[2008] AIRCFB 382 [2008] AIRCFB 382 PR981048 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.120 appeal against the decision [2008] AIRC 61 and order [ PR980458 ] issued by Commissioner Bacon at Brisbane on 18 January 2008 Appeal by K C H (C2008/2218) K C H and Big Issue in Australia Limited (U2006/4586) SENIOR DEPUTY PRESIDENT LACY SENIOR DEPUTY PRESIDENT KAUFMAN COMMISSIONER HOFFMAN MELBOURNE, 1 MAY 2008 Appeal – extension of time – whether appeal lies-consideration of operation of s.638, s.645(5), s.645(7) REASONS FOR DECISION [1] On 18 January 2008 Commissioner Bacon dismissed an application under s.643 of the Workplace Relations Act 1996 (the Act) made by the appellant claiming the termination of his employment was harsh, unjust and unreasonable, in contravention of s.643(1)(a). The appellant also alleged that the termination of his employment was in contravention of ss.659 and 661 of the Act. [2] The nature of the proceedings before the Commissioner is set out in paragraph 2 of his decision: The respondent contests the jurisdiction of the Commission to deal with the application on the following grounds: There was no termination of employment at the initiative of the employer, because at the time of the alleged termination, the applicant was not an employee of the respondent; and/or The application was lodged out of time and the respondent opposes the granting of any extension of time; and/or In the alternative if it is found that there was a termination at the initiative of the respondent and an extension of time is granted, the applicant is precluded by s.643(7) of the Act from lodging an application on the ground that the termination of his employment was harsh unjust or unreasonable because at the time of the termination the applicant was serving a qualifying period; and/or The respondent employs fewer than 101 employees and therefore the applicant is precluded from lodging an application on the ground that the termination of his employment was harsh unjust or unreasonable. [3] Although the Commissioner found that the termination of the appellant’s employment had been at the initiative of the employer, he concluded that the appellant had been a casual employee engaged for a short period and that accordingly, pursuant to s.638(1), the appellant was excluded from the operation of the Act insofar as his application was made under s.643(1)(a) and s.661. The application relating to the alleged contravention of s.659 (discrimination or other prohibited reasons) was not excluded from the operation of the Act. [4] When determining that the applicant’s employment had been terminated at the initiative of the employer, the Commissioner found that the date of the termination was 23 May 2006. As the application for relief had been lodged on 19 June 2006, it was six days outside the 21 days prescribed by s.643(14). In order that the appellant could proceed it was necessary that the Commissioner extend the time for lodgement of his application. [5] Because the Commissioner had concluded that the appellant was excluded from the operation of the Act insofar as his application had been made under ss.643(1)(a) and 661, the Commissioner did not concern himself with the merits of the application insofar as those grounds were concerned in deciding whether to extend the time for lodgement of the application for relief. [6] The rather lengthy history of this matter can best be understood by reference to the following extract from the Commissioner’s decision: [4] The respondent is a not for profit organisation directed mainly towards assisting “homeless” and other “marginalised” people gain remunerative employment. One way of achieving this goal is through the “vendor” programme where vendors (who are not employees) purchase a copy of the Big Issue Magazine for $2.00 and sell it to the public for $4.00. [5] The applicant represented himself. The applicant suffers from a psychological disorder and views himself as (and is) a marginalised person of the type who the respondent seeks to help. The applicant’s psychological ill health has significantly contributed to the extraordinary delay in dealing with his application. The history of this matter between 18 October 2006 and 4 December 2007 is summarised in the preamble to Directions issued on 4 December 2007. The following is extracted from those Directions: “On 18 October 2006 the Commission issued Directions in relation to this application. In part those Directions required the respondent (Big Issue in Australia Limited) to file and serve certain material supporting its contentions that the applicant [K C H] was not an employee of the respondent at the time of the alleged termination; and/or that the applicant is precluded from lodging this application (alleging the termination to be harsh unjust or unfair) because the respondent, at the relevant time, employed fewer than 101 employees and/or that the applicant was precluded from lodging the application because at the relevant time the applicant was serving a qualifying