Transport Appeal Boards New South Wales Medium Neutral Citation: Brown and RailCorp [2011]NSWTAB [2011] NSWTAB 19 Hearing dates: 5 & 12 October 2011 Decision date: 14 October 2011 Before: Macdonald C (Board) Decision: (1) The appeal is allowed Catchwords: PUBLIC SERVICE - RailCorp - employee engaged as Driver - employee dismissed following investigation - employee appealed the decision to dismiss his services - first Notice of Appeal lodged by employee at former address of Transport Appeal Boards - second Notice of Appeal lodged at correct address but out of time - RailCorp raised jurisdictional issue - 21 day time limit in which to appeal - no statutory discretion in Transport Appeal Boards to accept late filed Notice of Appeal - Union admitted to giving wrong address to dismissed employee - first Notice of Appeal lodged in time - HEARING: - Witnesses - representational error by Union - Board accepted first Notice of Appeal that was lodged in time - Notice of Appeal allowed to proceed. Legislation Cited: Transport Appeal Boards Act 1980 Cases Cited: Tenedora v RailCorp (15/11/2010) Category: Principal judgment Parties: Robert Brown (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr L Heaney & Mr B Edghill Train Tram and Bus Union (Appellant) Ms M Robinson Rail Corporation of NSW (Respondent) File Number(s): TAB 1102 of 2011 DECISION on jurisdiction Introduction 1Robert Brown (the appellant) commenced employment with the Rail Corporation of NSW ("RailCorp") on 28 November 2005 as a Car Cleaner. At the time of his dismissal on 1 July 2011, he had been engaged as a Train Driver. 2On 25 July 2011, the Appellant lodged a Notice of Appeal. 3Given that this Notice of Appeal was lodged outside of the 21 day time provided for by section 13 of the Transport Appeal Boards Act 1980, then RailCorp raised a jurisdictional objection to the Appellant being able to pursue his Notice of Appeal. 4A Hearing on this jurisdictional issue took place on 5 and 12 October 2011 before the Transport Appeal Boards ("the Board"). 5The Appellant was represented by the Rail, Train and Bus Union, NSW Branch ("the Union"). At the 5 October Hearing, the Union was represented by Mr B Edghill. He called as a witness, Ms Jade Thompson, receptionist at the Union. At the 12 October Hearing, the Union was represented by Mr L Heaney who called the Appellant as a witness. 6At both Hearing dates, RailCorp was represented by Ms M Robinson. SUBMISSIONS 7Ms Robinson submitted that the Board could not accept the Appellant's late filed Notice of Appeal. Section 13 of the Transport Appeal Boards Act 1980, set a mandatory 21 day requirement in which time, a Notice of Appeal had to be lodged. The mandatory language of section 13 ("An appeal shall be lodged with the Secretary...."), did not give discretion to the Board to accept a late filed Notice of Appeal. 8The Appellant had lodged his first Notice of Appeal within time but had addressed it to the former address of the Board (Oxford Street, Darlinghurst), instead of the correct address (Bridge Street, Sydney). He filed his first Notice of Appeal at the wrong address consequent upon incorrect advice being provided to him by the Union. That was unfortunate, but the language of section 13 is mandatory and his second Notice of Appeal was lodged out of time. RailCorp's dismissal letter, provided to the Appellant, had shown the correct mailing address. 9The decision of Acting Commissioner Oakman, which allowed the first lodged Notice of Appeal to be accepted by the Board, could be distinguished from the facts of this case. In that case, RailCorp had been the cause of giving out the wrong mailing address for the Board and RailCorp could not be allowed to argue against the acceptance of that incorrectly addressed first filed Notice of Appeal where RailCorp was the cause of the late filing: Tenedora v RailCorp (15 November 2010) 10Mr Heaney for the Union, submitted that the first Notice of Appeal should be accepted by the Board because the Appellant's first Notice of Appeal had been filed within time although at the wrong address which was provided to the Appellant by the Union. CONSIDERATION 11There were two Notices of Appeal lodged in respect of the Appellant's appeal against RailCorp's decision to dismiss the Appellant. The first Notice of Appeal was sent by the Appellant through the mail to the Board but at the wrong address. He deposed he sent his Notice of Appeal in an Express Post pack from Punchbowl Post Office on 18 July 2011. On 25 July 2011, the same Express post envelope was returned to him and marked, "NOT AT THIS ADDRESS". 