Industrial Relations Commission New South Wales Medium Neutral Citation: Croft v Roads and Traffic Authority Division of the Government Service of NSW [2011] NSWIRComm 1046 Decision date: 14 September 2011 Before: Bishop C Decision: Out of time application allowed. Catchwords: UNFAIR DISMISSAL: out of time application - 15 days outside limit - reasons for delay - reinstatement sought HELD - discretion to admit application considered - relevant principles applied - reasons for delay accepted as sufficient reason -short delay - disadvantage to employer considered and discounted - discretion exercised -application allowed. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Cockayne v Hurstville City Council [2009] NSWIRComm 1013 Delaney v Staples [1992] 2 WLR 451 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Green v Yum! Restaurants Pty Limited [2004] NSWIRComm 1109 Green v Mayne Nickless Ltd t/as Armaguard (unreported, IRC 2945/97, 11 February1998 Healey v HPA [2003] NSWComm 195 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 Kent Gorrell v Uwatec Pty Ltd (unreported, IRC 1700/99, 5 July 1999) Khorramdel v Sydney South West Area Health Service [2010] NSWIRComm 1018 Markovski v Sydney South West Area Health Service [2010] NSWIRComm 1043 McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 Moore v Metropolitan Local Aboriginal Land Council [2005] NSWIRComm 325 Sanders v Snell (1998) 196 CLR 329 Category: Principal judgment Parties: Wesley Croft (Applicant) Representation: Mr J Darams (Applicant) Hansons Lawyers (Applicant) File Number(s): IRC 827 of 2011 DECISION 1This is an application by Wesley Croft against the Roads and Traffic Authority Division of the Government Service Of New South Wales ("the RTA") for a remedy pursuant to s.84 of the Industrial Relations Act, 1996 . Mr Croft was dismissed from his position of Project Engineer with the RTA on the 5 May 2011. His application was filed with the Illawarra-South Coast regional office of the Industrial Registry on the 10 June 2011. He sought reinstatement, re-employment or monetary compensation in lieu thereof to his former position or monetary compensation in lieu thereof. 2The matter was listed for conciliation and directions in Wollongong before Commissioner Tabbaa on the 7 July 2010, at which time conciliation took place. No settlement could be reached however and the respondent pressed the jurisdictional issue that the application had been filed outside the 21 day limit prescribed by s.85(1) of the Act. Directions as to the filing and exchange of witness statements were issued in accordance with Practice Direction 17 and the matter set down for hearing on the 31 August 2011 before the Commission as currently constituted. 3At the hearing Mr Darams of Counsel, with Mr Pike Solicitor, appeared on behalf of Mr Croft. Mr Croft also gave oral evidence in addition to the witness statements as filed (Exhibits 1 and 2). 4Ms McGuigan with Ms Koroknay appeared on behalf of the RTA and called the following witness who gave oral evidence in addition to the witness statement as filed: Mitchell Judd.....RTA Road Services Manager, Country West (Exhibit 5). Background and Chronology 5The following Background and Chronology is taken from the witness statements as filed. 6Mr Croft is 34 years of age, his wife is a Permanent Primary School Teacher with the Department of Education and Communities in the Narrandera area and they have two young children aged 2 and 4. 7Mr Croft commenced employment with the RTA as a Project Engineer on the 2 October 2007. He re-located his family to Narrandera from Gunnedah to take up the position with the RTA, having previously worked in a relative's Earthmoving business as a Truck Driver, Plant Operator and Management Engineer. He also had a period of employment with Shoalhaven Council from October 2003 to November 2006 as Transport Engineer and Northern Constructions Engineer. 8By letter of 16 March 2011, from Mr Richard Boggon, Director Commercial Services RTA, Mr Croft was advised that he was suspended from duty on pay and that "termination of his employment contract" was being considered. He was given 7 days in which to provide a written response and it was also indicated that a meeting could be held with him and a name and contact number were listed to arrange such a meeting (Exhibit 1-E). 9The issues raised with Mr Croft in the letter generally concerned his refusal to follow a reasonable direction to work as directed given to him on the 15 March 2011 by his supervisor, Mr Craig Matthews District Manager; subsequent inappropriate conduct; failure to comply with other requests; a similar incident of inappropriate conduct on 16 February 2011; intimidating behaviour and an unacceptable failure to treat RTA staff and supervisors with courtesy and respect. Reference was made to previous discussions about his work performance and inter alia his poor relationship with his immediate supervisor and team members. Reference was also made to a warning letter that had been issued to him on 23 December 2010 by Mr Judd regarding his failure to comply with directions to complete fortnightly work schedules as well as the issuing of letters threatening the employment of a staff member. 10By letter dated 18 March 2011, Mr Croft responded to RTA's letter and the allegations raised and put forward a number of options for consideration in relation to the proposed termination (Exhibit 1-F). He also sent an email that same day to the General Manager Human Resource Strategy concerning allegations of harassment, bullying and victimisation as raised in a previous email of 4 March 2011, and raised further issues. 11By letter dated 23 March 2011 Mr Judd advised Mr Croft that issues raised with himself in a meeting on 10 February 2011 (re: letter of 15/12/10 and further matter raised 23/12/10) had been investigated on the basis of information that Mr Croft had provided and were now closed (Exhibit 1-K). 12On 5 May 2011 Mr Croft was handed a 5 page letter of termination (dated 2 May 2011) from Mr Boggin (given to him by Mr Judd) in which he was advised inter alia that his "services be terminated immediately upon receipt of this letter. You will receive payment of three (3) weeks pay in lieu of notice" (Exhibit 1-A). 