WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RUSSELL SHAUN BROWN, APPLICANT v. RCR TOMLINSON LTD, RESPONDENT CORAM COMMISSIONER S WOOD DELIVERED MONDAY, 12 MAY 2003 FILE NO. APPLICATION 231 OF 2003 CITATION NO. 2003 WAIRC 08427 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1485 _________________________________________________________________________________________________________ Result Referral out of time not accepted Representation Applicant Mr RS Brown Respondent Ms L Gibbs of Counsel _________________________________________________________________________________________________________ Reasons for Decision (Given extemporaneously and subsequently edited by the Commissioner) 1 On 25 February 2003 the applicant, Mr Russell Shaun Brown, made application to the Commission pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) alleging that he had been harshly, oppressively and unfairly dismissed by the respondent, RCR Tomlinson Ltd. He also claimed certain contractual entitlements; they being, as per paragraph 24 on the notice of application— “$6500 – Redundancy this would have had to be paid under RCR’s new workplace agreement. $3200 – For Accrued Sick Leave which was wiped out. $4800 – For Long Service Leave which soon would have been on a pro rata. $10000 – For financial hardship due to my new job paying much lesser for the same work. It will take a long time and cost me a lot more than $10000 to get back that has been taken from me.” 2 Section 29(3) of the Industrial Relations Act 1979, is a provision inserted to provide for a discretionary decision by the Commission to accept an application beyond the 28 days time limit where, in the Commission’s view, it would be unfair not to do so. 3 Section 29 of the Act, in part, reads as follows— “(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated. (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”. 4 Prima facie, however, by virtue of the time limit, a matter is required to be within time unless of course there is good reason for it not to be so, and in that sense all applications are to be treated expeditiously. 5 The considerations relevant to whether it might be considered unfair not to accept the application are covered in the decision of the Senior Commissioner in Anthony William Andrew v Metway Property Consultants and Auctioneers 82 WAIG 3260, and the decisions therein referred to, being Clark v. Natures Cargo (1999) 95 IR 201 and Clark v. Ringwood Private Hospital (1997) 74 IR 413. The factors to be taken into account, which are the factors that I consider relevant, are whether there is 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 or she contested the termination, and the prejudice to the respondent. They are factors that are well covered in those decisions, and should be applied in this instance. 6 I have no issue with the credibility of the witnesses. On the evidence before me I find that the application is 74 days out of time; the dismissal having occurred on 15 November 2002 and the application having been received and stamped by the Commission on 25 February 2003. 7 The decision in Anthony William Andrew v Metway Property Consultants and Auctioneers 82 WAIG 3260 was referred by the Commission to the parties in advance of hearing for them to consider. Let me first go to the question of length of delay. Given a 28 day limit applies, the delay in this case is excessive. The applicant, in his evidence, says that he took steps to put the application in on time being 13 December 2002. I do not doubt that. As I say, his evidence is credible. His signature on the bottom of the application was originally dated 11 December 2002. He says that on advice he did not put the application into the