Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51 (1 April 2004) Last Updated: 2 April 2004 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : MALIK -v- PAUL ALBERT, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION OF WESTERN AUSTRALIA [2004] WASCA 51 CORAM : STEYTLER J (PRESIDING JUDGE) PULLIN J EM HEENAN J HEARD : 2 MARCH 2004 DELIVERED : 1 APRIL 2004 FILE NO/S : IAC 13 of 2003 BETWEEN : PREM SINGH MALIK Appellant AND PAUL ALBERT, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Coram : SHARKEY P, SCOTT C, KENNER C Citation Number : [2003] WAIRC 9090 File Number : FBA 13 of 2003 Catchwords: Industrial law - Application for Commission to accept referral of unfair dismissal claim out of time - Whether error of law in interpretation of legislation Legislation: Industrial Relations Act , s 29(3) Result: Appeal dismissed Category: B Representation: Counsel: Appellant : Mr G Droppert Respondent : Mr R J Andretich Solicitors: Appellant : Slater & Gordon Respondent : State Solicitor's Office Case(s) referred to in judgment(s): Case(s) also cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 Cousins v YMCA of Perth (2001) 111 IR 286 1 STEYTLER J (PRESIDING JUDGE) : This is an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission. Appeals of that kind are significantly restricted by the provisions of s 90 the Industrial Relations Act 1979 ("the Act"). In this case, the appellant relies upon the provisions of s 90(1)(b) of the Act, which permits an appeal from a decision of the Full Bench which is "erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against". The appellant contends that the Full Bench has erred in its construction of s 29(3) of the Act. 2 The appellant was a teacher employed by the respondent. He taught, during 2002, at the Corrigin District High School. The principal of that school was dissatisfied with the appellant's performance. Various processes followed before the appellant was ultimately dismissed on 7 January 2003. The appellant believed that his dismissal was unfair and consequently wished to refer it to the Industrial Relations Commission under s 29(1)(b)(i) of the Act, which provides for the referral of such a claim by a dismissed employee. By s 29(2) of the Act a referral under subs (1)(b)(i) was required, subject to s 29(3) , to be made not later than 28 days after the date on which the employee's employment is terminated. That meant that the referral had to be made by 4 February 2003. It was in fact made three days later, on 7 February 2003. The appellant consequently made an application under s 29(3) of the Act, which reads as follows: "The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so." 3 A single Commissioner, Commissioner Harrison, made an order accepting the referral out of time. However, the respondent appealed against her decision to the Full Bench under s 49 of the Act. The Full Bench allowed the appeal and varied the order below by dismissing the appellant's application under s 29(3). 4 Before turning to consider the grounds of appeal to this Court, it is necessary to say a little more about the proceedings before Commissioner Harrison and about the reasoning of the Full Bench. 5 The appellant's application under s 29(1)(b)(i) of the Act was accompanied by a schedule which read, so far as is presently relevant, as follows: "5. On 22 November 2002 a student assaulted the applicant at Corrigin District High School. This student was known for his threatening and violent behaviour and also assaulted the other staff members at the school. This student provoked other students to misbehave, and the applicant became harassed regularly whilst conducting his classes. 6. As a result of being the subject of such harassment, the applicant suffered stress, anxiety and lacked confidence in conducting his classes. 7. The applicant raised these issues and a number of other professional development issues with the Principal and Deputy Principal of Corrigin District High School. 8. The applicant contends that the Principal, the Deputy Principal and the respondent, as his employer, did not follow the policies and guidelines of the Department of Education in dealing with the issues raised by him, and subsequently blamed the student's behaviour on the applicant saying that he was performing unsatisfactorily as he relied heavily on administration to help control his troublesome classes. 9. On 2 December 2002 the applicant was advised by letter from the respondent that he had formed the view that the applicant's performance was substandard within the meaning of section 79(1) of the Public Sector Management Act 1994 and giving him an opportunity to respond to the finding and intended penalty. 10. The applicant replied to the respondent by letter dated 20 December 2002. 11. By letter dated 2 January 2003 the applicant was informed by the respondent that, despite his response, his employment was terminated pursuant to section 79(3) of the Public Sector Management Act 1994 , effective from 7 January 2003. 12. The applicant is aggrieved by the decision of the respondent for the following reasons: (i) The respondent did not follow its own policies, guidelines and procedures in addressing the original issues raised by the applicant; (ii) The respondent did not apply the provisions of the Public Sector Management Act 1994 in terminating the applicant's employment or alternatively applied them in a manner which denied the applicant procedural fairness." 6 No affidavit was lodged by the appellant with his application under s 29(3). However, when the application came on for hearing, his solicitor handed up, by consent, an affidavit sworn by the appellant's former legal representative, Mr Mark Cox, in support of the application. On the same morning the respondent's counsel handed up, also by consent, two affidavits (at least one of which had not been seen by the appellant's lawyer until that morning) in opposition to the application. Neither party has seen fit to place the affidavits before us, but we were told that we could safely accept the description of their contents given respectively by Commissioner Harrison and the Full Bench. 7 The affidavit evidence appears to have established that no fault could be ascribed to the appellant in respect of the delay. On 8 January 2003 the appellant's wife telephoned a representative of the respondent, asking how much time the appellant had within which to challenge the decision to dismiss him. Then, on 14 January 2003, the appellant instructed Mr Cox to bring the application under s 29(1)(b)(i). However, Mr Cox missed the statutory deadline because his heavy workload caused him to overlook it. It was only when the appellant telephoned Mr Cox on 6 February 2003 in order to obtain a copy of the application that he discovered that it had not been lodged. There is no suggestion that the respondent was prejudiced by the delay. 8 At the hearing before Commissioner Harrison the appellant's solicitor contended that the applicant had an arguable case and "some legitimate complaint". However, he adduced no evidence on the merits, presumably relying upon s 26(1)(b) of the Act, which provides that, in the exercise of its jurisdiction under the Act, the Commission "shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just". He began to make submissions from the bar table in respect of matters not covered by the schedule attached to the application. When the Commissioner questioned him as to the propriety of this, the appellant's solicitor moved to the schedule itself, reciting some of the facts therein set out. He went on to say: "Now, because of the haste with which the application was prepared, it's clear that that's not a full development of ... [the appellant's] case ... and certainly if what ... [the appellant] is saying is true, there is the potential for him to be successful in his unfair dismissal claim. ... It is not without merit ...". 