Industrial Relations Commission New South Wales Medium Neutral Citation: Clark v. Family And Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 Hearing dates: 8 July 2014 Decision date: 08 July 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application accepted out of time Catchwords: Application out of time - matters for consideration - length of and reasons for delay - illness - differing legal advice - employer on notice that dismissal contested - employer held out to applicant that dismissal might be reconsidered - age of applicant - no prejudice to employer - consequences of refusing application more serious than most - application admitted out of time. Legislation Cited: Industrial Relations Act 1996 ss. 84, 85(1), 85(2), 85(3) Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 Jess v Scott (1986) 12 FCR 187 McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 Category: Interlocutory applications Parties: John Ernest Clark - Applicant Family And Community Services - Ageing, Disability and Home Care Services - Respondent Representation: Mr R Dalgleish - applicant Mr G Bennett - respondent Mr M Ghobrial - applicant Mr S Bridgeford - respondent File Number(s): IRC 290 of 14 DECISION 1In this interlocutory proceeding the applicant, Mr John Clark, seeks pursuant to subs 85(3) of the Industrial Relations Act 1996 ('the Act') that the Commission accept an application made under s 84 of the Act which is brought out of time. 2Mr Clark was, it is said, dismissed from his employment by way of not being offered further shifts by the respondent on or about 16 January 2014; this was confirmed by letter on 24 January 2014. The application before the Commission was lodged on 11 April 2014. The present application is therefore, if one judges as I think one probably does, from the time Mr Clark was first told of the loss of shifts on 16 January, 62 odd days out of time. 3It is of value to refer to the relevant legislative provisions. I do not propose to set them out in this ex tempore decision in full, but s 85 of the Act relevantly provides at subs (1) that an application under that part of the Act within which it falls must be made not later than 21 days after the dismissal of the employee. 4It is immediately apparent from that that the Act makes it mandatory that applications pursuant to s 84 be made within 21 days of the dismissal occurring. Subsection 85(2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. That is not relevant here save to contrast it to subs 85(3) which provides no more than that the Commission may - that is as a matter of discretion - accept an application that is made out of time but which is not required to be accepted for the reasons set out in subs 85(2). This is an application of that kind. 5The discretion which the Commission is to exercise under subs 85(3) is not unfettered. Its exercise in favour of an application such as the application before the Commission today requires that the Commission consider that there is a sufficient reason to do so in the terms of the Act. 6And that discretion is in turn a guided discretion, in that in considering whether there is a sufficient reason to do so, the Commission is told to have regard to the particular matters set out in subs 85(3); I will return to those. It is apparent from the wording of the subsection that that list of matters is not an exhaustive one in deciding whether there is a sufficient reason, but merely sets out matters to which the Commission is to have particular regard. It goes without saying I think in a matter of this kind that each case under the subsection is decided on its own facts and circumstances and previous decisions, while they may be informative, are authorities on principles, not factual circumstances. I draw that proposition from the decision in Jess v Scott (1986) 12 FCR 187 at 195 and also from that in Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186. 7Given that the prima facie position is that an application which is brought out of time is excluded by subs 85(1), there is no doubt that an applicant bears the positive onus of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 8The law as to the approach of the exercise of the discretion under the subsection is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40, drawing on what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145, a decision of a Full Bench of this Commission. In Hurrell the Full Commission held, relevantly at paragraph 12: "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." The Full Bench went on to refer to a number of authorities and concluded by saying: "The ultimate exercise of discretion is governed by the requirements of justice in a particular case." 9It should at this point be noted that the reference to the conduct of an employer within the meaning of subs 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay. That subsection does not invite, nor does it allow, an exercise of discretion in favour of an applicant for reason that the Commission comes to view the dismissal itself as unfair. McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 is authority for that proposition. There is of course a place within the exercise of discretion for a consideration of the fairness or otherwise of the decision, that is, the merits of the case, but that falls not within 85(3)(c) but rather within the consideration of the prospects of success under 85(3)(b). 10So the overarching principle is therefore that in exercising a discretion as to whether to accept proceedings instituted out of time, as they were here, the requirements of justice in a particular case considered within the statutory structure is paramount. I draw that from Hurrell at para 13. Parliament has chosen to identify 21 days as the period in which a claim under s 84 is to be made. This limitation period is not an arbitrary cut off date unrelated to anything, including unrelated to the interests of justice or the welfare of society. Rather, it represents the Parliament's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Again that is from Taylor's case at p 553. 