Industrial Relations Commission New South Wales Medium Neutral Citation: Philpot v Randwick City Council [2011] NSWIRComm 1043 Hearing dates: 11 July 2011 Decision date: 04 August 2011 Before: Ritchie C Decision: Catchwords: Claim for unfair dismissal-Application filed 7 days late- applicant aware that there was a time limit-applicant advised that she was waiting for information from the respondent and Allianz prior to considering whether to file a claim. Respondent objected to application proceeding. Applicant wanted to know what her average weekly earnings would be prior to filing. Respondent argued that there did not exist sufficient reason to allow application to proceed.- Commission found that sufficient reason did not exist for application to proceed. Commission 's view that chances in the substantive case most doubtful. Application dismissed Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Green v Mayne Nickless Ltd t/as Armaguard IRC2945 of 1997. Skelly v Prouds Jewellers Pty Ltd(1994) 53IR3 at 6. Brady v Kennedy t/as "Sardines"(1999) 91IR258. Hurrell and Queensland Cotton Corporation Limited (2003)NSWIRComm139. Grifith Ex-Services Club Limited v Federated Liquor &Allied Industries Employees Union of Australia( NSW Branch)(1993)51IR186. Category: Principal judgment Parties: Applicant: Ms KM Philpot : Respondent Randwick City Council Representation: KM Philpot Self Represented (applicant) Mr R Nassif Local Government of New South Wales (respondent) File Number(s): IRC 230 of 2011 DECISION Background. 1Ms Kim Maree Philpot (the applicant) applied for unfair dismissal on 10 March 2011 against Randwick City Council (the respondent) pursuant to section 84 of the Industrial relations Act, 1996(the Act). 2The applicant was terminated by the respondent on 10 February 2011.In filing her application, it was filed beyond the 21 day limit. It was filed some seven days late. The respondent noted in their Employers Reply that they objected to the extension of time. 3Conciliation was attempted on 1 April 2011 and 18 April 2011 but without success. Directions were provided to the parties at that time. The matter was called back for mention as a consequence of the form of documentation that had been filed by the applicant and new dates for filing and serving were provided to the parties. 4The hearing was heard on 11 July 2011 when at the end of submissions, the decision was reserved. Applicant's case. 5The applicant stated that she commenced with the applicant on 19 December 2010 as a Parking Patrol Officer. On 31 January 2009 she stated that she sustained an injury to her right ankle whilst on duty. As a consequence she was restricted in carrying out her full duties and undertook a gradual return to full pre injury duties. During her rehabilitation she undertook office based duties. 6On 4 November 2010, Doctor D Lunz determined that she was unable to continue in her role and recommended permanent modified duties. 7Whilst employed by the respondent she stated that she received three written warnings. It was her view that these warnings prevented her from applying for positions with the respondent or with other Councils. She also stated that she refused to apply for other jobs because she was informed by management that she would be subject to a probationary period. It was her concern that there was the possibility that she could be terminated within that probationary period. 8She also stated that she had been subject to bullying, harassment and intimidation by management and supervisors and lodged a grievance. Later she was advised that her allegations had not been substantiated. She was also advised that if she lodged further grievances of a similar nature they would be considered spurious and be subjected to further disciplinary action. 9On 10 February 2010 , the applicant accompanied by her union representative( Mr Peter Kent) met with respondent representatives Ms Fiona Calabrese and Mr. Josh Keech. It was at this meeting that she was advised that her employment was terminated as they did not have any suitable duties for her to perform in accordance with her permanently modified work restrictions. She stated that she received written confirmation (dated 11 February 2011) of this decision on 18 February 2011 and her separation certificate on 23 February 2011. 10She considered her termination harsh, unreasonable and unjust because she stated that she was not given any prior notification that the respondent was considering terminating her employment or that termination was a possibility should a position not be found. She stated that she had not been given the formal opportunity to discuss possible employment opportunities with the respondent based on her restrictions and the possibility of termination. 11She stated that alternative positions were discussed briefly in general conversation and arranged without consultation but were unsuitable due to medical restrictions. One offer was a temporary appointment for three months without indication of what was to occur after the three months. 12As a consequence of being terminated without notice she was not given the opportunity to reconsider her decision not to apply for suitable positions in other councils based on previous discipline action. She stated that if she had been successful her accrued sick leave and long service leave would have transferred to the new Council. 13She stated that at the time of filing her unfair dismissal claim she had not received any documentation or financial assistance from Allianz which she believed may have contained information relevant to her dismissal proceedings. 