9 When asked by the Commissioner to what par 12(i) of the schedule related, counsel for the appellant said that the contention there advanced related to "the complaint about the harassment from the student and also not being supported by the principal and the deputy principal". Once again, counsel for the appellant apologised for the "haste with which ... [the application] was obviously prepared". 10 The Commissioner then asked counsel for the applicant to what par 12(ii) of the schedule related and was told by the solicitor that he did not "have the knowledge of what that ... was referring to". 11 Counsel for the respondent then made her submissions. These encompassed a relatively brief summation of the facts set forth in the affidavit evidence filed on behalf of the respondent which, she contended, supported the proposition that the applicant had been properly dealt with and had no cause for complaint. That evidence was to the effect that the appellant had been unable to demonstrate satisfactory skills in the area of classroom management and had demonstrated difficulty in managing student behaviour. As has been mentioned by Pullin J (I have had the considerable advantage of reading both his Honour's judgment and that of E M Heenan J), the respondent's affidavits also revealed that the applicant had been provided with a copy of the Department of Education's policy concerning unsatisfactory and sub-standard performance of the teaching staff and that correspondence had been forwarded to him dated 3 October 2002, informing him that the Department had received a report from the principal of the Corrigin School alleging that his performance was sub-standard. As Pullin J has said, the affidavits showed that after that report had been completed, the appellant informed the principal, on 23 October 2002, about harassment by students outside of school hours, although the only out-of-hours harassment referred to in the application is that arising from the assault on 22 November 2002, some time after the completion of a performance review conducted in respect of the applicant by the school itself. The respondent's affidavit evidence also established that it had followed appropriate processes in dealing with the appellant, including those provided for by the Public Sector Management Act 1994 . 12 In the course of a replying submission the solicitor for the applicant said that, as had been revealed by the respondent's submissions, the appellant had "at every stage ... challenged the assessments that were made of him". 13 Commissioner Harrison, in arriving at her decision, said that she took into account "whether there was an acceptable explanation for the delay, the merits of the substantive application, whether the applicant took steps to make it clear to the respondent that he was unhappy with his termination and that he would contest his termination and prejudice to the respondent". She said that, in applying those guidelines (which she drew from a recent decision of the Commission), she was "mindful that there is a 28-day time frame to lodge an application and the Commission's discretion in relation to a matter of this nature should not be exercised unless there is good reason to do so". 14 She went on to say that the evidence established that the delay was not attributable to the appellant, who had acted promptly to pursue his claim, that there remained a "live issue" to be dealt with on the merits, that the respondent was aware that the appellant was considering a challenge to the termination of his employment and that there was no significant disadvantage to the respondent if the application should be allowed. She said, so far as the merits were concerned, the following: "The respondent maintains that there was no merit at all to the applicant's claim that he had been unfairly terminated. Even though detailed submissions were made about the process that the respondent undertook in relation to the applicant's termination, I am satisfied that there is some doubt about at least one aspect of the applicant's termination sufficient to attract a review by the Commission. The applicant relies on the issue that the respondent did not deal adequately with him being the subject of harassment by students at the workplace. The respondent claims that it was not aware of this issue when deciding to effect the applicant's termination. Given this, it is my view that this remains a live issue. I express no view in relation to the other issues relied upon by the applicant relating to his claim. In the circumstances the applicant has established that there could well be an arguable case in relation to this one matter." 15 The Full Bench, in allowing the appeal against the Commissioner's decision to extend time, relied heavily upon the fact that the appellant had advanced no affidavit evidence in support of the merits of his claim that his dismissal was unfair. 16 The President, after a careful evaluation of the facts and findings at first instance, and after considering much of the relevant case law, set out, in par 81 of his judgment, a number of "principles, practices and considerations" which, he said, were relevant in an application under s 29(3). His Honour included amongst these the consideration that there is "a positive burden on the applicant to establish that the discretion ... should be exercised in his/her favour" and the consideration that an applicant "will, in many cases, be required to establish that he/she has a case on the merits". He went on to say, in this last respect: "That is that the case has merit and is likely to succeed, not that it is barely likely to succeed or unlikely to succeed. (This will not, however, require a full investigation of the merits (see Lucic v Nolan & Ors 45 ALR 411 at 416 - 417 per Fitzgerald J (FC))). I do not use the word 'arguable' in this context because that is a term which applies more to matters of law and therefore to a proceeding such as an appeal. The merits of the case at first instance which depends, more often than not, on the evidence as well as the law is a different matter and should not be characterised as merely 'arguable' or not." 17 Notwithstanding his enunciation of a test in which "a case on the merits" was required to be established "in many cases", the President found, in par 92 of his reasons, that it would be "patently unfair to accept the referral where no merit in the claim was established". He had earlier found, in that respect, that (par 83(f)): "There was nothing in the evidence or no submission which could properly lead the Commission at first instance to conclude that ... [the appellant's] case was not lacking in merit. At best, and it should have been so found, the case for ... [the appellant] was barely arguable or weak. The test which was applied should not be whether there was a live issue, and the Commissioner erred in so finding." 18 The President had also earlier found that, while the Commission was entitled to act upon the assertions of advocates without hearing other evidence, it would be at least imprudent on the part of the Commission not to examine the matter further if those assertions were challenged (par 67) and that it would not be prudent for the Commission to accept assertions from the bar table against evidence on oath or affirmation (par 68). 