PR954579 PR954579 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Karyn Didsbury and Carter Holt Harvey Wood Products Pty Limited (U2004/6670) SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 21 DECEMBER 2004 Termination of employment - extension of time. DECISION [1] Ms Didsbury has applied for relief pursuant to section 170CE of the Workplace Relations Act 1996 (`the Act') relative to the termination of her employment by Carter Holt Harvey Wood Products Pty Limited (`Carter Hold Harvey') on 7 October 2004. This decision deals with an application by Ms Didsbury for an extension of time for the lodgement of her Notice of Election to proceed to arbitration. [2] This preliminary matter was the subject of a hearing on 17 December 2004 involving a video link between Adelaide and Mount Gambier. At this hearing Ms Didsbury was represented by Mr C Ryan of counsel and Carter Holt Harvey by Mr Warren of counsel. [3] There is little dispute over the background to this application. Ms Didsbury's employment was terminated on 7 October 2004. Her application was lodged in the Commission on 18 October 2004. The matter was the subject of a conciliation conference in Mount Gambier on 15 November 2004 and a Certificate was issued by Commissioner Dangerfield on 17 November 2004. There is no dispute that the certificate was received by facsimile on that same date at Mr Ryan's Offices. Consistent with the requirements of section 170CFA(6) Ms Didsbury was required to lodge a notice of election by 24 November 2004. On 23 November 2004, Ms Didsbury contacted Mr Ryan's Offices and was advised that the certificate had been received by those offices. She subsequently met with Mr Ryan on 26 November 2004, which was the date upon which the Notice of Election was then received by the Commission and Carter Holt Harvey. [4] Ms Didsbury gave evidence to the effect that she understood that the Certificate would be forwarded to her home address, that she understood that she had seven days in which to file the Notice of Election on receipt of that certificate and that she had assiduously checked her mail on a daily basis following the 15 November 2004 conference. Her evidence was that she had taken all possible steps to contest the termination of her employment and that, having been advised by Mr Ryan's Offices on 23 November 2004 that the Certificate had been received, she endeavoured to make an appointment with Mr Ryan at the earliest possible time. Ms Didsbury argued that the termination of her employment was unfair and her evidence went to the warning process relied upon to effect this termination. [5] Mr Ryan's submissions in support of Ms Didsbury's application for an extension of time were to the effect that the delay was not the fault of Ms Didsbury, that it was not a significant delay, did not prejudice the employer position and related to an application which involved an arguable case. Whilst Mr Ryan did not comfortably concede that the reason for the delay was representative error, and did not adduce evidence to this effect, he did agree that representative error constituted the reason for the delay with respect to his failure to advise Ms Didsbury of receipt of the Certificate and the failure of his office to advise Ms Didsbury on 23 November 2004 of the urgency associated with the date of issue of the Certificate. [6] Carter Holt Harvey opposed the extension of time sought. The Carter Holt Harvey position was that Ms Didsbury had been clearly advised in the course of the conference on 15 November 2004, of the requirement to lodge her Notice of Election within seven days and that the Commission's Certificate would be forwarded shortly after that conference. Carter Holt Harvey argued that Ms Didsbury failed to take adequate and timely steps to ensure the lodgement of the Notice of Election within that time. The actions which Ms Didsbury failed to take included earlier contact with Mr Ryan's office, obtaining advice from another solicitor or the establishment of the date of the Certificate and hence the required date for lodgement of the Notice of Election. Carter Holt Harvey did not argue that Ms Didsbury's application was totally without merit. Findings [7] The parties provided a range of authorities to the Commission. I have considered each of these. [8] I have accepted that there is some difference in recollections of the proceedings of the conference before Commissioner Dangerfield on 15 November 2004. In this respect I prefer the evidence of the Carter Holt Harvey representative at this conference, Mr Kidman. [9] I have noted that, in accordance with the Commission's normal practice, advice of the Conference of 15 November 2004 was forwarded to Ms Didsbury's home address as well as to Mr Ryan's Office. I have noted that Ms Didbury's application was prepared by Mr Ryan and that Ms Didsbury was not apparently aware that notices from the Commission were to be sent to Mr Ryan's Office. I consider that Ms Didsbury could reasonably have expected the Certificate to be forwarded to her home address. I have noted her evidence that she awaited receipt of this Certificate with some anticipation and that on the expiry of seven days from the Conference, she took action to follow the matter up with Mr Ryan's Office. I consider that Ms Didsbury's decision to wait for a further three days to be able to see Mr Ryan, rather than to seek to access an alternative solicitor, was reasonable in the circumstances. Further, I consider that it was reasonable for Ms Didsbury to rely on Mr Ryan to clarify issues associated with the lodgement of the Notice of Election, given her dependence on him. [10] Sections 170CFA(6)-(8) state: "170CFA Elections to proceed to arbitration or to begin court proceedings ..... (6) An election under subsection (1), (2), (3), (4) or (5) must: (a) be made in writing; and (b) be lodged with the Commission not later than 7 days after the day of issue of the certificate by the Commission under subsection 170CF(2) in relation to the application. (7) If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period for all purposes other than the making of an election out of time in accordance with subsection (8). (8) The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7)." [11] A Full Bench of the Commission considered the operation of the sections in Ackary v MPDG Investments Pty Ltd ( PR924226 ). In that matter the Commission stated: "[20] The discretion in s.170CFA(8) is expressed in similar terms to the discretion in the former s.170CE (8) (as it was prior to the 2000 Amendment Act), to accept an application for relief lodged more than 21 days after the day on which the termination took effect. [21] The principles applicable to the exercise of the Commission's discretion under the former s.170CE (8) were considered in Kornicki v Telstra-Network Technology Group. In that case the Commission said: "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 s.170CE (8) 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. The following guidelines may assist in determining whether it would be unfair not to grant an application to extend time: A. Primary consideration should be given to two factors: . Is there an acceptable explanation for the delay? It would generally not be unfair to refuse to accept an application lodged out of time where no acceptable explanation for the delay exists: Alonzo v. Harvey Norman-Fyshwick [Print P0319, 21 April 1997 per Ross VP, Watson DP and Gay C]. However, consistent with the view of Brooking J in Dix v. Crimes Compensation Tribunal, while the existence of an acceptable explanation for the delay is relevant to the exercise of the discretion under s.170CE (8), it is not a condition precedent to the exercise of that discretion; and . The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. B. Depending on the circumstances of a particular case the provision of a `fair go all round' may also allow regard to be had to the following considerations: . Whether the applicant actively contested the decision to terminate his or her employment prior to lodging the application for relief; and . Prejudice to the respondent caused by the delay in filing the application. We note however that these considerations are very much secondary in nature and are, of themselves, unlikely to be determinative of an application. We emphasise that the matters set out above are guidelines only. In taking into account any of the factors identified the Commission will be cognisant of the prima facie position that the legislative time limit be complied with and in deciding whether to accept a late application the central consideration is whether it would be unfair to the applicant not to accept the application." [22] The relevance of representative error in extension of time cases was considered by a Full Bench of the Commission in Clark v Ringwood Private Hospital. In that case the Commission set out a number of general propositions to be taken into account in deciding whether or not representative error constitutes an acceptable explanation for a delay, namely: "1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged: ... 2. A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. 3. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicants efforts to ensure that the claim is lodged. 4. Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE (8)." [23] While the above guidelines were established in the context of applications pursuant to the former s.170CE (8), they have been applied in the exercise of the discretion in s.170CFA(8). [24] It needs to be borne in mind that the above extracts from Kornicki and Clark are only intended to provide a guide to the exercise of what is an open textured discretion. At the end of the day the person exercising the discretion has to make an overall judgment as to the appropriateness of extending time." [12] I have applied this approach. [13] I consider that there is an acceptable reason for the delay. In this respect I consider the delay was due to representative error and that Ms Didsbury did not contribute to this error. Mr Ryan assumed the responsibility for receipt of the Certificate and notices from the Commission and failed to discharge this responsibility in a timely manner. I have noted that Mr Ryan did not bring evidence to explain this representative error. Whilst his apparent reticence to do so may be understandable, the simple facts before me indicate that, in this situation he has failed to properly serve his client and then, to accept absolute responsibility for this failure. This is a matter for Mr Ryan to consider and address with his client. [14] I have noted that the duration of the extension of time sought is two days and have taken this into account. [15] Limited information has been provided to me relative to the merits of the application. On the basis of this information I have concluded that the application is not so lacking in merit to make an extension of time inappropriate. [16] I am satisfied that Ms Didsbury took such action as was appropriate to actively pursue her application. [17] I do not consider that the extension of time represents any prejudice to Carter Holt Harvey over and above the continuation of the application. Conclusion [18] For the above reasons I consider that it would be unfair not to extend the time limit for lodgement of Ms Didsbury's Notice of Election. Accordingly, I accept the Notice of Election filed by Ms Didsbury. [19] Ms Didsbury's application will consequently be listed for arbitration. The parties can expect to be contacted shortly relative to an appropriate date for these proceedings. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A>