Industrial Relations Commission New South Wales Medium Neutral Citation: Anthony Ian Fox v NSW Department of Industry [2018] NSWIRComm 1047 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Application for extension of time pursuant to s 85(3) refused Catchwords: UNFAIR DISMISSAL - application made out of time – 12 months out of time - principles - matters to be considered in exercise of discretion – significant length of delay – mental health argued – employer contribution to delay argued – applicant had pursued alternative avenues for redress – no sufficient reason advanced for significant portion of delay – limited evidence as to hardship to employee – application refused Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Clark v Family and Community Services – Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 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 Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Jess v Scott (1986) 12 FCR 187 Lucic v Nolan (1982) 45 ALR 411 Category: Procedural and other rulings Parties: Mr Anthony Ian Fox (applicant) NSW Department of Industry (respondent) Representation: Counsel: Solicitors: Lander & Rogers (respondent) File Number(s): 2018/00082525 Judgment 1. In this interlocutory proceeding the applicant, Mr Anthony Fox, seeks pursuant to s 85(3) of the Industrial Relations Act 1996 (NSW) ("the Act") that the Commission accept an application made under s 84 of the Act that is made out of time. 2. Mr Fox's employment with the respondent came to an end on 8 February 2017. I use that language deliberately, as the parties are in dispute as to whether Mr Fox was dismissed from his employment within the meaning of the Act. Mr Fox's application under s 84 of the Act was filed on 13 March 2018, which renders it slightly more than twelve months out of time. 3. On 4 May 2018 Mr Fox wrote to the Commission and requested that this matter be heard "on the papers". The respondent consented to that course of action. As a result, this matter has proceeded on that basis. The Law 1. Section 85 of the Act is in the following terms: 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. Subsection 85(1) makes it mandatory that applications pursuant to s 84 be made within 21 days after the dismissal of the employee. The prima facie position is that an application made out of time is excluded by the subsection. An application must or can only be accepted by the Commission subject to ss 85(2) and (3). 2. Subsection 85(2) identifies particular circumstances where the Commission is required to accept an application that is made out of time. There is no evidence before the Commission that Mr Fox made an application to the Fair Work Commission in relation to the cessation of his employment with the respondent. As a result, the subsection has no application in the present case. 3. Subsection 85(3) confers on the Commission the discretion to accept an application under s 84 which is made out of time. This discretion is not unfettered. The Commission may only accept an application that is made out of time if it considers that there is "a sufficient reason" to do so. In considering whether such a sufficient reason exists the Commission is required to have regard "in particular", but not exclusively, to the matters set out in s 85(3)(a), (b) and (c). 4. The Act does not provide a definition as to what constitutes a "sufficient reason". It is not appropriate to attempt to formulate any such definition: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. Each case in which the Commission is asked to exercise its discretion under s 85(3) must be 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. 5. The prima facie position is that an application made out of time is excluded by s 85(1). An applicant seeking to invoke s 85(3) bears the onus of demonstrating that the justice of the case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan (1982) 45 ALR 411 at 416. As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It 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. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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." (footnote omitted) 1. The law as to the approach to take to the discretion under s 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) 51 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 s 246(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. In Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Commissioner Newall made these observations: 13. 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. 14. 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. 15. 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]. Facts 1. On 18 May 2018 Mr Fox filed a statement dated the same day attaching a number of documents. He filed further submissions, attaching a number of further documents, on 26 June 2018. 2. On 13 June 2018 the respondent filed a statement by Simon Kempson dated 12 June 2018 and an outline of submissions. 3. In determining this application "on the papers" that is the evidence and material to which I have given consideration. 4. I am mindful that Mr Fox is self-represented. I have taken this into account in considering the evidence and submissions that he has provided to the Commission. 5. It is common ground that Mr Fox's employment with the respondent came to an end on 8 February 2017. He departed with, or developed, a sense of grievance against the respondent. Mr Fox took a number of steps in an effort to have his grievance addressed, which included the following: 1. on 9 and 10 April 2017 Mr Fox sent emails to the respondent regarding an incident report completed by Mr Fox's former manager, Mark Webster. The emails are referred to at [2] of Mr Fox's statement of 18 May 2018 and a copy of each is attached to the respondent's submissions; 2. on 12 October 2017 Mr Fox made a complaint to the NSW Ombudsman: applicant's statement at [3]; 3. on 22 October 2017 Mr Fox wrote to the Director General of the respondent "to voice [Mr Fox's] dissatisfaction about [his] previous employment with the department": applicant's statement at [5]. A copy of that letter was included with the further submissions filed by Mr Fox on 26 June 2018; 4. on 22 January 2018 Mr Fox filed a complaint of disability discrimination against the respondent with the Australian Human Rights Commission: applicant's statement at [4]; statement of Simon Kempson at [10]; 5. at some point Mr Fox raised a work health and safety issue with SafeWork NSW: applicant's statement at [6]; 6. on 30 January 2018 Mr Fox sent an email to the NSW Public Service Commission: applicant's statement at [7]; and 7. at some point Mr Fox engaged lawyers to conduct a "compensation claim": applicant's statement at [5(e)]. 