19 He went on, a little later, to say (par 78) that: "There was no attempt at first instance to adduce the necessary evidence where evidence in the face of the sworn evidence of the ... [respondent's] witnesses was patently required in order to enable ... [the appellant] to discharge his burden." 20 Commissioner Kenner (with whom Commissioner Scott was in agreement) likewise placed considerable emphasis upon the appellant's failure to advance any affidavit evidence in respect of the merits of his claim that he had been unfairly dismissed. He referred to an earlier decision of his in Azzalini v Perth Inflight Catering (2002) 82 WAIG 2992 , in which he had said that considerations "relevant to whether it would be unfair to not extend time" included "the merits of the substantive application in the sense that there is a sufficiently arguable case". However, he went on to make a number of comments from which it might be inferred that he considered that an applicant is obliged to lead evidence as to the merits in order to discharge his or her obligation of satisfying the Commissioner that there was a sufficiently arguable case. He said, in par 113: "Finally, and most importantly however, as to the merits of the substantive application, in my view, on the evidence, it was open for the Commissioner to find that the respondent's claim lacked any merit at all. This is because not only did the respondent not lead any evidence as to the merits, which he was obliged to do given that he bore the onus of persuading the Commissioner at first instance to extend time, but there was also evidence adduced by the appellant positively against the assertion that the respondent was unfairly dismissed." 21 Also, after referring to evidence which had been tendered on behalf of the respondent, which, he said, left it open to the Commissioner to find that the appellant had been fairly adjudged to have demonstrated unsatisfactory performance and to have been afforded due process and natural justice, he said (pars 115 and 116): "115. That being so, and in the absence of any evidence from the respondent and the discharge of the onus that rested on him, apart from assertions from the bar table which should not be accepted in the face of sworn evidence to the contrary, in my view, the respondent failed to demonstrate that the application at first instance had merit. Indeed, as I have observed above, the evidence from the appellant, uncontroverted, established to the contrary. 116. In these circumstances, the Commissioner should have found that the respondent at first instance had not established on the evidence any merit in his claim. Despite the short length of the delay and the reason for the delay not being attributable to the respondent, the absence of established merit in the respondent's claim meant the discretion to accept the referral out of time pursuant to s 29(3) of the Act should not have been exercised in this case." 22 Commissioner Kenner went on to say that he "would therefore uphold the appeal" (par 117). 23 The sole ground of appeal to this Court is that the Full Bench erred in law in interpreting s 29(3) by holding that the appellant had a positive obligation to establish the merit of his claim. 24 It seems to me necessarily to follow from what was said by the President and by Commissioners Kenner and Scott that each of them found that the appellant could not succeed without establishing a sufficient case on the merits and that this could not be done other than by way of affidavit evidence in circumstances in which there was sworn evidence contradicting mere assertions made on his behalf from the bar table. 25 In my respectful opinion, that reading of s 29(3) adds an impermissible gloss to the simple meaning of its words. The Commission is empowered to accept a late referral if it would be "unfair" not to do so and, while an assessment of the merits "in a fairly rough and ready way" (see Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at [9] ) will often be an important consideration, there is nothing in the words of s 29(3) which imports any obligation, on the part of an applicant, to establish any degree of merit (and it should not be overlooked, in this regard, that the Commission is given broad powers to dismiss a matter summarily under s 27(1)(a) of the Act). It is, of course, difficult to imagine that it would ever be unfair to an applicant to deny him or her the right to lodge a referral out of time where it was positively shown that the applicant had no prospect of success. However, that is a very different proposition from one to the effect that an applicant has, in every case, an obligation to show that he or she has some prospect of success. 26 Like E M Heenan J, I consider that the principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. As E M Heenan J has said, Marshall J there identified the following six "principles" (at 299 - 300): "1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion." 27 Those "principles" or considerations are not exhaustive and, putting to one side the uncontestable proposition that there must be something positively to satisfy the Court that it would be unfair not to accept the referral out of time, none of them is necessarily decisive and each case will turn upon its own individual facts and circumstances. 28 It follows that, like Pullin J, I am of the opinion that the Full Bench erred in law by misconstruing s 29(3) of the Act. However, unlike Pullin J, it seems to me that the matter should be referred back to the Commission for reconsideration. While I am in a minority in this respect, I will, very briefly, express my reasons for arriving at that conclusion. 29 As I have said, Commissioner Harrison, at first instance, expressed an opinion on only one issue on the merits. She did so in circumstances in which counsel for the applicant had patently done insufficient preparation to enable him to provide any real assistance in that regard, the schedule having presumably been prepared by a different solicitor, Mr Cox. The issue on which she expressed an opinion was that which, as I have also said, she described as a "live issue", being that relating to the alleged failure of the respondent to deal adequately with the fact of the applicant having been the subject of harassment by students at the workplace. That is the issue dealt with in par 5 of the schedule attached to the applicant's application. While it is unclear from that paragraph when that harassment took place, I infer, from the manner in which submissions were made on the applicant's behalf before Commissioner Harrison, that it was said to have taken place throughout the period, in 2002, in which the appellant taught at Corrigin District High School. It may be, as the President said, that this raised only a weak case (albeit the Commissioner did not say this, and it would have been difficult for her to arrive at any firm conclusion in that regard in the absence of a much fuller hearing). It may also be so that it was imprudent on the part of Commissioner Harrison not to examine the matter further in the absence of affidavit evidence from the applicant on the merits (as to which see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50 ; (1965) 113 CLR 228 at 243, per Barwick CJ), albeit, it should not be forgotten, she was, as I have said, faced with a solicitor who had, that morning, for the first time been confronted with some, or all, of the respondent's affidavit evidence and who was, through no fault of the appellant, patently in no position to provide any real assistance in respect of the merits of the application under s 29(1)(b)(i). However, none of this meant that the appellant must inevitably fail in his application. Commissioner Harrison at first instance made no finding that it had positively been shown that the appellant's unfair dismissal claim had no prospects of success and nor, in my respectful opinion, was it open either to her or to the Full Bench to arrive at that conclusion on the basis of the limited materials which were before the Commission, more particularly given the haste in which the application for an extension of time was prepared and the consequential lack of any real preparation on the part of the appellant's new solicitor as regards the merits of the appellant's claim. That being so, some other basis for upsetting the exercise, by Commissioner Harrison, of her discretion was required to be shown. 