C2001/4492, Transcript of Proceedings [2001] AIRCTrans 2737 (11 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER LARKIN

C 2001/4492

APPEAL UNDER SECTION 45 OF THE ACT
BY M. OTTINGER AGAINST A DECISION OF
COMMISSIONER REDMOND AT SYDNEY ON
23/7/01 IN U2001/3287 RE TERMINATION
OF EMPLOYMENT, EXTENSION OF TIME

SYDNEY

10.26 AM, TUESDAY, 25 SEPTEMBER 2001

Adjourned sine die

PN1

JUSTICE MUNRO: This is the first listing of a notification of appeal given under Section 45 of the Act. The notice was lodged on 13 August. Could we have appearances, please.

PN2

MR BRITT: If the Commission pleases, I appear with MR ROSE for the appellant.

PN3

MR BALDWIN, if it please your Honour, for the Australian Industry Group. I appear for the respondent.

PN4

JUSTICE MUNRO: I take it there is no objection to leave to appear for Mr Britt?

PN5

MR BALDWIN: Given that we've come to this place in order to get some sort of determination on the matter, I don't see the issue requiring counsel's appearance but let us just say at this point I will let it go.

PN6

JUSTICE MUNRO: Leave is granted, Mr Britt.

PN7

MR BRITT: Thank you, your Honour.

PN8

MR BRITT: Your Honours, Commissioner, in accordance with the directions given in this matter the appellant has filed a copy of its written submissions in this matter.

PN9

JUSTICE MUNRO: I note that those submissions were lodged I think on 5 September and we will mark those as 01. The respondent's submissions were lodged on 24 September and we will mark those as P1.

EXHIBIT #01 APPELLANT'S SUBMISSIONS DATED 5/9/2001

EXHIBIT #P1 RESPONDENT'S SUBMISSIONS DATED 24/9/2001

PN10

MR BRITT: Your Honour should also have before you a copy of the notice to appeal, a transcript in the proceedings and two affidavits that were relied upon in the proceedings.

PN11

JUSTICE MUNRO: Yes, I think they are there on the original file.

PN12

MR BRITT: Your Honour would note that the written submissions make references to the transcript and references to various paragraphs in the two affidavits.

PN13

JUSTICE MUNRO: Yes.

PN14

MR BRITT: Very briefly, we rely on the written submissions in this matter. The decision of the Commissioner at first instance concerned an application by the appellant for extension of time to lodge an application under section 170CE of the Act. The date of the appellant's termination was 10 April this year and the reason given for the appellant's termination was the matter of redundancy. The appellant did not file its application until 10 May 2001, a period on my counting of nine days out of time. The issue of out of time was heard by Commissioner Redmond on 21 June 2001.

PN15

If I could take you then to page 6 of our written submissions. At paragraph 18 the appellant sets out the grounds relied upon in relation to the appeal. However, you would note later in the submissions that ground D is not in fact relied upon or pressed in these proceedings. The other three grounds are in fact relied upon and pressed. In relation to the first ground we would refer the Commission in particular to paragraphs 23, 24, 25, 26 and 27 of our written submissions setting out in our submission what we say was in fact an acceptable explanation for a delay in accordance with the principles or guidelines of this Commission in both Kornicki's case and also in relation to Clark's case. In relation to the second ground, at paragraph 29 of the Commissioner's decision the Commissioner states and I quote:

PN16

The Act prescribed a 21 day time limit and unless there is an exceptional explanation I am of the view that the application should fail

PN17

For the reasons set out in paragraphs 28 through to paragraph 31 of our written submissions we say that in our submission the test whether an extension of time should be granted under section 170CE(viii) is not that of an exceptional explanation but that as set out in paragraph 30 of our written submissions whether it would be unfair to the applicant not to extend the time limit and to look for, in our submissions, an acceptable explanation not an exceptional explanation and in our submission in requiring the appellant to show an exceptional explanation the Commission has erred at first instance.