13By memo dated 5 May 2011, Mr Judd sought approval from the Group General Manager, Road and Fleet Service, Mr Greg Evans for external recruitment for the position formerly occupied by Mr Croft (Riverina District, Engineer Level 2 Position No. 50088395) on the basis that "the subject position has become vacant due to the termination of the incumbent". Mr Evans signed off on the memo "for approval" on the 20 May 2011 (Exhibit 5). 14On or about Friday 3 June 2011, Mr Croft contacted by phone his Solicitors, Hansons Lawyers (located in Wollongong), and was made aware of the 21 day time limit for the filing of s.84 applications. He arranged an appointment for Monday 6 June and travelled to Wollongong on Saturday 4 June 2011 in order to be able to keep that appointment. 15By correspondence dated 8 June 2011, Hansons Lawyers sent copies of Mr Croft's application which was received and noted as filed on the 10 June 2011 by the Illawarra-South Coast Regional Office of the Industrial Registry, some 15 days outside the prescribed 21 days for the filing of such application (Exhibit 1-B). 16Mr Croft and his wife are the registered proprietors of two properties, one in Narrandera (their residence) and one in Bomaderry with both properties subject to mortgages. The Evidence 17Only evidence considered relevant to the Commission's consideration of the out-of- time issue has been referred to below. 18Mr Croft stated that, as indicated in his termination Letter from the RTA, he received three weeks' payment in lieu of notice of termination. It was his understanding at that time that his employment ended three weeks from the date of that notice, being 23 May 2011. At the time of his termination he was also unaware of the timing provisions in s.85 in relation to making an unfair dismissal application and did not become of this aware until he contacted Hansons Lawyers. 19Mr Croft stated that prior to his termination his children were provided with fulltime day care Tuesday to Friday because his wife was working 5 days per week as a primary school teacher in the Narrandera area and he was taking approved parental leave on Mondays during school terms. After his termination, he and his wife decided to decrease the paid day care for their children in an effort to save on day care costs. This decision was taken as a direct result of the cost consequences of his termination. They reduced the day care to 2 days per week for the youngest child and 3 days for the eldest child. As a consequence he became responsible for the day care of the children, which significantly reduced the number of days available for him to seek specialised legal advice and delayed him in obtaining this advice. 20Mr Croft further stated that after his termination, he was also suffering from stress and depression because of his changed circumstances, and although he did not seek medical treatment, it was difficult for him to face the circumstances surrounding his termination and deal with those issues in an effective and responsive manner. Mr Croft also believed that he that he was dealt with unfairly. This also delayed his response is seeking specialised legal advice in relation to his termination. 21Mr Croft acknowledged that he did not mention 'depression' in his original application as one of the reasons for his late filing. However he had been to see his doctor earlier that year and had been prescribed medication for insomnia. 22Mr Croft further stated that he lived in a remote location and did not have access to a specialised legal firm that practices in employment law. From his knowledge there was only one legal firm in Narrandera, which advertised in the local paper that they specialised in family law and Local Court work. 23Mr Croft stated that on or about 3 June 2011 he contacted Hansons Lawyers and discussed his employment issue with Tom Sherley, a partner of the firm, who made him aware for the first time of the timing provisions in relation to making unfair dismissal applications in s.85 of the Act. He subsequently made an appointment with Talaishia Collis, a solicitor employed by Hansons Lawyers for 6 June 2011 and travelled to Wollongong on 4 June 2011 for that appointment. On 8 June 2011 Hansons Lawyers sent his s.84 application, being 13 days after the prescribed 21 days limit, and it was filed on 10 June 2011 with the Wollongong, being 15 days after the prescribed 21 days limit. 24Mr Croft also stated that he had decided to use Hansons Lawyers as he was familiar with the firm because it was the previous law firm he had used when he lived in Bomaderry while working for Shoalhaven City Council and he knew that they practiced in employment law. He said that it was important for him to obtain proper legal representation because, apart from giving him the greatest opportunity of success in his unfair dismissal application, the RTA was a large organisation and he believed they have access to specialised legal advice. He also decided to use Hansons Lawyers because his family lives in Wollongong (where Hanson's Lawyers is located) and it was easier and more cost effective for him to drive to Wollongong and leave his children with his parents to be cared for rather than having to organise and pay for day care for them. 25In cross examination Mr Croft acknowledged that Hansons Lawyers had acted for him in relation to the cessation of his employment with Shoalhaven Council in 2006. However he said that that was in relation to an issue of unpaid overtime and termination of employment was not discussed at the time. He denied that this indicated that as he had previous representation in an employment issue he would have been aware of the 21 day time limit. He had made no s.84 application in this jurisdiction prior to this current application. He also did not seek legal advice before sending his reply to RTA's show cause letter. 26Mr Croft also stated that there were very limited engineering positions in the Narrandera area, and if he was unable to obtain the relief claimed in this application or could not find alternative employment within his field of expertise, then it was likely that he would need to relocate his immediate family in order to find other employment in his specialised field. If this should occur his wife would need to find permanent employment elsewhere and he believed that this would place unnecessary stress on his marriage and his family. 