30 I would consequently have allowed the appeal and returned the matter to the Full Bench for reconsideration in accordance with these reasons. 31 PULLIN J : This is an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission, dated 20 August 2003. The decision, in effect, quashed an order of Commissioner Harrison extending time for the appellant to refer to the Commission, his claim that he had been unfairly dismissed from his employment. 32 The background is as follows. The appellant was a teacher employed by the respondent. He was dismissed early in January 2003. He gave his solicitors instructions to refer his claim for unfair dismissal to the Commission well within the 28-day time limit imposed by s 29(2) of the Industrial Relations Act (" Act "). The appellant's lawyers overlooked the time limit, and three days after the expiry of the time limit, the appellant referred his claim to the Commissioner and applied for an order that the Commission accept the referral out of time, pursuant to s 29(3) of the Act. That subsection reads: "(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so." 33 In support of the application for extension of time, the appellant filed affidavit evidence by the solicitor, explaining that pressure of work had caused him to overlook the time limit. However, the appellant filed no affidavit dealing with the merits of the claim. The respondent filed affidavits giving a detailed account of the dealings between the parties which, if uncontradicted, showed that the substantive claim had no merit because the appellant had not been unfairly dismissed. The only material that the appellant relied upon in relation to the issue of merit, was a schedule to the substantive application or referral, which stated that on 22 November 2002, a student assaulted the applicant at the Corrigin District High School, where he was working; that the student provoked other students to misbehave; that the appellant was harassed regularly whilst conducting his classes; that as a result of being subject to such harassment, the applicant suffered stress and anxiety and lacked confidence in conducting his classes; that the appellant raised these issues, and a number of other professional development issues, with the Principal and Deputy Principal of the school; that the Principal, Deputy Principal, and respondent, as employer, did not follow the policies and guidelines of the Department of Education in dealing with the issues raised by him and subsequently blamed the student's behaviour on the appellant, saying that he was performing unsatisfactorily because he relied heavily on administration to help control his troublesome classes. The schedule further stated that on 2 December 2002, the appellant was advised by letter from the respondent, that he had formed the view that the appellant's performance was sub-standard within the meaning of s 79(1) of the Public Sector Management Act 1994 , and giving him an opportunity to respond to the finding and intended penalty. The appellant replied by letter dated 20 December 2002, and by letter dated 2 January 2003 the appellant was informed that, despite his response, his employment was terminated. The appellant complained in the schedule that he was aggrieved by the decision because the respondent did not follow its own policies, guidelines and procedures in addressing the original issues raised by the appellant, and that the respondent did not apply the provisions of the Public Sector Management Act 1994 in terminating the appellant's employment, or applied them in a manner which denied the appellant procedural fairness. 34 I should at this point mention something that was said by Brennan CJ and McHugh J in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at [10] . They said: "Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course." 35 In this case, the appellant came to the hearing before Commissioner Harrison, aware that the respondent intended relying upon affidavit evidence which, if accepted, strongly suggested that the appellant's substantive application could not succeed. The appellant took no steps to file any affidavits to contradict anything which had been said in the respondent's affidavits. During the course of the hearing before Commissioner Harrison, counsel for the appellant began explaining the appellant's case in a way which went outside the schedule to the substantive application. The Commission, under the Act, is entitled to act on the assertions of advocates without hearing other evidence, but if the assertion is challenged, it would be imprudent on the part of the Commission not to examine the matter further: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50 ; (1965) 113 CLR 228. Commissioner Harrison pointed out that counsel's explanations were "assertions from the bar table" and that they were not included in the schedule attached to the application. Counsel for the applicant then reverted to the schedule to give an account of the proposed case of unfair dismissal. Counsel for the appellant did not ask for an adjournment to file affidavits. In the circumstances, therefore, the appellant had fair notice that the issue of merit would be decided by reference to the affidavits (and the schedule) and not by reference to counsel's assertions from the bar table. 36 Commissioner Harrison made an order extending time. 37 The affidavits filed by the respondent revealed that Mr Malik had been provided with a copy of the Department's policy concerning unsatisfactory and sub-standard performance of the teaching staff, and this had been provided on 13 June 2002; and that correspondence had been forwarded to the appellant dated 3 October 2002, outlining that the Department had received a report from the Principal of the Corrigin School, alleging that Mr Malik's performance was sub-standard. The affidavits showed that after that report, the appellant had advised the Principal on 23 October 2002 about harassment by students outside of school hours, but that conduct is not referred to, or relied upon, in the substantive application by the appellant. The appellant's statement about the assault on 22 November 2002 was shown by the affidavits to be a date not only after the commencement of the appellant's performance review at the school, but also after the completion of the review which was finalised in August 2002. The Public Sector Management Act provides for a process to be complied with if sub-standard performance of an employee is alleged. It provides for an investigation. The Department itself had established a process to be completed prior to the commencement of the investigation under the Act. That process was followed, leading to the report and the determination by the Principal in August 2002, that the appellant had not demonstrated satisfactory performance. The process under the Public Sector Management Act was then adhered to, and eventually Mr Malik's employment was terminated. Notwithstanding this uncontradicted evidence, time was extended by Commissioner Harrison. 