1. Mr Fox filed his application pursuant to s 84 of the Act on 13 March 2018. Under the terms of s 85(1) the application should have been filed by 2 March 2017. Submissions 1. Both parties have filed reasonably lengthy submissions. It is not necessary to reproduce them at length. 2. To a large extent, the material on which Mr Fox relies relates to events that occurred during his employment with the respondent, and in some instances well before the cessation of his employment. His submissions include arguments going to the question as to whether his alleged dismissal was unfair within the meaning of the Act. To the extent that this material is relevant for present purposes I deal with it at [45] and [46] below. 3. More specifically in relation to the extension of time issue, the reasons offered by Mr Fox for the lateness of his application may be summarised as follows: 1. incredibly poor mental health; 2. delay by the respondent in responding to his correspondence of April and October 2017; and 3. pursuing other avenues of redress, including through the NSW Ombudsman, the Australian Human Rights Commission, SafeWork NSW, the NSW Public Service Commission and through compensation proceedings. 1. Mr Fox submits that the conduct of the respondent has caused him both financial and mental hardship. 2. The grounds on which the respondent opposes the application may be summarised as follows: 1. the delay is substantial, being more than 12 months; 2. there is no, or insufficient, evidence to support Mr Fox's contention that his mental health caused the delay, at least after 11 May 2017; 3. that Mr Fox may have been pursuing other avenues of redress does not justify the delay; 4. there is no evidence that Mr Fox would suffer hardship if the application was refused; 5. the respondent would suffer hardship if the application was granted; and 6. the conduct of the employer has not contributed to the delay. Consideration 1. I have set out above the relevant legislation and the principles to be applied by the Commission in deciding whether to exercise its discretion under s 85(3) of the Act. I turn first to the matters set out in s 85(3)(a), (b) and (c). Length and reason for the delay – s 85(3)(a) 1. The Commission must have regard to the reason for, and the length of, the delay in making the application. 2. The application is brought more than 12 months out of time. Given that the legislature has set a time period of 21 days, such a delay can only be regarded as substantial. 3. The central issue, particularly and indeed perhaps the more when the delay is of that length, is the reason for the delay: Clark v Family and Community Services – Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [22]. 4. This requires an examination of the reasons for delay offered by Mr Fox. 5. There is little medical evidence regarding Mr Fox's mental health. Mr Fox has produced a medical certificate signed by Dr Ramanpreet K Gill of the Howlong Medical Centre which was completed on 12 April 2018. It states as follows: "[Mr Fox] started seeing me from May 20 2014 for mental health problems due to work related issues and was given medication and mental health care plans were done and referred to a psychologist. Work cover for the same was only initiated on January 10 2017. He was seen regularly between that period and after that as well for these issues." [sic] 1. This certificate does not provide a sufficient basis on which it could safely be concluded that Mr Fox's condition rendered him unable to lodge an application under s 84 within the relevant time limit. It certainly does not explain the delay until 13 March 2018. 2. By contrast, annexure SK-5 to the statement of Simon Kempson is a medical certificate from Dr Gill dated 11 May 2017. That certificate includes this statement: "He has no limitations to any kind of work. Fit to do normal duties." 1. Even if it were possible to conclude that Mr Fox had previously been suffering from a medical condition which prevented from filing his application, there is no medical evidence that he was under any such impediment on and after 11 May 2017. 2. On this point Mr Fox contends that "the assertion by [his] Doctor that I was fit for work may have been true at that particular instance but turned out not to be the case". This does not overcome the available medical evidence. It also disregards the fact that at that "particular instance" Mr Fox would have been capable of making an application under s 84. 3. The available medical evidence also calls into question the weight that the Commission can give to Mr Fox's assertion that he was "relapsing into severe mental anguish until approximately October 2018" (I assume that the date is an error and should read 2017): applicant's statement at [1]. 4. The extent to which Mr Fox's mental condition rendered him incapable of making an application is further called into question by the extensive steps that Mr Fox was otherwise able to take in his attempts to resolve his grievances with the respondent. These are outlined in [16] above and it is not necessary to repeat them. 5. Similarly, Mr Fox's evidence demonstrates that at some point in 2017 he took up employment with Australia Post, from which he resigned by email dated 10 July 2017. Once again, although Mr Fox contends that he resigned from this role due to poor health, the fact that he was at some point prior to July 2017 capable of taking up paid employment suggests that at the same point there should have been no impediment to Mr Fox lodging an application under s 84. 