27Mr Croft stated that because of his termination, his wife's salary together with limited savings were being used to service the mortgages on both their properties. However this was unsustainable, because due to his termination they did not have enough funds available to service both mortgages. As a result he had, in mid June 2011, instructed a Real Estate Agent in Nowra to sell the Bomaderry Property. As at the date of the hearing a purchaser had not been found for the Bomaderry property. In the event that he was not able to find a purchaser for that property he believed that he will not be able to service both mortgages, resulting in a default of his mortgage obligations. He believed that this could result in possession proceedings being commenced against him and could result in his family being evicted from their family home, resulting in further mortgage expenses and penalty interest expenses, as well as stress on his marriage and family. 28Mr Croft outlined the circumstances leading up to his termination (see Background and Chronology above) and noted that in his 18 March response to RTA's 16 March letter of suspension, he advised the RTA that should his employment be terminated then he would be seeking external assistance in order to maintain his employment. On that same date he also sent an email to the RTA's Human Resources Department in which he advised the RTA that should he fail to obtain a prompt and fair response to his treatment at work then he would be seeking external assistance to resolve the problem. 29Mr Croft also pointed out that in relation to his s.84 application he ticked the appropriate box indicating that his application was filed more than 21 days after the date of being dismissed and set out in brief terms the reasons as to why his application was filed out of time. In the RTA's Reply filed on 24 June 2011 there was no objection to an extension being granted for late lodgement of the application. 30Mr Croft believed that he was unfairly dismissed from his employment with the RTA because of the following reasons (with the documentation referred to attached to his witness statement): In or about September 2010, there was an incident where he was verbally abused and physically threatened by Graham McComber (Quality Surveillance Officer). On 4 November 2011, a formal mediation was held with Mr Croft, Mr McComber and a third party mediator in an effort to resolve the matter. They both agreed at the mediation that they would work amicably together in the future. On 3 December 2010, he had a meeting with Craig Matthews (Department Works Manager), Shane Dunnett (Work Supervisor), David Cross (Work Support Officer), and Graham McComber, where he was inappropriately and personally attacked by Mr Dunnett, Mr McComber and Mr Matthews. Due to the stress of that meeting he was forced to go home for a couple of hours before being able to return to work. At the meeting he was called a "problem", told "I don't have any friends" and "nobody liked me in the office" and that "nobody wants to work with them" because of him. On or about 15 December 2010 I made a formal complaint to the RTA's Human Resources Department advising of the conduct that had occurred at that meeting. On 4 March 2011, he emailed Karen Edwards (General Manager, Human Resource Strategy) and asking what progress had been made in relation to the issues he had been having at work. On or about 15 March 2011 and 23 March 2011 he was notified that after the RTA making an investigation that the matter had been closed. On or about 16 December 2010 Mr Shane Dunnett made inappropriate gestures to him from his motor vehicle and made disparaging comments over the UHF radio about him. Later that day Mr Dunnett drove his vehicle towards him at an unsafe speed, (being approximately 60 kph), and slammed the breaks on the vehicle stopping extremely close to where he was standing in an effort to intimidate him. On or about 23 December 2010, Mr Croft raised this incident at a meeting with Mr Judd and Garry Sexton (Human Resources Officer). On or about 24 December 2010, he also reported this incident to the RTA Human Resources Department by email. On or about 16 February 2011, he attempted to hold a scheduled meeting with Mr McComberand at that meeting he refused to work with him and said to him words to the effect that "it was my own fault that I had no friends and that I had brought this upon myself". This was in breach of the agreement reached between them at the mediation. Mr Croft sent an email to Mr Matthews, Nathan Allan, and cc'd in Pauline Roach (Grievance Network Coordinator) about the discussion held with Mr McComber that day. He believed that from the date of the incident that occurred in September 2010 to the date of his termination that he was bullied and harassed by a number of RTA employees and despite having notified the RTA of this behaviour on a number of occasions the RTA failed to address these issues. 31Mr Croft was also asked a range of questions about the issues to do with his conduct that resulted in the RTA terminating his employment. 32Mr Croft also generally refuted the allegations contained in Mr Judd's witness statement. 33He further indicated that between 18 March 2011 and the termination letter received on 5 May 2011, the only contact he had with the RTA was a telephone conversation he had with an employee of Richard Boggon's on about 24 March 2011 in which he confirmed that his response of 18 March 2011 had been received. He also reaffirmed that he would like to attend a meeting with Mr Boggon. He also had a telephone conversation with Mr Judd on or about 1 May which scheduled the meeting of 5 May at Narrandera Shire Council. 34He maintained that not all matters could have been investigated or closed as stated by Mr Judd in his letter of 23 March 2011, as some matters concerned Mr Judd himself. 