38 The respondent appealed to the Full Bench. The Full Bench upheld the respondent's appeal and varied the order granting the extension by deleting the whole of the order and substituting an order that the application for an extension of time be dismissed. 39 Without going into detail, the Full Bench considered, inter alia, that the evidence adduced by the respondent established positively that the appellant was not unfairly dismissed and that in the absence of any evidence from the respondent, apart from assertions from the bar table which the Full Bench considered should not have been accepted in the face of sworn evidence to the contrary, the appellant failed to demonstrate that the substantive application had any merit. It was for that reason that the Full Bench allowed the appeal. 40 The right of appeal to this Court is a restricted one. For present purposes, if the appeal to this Court is to succeed, the appellant must demonstrate within the terms of s 90(1)(b) of the Act that the decision of the Full Bench was "erroneous in law in that there has been an error in the construction or interpretation of [an] Act ... in the course of making the decision appealed against". The appellant submits that there was such an error. The appellant's only ground of appeal is that "the Full Bench erred in law in interpreting section 29(3) of the ... Act ... by holding that the Appellant had a positive obligation to establish the merit of his claim". 41 Section 29(3) requires the Commission to decide whether it would be unfair not to accept the referral out of time. Even if it would be unfair not to accept the referral, the Commission retains a discretion to refuse to accept the referral out of time. This is because the subsection states that the Commission "may" accept the reference. As a result, there is not much, if any, difference between this provision and many other provisions which confer a general discretionary power in courts to extend time for the taking of some action to institute proceedings. I agree with what was said by the Federal Australian Industrial Relations Commission in Clark v Ringwood Private Hospital (1997) 74 IR 413 about a provision similar to s 29(3): "The prima facie position is that the legislative time limit should be complied with and an applicant seeking to pursue an application lodged out of time must persuade the Commission to exercise the discretion ... in their favour. The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extend the time limit. We note that such a consideration necessarily involves the exercise of a general discretion." 42 Although it is helpful for courts to list considerations which will usually be taken into account in applications to extend time, I agree with comments made by Seaman J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 204, where he said: "... it is impossible to lay down any fixed and binding rule with regard to the cases in which the court will exercise the discretion to enlarge time for appealing, ... each case must be decided upon the particular circumstances surrounding it. ... For the reasons which I gave in [an earlier case] ... some consideration of merit is necessary in all but the most unusual case, although the weight which will be attached to it in one set of circumstances may be greatly different from the weight to be attached to it in another." 43 In Clark's case ( supra ), the Federal Commission set down guidelines that "may assist" in determining whether it would be unfair not to grant an application to extend time. One of the factors in the guidelines was the merit of the substantive application. 44 The result is that the correct approach to applications under s 29(3) of the Act is to consider the sole criterion of whether it would be unfair not to grant the extension. Factors which are relevant will vary from case to case. The length of the delay and the reasons for the delay will usually be relevant factors. The merits of the substantive application will usually be a relevant factor, but it is not a sine qua non . 45 I should pause at this point to refer to what was said by Brennan CJ and McHugh J in Jackamarra v Krakouer ( supra ) at [9]: "Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a fairly rough and ready way." 46 Gummow and Hayne JJ said at [34] that it is not useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction the court must reach on the issue of merit. 47 In my opinion, those statements are equally applicable to an application for an extension of time under s 29(3) of the Act. 48 I now turn to consider the reasons for decision in this case. The reasons must be examined to see whether it is the case, as the appellant contends, that the Full Bench made an error of law in interpreting s 29(3) of the Act by concluding that in every case it must be shown that the substantive application has merit before time may be extended to allow the referral out of time. I refer first to the reasons for decision of Commissioner Kenner, because his reasons were agreed with by Commissioner Scott. 49 In directing himself on the law, Commissioner Kenner referred to an earlier decision of his in Azzalini v Perth Inflight Catering (2002) 82 WAIG 2992 , where he said: "... for the purposes of s 29(3) of the Act as it now is, consideration by the Commission of whether it ought extend time for the purposes of this subsection should include the following - (a) Prima facie, time limits imposed by the Act are to be complied with and it is for an applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour; (b) An extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties; (c) It is for an applicant to demonstrate that strict compliance with s 29(2) of the Act will work an injustice and be unfair in all of the circumstances; (d) Considerations relevant to whether it would be unfair to not extend time include - (i) the length of any delay; (ii) the explanation for the delay; (iii) steps taken if any, by the applicant to evidence non-acceptance of the termination of employment and that it would be contested; (iv) the merits of the substantive application in the sense that there is a sufficiently arguable case; and (e) Whether there would be any prejudice to the respondent in granting the application to extend time although the absence of prejudice to the respondent, without more, is not a sufficient basis of itself, to grant an application for an extension of time." 50 Commissioner Kenner said he would adopt what he said in Azzalini for the purposes of the relevant principles to apply in determining the appeal. 51 I agree with the quoted passage if, by it, Commissioner Kenner meant in (d): "Considerations usually relevant to whether it would be unfair to not extend time include ..." 