Industrial Relations Commission New South Wales Medium Neutral Citation: Nickel and Fire and Rescue NSW [2012] NSWIRComm 49 Hearing dates: 28 May 2012 Decision date: 06 June 2012 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Principal Catchwords: Application out of time. Inexcusable disregard for statutory time limit. No sufficient reason to accept application out of time. Application to exercise discretion to extend time refused. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Brisbane South Regional Authority and Taylor (1996) 186 CLR 541; Karakas and George Weston Foods Ltd T/as Tip Top Bakeries (Newcastle) [2006] NSWIRC 1162; Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Category: Principal judgment Parties: Paul Alan Nickel Fire and Rescue NSW Representation: Ms J Svenson University of Newcastle Legal Centre (Applicant) Ms L Iacumin Snr Industrial Relations Officer (Respondent) File Number(s): IRC 541 of 2012 Publication restriction: No REASONS FOR DECISION 1An abridged ex tempore decision was issued in transcript on completion of proceedings on 28 May 2012. Reasons for Decision are published herewith. 2The application in this matter, filed on 1 May 2012, seeks relief from termination of employment of Mr Paul Alan Nickel from Fire and Rescue NSW which took effect from 8 March 2012. 3The application is filed over 30 days beyond the time limit of 21 days prescribed by section 85(1) of the Industrial Relations Act 1996 ("the Act"). The applicant seeks exercise of discretion by the Commission pursuant to section 85(3) of the Act to admit the application out of time. 4The employer opposes the admission of the application out of time. 5Section 85(3) of the Act states: 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 6Ms Svenson of the University of Newcastle Legal Centre, appearing for the applicant, put that the principal reason for the delay was the need for the applicant to consider his options and that, having lost his main source of income, he was unable to afford a private lawyer. Ms Svenson put that there was a delay in her appearance due to workload which meant she was unable to take instructions from the applicant until 3 April 2012. Ms Svenson put that the need to obtain documents, not all of which are yet to hand, and consideration of options, resulted in the application not being settled until 30 April 2012. 7Ms Iacumin, Senior Industrial Relations Officer of the Employer, put that the applicant had accepted medical retirement and a payment of $145,914.04 (gross) on termination in accordance with his entitlement pursuant to the Crown Employees (NSW Fire Brigades Firefighting Staff Death and Disability) Award 2009 368 IG 364. 8Ms Iacumin submitted that the following facts were relevant to a consideration of the matter: the employer had initiated a number of medical retirements in 2011 which, on representation by the Fire Brigade Employees' Union of New South Wales, had been put on hold whilst consultation occurred. The medical retirements were re-activated following this process of consultation. On 30 January 2012 the applicant sought information from the employer concerning medical retirement, the current forms necessary for his application for medical retirement to be considered, and an estimate of the payment he would receive. The applicant requested this information be sent to his private email address. The applicant completed and returned the Medical Case Review Consent Form on 5 February 2012. On 22 February 2012 he was informed that his medical retirement was approved and his retirement date would be 8 March 2012. The applicant signed off on the Partial and Permanent Incapacity (PPI) payment on 13 March 2012, which included his bank account details for payment of monies to him. 9Ms Iacumin submitted that the applicant was an active and willing participant in the process of termination and had found other employment in the mining industry. 10Ms Svenson did not dispute the facts as asserted by Ms Iacumin, other than to deny that the applicant had found employment in the mining industry. Ms Svenson put that the applicant was working in his own electrical contracting business and was seeking employment in the mining industry but had so far not been successful. 11The principles to be considered in an exercise of discretion pursuant to s85(3) are well settled, see Brisbane South Regional Authority and Taylor (1996) 186 CLR 541; Karakas and George Weston Foods Ltd T/as Tip Top Bakeries (Newcastle) [2006] NSWIRC 1162; Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139. 12In Taylor it was held: "that an applicant for an extension of time under s 31(2) does not have a presumptive right to an order once the conditions in s 31(2)(a) and (b) have been satisfied. An applicant still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably, and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant. Section 31(2) does not require a weighing process between the potential prejudice to the applicant and prospective defendant." His Honour McHugh J stated at pages 553 and 554: "A limitation provision is the general rule; an extension provision is the exception to it. ... ... The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 13The reason for and length of delay advanced in this matter are not circumstances which would support an exercise of discretion to admit the application out of time. 14The balance of hardship falls against the exercise of discretion to grant an extension of time. 15It is said that the applicant is impecunious as the post employment payment was applied to debt. It is further put that he is prepared to repay the amount to the employer if successful in reinstatement. This, taken with the acknowledgement that he is working in his own electrical contracting business, is difficult to reconcile with his inability to engage a private solicitor and so compelled to await the availability of the University of Newcastle Legal Centre. 16The delay between 3 April 2012, when instructions were taken, and 1 May 2012, when the application was filed, is an inexcusable disregard for the legislative requirement to file within time. 17The applicant had a range of choices available to him and obviously pursuit of reinstatement was of lower priority than other matters. 18The applicant was a willing participant in his medical retirement. Indeed, by completing the Medical Review Request on 5 February 2012, he was the motivator in the process. At no time during or after the termination process, certainly up to the date of payment on or around 13 March 2012, did he demur, complain or oppose the prospect of medical retirement. 19The employer is entitled to regard the matter as concluded on the expiration of the 21 day period allowed pursuant to s85(1). There is considerable hardship to the employer if the matter were re-opened by allowing an extension of time beyond the statutory limit. 20Section 85(3)(c) requires a consideration of the conduct of the employer relating to the dismissal. 21There is no basis for criticism of the employer in this regard, The employer's conduct is exemplary; the information before the Commission reveals that the employer afforded the applicant the information he requested and acted within reasonable timeframes to determine the employment in accordance with the relevant legislation and industrial award as requested by the applicant. 22There is insufficient reason for an exercise of discretion to admit the application out of time. 23Matter No IRC 541 of 2012 is dismissed. ********** Amendments 08 June 2012 - Correction to date Amended paragraphs: No 1 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: 08 June 2012