35Mr Croft stated that since his termination he had attended three interviews for local government engineering positions, however he had been unsuccessful on each occasion. Two of the positions were 25 minutes and 1 hour 15 minutes, respectively, from his home in Narrandera and two positions were offering approximately 30% less remuneration than the salary paid to him when he was employed by the RTA. 36Mr Croft also did not believe he had been given procedural fairness in relation to RTA's PN061 Managing Unsatisfactory Performance and Conduct Policy, either when he was issued with the 16 March letter of suspension or on a number of other dates when meetings/incidents had occurred as referred to in his email correspondence with RTA's Human Resources Department (and referred to in paragraph 30 above). 37Mr Croft maintained that his actions after his termination on 5 May 2011 were reasonable to mitigate the impact of RTA's sudden decision to terminate his employment. Due to distance between Wollongong and Bomaderry from Narrandera, organising to travel to Wollongong to meet with Hansons Lawyers, to conduct a final property inspection, to organise property repairs and meet with Real Estate Agents, it was practical to travel down only on the one occasion. 38Mr Judd stated that if Mr Croft's application was not rejected the RTA wouldl be required to expend further time and resources in preparing for, and attending, arbitration. 39He also stated that the position held by Mr Croft had been filled and the replacement commenced at Narrandera on 22 August 2011. If the matter proceeded to arbitration and the RTA was ordered to reinstate Mr Croft to Narrandera then the RTA will be required to find alternative employment for that person who would himself experience dislocation. 40Mr Judd also stated that if Mr Croft was reinstated to Narrandera, it would cause disharmony amongst the staff and compromise the effectiveness of that section. 41Mr Judd noted that the RTA in its Reply to Mr Croft's original application did not indicate either acceptance or objection to late lodgement. When the RTA became aware of its oversight in not indicating its objection to late lodgement, it immediately notified the Commission and Mr Croft's Solicitor by letter dated 27 June 2011 (Exhibits 5-I & 5-J). 42In relation to Mr Croft's grievances Mr Judd stated that he and Pauline Roach, Acting Manager Workplace Practices met with Mr Croft on 10 February 2011 to discuss those grievances. The RTA advised him by letter of 23 March 2011 that investigation of his grievances had taken place and the matters were closed (Exhibit 5-K). 43Mr Judd stated that he considered that the RTA's letters to Mr Croft of 16 March 2011 and 2 May 2011 set out the comprehensive and careful consideration taken by the Director, Commercial Services to the he had matters raised, before the decision to terminate was made. 44Mr Judd stated that taking into account the repeated refusal by Mr Croft to comply with reasonable work directions, the intimidating behaviour he had exhibited on occasion, together with the procedural fairness afforded to him, both in regard to enquiring into his grievances, as well as considering his reasons regarding the penalty of termination, he did not consider there was any justification for the Commission to accept Mr Croft's late filing of his application. 45Mr Judd acknowledged the action (and timing of that action) that had been taken to fill Mr Croft's position. This was necessary because of the essential nature of the position. Once the application for external recruitment was approved then it went to the Department of Transport for approval. 46He also indicated that there had been another vacancy filled at Narrandera in December 2010 for another similar level position and an eligibility list had been created. On the 8 July 2011 he approved accessing that eligibility list for appointment to Mr Croft's former position. Submissions on Behalf of the Applicant 47Mr Darams made short oral submissions elaborating on the written submissions as filed (Exhibit 6) and in doing so took the Commission to the provisions of s.85(3) and addressed the matters set out therein. 48Mr Darams submitted that he could not point to one particular matter to be relied on but rather a range of relevant issues which, combined with the relatively short delay and there being no demonstrable hardship to the RTA, made out the case for the Commission to allow Mr Croft's out-of-time application. 49It was submitted that the Commission's discretion under s.85(3) of the Act was a "broad one" allowing it to depart from the strict time requirements of the Act if fairness so demanded ( see Markovski v Sydney South West Area Health Service [2010] NSWIRComm 1043 at [193]). However, the discretion must be exercised judicially and the Commission must be satisfied that there was a "sufficient reason" having regard in particular to the matters set out in s.85(3)(a)-(c) of the Act. Further, it had been held that only one, or two, or all three of the matters in set out in s.85(3), might be found to constitute a sufficient reason, or reasons, for the Commission to be satisfied its discretion should be favourably exercised ( see McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [27] per Sams DP) 50The general principles which apply in out -of -time matters have been cited in several decisions including Markovski, Green v Yum! Restaurants Pty Limited [2004] NSWIRComm 1109 at [138], Khorramdel v Sydney South West Area Health Service [2010] NSWIRComm 1018 at [180] with those cases referring to the principles set out by Sams DP in Kent Gorrell v Uwatec Pty Ltd (unreported, IRC 1700/99, 5 July 1999). 51It was submitted that it was now clear, arising from Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12]-[14], that a lack of knowledge of the 21 day time limitation could be a relevant consideration in determining whether to accept an application out of time however as the Full Bench said in Hurrell (at [13]) the ultimate exercise of discretion was governed by requirements of justice. 