52 The argument in this case is that Commissioner Kenner misdirected himself by holding that merit is a sine qua non for all applications under s 29(3). The appellant submits that this was an error of law and that it appears from par 113 of Commissioner Kenner's reasons for decision, where he said: "Finally, and most importantly however, as to the merits of the substantive application, in my view, on the evidence, it was open for the Commissioner to find, that the respondent's claim lacked any merit at all. This is because not only did the respondent not lead any evidence as to the merits, which he was obliged to do given that he bore the onus of persuading the Commissioner at first instance to extend time, but there was also evidence adduced by the appellant positively against the assertion that the respondent was unfairly dismissed." I have underlined the words which are pointed to as suggesting the error of law on Commissioner Kenner's part. The question then is whether the words underlined reveal that Commissioner Kenner had formed the erroneous view that an appellant bore the onus of proving, and could never succeed in gaining an extension of time unless evidence was led to establish, that the application had merit. If that is what Commissioner Kenner was saying, then, in my opinion, there was an error of law in the interpretation of s 29(3) of the Act. 53 On the other hand, the paragraph quoted and the words underlined, may mean that because the issue of merit had been raised, and because evidence had been led by the respondent to the effect that the substantive application must fail, the appellant was, as a result, "obliged" in the particular circumstances of this case, to lead some evidence to show that there was an arguable case. 54 On balance, I consider that Commissioner Kenner did decide and misdirect himself by concluding that s 29(3) requires, in each and every case, that an arguable case of merit be established by evidence from the employee applicant. This appears from the passage quoted above when read also with the first sentence in par 115 of Commissioner Kenner's reasons, which read: "That being so, and in the absence of any evidence from the respondent and the discharge of the onus that rested on him, apart from assertions from the bar table which should not be accepted in the face of sworn evidence to the contrary, in my view, the respondent failed to demonstrate that the application at first instance had merit. Indeed, as I have observed above, the evidence from the appellant, uncontroverted, established to the contrary." 55 The President's reasons, in part, reflect the approach which I consider to be correct. He said in par 81(c) that an applicant "will, in many cases, be required to establish that he/she has a case on the merits", and in par 81(k) "it is not possible to list all of the factors which might be relevant". The President correctly stated that in an application under s 29(3) , the task of the appellant was to "... establish ... that it would be unfair not to accept" the referral the subject of the application. 56 Having decided that the majority erred in law by misdirecting themselves as to the correct interpretation of s 29(3) of the Act, the question then arises as to what order this Court should make. Section 90(3a) of the Act provides that if any ground of appeal is made out but the court is satisfied that no injustice has been suffered by the appellant, the court shall confirm the decision the subject of appeal unless it considers there is good reason not to do so. 57 In the circumstances of this case, it would have been understandable if the respondent had not strongly opposed the application for an extension and had not filed any affidavits on the issue of merit. If that had happened, an extension could have been granted. The respondent, however, clearly felt that this was an entirely unmeritorious claim, and so it did raise the issue of lack of merit. In those circumstances, it cannot be said that the Commissioner at first instance and the Full Bench were wrong in concluding that the issue of merit was relevant. The Full Bench's reasoning and conclusion was that it had been established - positively established - on the only evidence before it, that there was nothing unfair about the processes leading to the appellant's dismissal. 58 While the Full Bench erred in its conclusion that s 29(3) requires an applicant in every case to show there is merit, there is no reviewable error in relation to its conclusion that the evidence showed that the appellant was not unfairly dismissed. 59 There is therefore no point in referring the matter back for reconsideration. If that happened, the direction would be to consider the matter in the light of the decision of this Court. The same result would be bound to follow in view of the Full Court's positive finding that the substantive application had no merit. The fact that the Full Bench considered that the evidence from the respondent, uncontroverted as it was, established that the application had no merit, and because this was a case where the merit of the application was a relevant consideration, a reconsideration by the Full Bench would only produce the same result, even if the Full Bench noted and applied the correct interpretation of s 29(3) of the Act. 60 I would therefore dismiss the appeal. 61 EM HEENAN J : At first instance Commissioner Harrison accepted the applicant's claim for relief for alleged harsh, oppressive or unfair dismissal from his employment with the respondent notwithstanding that the application had been made after the 28 day time limit for the commencement of such an application fixed by subs 29(2) of the Industrial Relations Act 1979 had expired. The respondent appealed from that decision to the Full Bench of the Commission and, by a unanimous decision (his Honour President Sharkey, and Commissioners P E Scott and S J Kenner) the Full Bench upheld the appeal and dismissed the appellant's application for relief. From that decision the appellant now appeals to this Court under s 90 of the Act which, however, limits the grounds of appeal which may be raised and, in terms relevant to the present appeal, provides: " 90 Appeal to court from Commission (1) Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session – (a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter, (b) erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or (c) on the ground that the appellant has been denied the right to be heard, but upon no other ground." The appellant resorts to subs 90(1)(b) of the Act by alleging, in his single ground of appeal, that the Full Bench erred in law in interpreting s 29(3) of the Act by holding that the appellant had a positive obligation to establish the merit of his claim. This ground is enlarged by particulars which need not be mentioned until later. 62 The background is uncontroversial. The appellant had been employed by the respondent as a school teacher and was assigned to the Corrigin District High School at which he had been employed throughout 2002. Some concerns were entertained by the Principal of the Corrigin District High School about the appellant's capacity to manage his class and to maintain control and a series of investigations or evaluations of his performance were commenced in or about June 2002. After following the departmental process which involved opportunities for the appellant to respond, the appellant was informed, by letter dated 2 January 2003 that his employment was to be terminated as at 7 January 2003. That is what happened and the appellant then gave instructions to "appeal" against the Department's decision to terminate his employment or, in other words, to make an application for relief under s 29 of the Act. There is no suggestion that, after he was notified of the termination of his employment, the appellant did not act promptly in providing instructions to his solicitors to apply to the Commission for relief. 