11The overall statutory context when one deals with cases under this Act necessarily includes the very first object of this Act set out at subs (3)(a), that is to provide a framework for the conduct of industrial relations that is fair and just, and it is without doubt an essential element of the Commission's jurisprudence that it act so as to provide fairness so best it can in employer/employee relations. That is what the Parliament has enjoined the Commission to do. Facts 12I now turn to the facts in this matter. Mr Clark gave evidence in his own case and provided some supporting documents and for the respondent Ms Cooney, Mr De Koster, Ms Lawrie and Mr Taylor also gave evidence. Given the interlocutory nature of the proceedings there was no cross examination of those witnesses. I am obliged to balance their evidence each against the other so best I can do. 13From the totality of the evidence that I have heard today and read today the following factual summary, which I will do my best to confine to relevant matters, can be drawn. 14Mr Clark had, at the time of the termination of his employment, and I use that term neutrally, worked for the respondent for rather more than five years. He is now 71 years of age. His working life has been largely in the public sector and he says that he intended to work until his late seventies. 15Regrettably Mr Clark suffers from a number of illnesses. Mr Bennett for the respondent correctly, in my view, points out that there is no medical evidence which bears upon the fact of the two months delay in making the application. That is to say, no doctor has come forward in writing or in any other form saying there was an inhibition to Mr Clark putting on his application for medical reasons that I here set out. That is true. I do note that Mr Clark suffered from depression before this time and during this time and that is a matter to which I will return. 16Mr Clark was dismissed from his employment, or his employment was brought to an end, on the basis of a plea of guilty he entered to receiving Centrelink benefits to which he was not entitled. He appears also to have been dismissed or had his employment brought to an end because he was said to have taken some pot plants belonging to another person. 17Mr Clark did plead guilty to a charge, which charge, as Mr Bennett again correctly points out, involves an element of mens rea, that is to say intentional misconduct. Mr Clark did so on the advice of the duty solicitor on the day, but a plea has got to be taken to be entered consciously, whatever advice one gets, and it was so entered. It is certainly true that a conviction for an offence means that the elements of the offence, all of them, are made out. 18The employer became aware of the fact of this conviction in good part because before it even occurred, Mr Clark had advised the employer, his supervisor, the logical person to advise, that he was going to court. On more than one occasion he adverted to the fact that he was going to court and indeed later adverted to in, as Mr Dalgleish has put it, rough and ready layman's terms, the sentence that was imposed. Mr Bennett submits that those terms were in fact misleading. I do not actively find that. I am unprepared to find that someone of Mr Clark's background and education could be held to be deliberately misleading in circumstances where, first, he actively advises the employer that he is going to court. He did not merely say I have been overpaid, he said he was "going to court" which connotes to the general mind a criminal matter. Secondly, he actively advised the employer that he would need new Probation and Parole terms, again which makes it clear in anyone's language that there was a serious matter on foot. 19The employer then proceeded to terminate Mr Clark's employment with it by giving him no further shifts without advising him that it intended to do so or giving him any opportunity to make any submission or advance any matters in mitigation of that matter. Indeed, it rather appears, a thing to which I adverted earlier, that he was dismissed also because it was said of him that he took somebody else's pot plants. I do not say that to make light of the employer's decision. A criminal conviction in a matter involving integrity is an important matter but the fact remains that in this case the employer made its decision without offering Mr Clark any opportunity to know that it was considering making such a decision or any chance to be heard upon the decision in any shape or form. That, of course, does not decide this out of time application. Matters for the Commission's consideration in an out of time application 20Having set out the statutory provisions and the very basic facts I then turn to the matters which the Commission is obliged to consider in forming a decision about a matter of this kind. The Commission in exercising a discretion to depart from the prima facie position and accept an application which is brought out of time must, as I have said, consider whether there is "sufficient reason to do so" and that consideration within what is set out in subs 85(3)(a),(b),(c) of the Act and each of those matters must be considered discretely if the discretion vested in the Commission is properly to be exercised. 21I turn then to the length and reasons for the delay. The application is two months, 62 odd days, out of time. That is not a small period; it is a considerable period in circumstances where the legislature has chosen to set a relatively short time period of 21 days. There is no fixed rule as to what length of delay might be acceptable but this is not a negligible or insubstantial delay. 22The central issue, particularly, indeed perhaps the more when a delay is of that length, is the reason for the delay. 