52In applying the facts to Mr Croft's case, the delay in filing the application was 15 days. Whilst unfortunate, it was submitted that this was not a lengthy delay and there were a range of relevant factors that should be taken into account. Mr Croft had given the following reasons for the delay: He was unaware of the 21 day time limit for filing the application. This lack of knowledge was a relevant consideration ( see Hurrell ). He said that his understanding of the termination letter was that his employment ended upon the expiration of the period of 3 weeks notice given to him (for which a payment in lieu was provided). The termination letter was not unambiguous and it was not surprising that there was confusion in the mind of Mr Croft given the circumstances. The circumstances surrounding the termination of his employment, understandably resulted in Mr Croft suffering stress and depression making it difficult for him to face the circumstances surrounding his termination and deal with the issues effectively. Mr Croft had financial matters to attend to which whilst not determinative of themselves were pressing on his mind -the care of his young children and the mortgage payments to be met. Mr Croft also took an increased role in the daily care and supervision of his children. Once Mr Croft was aware of his rights and the time limit under s.85 he acted quickly to travel to Wollongong, met with solicitors and filed his Application. 53It was submitted that against the second reason, that the RTA pointed out that the termination letter dated 2 May 2011 said Mr Croft's "services are [to be] terminated immediately upon receipt" of the letter. Given that payment in lieu of notice was also being, and that was the statement immediately following those words, then it could not be said (even if it were erroneous) that the view held by Mr Croft was unreasonable. That is, it might be said that the proper characterisation of the letter was that the RTA had decided to terminate Mr Croft's employment, was giving him 3 weeks notice of that decision, but was dispensing with the requirement for him to provide his services for those 3 weeks and would pay him in advance. 54It was submitted that this was consistent with an understanding of the phrase "payment in lieu of notice" ( see Delaney v Staples [1992] 2 WLR 451 at 454-455 per Lord Browne-Wilkinson and Sanders v Snell (1998) 196 CLR 329 at [19]). 55It was submitted that in those circumstances, and if Mr Croft's understanding was correct, (an issue which did not need to be decided), then the application was filed within time. However Mr Croft accepted that , for the purposes of this application his rights to commence his application under s.84 of the Act started on 5 May 2011. 56It was submitted that RTA's protests that Mr Croft had 50 days and 73 days notice that it was "considering terminating his employment" were not to the point. Firstly, the relevant focus in an out-of-time application is on the delay in filing the application under s.84 which only operates from the time of the dismissal. Secondly, and more unfavourable to the RTA, such a submission invited the question of whether or not the RTA had pre-determined the outcome of the process it commenced on 16 March 2011. It further invited the question; was Mr Croft entitled to believe that he would be given a fair and proper hearing? 57It was submitted that it was entirely reasonable for an employee not to incur legal costs in circumstances where they believed they might be entitled to a fair and proper hearing and where they did not believe that they had engaged in conduct for which their employment might be terminated. 58On the question of hardship it was submitted that if Mr Croft's application was not accepted he would be unable to challenge the decision to terminate his employment in proceedings in which reinstatement or re-employment was an available remedy. Mr Croft sought reinstatement or re-employment (but as an alternative, he also sought monetary compensation if those remedies were impracticable). Further, Mr Croft also stated that there were limited engineering positions in the Narrandera area and if he was unable to find specialist work in his field in that area, he will likely have to relocate his family to find such work. Additionally he had had to put the property in which he and his wife have some equity up for sale. 59It was submitted that the particular hardship that Mr Croft would suffer was different to, and over and above, the usual hardship normally encountered by an applicant. 60It was submitted there was no demonstrable hardship to the RTA. The RTA had said that it will have to spend time and resources in attending the arbitration but that alone was not sufficient hardship to deny the application (such matters would still have arisen if the application was filed in time). Moreover, the decision to fill the position which Mr Croft held must be seen in light of circumstances where he had commenced the proceedings and had sought reinstatement. There was no evidence that there was a pressing necessity to fill the position. Finally, RTA suggested that it would suffer some hardship due to "disharmony amongst staff" if Mr Croft was to succeed in his application (for relief). It was submitted that there was no admissible evidence of such. Moreover, such an issue was relevant to any remedy which might be considered after the Commission had determined that the dismissal was unfair, and not on an application under s.85(3) of the Act. 61In relation to the issue of conduct of the employer relating to the dismissal, apart from matters referred to concerning wording of the termination letter/ payment in lieu of notice, it was accepted that, consistent with previous authority of the Commission (see Green v Mayne Nickless Ltd t/as Armaguard (unreported, Cambridge C, IRC 2945/97, 11 February 1998; and McClymont at [49]-[50]), there was no evidence that the RTA engaged in any conduct which prevented Mr Croft from filing his application. 62It was also submitted that it was not possible to say that there was no prospect of success or that Mr Croft's application was unlikely to succeed, as the evidence showed that there were procedural fairness issues to be addressed. 63In conclusion it was submitted that the Commission should exercise its discretion to allow Mr Croft's Application to proceed to arbitration notwithstanding that it was filed 15 days out of time. The justice of the case determined that such a result should follow. Submissions on behalf of the respondent 64Ms McGuigan made short oral submissions elaborating on the written submissions as filed (Exhibit 7) and in doing so took the Commission to the relevant provisions of s.85(3) and also addressed the matters set out therein. 65It was submitted that Mr Croft had failed to establish a sufficient reason to warrant the acceptance by the Commission of his out of time application. 