PR936708 PR936708 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Katrina Leigh Anderson and Fitzroy Basin Elders Committee Inc. (U2003/1229) COMMISSIONER SPENCER BRISBANE, 22 AUGUST 2003 Termination of employment - extension of time to lodge Form R25 DECISION INTRODUCTION [1] This decision relates to an application by Ms Katrina Anderson (the Applicant) pursuant to s. 170CE of the Workplace Relations Act 1996 (the Act) with respect to the termination of her employment from the Fitzroy Basin Elders Committee Inc. (the Respondent). This decision concerns a jurisdictional determination with regard to the Applicant's late lodgement of the form R25 (Election to Proceed to Arbitration). The form was lodged 26 days out of time. BACKGROUND [2] The matter proceeded to a conciliation conference before Commissioner Richards on 8 April 2003. A Certificate was issued on 21 May 2003 and forwarded to Mr Bressington 1 , the Applicant's solicitor. LEGISLATION [3] In accordance with the Workplace Relations Act 1996 (the Act), the Commission may exercise a discretion to extend the statutory time limit as follows: "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)." 2 [4] The decision of Ackary v MPDG Investments Pty Ltd 3 confirmed that Telstra-Network Technology Group v Kornicki 4 and Clark v Ringwood Private Hospital 5 are the relevant authorities for determining extension of time applications under s. 170CFA(8). The principles in Kornicki are as follows: "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 lodgment. 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." 6 THE APPLICANT'S CASE [5] The Applicant set out the following reasons for the delay in lodging the R25 (Notice of Election to Proceed to Arbitration) form: "The Applicant's impecuniosity which has largely been brought about by the Respondent's instant dismissal is a sufficient reason to enable an extension of time bearing in mind the following: a) The Applicant does not live in Rockhampton; b) The Applicant does not have independent means of travel to Rockhampton in that she does not own a motor vehicle; c) The Applicant has the full-time financial care of two (2) children; d) The Applicant's financial position has worsened markedly as a result of the action taken by the Respondent; e) It is not intended that any witness be called by the Applicant in relation to this jurisdictional matter." 7 REASONS FOR THE DELAY [6] The Applicant confirmed in evidence that she was unaware of the 7 day time limit, that she had not received the Certificate which made specific reference to this time limit for lodgement of the Form R25, and at no stage until prior to the jurisdictional hearing was she aware that she was under an obligation to return this form to the Commission within 7 days. As the Applicant resides in Mt. Morgan, she set out that she experienced difficulties in meeting with her solicitor, who had requested that she attend on his office in Rockhampton to sign the form. She contended that a lack of funds for public transport and an inability to access her mother's vehicle prevented her from attending set appointments with her solicitor. As a result of her inability to attend, her solicitor eventually signed the form on her behalf and forwarded that form to the Commission. This process occurred 33 days after the Certificate was issued, and 26 days outside of the statutory time limit of seven days. [7] The Applicant stated in evidence that since her dismissal she had been reliant on family assistance funding, and that after paying her bills and living costs, she had only $20 remaining with which to support her two children. She submitted that there were insufficient funds to attend on her solicitor's office for the signing of the appropriate form. She detailed that by attending her solicitor's office for the purposes of the extension of time hearing, she had expended $10 of the remaining $20 on petrol; thus, leaving her $10 to support her two children until the following week. [8] Furthermore, the Applicant affirmed that she had provided clear instructions over the telephone to her solicitor when he had first advised her of receipt of the Certificate and form R25 after the conciliation conference. Accordingly, the solicitor could have acted on these instructions to sign the form on her behalf and return it within the 7 day time limit. REPRESENTATIVE DELAY OR ERROR [9] In Davidson v Aboriginal & Islander Child Care Agency 8 , the Full Bench found that the observations in regards to representative error made in the decision of Clark v Ringwood Private Hospital apply with equal force to s170CFA(8). [10] In the matter of Clark v Ringwood Private Hospital 9 , where the Full Bench held that a relevant consideration in finding that the solicitor was at fault for the delay in lodgement was the Applicant's vigilance in contacting his solicitor 10 about the matter before the end of the limitation period. In contrast, in the current matter, the Applicant provided immediate instructions to lodge the Application; however, further to this she failed to keep the scheduled meetings with the solicitor. It must be acknowledged, however, that the Applicant was not aware of the statutory time limit. [11] In the case of Cambridge-Darg v Star City Pty Ltd 11 , which is analogous to the current matter, the Full Bench held that an extension of time was granted since there was no sound basis for drawing the inference that the Applicant was directly to blame for the delay. Similarly, in the case at hand the evidence appeared to be uncontested that the Applicant at all times acted on advice. CONCLUSIONS [12] Clearly, the Applicant's solicitor had an obligation to inform her of the 7 day time limit that she was obliged to meet in returning the form. However, in the case of Ackary v MPDG Investments Pty Ltd 12 , a Full Bench noted that the ability for an Applicant to take an action in negligence against his or her solicitor is not a factor for consideration for the Commission in considering an extension of time application. The relevant principles for the Commission, in considering whether to exercise its discretion with respect to the statutory time limit, have been confirmed as set out in Telstra-Network Technology Group v Kornicki 13 and Ackary v MPDG Investments Pty Ltd 14 . I have considered the evidence, material and submissions against these principles and accordingly consider that there is an acceptable explanation for the delay. [13] The reasons for the delay could have been overcome by the efficient use of the postal system or the solicitor activating his obligations and representative rights in relation to the Applicant. However, given the Applicant's geographical distance from the solicitor, her reliance on his advice, her reduced financial means, her confirmation that she was unaware, prior to the return of the form, of the 7 day time limit, and the fact that she had provided clear instructions to her solicitor that she wished to proceed with this matter, I consider that it would put the Applicant at a significant disadvantage and clearly be unfair to refuse to extend the time limit to allow her to proceed with this matter. In exercising the discretion to extend the statutory time limit, I make no commentary in relation to the substantive merit of this matter, as there was no information on such before me in the jurisdictional proceedings. [14] In accordance with the legislation, the Commission exercises the discretion to extend the statutory time limit and orders accordingly. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code C> 1 This was confirmed by the evidence of the Applicant. 2 Workplace Relations Act 1996, ss. 170CFA(6), (7) and (8). 3 Ross VP, Ives DP and Whelan C, PR924226, 31 October 2002. 4 Ross VP, Watson SDP and Gay C, Print P3168. 5 Ross VP, Drake DP and Deegan C, P5279. 6 Telstra-Network Technology Group v Kornicki Ross VP, Drake DP and Deegan C, P5279. 7 Applicant's Submissions, paragraph 4. 8 Ross VP, Watson SDP, Eames C, Print Q0784 . 9 Ross VP, Drake DP and Deegan C, Print P5279 . 10 The Applicant contacted the solicitor on three occasions. 11 Munro J, Drake SDP and Spencer C, PR916561. 12 Ross VP, Ives DP and Whelan C, PR924226, 31 October 2002. 13 Ross VP, Watson SDP and Gay C, Print P3168. 14 Ross VP, Ives DP and Whelan C, PR924226, 31 October 2002.