PN18

Finally, our third ground deals with the finding of the Commission that it would not be unfair to the appellant to refuse an application to extend time. In our submission, and this is at paragraph 32, the Commissioner provides no reasons for his finding in paragraph 28 of the decision. In our submission when you look at the evidence that was before the Commission at first instance there is no evidence that could support a finding that it would not be unfair to the appellant to not grant an extension of time under section 170CE(viii). So on that basis we say that the Commissioner has erred again.

PN19

Very briefly in relation to the submissions from the respondent in these proceedings we do not take issue with any of the paragraphs (1) through to (13) of those written submissions and there seems to be as fair degree of overlap between that aspect of the written submissions from the appellant and those from the respondent. We would note in paragraph 14 it is perhaps conceded, this is 14 of P1, that the Commissioner may have inadvertently utilised the wrong test and then the appellant, the respondent sets out:

PN20

It's clear from the evidence presented that there was no acceptable explanation

PN21

In our submission we say that there is an acceptable explanation. That acceptable explanation is set out in our submission at paragraph 23 of our written submissions which we say does provide an acceptable explanation for the delay on the part of the appellant in filing under section 170CE. paragraph 15 of the respondent's submission makes the bald statement that to find for the applicant would be against the public interest. There is simply no matter before this Commission to support that particular finding and no reasons are provided why finding for the appellant on the appeal would in fact be against the public interest.

PN22

If I can then take the Commission to paragraph 16B of P1 the respondent submits that a more forensic reading of the decisions shows that he in fact applied the acceptable explanation test as articulated in Kornicki. With respect to my friend's submissions I'm unsure what a forensic reading is to start with and, secondly, in our submission that's simply not what occurred in the decision. The Commissioner at paragraph 29 is looking for an exceptional explanation and in the absence of such an exceptional explanation the Commissioner was of a view that the time limit should in fact be complied with. We say the proper tests to be applied are those set out in paragraph 19 and paragraphs 28-31 of our written submissions.

PN23

If I can then take the Commission to paragraph 18 of P1 my friend quite accurately sets out that submissions were made in the proceedings. In our submission there was just no evidence before the Commission to support a finding the determination was as a result of a large genuine redundancy program some 17 other employees were let go simultaneously. Simply put, submissions to that effect were made from the bar table but they were no evidence in these proceedings.

PN24

MUNRO J: It was part of the employer's response though to the application, if memory serves me correctly, that that was the circumstances associated with the termination I think.

PN25

MR BRITT: Yes, we'd certainly concede that, your Honour, that it was in the response and it was also by way of submission on the day as well. However, in our submission nothing turns on that. A termination can be unfair in relation to a redundancy, in relation to the process adopted and in relation to who was selected for redundancy and the criteria. In the particular proceedings before Commissioner Redmond in our submission he was correct in deciding that on the matter before him the issue of merit was a neutral factor and that was the factor he applied in relation to that particular matter. He was unable to determine the merit of the application and determined that it was a neutral factor. Now, in relation to the third sentence of paragraph 18 my friend states:

PN26

Therefore, to re-visit the issue at this time, some five months after the termination, when the company has totally re-organised the workplace represents considerable prejudice to the respondent.

PN27

There's simply no evidence of any prejudice to the respondent if this appeal was granted, secondly, whether this appeal is granted or not issues of prejudice to the respondent we say are irrelevant and, thirdly, there's evidence in any of the proceedings that the respondent has in fact re-organised the workplace. In relation to paragraph 19 in the second last sentence of that particular paragraph and the last sentence of that paragraph there was no evidence to support this particular submission that there was no cross-examination of the appellant's solicitor and there's no evidence that it wasn't a matter that required counsel's advice. We note at paragraph 21 it's conceded that the exceptional explanation test is the wrong test.

PN28

COMMISSIONER LARKIN: Mr Britt, in just looking at that the Commissioner's decision at paragraph 29 that couldn't be taken as a typographical error could it?

PN29

MR BRITT: In our submission the word has to be given its ordinary meaning. I don't think it is a typographical error.

PN30

COMMISSIONER LARKIN: Because the words when you look at them if they're handwritten are very similar. The thought arises in my mind, Mr Britt, because the Kornicki decision has been around for a considerable amount of time. Acceptable explanation is something that members of this Commission deal with on a regular basis and in looking at the words "exceptional" and "acceptable" even in the terminology and even if it's handwritten it couldn't be argued to be a typographical?