66Mr Croft stated that he was unaware of the timing provision in relation to making an unfair dismissal application. Whilst the term "ignorance of the law is no excuse" has been a widely discussed term in the case law applying to out of time applications, nevertheless it was open to the Commission, as indicated in Hurrell to consider the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. 67It was submitted that Mr Croft had provided no evidence to support his reasons for the ignorance of the 21 day time limit nor had he provided objective and admissible evidence of personal circumstances affecting his knowledge of, or access to, advice. He was a highly educated person with an engineering degree who has been in the workforce for some considerable time. It was difficult to believe that he misinterpreted the RTA's letter of termination which stated that upon receipt of the letter his employment was terminated. The words of the letter were unambiguous. 68Further, it was submitted that his circumstances were not those of an individual who may have problems reading and writing and therefore understanding and responding to the letters he received leading up to his termination. In fact, he was so skilled that he was able to respond fully in emails to the RTA as to why his employment should not be terminated. There had been no suggestion that he received legal assistance with those submissions. In Mr Croft'ss Statement he referred to having previously used Hanson Lawyers and was aware that this firm practiced in employment law. It would only have taken one phone call to this firm to be advised of the 21 day time limit. Also given the level of education and skill which Mr Croft possessed, it was puzzling to understand why he did not undertake his own enquiry by either accessing the internet or making a phone call to the Commission. 69It was submitted that whilst Mr Croft referred in his Statement to suffering from stress and depression, it was noted that there was no medical evidence to support his self diagnosis. He made no mention of this as a reason when he completed his Application for Relief in Relation to Unfair Dismissal and presumably, it was not at the forefront of his thinking. His Application stated that he had to arrange the sale of his residential property, removal of tenants and attempt to obtain alternative employment. 70It was further submitted that despite the allegation of stress and depression Mr Croft, as noted in his witness statement, was able to undertake the day care of his young children and was able to drive to Wollongong to attend Hansons Lawyers. 71It was submitted that the conclusion that was open to the Commission was that Mr Croft's behaviour indicated that he was not suffering stress and depression and could well have been expected to file his application within time. 72In relation to hardship it was submitted that it had been noted by the Commission that "every dismissal brings with it some degree of hardship, either personal, emotional or financial" but that section 85(3)(b) is particularly directed towards any "additional or excessive hardship" Kent Gorrell v Uwatec Pty Ltd (as cited in McClymont ) . 73It was submitted that there was no evidence that Mr Croft had suffered any exceptional or excessive hardship as compared to the general degree of hardship that is experienced by any employee who is dismissed. There was no evidence submitted to Mr Croft's claim that he is experiencing financial hardship as a result of his termination. Further, every former employee who has been dismissed would experience some degree of financial hardship until they find a new job. Likewise, there was no evidence filed which supported Mr Croft's claim that he suffered stress and depression following his dismissal. 74It was submitted that Mr Croft had good prospects of finding future employment as he is young, highly educated and qualified in engineering, is a skill set that is currently in short supply and for which there is a high demand. These factors worked against any suggestion that Mr Croft will suffer some hardship if his out of time application is rejected by the Commission. 75It was submitted that there was no evidence that the RTA had acted in any way which may have contributed to Mr Croft filing his application out of time. 76The submission made on behalf of Mr Croft that his Application was filed some 15 days late and that it was clear that those acting on his behalf took steps to have the Application filed sooner was rejected by Ms McGuigan who submitted that had appropriate steps been taken, the Application would have been filed sooner. 77Submissions on behalf of Mr Croft about RTA's failure to fill out the "late lodgement" section of its Reply were also rejected. The RTA mistakenly failed to fill out this section of its Reply and this error was rectified by writing to the Commission on 27 June 2011, advising of the mistake and correcting the position. It was also made clear in the conciliation proceedings on 7 July 2011 that RTA would be challenging Mr Croft's late lodgement of the unfair dismissal application. 78It was submitted that, as noted in Mr Judd's evidence, the extensive period of some 50 days during which Mr Croft was suspended and during which time the RTA was considering terminating his employment, a reasonable person would have made basic inquiries during this time about their rights in case their employment was ultimately terminated. These basic inquiries could have informed Mr Croft about the 21 day time limit for filing an unfair dismissal application. Further, to suggest as much, by no means indicated that the decision to terminate Mr Croft was pre-determined. The RTA strenuously denied such a suggestion. Mr Croft was on notice that the RTA was considering terminating his employment and that this was a possible outcome yet it appears he failed to make even the most basic of inquiries to inform himself about his rights, if and when such a situation presented itself. 79It was submitted that it was in the public interest that the Commission adhere to the time limit set in section 85(3) which ensures that applications are dealt with expeditiously (see Syed Rizvi v South Eastern Sydney & Illawarra Area Health Service [2009] NSWIRComm 1084). 