12The 21 day time limit for lodging a Notice of Appeal, had expired on 21 July. 13The Appellant contacted the Union by phone and spoke to two union officials. They advised that the Appellant had been given the "old" form (Notice of Appeal) when he attended the Union office on 16 July. It was "old" in that it showed the former and hence incorrect address (Oxford Street, Darlinghurst) for the Board. The "old" form had been provided to him by the Union's receptionist, Ms Jade Thompson, when she downloaded the "old" form from the Union's computer. This "old" form circumstance was confirmed by Ms Thompson in her witness statement. She was in July a new employee and had accessed the "old" form which, through no fault of hers, had not been deleted from the Union's computer. 14The Union then lodged a second Notice of Appeal, on behalf of the Appellant, and it was clearly lodged with the Secretary (the Industrial Registrar) out of time. 15Section 13 of the Transport Appeal Boards Act 1980, makes it mandatory that a Notice of Appeal be lodged within 21 days after notice, in writing, of the dismissal of the Appellant is given to the Appellant. That mandatory requirement means that the second Notice of Appeal can not be accepted by the Board as it was lodged after the 21 day time limit. 16The first Notice of Appeal was sent by Express Post. That Express Post envelope bears a postmark of 18 July, a Monday, Punchbowl. (Ex 2, Annex B) That Express Post envelope says, as to delivery time, "Guaranteed Next Business Day Delivery within the Express Post networks". That makes for a delivery of this first Notice of Appeal on 19 July and that date is within the mandatory 21 day time limit - except that it was sent to the wrong, former address of the Board. 17The Board was provided with a decision of Acting Commissioner Oakman, in which the Board set out its reasoning for accepting a Notice of Appeal that had been sent to the wrong, former address of the Board. The Acting Commissioner reasoned that the Board could not accept the second Notice of Appeal because it was lodged out of time. However, the first Notice of Appeal could be accepted due to the "unique circumstances" of the case before him. That is, the parties before him accepted that the first Notice of Appeal was sent to, and would have been received at, the old address within the 21 day period: Tenedora's case. 18The foregoing factual circumstance applies to the Appellant in the proceedings before myself. There was no dispute from the parties, in particular RailCorp, that the first Notice of Appeal would have been lodged, at the wrong address, but within time. 19RailCorp however sought to distinguish the reasoning of Acting Commissioner Oakman. RailCorp submitted that the reasoning showed that RailCorp was the cause of giving out the wrong address of the Board and was therefore estopped from raising a jurisdictional bar to the Appellant's first Notice of Appeal being lodged at the wrong address. In the present case, the Appellant had been provided with a dismissal letter and it set out the correct address. The Appellant, it was submitted, was at fault for the lodging of the first Notice of Appeal at the wrong address given that the dismissal letter gave the correct address. 20The Board rejects the foregoing submission. Although the dismissal letter shows the correct address, the Appellant gave evidence in the witness box that he had not noticed that address because he went into shock when he read the dismissal letter. Later he went to the Union office to obtain a Notice of Appeal form and was given the wrong form (showing the former address of the Board). This was not his fault. It was representative error by the Union office and the Union conceded that way. 21The Board accepts, that the Appellant lodged his first Notice of Appeal within the 21 day statutory time limit. The fact that he sent it to the wrong address was not his fault but due to representational error. 22Accordingly, the Board has jurisdiction to hear the appeal. 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. Decision last updated: 14 October 2011