 13 days out of time. In refusing to accept the application out of time Sams DP held that at the time of termination the applicant did not regard the termination as unfair as there was no protest. The decision of Commissioner O'Neill in Jellett and Phillps Compositors (47 AILR 5-234(10)) where O'Neill C refused to accept an application out of time on the substantive merits of the matter. The decision of Commissioner Tabaa in Thomas v Repco Auto Tech (46 AILR 5-212(32)). The decision of Commissioner Cambridge in Bagnet v Ian Liddell Pty Ltd (48 AILR 5-265(37)). In both Thomas and Bagnet the applications for exercise of discretion were refused where the grounds advanced for delay were emotional upheaval and ignorance of the time limit. 22 Mr Ford also relied upon the decision of the Commission as presently constituted in Adam Smith v Australian Meat Holdings Pty Ltd (48 AILR 5-274(21)) wherein the grounds for refusal of exercise of discretion was the failure of the applicant to be diligent in pursuit of the application where it was believed by the applicant that a union was acting. 23 Mr Ford submitted that the reactive anxiety and depression advanced by the applicant is not sufficient reason to ground an application for extension of time in the circumstances of this matter as the applicant had been active in other matters of obviously higher priority to her during the 21 day period following the termination of her employment. 24 In reply to the submissions of Mr Ford, Ms Graham made the following submissions: "In response to Mr Ford, I would like to make the point that anxiety and depression does not signify a lack of activity and it does not mean that I forgo the possibility of conducting myself throughout my normal activities and my first responsibility is to my two children. I have to organise my finances as a single parent, that is very important regardless of whether I am suffering from anxiety or depression. I cannot afford the self indulgence not to think about my children. Another point that I would like to make in response to Mr Ford, is that I did not have a long conversation with Luke Foley, it was a brief conversation where he refused to waste the ASU funds on pursuing a case he thought they could not win. An another point in response, Mr Ford states that I had strong views in regarding the pursual of this industrial relations matter, that was incorrect. I did not have strong views, I had major uncertainties and I wanted to clarify them and the way that I clarify my uncertainties is by researching different possibilities and looking to others with more expertise to clarify my own opinions. The filing delay of the application was due to a complexity of matters and foremost amongst those was the fact that I was evaluating my health situation against the benefit of pursuing the industrial relations matter. Especially in light of the fact that I only worked there for 3 1/2 months. And I would lastly like to mention that my suggestion that I might resign to Fred Liackman was given in response to the atmosphere in the office which was very hostile and it was becoming worse rather than my personal health condition." CONSIDERATION 25 The applicant asserts hardship in economic terms consequent on loss of employment. Hardship thus defined presupposes success in the application as the applicant's position is not improved in the event she fails in substantive proceedings. In fact future in substantive proceedings could most probably place the applicant in a worse position. This necessarily gives rise to a consideration of the prospects of success by the applicant which on her evidence of events must be considered tenuous at best. 26 Section 85(3)(b) also requires consideration of hardship to the respondent who would be put to further expense of defending the application if admitted out of time. 27 Section 85(3)(c) requires a consideration of the conduct of the employer. On the evidence of the applicant there is nothing in the conduct of the employer to support an exercise of discretion. The evidence is that the employer refused an offer of resignation on three occasions, acting to terminate the applicant's employment in circumstances pressed by the applicant. The applicant made no objection to termination at the time of the event being accepting of it by her request that termination monies be mailed to her. 28 A primary rationale for the imposition of the time limit is that a respondent is entitled to know within a reasonable time (21 days) that the termination is to be challenged. Such advice by filing of an application in time or such other effective advise allows consideration of the primary remedies of reinstatement or re-employment at a time when these may be available and practical. 29 The applicant at no time by action or advice prior to filing of the application put the respondent on notice that the termination of employment would be contested or challenged in any way. The actions of the respondent were such that the respondent was entitled to form the view that no further action would be taken by the applicant, a view the respondent was entitled to take as confirmed on the expiration of the 21 day period prescribed by s85(1). 30 An exercise of discretion is not automatic, the onus resting upon the applicant to make out grounds for departure from the mandatory requirements of s85(1) that an application must be made within 21 days of termination of employment. 31 A case has not been made out for exercise of discretion to admit the application out of time. 32 On the evidence of the applicant she was not prevented from putting the application in time by her medical condition rather her indecision as to whether she had a case and whether if she did it would be in her best interest to pursue the matter. I am not satisfied that the reasons for length of delay support an exercise of discretion. 33 The application is refused. 34 Matter No IRC 2821 of 2000 is so concluded. oo0oo 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.