PN31

MR BRITT: We concede it could be argued that it is a typographical error. Unfortunately, it's not an error that's then been remedied on reading of the decision. No further decision has been made in relation to addressing a typographical error.

PN32

COMMISSIONER LARKIN: It's just a point I raise and I was wondering your view on the question.

PN33

MR BRITT: We'd certainly concede that errors are made both in counsel's written submissions and in Commission decision as well. However, this is a decision of some two months ago. It's a matter when the appeal has been on now for a month. If it was an error one might have expected that it could have been remedied by an amendment to the decision.

PN34

MUNRO J: These are reasons published after the event in any event aren't they because I think perhaps I should make the point the notice of appeal is drawn against the decision of 23 July, from recollection. In fact, it is against the order of, I would have thought, 21 June.

PN35

MR BRITT: There's approximately between the order being made and during that period of time the appellant's solicitors asked for a copy of the decision and we were provided with a copy of the decision.

PN36

MUNRO J: Yes. So the decision was on 21 June in the sense that it was simply reflected in the order and then there was a request for reasons for order made on 28 June I think and then the decision was published on 23 July.

PN37

MR BRITT: Yes, your Honour.

PN38

MUNRO J: That's the sequence.

PN39

MR BRITT: With the hearing in fact on 20 June so the order was published the next day.

PN40

MUNRO J: Yes. I think your proposition is that the Commissioner erred in failing to find that on the evidence there was an acceptable reason for the delay. Did he make a finding that there was not an acceptable reason for the delay?

PN41

MR BRITT: At paragraph 27 - - -

PN42

MUNRO J: You would say he found that there wasn't an exceptional reason for the delay but did he make any finding one way or another or is it an entirely a matter of omission?

PN43

MR BRITT: In my reading of the judgment he made no finding as to whether the delay was acceptable or not acceptable. The only reference to the explanation for the delay is in paragraph 29. He does in fact find in paragraph 27:

PN44

The applicant did not sufficiently actively pursue his application.

PN45

MUNRO J: Yes.

PN46

MR BRITT: And then makes the finding at paragraph 28:

PN47

I do not think it would be unfair to the applicant to refuse the application.

PN48

As to the reasons for the delay the only reference I can find as to a finding based on those reasons is in paragraph 29 where reference is made to an "exceptional explanation".

PN49

MUNRO J: In paragraph 9 there's actually only a summary of the applicant's submission isn't it?

PN50

MR BRITT: Yes, your Honour.

PN51

MUNRO J: Yes?

PN52

COMMISSIONER LARKIN: Then the Commissioner goes on at paragraph 18 to set out the relevant parts of the Kornicki case?

PN53

MR BRITT: That's right, the Commissioner.

PN54

COMMISSIONER LARKIN: There at part A in his decision he set out some of the primary considerations that the Full Bench in that particular case considered relevant. One is, is there an acceptable explanation for the delay.

PN55

MR BRITT: Yes, Commissioner.

PN56

COMMISSIONER LARKIN: And in the merits.

PN57

MR BRITT: And it's our submission, Commissioner, he didn't apply that a test, he applied a test of exceptional explanation as found in paragraph 29.

PN58

COMMISSIONER LARKIN: Yes. Although at paragraph 9 and 18 the word acceptable is reproduced in referring to the submissions and also referring to Kornicki, hence my, I suppose my question earlier Mr Britt, are we faced with a typographical error in the decision but I think you have addressed that question.

PN59

MR BRITT: Thank you, Commissioner. In relation to paragraph 23 of my friend's submissions we say that there was an acceptable explanation for the delay and refer the Commission to paragraph 23 of O1 in these proceedings which sets out in our submission the reason for the delay and the fact that such a reason is an acceptable explanation for a delay of some nine days. In relation to paragraph 24 of my friend's submissions, in our submissions, no reasons are given by the Commission why it would not be unfair to the appellant not to grant an extension of time.

PN60

MUNRO J: Yes, thank you.