period pursuant to s.643(7) of the Workplace Relations Act 1996 (the Act). The respondent complied with those directions. The applicant was required to file and serve material to support his application to the Commission to accept the application despite it being lodged “out of time”. The applicant failed to meet that direction. Ultimately the Directions of 18 October 2006 were set aside. Further Directions were issued on 31 January 2007. Those Directions (but for the dates) were in the same terms as the Directions of 18 October 2006. Due to the applicant’s ill health those Directions were set aside. On 30 March 2007 the Commission again issued (but for the dates) the same Directions (bearing in mind that the respondent had already filed and served all of its material in relation to the three grounds on which it relied to have the application dismissed). The applicant on 29 April 2007 filed and served material to support his claim that the application should be accepted despite being lodged out of time. The applicant also sought that the remaining Directions be set aside because the state of his health was such that he could not cope with preparing the material. The application to set aside the Directions was supported by a letter from the applicant’s treating Health Professional. The Commission set aside the Directions and directed the applicant to advise when he was in a position to proceed. On 29 November 2007 the Commission received the following email from the applicant: “I now feel competent to address direction 2 of directions issued on 31 st January 2007. You will recall that Commissioner Bacon granted indefinite extension of time on these orders on February 1 st . I also addressed direction 1 on 29 th April 2007.” As a result of the applicant’s advice the Commission makes the following observations and issues the following Directions: Observations The applicant has filed and served his material in support of his extension of time application referred to as “Direction 1” in the email of 29 November 2007. The respondent has filed and served (on 27 October 2006) its material in support of its three motions to dismiss the application for want of jurisdiction. To avoid doubt as to the issues to be addressed, a copy of the Directions issued on 31 January 2007 is attached hereto.” [7] It would appear from the Commissioner’s “Observations” that the appellant had addressed the extension of time issue, but, it would seem, not the other jurisdictional issues raised by the respondent. In deciding whether or not to extend time the Commissioner had regard to the well settled principles and decided not to extend the time for lodgement of the application for relief. [8] On 18 January 2008 the Commissioner issued his decision 1 and made an order dismissing the application for relief. 2 It is clear that the application in its entirety was dismissed. [9] On 7 February 2008 the applicant filed an appeal against “the decision made by Commissioner Bacon on 18 January 2008 in this matter.” Pursuant to s.120(1) an appeal only lies with leave of the Full Bench. On 21 February 2008 Senior Deputy President Drake issued directions for the filing and serving of outlines of submissions. On 26 February 2008 the appellant sent an email to Senior Deputy President Drake’s Associate complaining that due to his medical condition and lack of legal training he did not understand what was required. [10] Despite objections from the respondent, the directions were rescinded and the parties were advised that the matter would be determined on the basis of the notice of appeal and the oral submissions of the parties. [11] The matter came on for hearing on 6 March 2008. The Commission and the respondent, which was represented by its solicitor, were in Brisbane. At the appellant’s request he appeared by telephone from his home in Goulbourn, N.S.W. [12] At the commencement of the hearing, Ms McCartney, solicitor, who appeared for the respondent, indicated that she wished to raise a preliminary matter that went to the jurisdiction of the Commission to entertain the appeal. [13] Not surprisingly, given the amended directions, the appellant was caught off-guard. This was exacerbated when Ms McCartney produced a set of written submissions. Whilst she was outlining the nature of her objection to jurisdiction her written submissions were emailed to the appellant by the Commission. [14] Again, not surprisingly, the appellant objected to the respondent taking the objection at such a late stage. Given that the matter went to the jurisdiction of the Commission to entertain the appeal, we allowed the objection to be made, but offered the appellant time to consider his position. The matter was stood down for approximately ten minutes to allow the appellant to consider his position. Upon resuming the appellant reiterated his inability to deal with the objection. He was offered an adjournment of 21 days to file a written submission on this point, but he did not wish to adopt that course. He insisted on