Industrial Relations Commission of New South Wales CITATION: Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 APPLICANT Julie Pritchard PARTIES: RESPONDENT Measurement Resources Pty Limited FILE NUMBER(S): 6105 of 2005 CORAM: Macdonald C CATCHWORDS: Application for relief from victimisation - out of time application - several months - representative error defence - Applicant also responsbile for delay - hardship to the Respondent - prospects of success - exercise of Commission's discretion - out of time application rejected. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Alley v Camnex Pty Limited t/as Combined Nursery Sales [2005] NSWIRComm 357 Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 HEARING DATES: 15/08/06 DATE OF JUDGMENT: 11/23/2006 APPLICANT Mr S Jolly, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr J Boyle, solicitor DECISION: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 23 November 2006 Matter No IRC 6105 of 2006 Julie Pritchard and Measurement Resources Pty Limited Application by Julie Pritchard for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 PRELIMINARY DECISION [2006] NSWIRComm 1151 1 The Commission has before it an application by Julie Pritchard ("the Applicant") for relief from victimisation against Measurement Resources Pty Limited ("the Respondent") pursuant to section 213 of the Industrial Relations Act 1996 ("the Act"). 2 This Preliminary Decision arises from an Out Of Time issue pursued by the Respondent. 3 This section 213 application was filed on 24 November 2006. (The Applicant had also filed a section 84 unfair dismissal application against the same Respondent: IRC 05/1886. That file was arbitrated on 16 November 2005 and 27 March 2006 and a decision in that matter was handed down after the Commission had considered the evidence and submissions about the Out Of Time issue in this present s213 application: IRC 6105/05). 4 At the Out of Time Hearing the Respondent was represented by Mr J Boyle, solicitor. The Applicant was represented by Mr S Jolly, solicitor. 5 Witness statements had been filed for these proceedings - being statements from the Applicant solicitor, Mr Jolly (Ex 1 and 2), from the Applicant (Ex 3) and Mr Neale, managing director of the Respondent (Ex 4). After some preliminary discussions on the day of the Out Of Time Hearing, it was agreed by the advocates that the potential witnesses would not be required for cross-examination. Further, it was agreed that the statements of the Applicant and Mr Neale were to be considered by the Commission but only as to the Out Of Time issue. BACKGROUND 6 The Applicant had been in the employ of the Respondent from 25 August 1993 till 23 March 2005. 7 The Applicant claimed that she had been dismissed by Mr Neale (managing director) following her questionings of him about her entitlement to long service leave. This was the basis of her claim for victimisation. FINAL SUBMISSIONS For the Applicant 8 Mr Jolly, solicitor for the Applicant, put the following, inter alia, in final submissions: (a) The Applicant had been dismissed for pursuing her long service leave entitlement. (b) The Applicant had not been dismissed for some other reason, such as work performance. There was no issue about her work performance. (c) The Applicant filed an unfair dismissal claim pursuant to s84 and later, filed a victimisation claim pursuant to s213 of the Act. (d) The victimisation claim was filed some seven months after the expiry of the 21 day time limit in which a party can file within time. (e) Section 213(4) of the Act set out the criteria for the Commission to consider when adjudicating on whether to accept an Out Of Time application. In addressing that criteria, Mr Jolly relied upon legal practitioner error to explain the delay in filing the victimisation claim. He submitted that there would be no hardship to the Respondent, if the substantive case on the victimisation claim went ahead, because the Applicant was willing not to bring further evidence for the victimisation claim - but rely on the evidence as for the unfair dismissal claim. (f) The Commission should accept the victimisation claim because the circumstances of that claim are the same as for the unfair dismissal claim and that commonality makes it necessary that the Commission should consider both claims concurrently: Alley v Camnex Pty Limited t/as Combined Nursery Sales (2005) NSW IR Comm 357. For the Respondent 9 Mr Boyle, solicitor for the Respondent put the following, inter alia, in final submissions: (a) The Commission had a discretion power as to accepting/rejecting Out Of Time applications and the Commission should exercise its discretion not to accept this particular application. (b) The Applicant had not put "sufficient reason" (as required by s213(4) for the acceptance of the Out Of Time application. (c) The delay in filing is not 7 months but so far, 16 months. This is because the Commission has not yet accepted the victimisation claim and 16 months has expired since the cessation of the contract of employment of the Applicant. (d) The concept of "commonality" between the unfair dismissal case and the victimisation claim was rejected; different pleadings, evidence and cross-examination were involved. (e) There would be hardship on the Respondent if the victimisation claim was allowed to proceed. Mr Neale had already endured a 2 day hearing for the unfair dismissal claim and one or two days before the Chief Industrial Magistrate - including being cross-examined in both jurisdictions. (f) It was rejected that the filing of the unfair dismissal claim put the Respondent on notice about a victimisation claim. Seven months lapsed before the victimisation