6. Mr Fox next contends that the delay in filing the application was caused by the delay of the respondent in responding to his correspondence from April and October 2017. The respondent did not reply to Mr Fox's emails of 9 and 10 April 2017 until 25 September 2017. It did not respond to his letter of 22 October 2017 until 18 January 2018. 7. In my view these facts, while possibly regrettable, do not explain the delay in Mr Fox filing his application. The emails from April 2017 did not make any reference to the cessation of Mr Fox's employment or allude to the possibility of unfair dismissal proceedings being commenced. By the time the emails were sent the time under s 85(3) had already expired by some 5 weeks. 8. Even if one were to take a generous construction of the facts, Mr Fox has not explained why this reason explains the delay in commencing proceedings on or shortly after 25 September 2017. 9. Finally, Mr Fox seeks to explain the delay by reference to the other avenues through which he was seeking redress. It would to my mind be inconsistent with the legal principles outlined above for the Commission to exercise its discretion on this ground. Such an approach would also seem at odds with the intent of the legislature in enacting s 85, given that s 85(2) clearly identifies particular circumstances where the fact of applying for alternative redress will allow an application to be made out of time. 10. The fact that Mr Fox pursued other avenues did not preclude him commencing proceedings under s 84. His decision to concentrate his efforts elsewhere does not provide a justifiable exception to the rule that the welfare of the State is best served by the limitation period in s 85(1). 11. For these reasons I do not consider that Mr Fox has provided a sufficient explanation for the delay in commencing proceedings. 12. Finally in the context of s 85(3)(a), I observe that Mr Fox was aware from at least October 2017 at least of the time limit for bringing an unfair dismissal application: applicant's statement at [1]; applicant's letter to the respondent dated 22 October 2017. While I am not satisfied that Mr Fox has explained the delay generally, this is further evidence of a point in time at which Mr Fox could have sought to commence proceedings, albeit still out of time, but did not do so. Hardship to the applicant or the respondent – s 85(3)(b) 1. The Commission must have regard to any hardship that may be caused to the applicant or the employer if the application is or is not rejected. 2. Mr Fox has adduced only limited evidence regarding hardship. The financial and psychological hardship which he claims to have suffered he largely attributes to the behaviour to which he claims to have been subjected during his employment and his alleged dismissal by the respondent. Obviously, if his application is rejected Mr Fox will suffer the hardship of not being able to pursue his unfair dismissal claim, and so seek redress for these matters, but that is a hardship suffered by any applicant whose out of time application is rejected. 3. It is in this context that it is proper to consider the strength of Mr Fox's case, as it is one measure of the disadvantage he may suffer if his application is not accepted: Isaac at [31]. I do so in keeping with the observations made at [11] above. I do not, of course, form a final view about the matter. I do not have all of the facts of the matter and they have not, in any event, been tested in evidence before the Commission. 4. As noted above, there is a preliminary issue as to whether Mr Fox was dismissed by the respondent. The applicant's material emphasises the behaviour of his co-workers towards him over a number of years to support the contention that he was "constructively dismissed". The respondent maintains that the applicant resigned from his employment. On a preliminary view, this issue poses a further and potentially significant impediment to Mr Fox being able to advance his unfair dismissal claim. 5. I do not have sufficient evidence to form a view, even on a preliminary basis, as to the strengths of Mr Fox's case on the merits. Although Mr Fox has provided a significant amount of material going to the merits of his case more generally, the respondent's material is confined to the out of time issue. It would be inappropriate for me to attempt to assess the strengths of Mr Fox's case based on his material alone. 6. For its part, the respondent contends that it would experience hardship if the application is not rejected. This hardship is described in the respondent's submissions and not in Mr Kempson's statement, which perhaps explains why it is couched in conditional terms: relevant evidence "could be" lost, for example. This element has not had a significant bearing on my decision. The conduct of the employer relating to the dismissal – s. 85(3)(c) 1. The Commission is required to have regard to the conduct of the employer relating to this dismissal. As noted at [11] above, the employer's conduct is to be viewed only in so far as it has any bearing on the lateness of the application. 2. I have already addressed this issue in part at [36] to [38] above. 3. I am not satisfied that the respondent's conduct had any, or any material, bearing on the lateness of the application. Other considerations 1. Section 85(3) does not exhaustively list the matters to which this Commission can have regard in determining whether or not to exercise its discretion. For the sake of completeness I make the observation that I do not consider that the evidence and submissions disclose any other basis on which the Commission can conclude that there is a sufficient reason to accept the application out of time. Conclusion 1. For the reasons set out above I am not satisfied that Mr Fox has discharged his onus to persuade the Commission to accept his application. The delay is substantial and has not been satisfactorily explained by him. 2. It follows that the application will not be accepted. Orders 1. I make the following orders: 1. The application by Mr Anthony Ian Fox that the Commission accept his application made pursuant to s 84 of the Act out of time is rejected. 2. The application made by Mr Anthony Ian Fox pursuant to s 84 of the Act is dismissed for the reason that it is not brought within time. Damian Sloan 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: 09 August 2018