Industrial Relations Commission of New South Wales CITATION: Holten v Macleay Aboriginal Housing Association Co-operative Limited [2007] NSWIRComm 1095 APPLICANT Andrew Holten PARTIES: RESPONDENT Macleay Aboriginal Housing Association Co-operative Limited FILE NUMBER(S): 1301 of 2007 CORAM: McLeay C CATCHWORDS: Unfair dismissal - out of time application - advice given to applicant by respondent's solicitor - incorrect advice accepted - application filed within 21 days of correct information being provided - application accepted out of time LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 16/11/07 EXTEMPORE JUDGMENT DATE : 16 November 2007 APPLICANT Mr G Boyce of counsel Ms G Flynn, solicitor LEGAL REPRESENTATIVES: Byrnes Lawyers RESPONDENT Mr S Lee, solicitor O'Halloran Deal Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 16 November 2007 Matter No IRC 1301 of 2007 Andrew Holten and Macleay Aboriginal Housing Association Co-operative Limited Application by Andrew Holten re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1095 1 This is an application to receive an unfair dismissal claim which was filed later than the 21 days after the dismissal of Mr Andrew Holten from Macleay Aboriginal Housing Association Co-operative Limited. I thank both Mr Boyce and Mr Lee for the outlines provided in this matter which are both helpful to the Commission, I also thank all of the witnesses for their evidence, whether or not they have been called into the witness box or simply had their evidence taken into account by the written statements. 2 I have considered all of the evidence before me and the submissions of the parties, having had the opportunity to familiarise myself with those prior to the proceedings commencing today. On the basis of all of that evidence and of the submissions put by the representatives of the parties, I am satisfied that I must exercise my discretion to receive the application out of time. I do so primarily because of the advice given to the applicant on the day of his meeting with the respondent's solicitor and Mr Morris of 17 May, when the solicitor for the respondent informed Mr Holten that he had no right to make a claim. 3 I take it that the solicitor did this in good faith. I do not mean any reprimand to him for giving advice which was not correct because of the context in which he is operating and that is the current context of the WorkChoices legislation and the media attention given to it as well as the assumption that appears to be held by many people that nobody has a right to claim unfair dismissal anymore. That is simply not true. There are circumstances both in public service employment, in some local government employment, in employment by sole traders and partnerships and in employment relevantly by a range of community organisations that are not trading corporations under the Federal legislation. But that is not always understood. 4 It was not until 9 August that Mr Holten was advised that he did have a right to make a claim. It was not that he sought out that advice, it was that he was not seeking it because he had absolutely accepted the advice given earlier on behalf of the respondent. He acted within the twenty-one days of receiving the advice to file his claim and on that basis I am convinced to exercise my discretion to accept his claim. 5 I know there are a lot of other issues and arguments put in submissions, which have been accepted into evidence, by both sides for me to consider and I have considered those. I believe that, overall, the issue of the advice given to and taken by Mr Holten is of such importance that it overrides all the other aspects and so that is why I give my decision today. 6 The application is accepted out of time. **** 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.