claim was raised with the Respondent. (g) The concept of legal representative error to explain the delay in filing application was rejected. (h) Costs were sought by the Respondent. Applicant in Reply 10 Mr Jolly, in reply, put the following: (a) The issue of costs did not apply to these proceedings, which arose out of a notice of motion. (b) The Respondent cannot state that the victimisation claim is well out of time (some 17 months), when the Respondent has participated in that delay by agreeing to have the victimisation claim dealt with at a later time to the unfair dismissal claim. In any event, there is no prejudice to the Respondent by any delay because the facts surrounding the victimisation claim are the same for the unfair dismissal claim. CONSIDERATION 11 The discretion to extend time in victimisation matters is established by section 213(4) of the Act. There are various discrete factors contained in paragraphs (a), (b) and (c) of section 213(4) which the Commission is to have regard in order to determine whether sufficient reason exists to accept an application made Out of Time. The various factors contained within paragraphs (a), (b) and (c) of section 213(4) represent the primary issues for consideration, but do not limit the consideration of the Commission. Various supplementary factors may also be included dependant upon the specific circumstances of each case. It is convenient to approach the consideration in this instance by reference to the various factors that can be identified in section 213(4). Length of Delay: s 213(4)(a) 12 There was a dispute between the parties as to the length of the delay in the Applicant filing her s 213 victimisation application. The Commission rejects the Respondent's submission as to the length of delay. 13 The criterion for determining the length of delay is the time at which the Respondent was put on notice that the Applicant had filed or arguably, was intending to file such an application. The Applicant had filed her unfair dismissal application on 13 April 2005. That file came on for Conciliation and Directions on 9 May 2005. There was no notice given by the Applicant or her representative to the Respondent that she intended to file a victimisation claim. Her unfair dismissal application is also silent on that point. 14 On the first day of the Hearing (16 November 2005) the Applicant's representative (Mr Sonmez, barrister) advised that an application for relief from victimisation had been facsimiled to the Commission and to the Respondent's representative, Mr Boyle. The latter confirmed receipt of an email, about that application, the day before (15 November). The victimisation application was formally filed on 24 November 2005. 15 Although, the s 213 application was filed on that date, the Commission accepts that the Respondent was put on notice about the application on 15 November 2005. 16 The Applicant had 21 days from "after the contravention concerned", to file her s 213 application: s 213(3). The date of contravention is taken to be the date of dismissal, being the date the Applicant suffered detriment arising out of her claim for long service leave entitlement. This date is not agreed between the parties. This is so as the Respondent claimed that the Applicant had resigned her employment. That issue as to whether there had been a resignation, dismissal, constructive dismissal or abandonment of employment was determined by the Commission in the unfair dismissal proceedings. The Commission decided that the Applicant had been dismissed and the date was Monday, 21 March 2005. 17 Accordingly, the time from which the Applicant was to file within 21 days, was from 21 March 2005 - being the date of contravention. The Applicant filed on 24 November, but gave written notice to that effect on 15 November and it is the latter date that the Commission will apply for its deliberation on length of delay. The length of delay, then, is approximately eight (8) months. This is a significant period of delay and it is necessary to consider the reasons for delay, along with other relevant factors. Reasons(s) for Delay: s 213(4)(a) 18 Mr Jolly, solicitor for the Applicant, relied upon legal practitioner error to explain the delay in filing the victimisation claim. 19 The Commission will set aside that defence for the time being and will set out below the relevant chronology of events in 2005. The chronology has been put together from the witness statements of the Applicant and Mr Jolly. The starting point of the chronology is the dismissal date of the Applicant, being a date having to be determined by the Commission during the unfair dismissal proceedings. Thus: (a) 21 March - Applicant dismissed (b) 24 March - Applicant gave instructions to law firm about an unfair dismissal application. There was no discussion or instruction about a victimisation claim. The Applicant deposed she was unaware she could pursue a victimisation claim. (c) April - The Applicant deposed that in or about mid to late April 2005, she undertook research on industrial relations websites and then formed the view that an employer could not dismiss someone from employment who was pursuing legal action to enforce their employee rights. The Applicant then deposed: " Subsequent to the forming of this view", she had a discussion with someone at the law firm. She believed this person to be: "Sean Jolly". (emphasis added) (The Commission notes that the Applicant does not advise as to the time delay involved in the term: "Subsequent".) The Applicant stated she could not recall all the details of the conversation but recalled that she discussed the idea that an employee could not be dismissed for pursuing their