Industrial Relations Commission New South Wales Medium Neutral Citation: Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Hearing dates: 8 February 2018 Date of orders: 19 February 2018 Decision date: 19 February 2018 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application for extension of time pursuant to s.85 refused Catchwords: UNFAIR DISMISSAL - application made out of time – 6 months out of time - principles - matters to be considered in exercise of discretion – significant length of delay - representative error argued - no reason advanced for significant portion of delay – no evidence as to hardship to employee – applicant at all times aware of 21 day limit - application refused Legislation Cited: Industrial Relations Act 1996 s.84, s.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 Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Category: Procedural and other rulings Parties: Ms Rosanna Isaac (applicant) Department of Family and Community Services (respondent) Representation: A Jordan (counsel) applicant A Joseph (counsel) respondent File Number(s): 2017/00322676 Judgment 1. In this interlocutory proceeding the applicant, Ms Rosanna Isaac, seeks, pursuant to subsection 85(3) of the Industrial Relations Act 1996, ('the Act') that the Commission accept an application under s.84 of the Act that is made out of time. 2. Ms Isaac was dismissed from her employment by the respondent effective 10 March 2017 by way of medical retirement. Her application was lodged on 25 October 2017, which renders the application slightly more than six months out of time. Statutory framework 1. It is helpful to set out the relevant legislative provisions. Section 85 of the Act provides as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 1. It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal. 2. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. 3. As Ms Isaac did not lodge any application with the Fair Work Commission in relation to her dismissal, this matter falls to be determined solely under subsection 85(3) of the Act. 4. That subsection provides no more than that the Commission 'may' – that is, as a matter of discretion – accept an application which is made out of time but which is not required to be accepted for the reasons set out in sub-section (2). 5. The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3). 6. It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only those matters to which the Commission is to have particular regard. 7. Each case in which subsection 85(3) is invoked is decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. 8. Given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. 9. The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [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. 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". 1. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. That has a particular relevance to his application, as Ms Isaac's case before the Commission in these interlocutory proceedings was argued in good part, although not wholly, on the basis that the Department had failed correctly to follow its own policy document, Procedures for managing non-work related injuries or health conditions, in the process which led to Ms Isaac's dismissal. 2. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others. 3. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13]. 4. And fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t represents the legislature'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.' Brisbane South Regional Health Authority v Taylor loc cit at 553. Facts 1. I now turn to the facts in this matter. They can be distilled essentially from Ms Isaac's evidence and from documents placed in evidence. I observe that I found Ms Isaac to be a truthful witness. 2. The dates of the dismissal and the application, and the fact that the application was more than six months out of time, were not in contest. 3. Immediately upon learning, on 7 March 2017, that she was to be dismissed on 10 March, Ms Isaac instructed solicitors, Ralph Lawyers. 4. Between 7 March and 31 March, the date the application was required to be lodged with the Commission to be within time, Ms Isaac on at least two occasions pressed Ralph Lawyers to file an application. They did not do so. Throughout April and into May Ms Isaac on a number of occasions pressed Ralph Lawyers to file an application. They still did not do so. On the evidence, there was no contact between Ms Isaac and Ralph Lawyers about these proceedings between 2 May and 7 July. That long delay remained unexplained, although oddly, it emerged from Ms Isaac's evidence that notwithstanding their apparently remarkably dilatory conduct in relation to these proceedings, Ralph Lawyers did appear for and with Ms Isaac in another tribunal during July. 5. On 8 August 2017 Ms Isaac attended her present solicitors, Korn MacDougall Legal, and "within a few days", and certainly before she went overseas, on her evidence, instructed them in relation to her dismissal. Ms Isaac was overseas between 16 August and 27 September. Korn MacDougall obtained Ms Isaac's file from Ralph Lawyers on 1 September. The application was filed on 23 October 2017. 6. Ms Isaac gave evidence that she was aware of the 21 day time limit from an early stage. Certainly she was specifically aware of it by 3 April 2017, on which date she refers to the existence of the limitation in two separate emails to her solicitors. She was certainly aware of it when instructing Korn MacDougall, and no doubt as experienced and competent solicitors Korn MacDougall were aware of it as well, or made it their business to find out. Consideration 1. I have set out above the statutory provisions and the fundamental principles to apply to an application pursuant to s.84 that is brought late. 2. The Commission, in exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, must, in considering whether there is 'sufficient reason to do so', consider the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act. I now turn to those. Length of and reason for the delay 1. First, the Commission must have regard to the length of and reason for the delay. 2. The application is brought 6 months out of time in circumstances where the legislature has chosen to set a relatively short time period of 21 days. In that context the delay must be regarded as on any view substantial. 