Industrial Relations Commission of New South Wales CITATION: Goulding and Wynbob Pty Limited trading as Andersens Tweed Heads [2007] NSWIRComm 1008 APPLICANT John Boyce Goulding PARTIES: RESPONDENT Wynbob Pty Limited trading as Andersens Tweed Heads FILE NUMBER(S): 2630 of 2006 CORAM: Murphy C Preliminary matter of out of time application considered under S.85(3). Applicant dismissed on 27th January, 2006 but filed application under S.84 3rd July, 2006 -approximately 5 months later than 21 day time limit. Applicant advanced reasons related to recovery from surgical procedure soon after dismissal; time spent seeking other employment; time expended in mediation involvement of MD; and "plus delay Legal Aid". CATCHWORDS: Commission gave ex-tempore decision finding applicant's evidence did not support reasons advanced or otherwise unconvincing. Substantial period when applicant did nothing to advance application, despite being alerted to delay issue. Declined to exercise discretion under S.85(3) to allow application and dismissed at preliminary hearing for extensive lateness. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 HEARING DATES: 06/02/2007 EXTEMPORE JUDGMENT DATE : 6 February 2007 APPLICANT Mr Goulding represented himself LEGAL REPRESENTATIVES: RESPONDENT Mr Bob Green DECISION: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Issued: 23 February 2007 Matter No IRC 2630of 2007 Goulding and Wynbob Pty Limited trading as Andersens Tweed Heads. Application by John Boyce Goulding re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 EX TEMPORE DECISION [2007] NSWIRComm 1008 1 The applicant, Mr John Boyce Goulding, was dismissed on 27 January, and although the respondent had earlier in the conciliation phase caste doubt on whether he had actually dismissed the applicant, this was not finally raised as an issue. This interim decision given ex-tempore on 6th February, 2007 following a hearing at Byron Bay is in respect of the out-of-time application made under Section 84 of the Industrial Relations Act 1996. 2 The difficulty for Mr Goulding's case at this preliminary stage was that he did not lodge and file his application on the Form 7A until 3 July 2006, which was in excess of five months from the date of his dismissal, or close to five months late in terms of the 21 day limit. 3 The applicant, Mr Goulding, gave evidence restricted to that point and Mr Green, representing the respondent, likewise gave evidence only related to this issue of the late application. 4 The Commission has a discretion in out-of-time matters, as set out in Section 85 (c) which is set out in the Act as follows: TIME FOR MAKING APPLICATIONS 85(1) [No later than 21 days after dismissal] An application under this Part must be made not later than 21 days after the dismissal of an employee. 85(2) [Commission must accept the application lodged out of time] The Commission is required to accept an application that is made out of time if the applicant had previously made a similar application under Commonwealth law relating to the same dismissal and: a) the similar application was made within the time required by that Commonwealth law, and b) the similar application has not been settled or determined, and c) the application of this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. 5 Subsection (3) is more relevant to our proceedings, although I'll comment as to why subsection (2) is included here later. 6 Subsection (3) then says: 85(3) [Commission may accept an application lodged out of time] 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 dismissal. 7 As touched upon earlier, the real difficulty for Mr Goulding was the extent of the delay, but even extended delays can be exonerated if there is sufficient reason. It was primarily to consider those reasons that this preliminary jurisdictional matter was heard this morning. 8 The Commission has also taken into account the hardship to both parties if this application is or is not rejected. The conduct of the employer relating to the dismissal I read as, conduct which may have affected the ability to lodge within the time limit set. 9 The applicant gave evidence firstly, which is contained in the Form 7A, marked exhibit 3 in these proceedings. Under the subheading in the Form 7A of "Late applications if applicable", the applicant has included the following by the reasons for the lateness: "First two weeks recovering from cancer operation on the eye, then tried to do nicely through Andersen's managing director, Mr Jack Andersen, but to no avail because franchisee would not cooperate. Plus looking for employment, plus delay Legal Aid". 10 So it is for the Commission to address those issues in addition to the additional reason that Mr Goulding gave the Commission here today; that he had previously lodged an application with the Queensland Industrial Commission, being confused as to the fact that the company he believed was registered in Queensland, although operating in New South Wales. 11 The evidence as to his realisation of that and the time scale involved was somewhat vague. 12 Mr Green challenged this as a reason on the basis that the applicant has failed to include such a reason when given the opportunity in the form 7A, with the implication that it was a recent invention to assist his case. 13 I alluded earlier to subsection (2) of clause 85, which actually requires the Commission to accept an out of time application if a person has made a claim under Commonwealth law. The requirement there, of course, is that firstly it must be within the time required by Commonwealth law; that a similar application has not been settled or determined; and the application to this Commission is made no later than 21 days after the application is withdrawn. 