legal rights and she recalled forming the opinion that an application to enforce rights had to be actually lodged with the Commission before the termination of employment. (e) 1 June - Mr Jolly deposed he had his first involvement with "this matter" on or around 1 June 2005. (The Commission notes, that in the context of Mr Jolly's statement (Ex 1), that "this matter" referred to above, is the unfair dismissal application.) (f) August 2005 - Mr Jolly said he had a telephone conversation with the Applicant about "unlawful dismissal", on or around early August. The "unlawful dismissal" was in the context of an employee being dismissed for pursuing their legal rights. He advised the Applicant that he was aware that: "the Commonwealth Act has provisions for unlawful dismissal." He advised he would research the matter. He said he "proceeded to review the entire Industrial Relations Act (1996) NSW where upon I found section 210 of this Act." (g) 28 October - Mr Jolly first spoke to counsel about the unfair dismissal claim. In passing, he raised a possible claim about "unlawful dismissal" in the context of the Commonwealth Act and he also referred to "section 200 or 200 and something", when he was unable to locate the relevant section. Mr Jolly also deposed he said to counsel: "We might also have to amend the pleadings to include a claim for unlawful dismissal." (emphasis added) (The Commission notes that the name of this counsel is not given and it is not known if it is the same counsel who appeared in the unfair dismissal proceedings before myself.) As well, Mr Jolly talks of "amend the pleadings." He later deposed that he thought an alternative claim for relief, in the same proceedings as for the unfair dismissal application, could be done by way of an amendment "as is commonly done in common law proceedings" - Ex 1 - para 10). (h) 9 November - The law firm forwarded a brief to Mr Sonmez, counsel, instructing him to appear in the unfair dismissal hearing on 16 November. This brief was sent on 9 November. The brief raised that there may be an "unlawful dismissal" claim connected to the unfair dismissal proceeding. Counsel was instructed to advise in relation to any amendment to "the pleadings" and the brief cited sections 210 and 213 of the Act. (The Commission notes that "the pleadings" is a reference to the unfair dismissal application). (i) 10 November - Mr Sonmez advised Mr Jolly of the need to put on an urgent application for relief from victimisation. Mr Jolly deposed he was unaware that a separate application was required. He believed that the action for victimisation could be done by way of amendment to the claim (unfair dismissal) already brought. He deposed that a separate claim for victimisation (albeit "unlawful dismissal") was not made because of this belief by him that an amendment to the original claim would suffice. He held this belief from his review of the Act and had in mind sections 170 and 374 of the Act . (emphasis added) (The Commission notes that Mr Jolly does not identify when he undertook this " review ". He makes a reference to a review of the entire Act whereupon he found section 210 of the Act . (Ex 1 - para 7) However, he does not identify in this first reference to a " review " as to when he actually conducted that review". He deposed: "I then proceeded to review ( the Act) ". It is possible that when he states: "I then proceeded …", that this means the " review " took place at that time, that is, "On or around early August 2005…") (Ex 1 - para 7) On that same day, 10 November, a letter was sent to the Applicant seeking her instructions to file an application for victimisation against the Respondent. (j) 15 November - A facsimile of Application for Relief from Victimisation, inter alia, was forwarded to the Respondent and the Commission. (k) 16 November - The Hearing of the unfair dismissal application began. 20 The foregoing chronology shows that there were two reasons for the delay in filing the victimisation claim: (a) the Applicant; and (b) Mr Jolly. 21 The Applicant delayed in filing. The extent of the delay is determined below. She had been dismissed (as found by the Commission) on 21 March 2005. Section 213(3) advises that an application is to "be made within 21 days after the contravention concerned. (emphasis added) As the Commission understands this requirement, the 21 days operates from the next day after the contravention. The date of the contravention is taken to be the date of dismissal, that is, 21 March. The 21st day in which to file expired on 11 April. This date is then extended by two days for two Easter public holidays, that is, 13 April. 22 The Applicant went on an overseas family holiday (pre-booked before dismissal) from 30 March to 15 April. 23 The Applicant undertook research on industrial relations websites which alerted her to a view that an employer could not dismiss an employee for pursuing legal action to enforce their rights. This research was around mid to late April. 24 Importantly, the Applicant said she had a discussion about these employee rights and believed she had that discussion with Sean Jolly. She does not date this discussion. (Ex 3 - para 4) Mr Jolly gives a time frame for this discussion: on or around early August (see para 19(f) above). 25 This information allows the Commission to determine the delay, by the Applicant, before she brought the issue of victimisation (albeit firstly expressed as "unlawful dismissal") to the attention of her instructing law firm. On a strict view, the Applicant's "out of time clock" began to run from 16 April 2005. She brought the victimisation ("unlawful dismissal") to the attention of her legal representative on or around early August (assume 1 August) - This is a delay of three and one half months. The Commission could give some latitude to the Applicant and subtract two weeks from the above - being the two weeks pre-booked overseas holiday. This still represents a delay of three months. 