14By this application the applicant did not wish to return and work at the respondent but sought compensation to the sum of eight weeks pay which amounted to $7847.32 Respondent's case. 15Ms Fiona Calabrese filed an affidavit and was subject to cross examination. She stated that she commenced employment with the respondent in September 2005 and is currently employed as Manager Organisational Staff Service. Ms Calabrese confirmed that the applicant sustained an injury to her right ankle on 31 January 2009. During 2009 she stated that the applicant was at times, unfit for duty, on suitable duties and fit for pre injury duties and then back to suitable duties. A return to work programme was developed with Allianz. 16On 7 May 2010 the applicant was deemed fit for pre injury duties other than she was not allowed to walk hills. On 18 August 2010 the applicant injured her right knee whilst at work.. She was placed on suitable duties. 17In November 2010 the respondent received a Workcover medical certificate which was expressed as a Certificate Type(Final). Under the sub heading of Fitness For Work it stated has reached maximum medical improvement and is fit for permanently modified duties from 4/11/2010(final certificate only) Ms Philpot is unable to walk up hills or on uneven surfaces, no walking for any extended periods of time. Please refer to Dr Lunz' recent report. This certificate was signed by Dr. Erin Crumlin. 18As a consequence of this medical certificate it was decided to look at suitable alternative duties to which they could re deploy the applicant. 19A meeting was held on 26 November 2010 with the applicant ,her union representative, Ms Calabrese and Mr Roman Wereszcynski the manager Health Building and Regulatory Services Manager. The purpose of the meeting was to discuss the applicant's maximum medical improvement and how the respondent was going to accommodate her permanent work restrictions in her ongoing employment. A temporary position for three months was identified and the applicant carried out this role. Ms Calabrese stated that this temporary job was provided to the applicant to give the respondent time to look for a permanent position that took into consideration the applicant's medical restrictions. Whilst carrying out this temporary position, the applicant's wage rate was maintained at the parking patrol officers rate. 20Ms Calabrese was not aware of any senior staff member who sought to restrict the applicant from applying for positions with the respondent due to previous warnings. 21The decision to terminate the applicant was made on the basis that there were no suitable duties within which the applicant could be deployed or was willing to perform, that were in accordance with her permanently modified work restrictions. The applicant had refused to work in a modified version of her pre- injury duties. The previous warnings played no part in the decision. 22Mr Leslie Bolstad filed an affidavit and was subject to cross examination. He commenced with the applicant in January 2010 and is the Coordinator , Occupational Health and Safety and Welfare. He stated that his involvement with the applicant's continuing claim included managing return to work programs, liaising with medical practitioners and the insurers. He stated that he was aware of a meeting that took place in November 2010 with the applicant that outlined what her restrictions were in accordance with her final Workcover certificate and that termination of her employment was a possible outcome should a suitable position not be found to accommodate her permanently modified duties. 23Mr Bolstad said that a number of meetings were held with the applicant discussing her return to work options and suitable duties were discussed. Offers of work in a range of positions during her rehabilitation were made including working as a Parking Patrol Officer on a limited basis, the respondent's call centre, in information access, information management and in the library however all were declined by the applicant. The applicant gave reasons why she either did not wish to do the work, too boring , or because of a medical reason. Based on all the refusals, Mr Bolstad contacted the General Manager, up dating him and advising that no suitable job could be found. 24He stated that he was unaware of any bullying , harassment and intimidation by the applicant's supervisors and managers. The applicant had not raised any such issue with him. Considerations and Decision. 25The first issue to be considered and determined is that of the out of time application. 26The applicant accepted that she was terminated during the meeting with the respondent on 10 February 2011. At that meeting accompanying her was a representative from the United Services Union(USU) whom the applicant stated just so happened to be present at the respondent's offices. In cross-examination the applicant stated that she did not file her claim for unfair dismissal within the 21 day time limit because she was waiting for information, be it the written termination notification and separation certificate from the respondent, and similarly information from the insurance company Allianz. The information she was waiting for would determine whether or not she was going to apply for unfair dismissal. She advised the Commission that she wanted to know after the termination, what the payments would be in accordance with section 38 and 40 of the Workers Compensation Act in regard to weekly compensation payments. She also stated that she was probably aware of the 21 day time limit. She also stated that she did not seek advice from the USU officer. She confirmed that in her initial application for employment (exhibit 2 ) with the respondent she stated that she had the ability to interpret legislation and listed various acts that she had worked with including the Industrial Relations Act,1996. 