63 Due to oversights within the solicitor's office, apparently due to pressure of work, the application was not filed until 7 February 2003 when it was then three days out of time. The appellant applied for an "extension of time", and made submissions through his counsel to the Commission in support of that application. The respondent, by his counsel, opposed that application and filed affidavit evidence in opposition alleging facts which, if accepted, tended to show that the appellant had no prospects of success in his proposed application. 64 The ultimate decision of the Commission, by the Full Bench, was that the appellant had failed to demonstrate any merit in his proposed application and that, accordingly, time should not be extended. In doing so the Full Bench made observations to the effect that an applicant for an extension of time in such circumstances had a positive obligation to establish "the merit of his claim". This has led the appellant to enlarge upon his ground of appeal by reliance upon the following particulars: "1.1 The wording of the section [s 29(3)] should be construed to mean that the referral be accepted if the Commission considers that it would be unfair to the employee not to do so (emphasis added). 1.2 The concept of 'fairness' imported into the section requires that the test of the merit of the referral be that the referral is 'merely arguable' rather than that the referral is 'likely to succeed' or there is a 'sufficiently arguable case' and there be a balanced consideration of other relevant factors. 1.3 The Full Bench failed to give any, or any adequate weight to other relevant factors in support of accepting the referral including the short period of the delay, the cause of the delay attributable to the Appellant's solicitor, the fact the Respondent was aware that the Appellant challenged its decision and there was little or no prejudice to the Respondent." 65 In law, as in life, time is precious. This reflects the relentless fact that time is limited and so must be rationed according to the demands of the circumstances. Time limits abound in statutory provisions and in delegated legislation. Some are final and cannot be extended – they are as pitiless and irrevocable as a departing aircraft or a train leaving a Zurich platform. Some are capable of extension in various circumstances ranging in gravity according to the consequences flowing from late, but unsuccessful, attempts at compliance. In this case we are concerned with s 29(3) of the Act which is of the second category. It provides: "29(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so." 66 As already noted, this application to accept a referral was only three days out of time and it was not alleged that the late acceptance of the application would cause prejudice to the respondent in the only material sense, namely that the respondent would be prejudiced in attempting to make an effectual answer to the claim, because of the delay which had occurred. Nevertheless it was late and the Commission had an obligation to decide, in accordance with s 29(3) whether it should be accepted. For the referral to be accepted it was necessary for the Commission to be satisfied that it would be unfair not to do so. On conventional principles the onus of persuading the Commission that it would be unfair not to accept the late referral must be on the applicant. 67 The terms of s 29(3) provide that the Commission may accept a referral out of time if it considers that it would be unfair not to do so, thus implying that the Commission has a discretion to refuse a late referral even if it would be unfair to do so. It was not argued in this case that provision that the Commission " may accept" means that the Commission must accept a late referral if it would be unfair not to do so and, accordingly, we are not required to address in this case the issue of whether the use of the term "may" in this setting is one of those exceptional occasions where "may" amounts to "must" – see Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 ; (1994) 182 CLR 51 ; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12 ; (1971) 127 CLR 106 at 134 – 135; Ward v Williams [1955] HCA 4 ; (1955) 92 CLR 496 at 505 – 506; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 398 and Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195 at 199 – 200. Nevertheless, it is clear that, before the Commission could accept a late referral, it must be satisfied that it would be unfair not to do so. For reasons which follow that must mean that the consequences for the late applicant of being deprived an opportunity to seek redress from the Commission would, at least for him or her, be unfair having regard to all of the circumstances including the interests of other parties and the public. Submissions were made on behalf of the appellant that the Full Bench was in error in specifying that in every such case the appellant had a positive obligation to establish the merit of his claim and that no such absolute proposition could be sustained. Great care must be taken in utilising any test which does not employ the precise statutory language contained in s 29(3) namely "if the Commission considers that it would be unfair not to do so" because few words are exactly synonymous and each use of a synonym or an analogue may involve a slight shift of meaning all the more distracting because it may be imperceptible. 68 In some circumstances it may be unfair to an applicant if, notwithstanding his or her delay, an opportunity to bring an application which has some prospects of success, not merely unrealistic, subjective or fanciful prospects, is denied. In some cases it may be expressly or tacitly acknowledged that the proposed application is one that does enjoy some prospects of success but that there are other factors which would mean that it is not unfair to refuse the late claim. In others, the delay may be short, there may be little or no prejudice to the respondent and the application, if accepted, may have good prospects of success. But for a late claim to be accepted it seems to me that it will in most cases, if not in every case, require some demonstration, whether by acknowledgement, tacit or express, or by the production of evidence, that there is merit in the claim in the sense that it enjoys some prospects of success in the sense already described. 69 In my view it is unnecessary here to go as far as deciding whether, as a rule of invariable practice, this must be established in every single instance because, on the present application, the respondent expressly raised the issue that the proposed application had no prospects of success. Once that issue was raised, and evidence was adduced by the respondent to support it, it was incumbent upon the appellant to address it and to attempt, at least, to make out a case that he did enjoy prospects of success in the proposed application. That was not done in any effective manner and the Full Bench decided, in my respectful opinion correctly, that the appellant had failed to show that his intended case had merit and therefore was not entitled to have his late referred claim accepted. The language of the learned members of the Full Bench in addressing this issue on the appeal before them should be read as addressing the issues which had arisen in the particular case where the issue of merit was distinctly raised. They decided that the appellant had not made out a case showing merit in the sense of some prospects of success and that was the issue which had to be determined in the appeal before the Full Bench. 