14 So there are two requirements, which if you draw the analogy between Queensland and the Commonwealth were not quite fulfilled in Mr Goulding's case. The applicant gave evidence that he thought his application in Queensland was probably late and that he was advised of this fact. 15 Also, in any event, again as far as the analogy is to be considered, the problem is that the applicant did not lodge in New South Wales within 21 days after withdrawal of the Queensland application or being advised of the problem in late March. The applicant's evidence on dates was less than specific and that did not assist the Commission's appreciation of the whole situation. 16 Returning now to the reasons that the applicant gave on his Form 7A application; the Commission is satisfied that the other reason advanced in respect of a cancer operation to the eye was shown to have only minimal impact upon the applicant's ability to lodge on time. It is established for instance, that on 10 February he got the all clear in respect of the biopsy involved. 17 The next reason, relating to his searching for a new job, likewise provided scant support for the degree of lateness he appears to have indulged in, because he achieved other employment in a relatively short period after coming out of the day surgery. 18 The issue of the involvement of Mr Andersen - said to have been an attempt by Mr Goulding to settle things amicably, rather than lodge a S.84 application - was somewhat fraught in terms of the need for accurate evidence on such a contention. This was not handled well by either party. Firstly, the respondent attempted to introduce evidence by way of a memorandum written to him from Mr Andersen himself. Whilst this was not in affidavit form, Mr Green did put to the applicant in cross-examination about the written denial that Mr Andersen had provided to Mr Green of being involved in any way, as suggested by Mr Goulding. 19 The applicant gave evidence that Mr Andersen was involved, although later in his evidence watered down the degree of Andersen's involvement by acknowledging that he had told him (Mr Goulding) that he did not want to become overly involved. Later he gave evidence that after a period of between five or six weeks Andersen finally told him that he wasn't interested. Sometime during that period Andersen is alleged to have said to the applicant that he should accept the three or four weeks offered to him by the respondent. 20 What isn't clear here this afternoon, is the period over which Andersen is supposed to have had these conversations, i.e. over the five or six week period referred to by Mr Goulding for instance. There was some shifting about in the evidence by Mr Goulding on this point when it needed to be more precise. 21 Suffice to say though, that it was more important that I was not able to be satisfied that Andersen's involvement was of a clear and purposeful nature; such as to distract the applicant from lodging around the time he was required to. I do not discount the possibility that Andersen did get involved or is most likely to have been involved, but whether his involvement was sufficient to merit the label given to it by the applicant is more doubtful. I am less than satisfied therefore, with the vagueness of the applicant's evidence as to Andersen's involvement. I am unconvinced that it was by any means a reason why he would not have lodged, or even delayed him at all. 22 Indeed, the applicant's evidence was that Andersen at one stage, (and it was not made clear at what stage), did he say to him that if he withdrew his application, he should consider doing it nicely and accept a four or five weeks payment, and the applicant rejected that suggestion. As already indicated, that claimed involvement of an intermediary could have happened but detail is too vague, as to its supposed influence upon the applicant's decisions. 23 On another matter relied upon today in evidence, the fact that there was no mention of the Queensland Industrial Relations Commission application in the Form 7A application to this Commission is more than curious. But if we accept, for the sake of argument at least, that it did occur, and also, that advice was received by the applicant in late March, as he testified, that he had lodged in the wrong place, there is still a major problem for the applicant, that right throughout April and into mid May at least, he did nothing. 24 What happened in mid May is that the applicant, according to him, sought advice from the New South Wales Industrial Relations Commission. He gives evidence that the Commission, presumably the registry staff, advised him that because of his lateness, and because of the other issue of the claim for outstanding commissions, he ought to seek Legal Aid. 25 I must say I find it extremely difficult in my relatively long years experience in the Commission to believe that the registry would advise someone to go for Legal Aid in this jurisdiction. The registry staff habitually advise in these circumstances by simply saying, "you are terribly late, get it in and give your reasons and here's a form in the mail", as they are instructed to do, that is, to provide a form themselves, not to suggest a time wasting approach to Legal Aid, who only appear in this jurisdiction in limited circumstances, and not usually with this type of applicant. Indeed it was the Legal Aid Commission in mid June, a month later, who apparently did provide the application form for the applicant to lodge, although careful to qualify their involvement as being only peripheral. 