27In his final submissions, Mr Nassif for the respondent objected to the application proceeding due to the application being out of time. It was his submission that none of the reasons for the delay given by the applicant go to a reason as to why the application was late. He stated that her union was present on the day of her being told of her termination and it would be logical for the union to advise her of her rights, including the time limit. He also stated that she had not advised the Commission of any hardship she would face as a consequence if the application was not allowed to proceed. From documents summoned by the respondent Mr Nassif stated that the applicant's rate of pay was $1961.83 per fortnight ( $980.91 per week). He said that her current average weekly income was $548.39 from Allianz, $417.15 from Coles Supermarket and $195 from rental income. That made a total of some $1160.54 per week. 28The Industrial Relations Act,1996 section 85 states : Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee . (2) The Commission is required to accept an application that is made out of time if the applicant has 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 under 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. (3) 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 the dismissal . 29In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 where a Full Commission observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". 30In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm139 it stated: The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In my view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, I would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 31In this matter the applicant was aware that there existed a time limit to file an unfair dismissal claim. The reason for the delay of seven days she stated was, that she was waiting for information from both the respondent and Allianz. From the respondent she was waiting for the letter of termination and a separation certificate, even though she admitted that she and a union official were present at the meeting on 10 February 2011 when she was terminated and did not attend for work thereafter. That she did not receive the letter of termination until 18 February 2011 and the separation certificate until 23 February 2011 is not an acceptable reason for delay. I am unaware of what information are contained in such documents which would make them necessary to have in one's possession prior to completing an application for unfair dismissal. With respect to Allianz, she believed it was necessary to know what she would receive in workers compensation payments and any conditions that would apply to such payments. Whilst the length of the delay is not great this reason given for the delay , I find is also not acceptable. In essence she is inferring that if she was to receive weekly compensation that she considered acceptable then she would not consider making an application but if it was unacceptable she would. Surely the test is whether the applicant believed that the actual termination of her employment was harsh, unreasonable or unjust. 32With respect to section 85(3)(b) of the Act, the applicant did not argue hardship with respect to her out of time claim. 33Section 85(3)(c) of the Act is directed towards the conduct of the employer relevant to the delay in the applicant filing an application for unfair dismissal. Put another way, the conduct there referred to is not about the conduct of the employer in respect to the circumstances of dismissal. I refer to what Cambridge C said in Green v Mayne Nickless Ltd t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998): There was no evidence that any conduct on the part of the employer after the applicant's dismissal contributed to the reason(s) that were provided for delay in the lodgement of the application. The applicant sought to provide evidence regarding the alleged unfairness of the dismissal as a factor, which should influence the exercise of the Commission's discretion to accept the application out of time. An examination and consideration of evidence of this nature could lead the Commission to a quasi determination of the application proper. Therefore the consideration of the conduct of the employer must, having established that an arguable case exists, focus upon only that conduct which is said to have contributed to any delay in the lodgement of the application. The applicant argued that she was not made aware that she may be terminated if an alternative position could not be found. The respondent through Ms Calabrese had stated in evidence that the applicant had been told in meetings, exactly what would occur if no alternative position was found. As stated previously the applicant was aware from the meeting held on10 February 2011 that her services with the respondent had been terminated. It is my finding that there was no conduct of the respondent that led to the applicant failing to file her application for unfair dismissal on time. 34Through the evidence of Ms Calabrese and Mr Bolstad I accept that the respondent made a genuine attempt to find an alternative position that the applicant could carry out in accordance with her skills and medical restrictions. It is my view that her chances of success in the substantive case would be most doubtful. 35As stated previously, the onus falls on the applicant to prove that a sufficient reason exists and it is my finding that she has failed to do this. It is therefore my finding that there exists no sufficient reason for this Commission to use its discretion and allow this application to proceed. 36It follows that the Commission declines to exercise its discretion, pursuant to section 85(3) of the Act, such as to permit this matter to be accepted for determination. 37This application is dismissed and the proceedings are concluded accordingly. D.ritchie 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. Decision last updated: 04 August 2011