80In conclusion it was submitted that in all the circumstances there was no justification for allowing Mr Croft's application to proceed. He had failed to establish that there was a sufficient reason for the Commission to accept his application out of time. The Commission should decline to exercise its discretion pursuant to section 85(3) of the Act, and dismiss Mr Croft's unfair dismissal application and conclude matter IRC 827 of 2011. Consideration 81I have carefully considered the evidence and submissions of the parties and the relevant authorities in relation to out of time applications, including those referred to by Mr Darams and Ms McGuigan. 82The Commission should indicate at the outset that this matter involves a relatively very short period of time outside the 21 day limit - some 15 days, when compared to other similar applications which have before this Commission. Indeed if Hansons Lawyers had taken the time to simply walk down the road and file the application with the Wollongong office of the Industrial Registry, (given the date of their covering correspondence) then the application would have been only 13 days out of time. 83S.85(3) of the Act gives the Commission a broad discretion to allow an applicant to depart from the strict requirements of legal form and accept an application out of time, if fairness so demands. However in exercising its discretion the Commission must be satisfied that a "sufficient reason" has been made out to accept such an application having particular 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. 84In Green & Yum! Restaurant Pty Ltd the Commission, as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as originally expounded by Sams D P in Kent Gorrell v Uwatec Pty Ltd, (and as referred to by the parties), as follows: 1.The Commission's power to accept out of time applications is discretionary. 2.The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3.It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances. 4.There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing. 5.There is a public interest in the prompt institution and prosecution of litigation before the Commission. 6.The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties. 7.Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8.Ignorantia legis neminem excusat (ignorance of the law excuses no one). 85In Director-General of Education and Training v Bond [2009] NSWIRComm 40, the Full Bench observed at para. 14 that, ..."The law applicable to applications such as the present is well settled", citing with approval Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR at [12] - [15] as follows: [12]... a lack of knowledge of the 21 days time limitation specified in s.85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. 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 Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 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 (NSW)) 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 s 246(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 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 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." [13] 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 our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we 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". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances is giving rise to late lodgement, including any attempt to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 86Mr Croft has maintained that not only was he ignorant of the 21 day time limit for the filing of such applications but that he was also of the belief that when he was terminated on 5 May 2011 and given three weeks' payment in lieu of notice that essentially he believed that the employment relationship did not end until the expiration of that three week period, that being the 26 May 2011. 87Notwithstanding that belief, Mr Croft has given a number of reasons that mitigated against him taking immediate action to file a s.84 application following his termination, such as the necessity of arranging his financial affairs as a consequence of his termination, which also resulted in the necessity of at reducing the paid childcare arrangements for their two pre-school age children and Mr Croft assuming some of those childcare responsibilities and also attempts to find a purchaser for their Bomaderry property. 88Mr Croft has also indicated that he was suffering from depression during this period. It is not uncommon for a person to suffer depression and loss of self esteem when they are dismissed. However that would not form a sufficient reason for a delay in filing an unfair dismissal application unless the condition was so severe as to either require hospitalisation or where it was clear as a consequence of medical reports or as a result of medication, that such a condition of was of sufficient severity to have precluded a person from making an application (see Moore v Metropolitan Local Aboriginal Land Council [2005] NSWIRComm 325 at [19] and Healey v HPA [2003] NSWComm 195 at [22]). 89After the expiration of the three week period involved in the payment in lieu of notice, In the Commission's view, Mr Croft took appropriate action to contact the firm of Solicitors which had previously handled a matter concerning a former employment issue (but not however an issue involving a dismissal or an application to this Commission). Mr Croft contacted his Solicitors by phone on Friday 3 June 2011 and on learning he only had 21 days in which to file an application and was already out of time, he arranged to meet with Hansons Lawyers the following Monday 6 June. 90The Commission considers that these actions were taken expeditiously and in fact confirm Mr Croft's honest belief there was still an employment relationship on foot with the RTA until that period had expired. If that had in fact been the case then Mr Croft's s.84 application would have been filed within the prescribed 21 day period. 