proceeding, but failed to address the jurisdictional point that had been raised by the respondent. Rather he sought to challenge the Commissioner’s finding that the date of the termination of his employment had been 23 May 2006. He contended that the date was 26 May 2006 (which would have still had the result that his application was out of time. He later contended that the termination date was 31 May 2006. [15] The appellant pressed us for a ruling on the issue of the date of the termination of his employment. After considering this matter, we ruled that we were satisfied that the Commissioner had correctly ascertained the date of termination as 23 May 2006. The appellant was, by this time, becoming quite agitated and we decided to adjourn the matter and provide him with 21 days to address the jurisdictional issue in writing if he so wished. Directions were issued to this effect indicating that if no submissions were received by 28 March 2008 the jurisdictional issue would be determined on the material before the Commission. jurisdiction [16] In substance, the respondent submitted that as the appellant’s application for extension of time had been dealt with “on the papers” pursuant to ss.647 and 648 of the Act, no appeal against this decision could be made under s.120 because of the prohibition in s.685 against the making of appeals in such circumstances. [17] It is apparent that the Commissioner found that the appellant had been a casual employee engaged for a short period and was accordingly excluded from the application of the Act insofar as his application was made under ss.643(1)(a) and 661. The Commissioner’s findings were made without holding a hearing. Section 645(7) authorizes such a manner of proceeding. If the Commission is satisfied that the application cannot be made because the employee is excluded from the operation of Subdivision B by s.638 (i.e. the employee was a casual employee engaged for a short period), section 645(5) requires it to dismiss an application to the extent that the application for relief was made under s.643(1)(a). We note that the application, insofar as the s.661 ground is concerned, was dismissed, but probably as a consequence of the decision not to extend time. In our view nothing turns on this [18] Although casual employees engaged for a short period are excluded from the operation s.661 of the Act, no application may be made to the Commission to dismiss such an application on that basis. This is undoubtedly because, if the matter proceeds to trial, this issue will be finally decided by a court of competent jurisdiction, not the Commission. [19] Section 638(2) makes it clear that despite being excluded from the operation of Subdivisions B and E because of subsection (1), the appellant was not excluded from making an application for relief under s.659. [20] The Commissioner found at paragraph 34 of his decision that the merits of the s.661 ground should not be taken into account when deciding the question of whether to extend time because this ground “would be struck from the application because [it is] beyond the Commission’s jurisdiction” . Although this is not an action that could be taken by the Commission, having regard to the Commissioner’s finding that the appellant had been employed as a short term casual, we consider this to have been a relevant factor to take into account in the exercise of the Commissioner’s discretion when he was considering whether to extend the time for lodging the substantive application. Extension of time [21] The application for relief having been brought out of time, it was incumbent upon the appellant to persuade the Commission to extend the time for lodging it. For reasons elaborated upon by the Commissioner, an extension of time was refused and the application for relief was dismissed. As the respondent has submitted that we do not have jurisdiction to entertain the appeal against the Commissioner’s decision it is not necessary or desirable to examine the merits of the decision unless we find that we may hear the appeal. [22] Section 685(3) provides that an “appeal to a Full Bench under section 120 may not be made in relation to an order under subsection 645(5) or section 646 or in relation to a decision on an extension of time application within the meaning of section 647.” Here the order was made as a result of the decision of the Commissioner not to extend time to lodge the application for relief. Arguably, no order was necessary because the mere refusal to extend time had the effect that there was no valid application before the Commission. In any event, the words of s.685(3) are clear. 3 No appeal lies, and accordingly leave to appeal must be refused. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: KCH on his own behalf. S McCartney of Freehills for Big Issue Limited. Hearing details: 2008. Brisbane and Goulburn: March 6. Printed by authority of the Commonwealth Government Printer <Price code {B}> 1 [2008] AIRC 61 2 PR980458 3 Vidler v Brisbane City Council [2007] AIRCFB 873