3. As to reasons for the delay, counsel for Ms Isaac argued that representative error on the part of Ralph Lawyers was responsible for the delay. Representative error may excuse a delay in bringing an application, and It is sufficiently clear on the evidence that Ralph Lawyers acted in an extremely dilatory fashion and in the end did not, despite Ms Isaac's express instructions to them, file any application. So much of the correspondence between Ms Isaac and Ralph Lawyers that was given in evidence leads inescapably to the conclusion that Ralph Lawyers had little or no idea how to go about acting in a dismissal case and paid scant attention to Ms Isaac's instructions. If the delay that occurred while the matter was in the hands of Ralph Lawyers was the whole of the delay, Ms Isaac's case might be arguable. However, there is absolutely no explanation, even in submissions, let alone in evidence, for the delay between her present solicitors being instructed shortly after 8 August and the date of filing, 25 October 2017. Ms Isaac was away overseas for a period after 8 August, but solicitors are not paralysed while a client is overseas, and there was in any event a further delay of a month after she retuned form overseas before the application was filed. Again, that is in the context of Ms Isaac and obviously her solicitors being well aware of the time limit applying to these applications. 4. Where no reason at all is offered for a significant delay it is very difficult for the Commission to exercise a discretion in favour of an applicant, given the emphasis placed on reasons for delay in the statutory scheme: Ibrahim loc cit at [81]. Hardship to the applicant 1. The Commission is also required to have regard, pursuant to subsection 85(3)(b), to any hardship that may be caused to the applicant or the employer if the application is or is not rejected. 2. Although Ms Isaac gave evidence and was represented by solicitors and counsel, nothing whatsoever was advanced to the Commission either in evidence or by way of submission going to any hardship Ms Isaac would suffer if the application were refused. I accept the necessary inference that if her application is rejected, she will suffer the hardship of not being able to pursue her unfair dismissal claim. That is a hardship, of course, which every out of time applicant suffers whose application is rejected. No other basis of hardship was advanced at all, and the Commission cannot infer or invent evidence or submissions on the applicant's part in this regard. 3. In the context of subs.85(3)(b) it is proper to consider the strength of Ms Isaac's case, as it is one measure of the disadvantage she may suffer if her application is not accepted. I say that noting again what the High Court held in Brisbane South Regional Health Authority v Taylor at 553, that is, that an applicant with an arguable or even a good case is not for that reason alone guaranteed admission of a late application. 4. I form, of course, no final view about the termination, the facts of which have not been tested in evidence before the Commission. The emphasis in the applicant's submissions concerning the unfairness of her dismissal went to alleged procedural defects in the respondent's process, including a failure to invite the reporting doctor to consider alternative areas of employment. No issue was taken with the actual diagnosis the doctor formed. It is not common that procedural defects will result in a dismissal which is otherwise soundly based to be overturned: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 467; Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 at [130], and it could not be said on a preliminary view of the substantive case, which counsel for the applicant developed at some length, that Ms Isaac has strong prospects of success in any substantive application. Hardship to the employer 1. No evidence was brought suggesting hardship to the employer if the application were admitted and consideration of hardship to the employer has had a negligible effect on the exercise of discretion in this matter, beyond observing that where a time limitation exists, a party who might be a respondent is entitled, once the time limit has passed, to regard themselves as free from suit. 2. I have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed only insofar as it has any bearing on the lateness of the application. 3. I cannot see that the employer's conduct had any bearing on the lateness of the application. There is no dispute that the notification of termination was received by the applicant on 7 March 2017. From that point on the respondent had no involvement in the timing of any application. Overall consideration 1. On the basis of the whole of the above consideration, Ms Isaac has not discharged her onus to persuade the Commission to admit her application. That is essentially because no reason at all has been advanced to explain the delay between early August, when present solicitors were instructed in the matter, and the filing in late October. That is, as I observe above, in the context where Ms Isaac and no doubt her solicitors were aware of the 21 day limit, and therefore aware that every day that passed was pushing her application further outside the time limit. 2. Accordingly, the Commission's guided discretion must in this case be exercised to decline to disturb the prima facie position. To do justice in this particular case, which is the overarching test, requires that outcome. To do justice to other parties who rely on consistent application of the principles by the Commission in determining these questions requires the same result. The application will not be accepted. 3. I emphasise that I am not ruling on whether the dismissal was fair or unfair. I do not question Ms Isaac's truthfulness or credit about any aspect of the matter. The application cannot be accepted because the material which would direct the Commission's discretion toward admitting it is simply not there. Orders 1. The application made by Ms Rosanna Isaac pursuant to s.84 of the Act is dismissed for reason that it is not brought within time. 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: 19 February 2018