26 The communications from Legal Aid Service were marked as exhibit 4, which contained letters firstly to the applicant - an extensive letter of 15 June. In that letter, the legal officer involved, apologised for some delay in her communications with the applicant. The applicant gave evidence of that delay being a factor. However, he also gave evidence that he approached the Legal Aid Commission not long before these letters, and after being advised by the state Industrial Registry in mid May, which allegedly advised him to go to Legal Aid. 27 The Legal Aid Commission gave fairly lengthy advice on 15 June, and whilst it is not all that relevant, it is nonetheless worth noting that in the final stages of that letter, it laid out for the applicant what he should say in his application in respect of his lateness, which he apparently duly took up in his application Form 7A on 3rd July, 2006, except for the point mentioned in this correspondence of 15 June, where he had apparently advised Legal Aid that he originally thought he needed to apply in Queensland. That does not say, of course, that he actually did apply in Queensland, but merely that he said he thought he should. 28 Related to that point, the applicant also gave evidence that he thought that the Queensland Commission had told him that he was too late with his application to them, and it is hard to believe that he should not have been on the alert at that point. Again it is worth mentioning that throughout April nothing was done by the applicant. 29 There does not appear to be any representative error by the Legal Aid Commission, which the applicant might be able to rely upon to exonerate delay, as can be relied upon and recognised by the Commission as a factor in some cases. 30 The applicant's eventual pursuit of this matter in the New South Wales Commission before me showed some tenacity. This indicates to me that he was intellectually equipped to handle himself when it came to litigation in this Commission, and particularly since he was alerted at the end of March to the fact that there was a problem about lateness. 31 I do not accept the applicant's evidence that at no stage did he realise there was a time limit for lodging. His own evidence of that conversation with the Queensland Commission in late March, albeit that it occurred at that later stage, indicates otherwise. 32 It is not impossible for ignorance of the time limits for filing to be taken into account, but I must say that unfair dismissal legislation has been around for many years, indeed I think for some 17-odd years and has been well publicised through reported decisions in newspapers and other media. It behoves applicants generally, albeit that they might be stationed in country regions, to lift the phone and make an inquiry like they might with any other difficulty they have with payment of rates or any other government or quasi government or regulation requirement. It is a long bow to draw to simply say that there was ignorance of lateness. All or most jurisdictions have some such restriction on commencing actions, although probably discretionary. 33 The caselaw as to the exercise of S.85 discretion here, also makes clear the prima facie obligation as to the 21 day limited. 34 The principles governing the exercise of discretion to allow out of time applications received the attention of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case 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 (usually 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….. SUMMARY 35 I do not accept that there was any excuse for the delay at the crucial times, for the reasons claimed, beginning with the seeking of other employment. The medical excuse is not something which can be sustained on the evidence earlier summarised. The alleged involvement of Mr Andersen is too vague and too general to be acceptable. The evidence of the applicant of going to the Queensland Commission lacks concrete detail, and whilst I do not discount the possibility of some contact at least, the onus is on the applicant to satisfy the Commission that as to exactly what happened. The failure to note this contention in his form 7A, along with the slight contradiction in the correspondence from the Legal Aid Commission of 15th June, 2006, talking only of the thought by Mr Goulding that there might be a need for him to apply in Queensland (exhibit 4), is another weakness in the applicant's argument in respect of the alleged Queensland delay. But again, more profoundly, the applicant was totally inactive all of April and into May, a substantial period where the applicant was already alerted to this concept of lateness from his advice from the Queensland Commission. 36 The merits of this case have not been traversed here today, although the Commission has had a taste of what is involved when it comes to this particular matter through multi conciliation conferences (including teleconferences) in an attempt to settle this claim. It has been a most frustrating matter throughout the conciliation conferences. I am surprised and disappointed that it did not settle between the parties, because I think there's probably some reasons for the matter to be settled, I'll go no higher than that, being careful in my language in the absence of proper evidence as to merits. But the application is substantially late. That is an impediment which I think that the applicant has not been able to overcome here today, and he has not discharged the onus to attract the Commission's intervention 37 Therefore, despite the hardship that may be caused to the applicant, which has to be balanced against that which might have been caused to the respondent, I must reject the application in these preliminary findings. 38 Neither was there any conduct of the respondent to take into account. There was no evidence, for instance, of Mr Green liaising with Mr Andersen to try and get a settlement or something else, which might have caused optimism about settlement, rather than proceeding with the matter, that is absent here. 39 All in all, the Commission has no alternative but to find that this application is far too late to be accepted and accordingly the application is dismissed. J P MURPHY Commissioner oOo 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.