26 In summary, the Commission has noted Mr Jolly's defence of representative error to explain the delay in filing the victimisation application. However, the Commission has determined that the Applicant herself was also involved in the delay process and has reckoned that delay at around three months. The Commission can now turn to the reason(s) advanced by the Applicant to explain her delay. 27 The Applicant's witness statement (Ex 3) does not expressly state the reason(s) for the delay. A reading of her statement sets out the financial hardship and stress she has endured as a result of victimising conduct by the Respondent against her in denying her entitlement to long service leave. By inference, it appears that the Applicant's reason for delay is the financial hardship (including impact on her three children) and stress. 28 None of the deponents were required to give oral evidence in the Out of Time proceedings - by consent of the parties. The evidence, therefore, before the Commission is that restricted to the witness statements. 29 As the Applicant was not required for cross-examination, her statement of financial hardship and stress went unchallenged. 30 Be that as it may, the Commission (with due respect to the Applicant's situation) notes that the financial hardship and stress did not prevent her from researching industrial relations websites during mid to late April (and being alerted to a view formed by herself that an employer could not dismiss someone from employment who was pursuing legal action to enforce their employee rights). If she was capable of carrying out this research during a personal difficult situation, then she was capable of passing on the view that she formed to her instructing law firm. This she did. She made a telephone call but not until at least three months later. Mr Jolly stated that the Applicant's enquiry about "unlawful dismissal" (victimisation query by another name) came to him in a telephone call from the Applicant. (Ex 1 - para 7) Given that a telephone call was all that was required to begin the legal process into her view obtained from her website research (which was carried out during a time frame of financial hardship and stress), then the inferred reason for delay (financial hardship and stress) should be given little weight by the Commission in its deliberation of the Out of Time issue. 31 This brings the Commission to the other cause for delay in filing the victimisation claim. This was the defence of representative error as put by Mr Jolly. The representative error was his understanding that the additional claim raised by the Applicant (the victimisation), could be legally pursued by simply amending the original pleadings (the unfair dismissal application). He held this view from what apparently "is commonly done in common law proceedings." (Ex 1 - para 8, 9 and 10) He did not become aware of the need for a separate (victimisation) application until advised by counsel on 10 November. (Ex 1 - para 11) 32 If the Commission was to accept this defence of representative error, then it would appear to operate from when the Applicant first telephoned Mr Jolly, "On or around early August…", and raised the "unlawful dismissal" scenario with him - arising out of her website researches of some three months prior. Hardship: s 213(4)(b) 33 Section 213(4)(b) refers to the hardship that may be caused to the Applicant or the Respondent if the victimisation application is or is not rejected, respectively. 34 As to the Applicant, her hardship (if the Out Of Time application was not granted), was based around the alleged victimisation and the consequences that followed from that victimisation. Thus, it would be unfair and unjust for her Out Of Time application not to be granted because the Respondent had denied her the long service leave entitlement due to her. In consequence, she had lost a highly paid job and had been without work initially and where she had obtained work, this was at reduced wages. The loss of her job and the lower paid work had caused financial hardship and stress. 35 As to the Respondent, the hardship to Mr Neale (if the Out Of Time application was granted), went to "grave prejudice and oppression". In that regard, he deposed as to the further costs, inconvenience, disruption to business, waste of his time and availability of his witnesses who had moved out of Sydney. (Ex 4) 36 The Applicant's solicitor, Mr Jolly, had put in his opening submissions that there would be no hardship to the Respondent. This was due to the Applicant's proposal that if the victimisation case went ahead, then the Applicant would be relying on the evidence in the unfair dismissal case as being the evidence in the victimisation case. There would be no need for further evidence to be led. 37 Mr Boyle, solicitor for the Respondent disputed this submission. He said that the evidence required for the victimisation case would be broader than that for the unfair dismissal case - other witnesses and documentation would be required and there would be difficulties in obtaining these other witnesses who had moved out of Sydney. Conduct of the Employer: s 213 (4)(c) 38 There was no evidence provided of conduct of the Respondent being a cause for the delay in the lodgement of the victimisation application. Prospect of Success 39 Section 213(4) of the Act does not set out an exhaustive list of factors to be considered by the Commission for Out Of Time applications. Other factors to be considered include "an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case, and the applicant's prospects of success," Hurrell and Queensland Cotton Corporation Limited (2002) 125 IR 145 at 150 ("Hurrell's Case") 40 The Commission will now consider the prospects of success of the Applicant's case. 41 The thrust of the Applicant's case is that she was dismissed and the reason being, her pursuit of her entitlement to long service leave, she said. In support of that allegation, Mr Jolly took the Commission to: "s 210 Freedom from victimisation" of the Act. In particular, he cited s 210(e), (f) and (g). 