23Mr Clark advances a number of reasons for his delay. In the first place he says the letter was received late and that inhibited him. I do not give great weight to that, I must say. What is clear that on 24 January he had a discussion with Mrs Cooney. Mrs Cooney has gone into evidence herself and one of the things she does not in any way contest about that conversation, though she does contest some parts of it, is that - as Mr Clark gives in evidence - she told him she would get back to him by 4 o'clock that day. It is also uncontested that she did not do so and it seems to me that, perhaps naively, Mr Clark waited to hear from her. There is contested evidence about the number of attempts he made to make contact with Mrs Cooney and others of the employer. I read that evidence at its lowest rather than its highest. That is to say I do not accept that contact was made at any time other than when it has been proven to be on independent records that it was made or sought to be made. 24Ms Cooney's comment however, that is, "leave the matter with me, I will get back to you by 4pm" clearly did have an effect on Mr Clark's thinking. It is not an estoppel; of course it is not. It is not a waiver; of course it is not, but it had an effect upon Mr Clark's reasoning and one can see what that effect would have been if one contrasts it with the situation if Mrs Cooney had said to him, "There will be no discussion about this matter entered into, it is end of story, the decision is final, that is that, you do what you please about it but you will not get any change out of us". If that had been said and Mr Clark had then sat on his hands, as it has been put, for two months that would be one matter but that was not what was said. 25I go to that hypothetical example to make clear the effect of what was in fact said. As I say, Mr Clark, perhaps naively, waited and sought to talk to Mrs Cooney again. He obviously had a view, and it is clear from the later conversation that he had with Mrs Cooney that he was entitled to have this view from what she said to him, that Mrs Cooney was someone who might yet change the situation of the dismissal. 26What Mr Clark did do on 24 January was put the employer on notice that he hotly contested the fact of the termination of his employment, not only Mrs Cooney but Mr Taylor. 27Mr Clark then goes to Legal Aid as he cannot afford another kind of solicitor. Legal Aid after a little time tell him they cannot help him, they give him some pointers over the phone. He then attempts to contact two or three other solicitors. He is referred to WorkCover, he speaks to WorkCover in Darwin for some reason, because he was told to no doubt, he gets some papers from them. Someone tells him to go to the IRC; he does go to the IRC in the end. 28In amongst all of that he is hospitalised in February for at least one night. He is suffering from illnesses and I note well Mr Bennett says that no doctor has been brought forward to say that stopped him putting on his application and I do not form the view that it did. I do note however that it is uncontested that he had a diagnosis of depression throughout that time and I am prepared to take judicial notice of the fact that depression is an illness which causes paralysis of will and conduct. In this case I am prepared to accept it may well have had a bearing upon Mr Clark's ability to bring his thoughts together and take active steps to contact this matter more than he did do so. He certainly did file within 21 days of the date on which Ms Cooney told him, to use my words, 'no dice', or nothing further will be done or the decision will not be changed. 29After all of that I have regard to that delay, the totality of it and the reasons for it and the reasons said to underpin it and in my view, in regard to that delay, which is one of the matters I have to consider, reasons have been advanced which I view as satisfactory, in the particular factual circumstances of Mr Clark's case, to excuse it. 30In part, not in whole, in part it turns on the employer's conduct by Mrs Cooney telling Mr Clark that she would look into the matter and get back to him. That is not the whole of it by any means but it is one element of it. So, so far as length of and reason for delay is concerned I am satisfied there is a sufficient reason for the application to be admitted, but that is not all that the Commission must consider. 31I now turn to the other statutory considerations. The Commission is required to have regard pursuant to subs 85(3)(b) to any hardship that may be caused to the applicant or the employer if the application is or is not rejected; that has got to be an even handed approach to both parties in that circumstance, in my view. 32If Mr Clark's claim is not accepted he will not be able to pursue his unfair dismissal claim. That is a hardship, but it is a hardship which every single out of time applicant suffers if his application is rejected, and that alone of itself cannot be, for that reason, the basis on which the discretion is to be exercised in his favour. In this case however it has some particular ramifications. Mr Clark is not 21 years old, he is 71 years old. He has worked for the employer for some little time. He has been dismissed for a serious matter. It may well be that his illnesses will make it difficult for him to find other work. Certainly the termination of his employment in circumstances where he has indicated that he wished to work for some further years will make it difficult. It is self evident from his financial situation that would have been to his advantage to continue to work, and it is further evident that the nature of the dismissal not only brought his work to an end but prevented him putatively obtaining some pro rata long service leave payout. In total, the deprivation of his chance to bring his case will have an effect on Mr Clark which is greater than the usual or predictable level of hardship to any applicant. 33There is also this. It is proper, as it is said in Hurrell at p 149 and again at p 151, to consider prospects of success of the matter. I have not formed a final view about the prospects of success in the case; of course not because the evidence has not been tested and that often brings about a completely different view to one which might be formed on looking at untested evidence. 