70 Before the Commissioner at first instance (who accepted the late referral) and before the Full Bench (which allowed the first appeal and decided that the late referral should not have been accepted) the applicant/appellant explained that the short delay was due to oversight (pressure of work) by his solicitor and that he, himself, had acted as promptly as could be expected. Significantly, however, he did not adduce any formal evidence about the strength or "merit" of his proposed claim. The respondent, by contrast, adduced affidavit evidence to the effect that the applicant had no prospects of success in his proposed application. No answering evidence was adduced by the applicant. 71 In the light of the powers of the Commission under subs 26(1)(a) and (b) it was open to the Commission to inform itself on any relevant matter in such a way as it thought just, and this would include taking notice of the grounds of the proposed application which the applicant desired to institute and, to the extent to which the Commission thought acceptable, to accept statements of historical fact or other explanations proffered by the applicant's counsel even though these were not evidence on affidavit. Equally, however, where the Commission was confronted with a conflicting version of the background events, in this case supported by affidavit evidence adduced by the respondent, the Commission was entitled, indeed, required, to determine what version of events it would accept and, it cannot be regarded as surprising or erroneous, that the Commission accepted the respondent's sworn version of events. 72 Other areas where courts or tribunals have the power to extend relevant time periods, or to relieve against the consequences of non-compliance or late compliance with time obligations, demonstrate that the time limit should be observed and enforced unless there is some good reason otherwise. As the consequence of enforcing the time limit will usually be to deprive the applicant of the chance to institute, or to pursue, some avenue of desired redress the focus then shifts to the likely consequences of denial of that opportunity. 73 In a case like the present, where the applicant belatedly wishes to institute a claim for relief under s 29 , there will be no unfairness in rejecting a late application if the application could not succeed. Hence, unfairness must involve, as a minimum at least, the Commission being satisfied that some prospect of success would be denied to the applicant if he could not pursue his late claim. If there is some prospect of success to be lost by denying an extension of time, it would then become necessary to evaluate the position having regard to the length of the delay, its effects upon the respondent and the public interest in the due expedition and finalisation within an acceptable period of legal and industrial processes. Fairness, in this sphere, has a legislative starting point in the choice by Parliament that 28 days is a sufficient period in the public interest for the commencement of such a claim. The longer the delay the more difficult it will be to show unfairness, but even in instances of long delay there may be particular circumstances which reveal that it would be unfair not to accept a late referral. But this point in balancing conflicting interests was never reached in the present case because of the finding by the Full Bench that the application at first instance did not have merit (see his Honour President Sharkey at [91] and Commissioner Kenner at [115]). 74 The principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. In that case his Honour was considering the jurisdiction under s 170EA of the Industrial Relations Act 1988 (Cth), as it then was, to grant an extension of time. His Honour said, after examining previous applicable authority: "I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter. Briefly stated the principles are: 1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion." I agree, with respect, with that formulation of the principles and their application in the present case. See also Clark v Ringwood Private Hospital (1997) 74 IR 413 (AIRC). However, counsel for the applicant/appellant citing the decision in Kornicki v Telstra - Network Technology Group [Print P3168, 22 July 1997] submits that the language of s 29(3) suggests that considerations of fairness towards an applicant are central to the exercise of the discretion and that, at least in the federal sphere, such a test was intended to convey an approach to the exercise of the Commission's discretion more generous to applicants than that which previously prevailed. I accept that the concept of fairness is central to a decision whether or not to accept an application under s 29 which is out of time but, with all respect, I cannot accept the submission which was put in this case that it is fairness to the applicant which is either the sole or principal concern. Fairness in this situation involves fairness to all, obviously to the applicant and to his or her former employer, but also to the public interest and to the due and efficient administration of the jurisdiction of the Commission which should not be burdened with unmeritorious stale claims. 75 The proposed application by the appellant under s 29 includes an allegation that he was subjected to harassment by students at the school in November 2002 and that this was overlooked by the respondent in reaching his decision to dismiss the applicant. For this reason it is argued that a wrong test was necessarily applied by the Full Bench in concluding that no merit had been established by the applicant for the acceptance of his referral out of time. There are two answers to that submission. The first is that the issue of alleged harassment was apparent to the Commission as it was an express ground of the application which had been filed late and which was before the learned Commissioner at first instance and before the Full Bench. It was in fact addressed by the Full Bench (by his Honour President Sharkey at [43] and by Commissioner Kenner at [114]), but was not regarded by the Full Bench as providing any reason to accept the late application, on the basis that it was not the subject of any acceptable evidence at first instance. Secondly, the decision by the Full Bench is one which was based on all the material before it and, essentially, is a finding of fact that there was no evidence of merit to support the acceptance of a referral out of time. That can only be regarded as a decision by the Full Bench that the sworn affidavit evidence of the respondent should be accepted in preference to the unverified assertions by counsel for the appellant. No attempt has been made to show that that decision is wrong and that is not surprising because it would not have been possible to demonstrate any error in this regard. 76 This Court must, therefore, proceed on the basis that there was no acceptable evidence to show prospects of success in this case. There was no error of law nor lack of jurisdiction nor misinterpretation of the Act or any other Act by the Full Bench in reaching this conclusion. It was for the Full Bench to determine what evidence the Commission should act on and this was a decision made in the exercise of that power. 77 If there were no prospects of success shown by the appellant for his proposed application for relief under s 29 , then there can be no unfairness in declining to accept a referral of a late claim. This case involved a finding that there was "a failure to demonstrate merit" in the particular circumstances [115] per Commissioner Kenner and hence the question of unfairness was correctly and properly addressed. 78 This appeal should be dismissed.