42 Section 210 (3) (e) is in these terms: "An employer or industrial organisation must not victimise an employee or prospective employee because the person: (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument,…" The Applicant's case is that she was dismissed for claiming a benefit (long service leave), which is a benefit deriving from legislation. Given the circumstances of this case, the Commissioner has doubts about the Applicant's prospects of success for pursuing a victimisation claim against the Respondent. The circumstances of this case are not about a straight-forward claim by an employee for a legislative entitlement and being dismissed for pursuing that claim. In the unfair dismissal proceedings, there was evidence that the Applicant's hourly rate of pay encompassed a provision for long service leave. The Commission has no recollection of the Applicant denying that her hourly rate was an all-up rate that included recognition of long service leave. If that is correct, then what is the basis for the victimisation claim? CONCLUSION 43 The Commission has before it a victimisation claim, but which has been filed out of time. The Respondent objects to the Commission granting the Out of Time application. In considering the application, the Commission turned its mind to those factors set out in s 213(4) of the Act. 44 The Commission's consideration of the Out of Time application is not restricted to just those certain factors: Hurrell's Case. 45 The onus is on the Applicant to prove that "sufficient reason" exists to accept her Out of Time application. 46 Having considered the factors set out in s 213(4), the Commission finds that the Applicant has not established that "sufficient reason" exists to accept her Out of Time application. 47 The first factor considered by the Commission is the Applicant's own reason for delay. The Commission found that there was a three month delay before the Applicant acted upon her own research finding that it was unlawful for an employer to act against an employee who was pursuing their legal rights. 48 The reason offered for this delay included the stress she suffered arising from the cessation of her employment. The Commission understands the issue being raised by the Applicant. However, the Applicant was able to carry out research on industrial relations websites (whilst in a stressed state), but then waited three months before making a telephone call to her law firm, about that research. And the evidence showed that her telephone call to Mr Jolly three months later, was the only action required on her part to initiate her law firm into considering and ultimately pursuing a victimisation claim. The Commission takes the view that this delay of three months is a significant time delay on her part and the Commission is unable to accept the defence of the Applicant's stressed state as an explanation for that delay, for the reasoning given above (see paragraph 48). 49 The Commission notes Mr Jolly's defence of representative error to explain the delay in pursuing the victimisation claim, but the Commission found that this defence could only operate from 1 August (at best). That is, this was the earliest date that the Applicant advised her law firm of the outcome of her own legal research enquiries (after waiting three months). 50 The other relevant factor for consideration is hardship to the employer, if the Out of Time application was accepted. It seems to the Commission that there is hardship to the Respondent, and this has come about through notification of the victimisation claim, one day before the unfair dismissal Hearing. The late notification to the Respondent, means that there will be two separate hearings for the Respondent, if the Out of Time application is accepted. 51 There is case law which shows that both unfair dismissal applications and victimisation applications have been heard concurrently and hence it follows that the concurrent process minimises the issue of costs for both parties. But that is not the situation here. The Respondent will be put to additional costs if there is another hearing for the victimisation claim. The Respondent stated, through its solicitor, that two witnesses (not living in Sydney) would be required to defend the victimisation claim and this, of course, would be an additional cost, in itself. This factor is another issue that weighs against the granting of the Out of Time application. 52 In considering these two issues (the Applicant's own delay and the hardship to the Respondent), the Commission finds that "sufficient reason" has not been made out to cause the Commission to exercise its discretion to accept the Out of Time application. Even if the Applicant had an arguable case about victimisation (and the Commission doubts that), the Commission would still not be moved to accept the Out of Time application. 53 Accordingly, the Commission dismisses the Applicant's Out of Time application. A Macdonald Commissioner 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.