91The Commission should also observe that it is not uncommon for an employer to terminate an employee giving them anything from 1 or 2 or up to 3 or 4 weeks notice that they will finish up on a certain date (e.g. 26 May 2011), but to also indicate to such employee when they actually inform them of their termination that they do not need to serve out the notice period and can leave immediately (indeed this is often the preferred option of employers in my experience). In such a case, in my view, an applicant would not need to file a s.84 application until that notice period had expired. 92The Commission acknowledges that there was no conduct on the part of the RTA either before or after the termination that acted to prevent Mr Croft from filing his s.84 application. 93The Commission considers that in relation to hardship there is a degree of hardship encountered by Mr Croft that is over and above the usual degree of hardship encountered by any employee terminated from their employment. Mr Croft relocated to Narrandera to take up his position with the RTA and his wife is a permanent teacher with the Department of Education and Communities. There is no doubt that Mr Croft's options of gaining employment in his chosen profession in a rural area raises difficulties not commonly encountered by applicants in metropolitan areas or indeed applicants who may have a broader range of employment options/opportunities in either a rural or metropolitan region. Should Mr Croft fail to find a new position within travelling distance of his current residence (and his attempts thus far have proved unsuccessful) then that will inevitably mean relocation with possible significant effects (including additional financial hardship) on Mr Croft and his family. 94In contrast the Commission frankly sees no hardship on the RTA arising from allowing Mr Croft's out of time application. The RTA is a very large employer with significant resources and has thus far conducted proceedings using its in-house Officers and resources. There was no evidence that this would not continue to be the case. Mr Darams has rightly pointed out that the RTA would have faced the same situation if the application had in fact been filed within time. 95The fact that the RTA has filled the position should not (and will not) be taken into account as a factor mitigating against Mr Croft being able to have his application determined in the usual way. 96Decisions of this Commission make it quite plain that the mere fact that an employer has filled a position following the termination of an employee should of itself not prejudice/prevent an applicant from succeeding in being reinstated as a result of the hearing of their reinstatement application. 97Indeed it is clearly imprudent for any employer to move to fill a position on a permanent basis (rather than on a casual or temporary basis) until such time as, firstly, it is clear that an appropriate application is not going to be made, and secondly, if an application is made that it has been finalised as a consequence of either conciliation or arbitration proceedings. 98It is usual to take the length of the time delay in the filing of an application position into consideration in relation to hardship to the employer where an applicant who has made a s.84 application is reasonably significantly out of time and in circumstances where there was no indication that such an application was going to be made. 99In this matter there is no such situation upon which the RTA can place reliance. 100Firstly the application was only 15 days out of time, and as observed above this is a very short period of time when other out of time applications are considered. 101Secondly the RTA did not even await the expiration of the 21 day filing period before taking steps to fill the position - indeed such action was initiated on the very day Mr Croft was advised of his termination by Mr Judd. It was signed off by Mr Evans before the 21 day limit had expired. The position was filled (not from an external application but from an internal eligibility list) after Mr Croft's application had been filed, conciliation had taken place and it was clear no settlement had been reached and directions had been issued as to the filing and exchange of witness statements, and a hearing date set to deal with the out of time issue. Indeed the evidence of Mr Judd was that the position had been filled and taken up by the internal replacement employee just nine days before the hearing on 31 August 2011 of Mr Croft's application for the Commission to exercise its discretion and allow his matter to proceed to a hearing on the merits. 102Frankly the Commission has never encountered such a situation on the part of an employer before. 103This is not an application where it can be said without hesitation or doubt that Mr Croft has no possibilities or limited prospects of success, as was clearly the case in Rizvi, Khorramdel and Markovski. 104Certainly in Mr Croft's case there are issues as to his conduct/behaviour to be considered, however on the part of the RTA there are also possible procedural fairness issues to be considered. It must also be kept in mind that in unfair dismissal applications the mere fact that an applicant is found to have committed the conduct/behaviour alleged (even where that involves misconduct) the issue that still remains to be determined (apart from any procedural fairness issues) is whether or not in all the relevant circumstances termination was unjust, and/or unreasonable, and too harsh a penalty to be imposed (see Cockayne v Hurstville City Council [2009] NSWIRComm 1013). 105Having carefully considered the circumstances of this matter, including the relatively brief delay in filing, I am satisfied that there has been "sufficient reason" made out to enable the Commission to exercise its discretion pursuant to s.85(3) of the Act. Mr Croft's claim for relief in IRC 827 of 2011 is accepted out of time. 106The Commission recommends to the parties that further discussions be held in an effort to settle this matter. The Commission is available to assist with further conciliation which can be listed at 10 am on Wednesday 5 October 2011 in Wollongong. If no settlement is able to be reached then directions as to the filing and exchange of witness statements will be issued in accordance with Practice Direction 17 and appropriate dates fixed for the hearing of Mr Croft's application for reinstatement, re-employment or monetary compensation in lieu thereof. Elizabeth Bishop 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: 15 September 2011