34But in circumstances where the employer chose to bring employment to an end without offering an indication that it proposed to do so, without offering any opportunity to be heard, there is a basis on which, prima facie, procedural unfairness can be argued. Cases under s 84 do not tend to turn wholly and solely on procedural fairness of course, and I do not form any view about the ultimate merits of the case, but I do say that it is a case in which it cannot be said there is no prospects of success, that the case is frivolous, vexatious. I do not have to find to that degree. It is not a case in which it could be said that there are no or negligible prospects. 35It may well be that a conviction for the offence for which Mr Clark has been charged is a proper basis to bring the employment to an end. I do not draw any view from the fact that Mrs Young and Mr Wright did not give evidence in this matter; this is an interlocutory proceeding. It is put that Mr Clark did not give a candid account to his employer of his circumstances. Certainly if I had the view that Mr Clark's credit was bad and that he had acted mala fide, that would weigh in a certain way in my discretion but I do not find that. I do not make the finding that I am urged to make by Mr Bennett that Mr Clark deliberately set out to mislead and deceive his employer. I have referred earlier to the fact that he referred to going to court and he spoke about his Probation and Parole circumstances to his employer. I do not think he deliberately set out to deceive his employer about the nature and gravity of this offence. 36But there are more things yet that must be considered pursuant to the exercise of the discretion; hardship to the employer is an equally relevant matter. A party is entitled to believe that, a limitation period having expired, it faces no action from a person who might have acted within that period. I accept that that it is the more so for a public institution; as was said by the High Court in Taylor, "A public institution has a significant interest in knowing whether it has got a liability beyond a definite period. That must be taken into account. " 37In this matter however the employer has been aware since 24 January at least that Mr Clark vigorously contests the basis for the termination. He told Mrs Cooney in terms that that was so. The employer was of course aware of Mr Clark's illness as well. The employer is a large and well resourced body. That does not provide a basis for deciding the matter against it on the ground of hardship but it is a matter of fact that forms part of the consideration. It is, in some part, the author of its own difficulty because of the way in which the matter has been handled. It is clear from Mrs Cooney's evidence at para 10 that it was prepared to engage in consideration of Mr Clark's case up to 2 April. She says so, so in those circumstances an application being made on 11 April cannot be said to expose the employer to grave hardship because within just over a week of that date it was prepared to have regard to mitigating circumstances if they were advanced. 38In fairness to the respondent, very properly, it was not argued by Mr Bennett of counsel that the delay would have caused loss of records or loss of witness memory. Of course the employer does not wish to have to defend a matter that is brought outside the time limit but if that were the only criterion that would operate against the discretion ever being granted at all if it were to be determined in applications of this kind. 39Thirdly, I have regard to the conduct of the employer relating to the dismissal, as I am required to do. That is, as I set out above, to be viewed only insofar as it has bearing on the lateness of the application. The subsection does not invite me to consider, and I do not, the employer's conduct in any other way. It seems to me that there is some element of Mrs Cooney's conversation with Mr Clark, which is uncontested, that does bear upon the delay. Mr Clark says that Mrs Cooney, by telling him that he should leave it with her and she would get back to him, caused him to wait. It is not the whole of the answer to the delay but it had an effect upon him, he says, and it is clear that it was so because he continued to try and get back to Mrs Cooney. To that extent there is some degree of the conduct of the employer relating to the dismissal that bears upon the delay. Summary and conclusion 40So I come to summarise and conclude the matter. In my view on the facts before the Commission in this interlocutory application, a sufficient reason has been established in the light of the statutory criteria set out in subs 85(3), to each of which I have had regard, for the Commission to exercise its discretion to accept Mr Clark's application out of time. I will make an order to that effect. 41I then propose to make directions about the matter. I emphasise that I have not formed any concluded view that Mr Clark has a good case or a winning case or anything of that sort. I have not been required to form such a view on the merits of the case. I could not have done because the merits have not been tested and I have not done. I have merely formed the view that if the case is as Mr Clark asserts it he does not have a hopeless or misguided case. It remains to be seen what emerges when he is tested on that case, which of course the respondent was not able to do in the context of this interlocutory hearing. 42Nor have I indeed made any findings about the true nature of Mr Clark's employment but I have found that within the limited scope of the discretion available to me under s 85(3) the application should be accepted out of time and accordingly I make the following order. Order 1. The application made by John Ernest Clark pursuant to s 84 of the Industrial Relations Act 1996 is accepted. PETER NEWALL 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: 01 September 2014