Graeme Heggie v North Coast Area Health Service [2010] NSWIRComm 1032

Industrial Relations Commission of New South Wales

CITATION: Graeme Heggie v North Coast Area Health Service [2010] NSWIRComm 1032

PARTIES: Beesley & Hughes Lawyers of Bangalow North Coast Area Health Service

FILE NUMBER(S): 143 of 2010

CORAM: Stanton C

CATCHWORDS: out of time application - request to consider matter 'on the papers' in chambers - representative error alleged - purpose of 21 day time limit - hardship - onus on applicant to persuade Commission to extend time limit - Commission required to be satisfied "sufficient reason" has been made out - HELD - "sufficient reason" to accept application out of time.

LEGISLATION CITED: Industrial Relations Act 1996

Brady v Kennedy t/as 'Sardines' [1999] NSWIRComm 258 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: Director General of Education and Training v Anne Bond [2009] NSWIRComm 40 Healey v HPA Pty Ltd [2003] NSWIRComm 195 Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139

DATE OF JUDGMENT: 11 June 2010

Mr O Hughes - Solicitor (Applicant) LEGAL REPRESENTATIVES: Mr D Gray (Respondent)

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Industrial Relations Act 1996 CORAM: STANTON C

Friday, 11 June 2010

Matter No. IRC 143 of 2010

Graeme Heggie and North Coast Area Health Service

Application by Graeme Heggie re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

1 The Applicant was summarily dismissed from his employment as a security officer on 23 December 2009 following an investigation into an incident that occurred on 4 June 2009 where it is alleged he engaged in serious and wilful misconduct. The nature of that conduct, while not necessarily relevant for the purposes of this decision, was that the applicant was verbally and physically aggressive towards a patient. Police charges of assault occasioning actual bodily harm followed and those charges are currently before the Tweed Heads Local Court. The applicant commenced employment with the respondent on 23 February 2004. 2 This application was filed on 26 February 2010 placing it some six weeks out of time. The applicant has asked the Commission to exercise its discretion and allow the application to be accepted out of time pursuant to s 85(3) of the Industrial Relations Act 1996 (the Act). The applicant relies upon representative error in that he was given incorrect information from his initial solicitor. The North Coast Area Health Service (the respondent) opposes the application. 3 The parties have jointly requested the Commission to determine the out of time application "on the papers" following directions for arbitration issued by Harrison DP on 22 April 2010. In those proceedings, Mr O Hughes, solicitor, appeared for the applicant and Mr D Gray appeared for the respondent. 4 Section 85(3) of the Act provides the Commission with discretionary power to accept an unfair dismissal outside the 21 day time limit and requires the Commission to be satisfied that "a sufficient reason" for the delay has been made out, having regard 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. The Applicant's Case 5 In both his application filed on 26 February 2010 and materials filed pursuant to the above directions, the applicant provided the following reasons for his late application: The reason my application was filed late was because my then solicitor (name withheld) advised me that I should not lodge my Unfair Dismissal Claim until the Police Charges against me - Assault Occasioning Actual Bodily Harm were decided by the Court.