PN61

MR BRITT: They are our submissions, your Honour.

PN62

MUNRO J: Yes, Mr Baldwin?

PN63

MR BALDWIN: Thank you, your Honour. I was somewhat relieved to hear the Commissioner's views on the typographical error.

PN64

COMMISSIONER LARKIN: Well it wasn't my views, Mr Baldwin, I was asking Mr Britt for his view. I simply raised the question.

PN65

MR BALDWIN: I appreciate that, Commissioner. In terms of our submissions I appreciate my friend's summation of the issues, I think essentially the issue is whilst we concede in our submissions that the Commissioner has applied the wrong test we say, your Honour, that in fact in coming to his decision the word exceptional appears right at the conclusion of the decision and in fact stares at you from the page like something that one doesn't expect to see.

PN66

In other words we say, your Honour and Commissioner, that in fact the Commissioner at the first instance did apply the appropriate tests which are correctly Kornicki and Clark. Unfortunately the word exceptional appears at the tail end of the decision for which we concede is the wrong test.

PN67

Our submissions are that in fact if you examine Commissioner Redmond's decision you will see that in fact he has applied the correct tests but unfortunately has come up with a form of words that let's just say cause me some concern when I first saw my friend's application. In terms of the acceptable explanation test, your Honour, we say that prima facie that the submissions of my friend are incorrect in as much as we have a situation here where the applicant was the subject of a redundancy program.

PN68

In my friend's submission, particularly in the affidavit that you all should have a copy of, the solicitor actually said well you may have grounds to make a claim. This is some days after the termination actually took place. Now, what I have some difficulties with is in saying that he may have grounds for a termination yet in fact he then professes in his affidavit that in fact he knows nothing about the jurisdiction and requires counsels advice as to the merits of the issue and whether in fact there would be any grounds for the dismissal to be found unjust, unfair and unreasonable.

PN69

We say, your Honour, with the greatest respect to my friend, the Act is quite clear in terms of the time limits. There is a prima facie requirement on applicants that they comply with the appropriate time limits. Now, Coyne v Ansett clearly sets out that whilst a delay from the solicitor's perspective may be acceptable, there is also a requirement that the applicant takes some responsibility for the decision to file or otherwise. Now, in this instance the evidence by way of the applicant's affidavit is that in fact there was considerable delay between my friend's solicitor actually finding Mr Britt and getting some advise as to the merits of the issue.

PN70

Now, with respect to my friend I say this, the New South Wales bar has numerous industrial practitioners in Phillip Street. The requirement that Mr Britt be briefed on this matter that in fact what prevented the solicitor in this instance from making another call, if he is so lacking in his understanding of the jurisdiction, to another member of the bar that would have been able to give him an appropriate answer within plenty of time and therefore he would have been able to file in the appropriate time. We say, your Honour and Commissioner, that Coyne v Ansett clearly states that it's not appropriate that the solicitors delay in this instance, whilst not necessarily being treated as a direct delay there is a necessity for the applicant in this instance to take some responsibility for his actions.

PN71

We say with respect that those principles ought to be applied in this case. Further, your Honour, we say the fact that Mr Ottinger was not aware apparently, according to the evidence of his rights, that's not prima facie reason why the extension of time should be granted. Did Mr Ottinger take any steps to make himself aware other than to speak to his solicitors? In the evidence, the evidence simply says that he left it with my friend's solicitors and went on his merry way. Now we say that - - -

PN72

MUNRO J: That unfortunately though is not the evidence, I don't think, Mr Baldwin, the evidence is I think he went in and that - - -

PN73

MR BALDWIN: The evidence is as follows in short, your Honour. The applicant went in to see his solicitors in relation to some outstanding worker's compensation issues as I understand it. The affidavit goes on further to say that as part of that discussion there was the issue of his termination and in fact the solicitor then gave some gratuitous advice that he may in fact have some rights under the Act in respect of termination. Now, he undertook to determine that issue and the way he did it was to in fact seek out Mr Britt's advice.

PN74

Now, we say, and I stand by the submissions, your Honour, that in fact all it requires is a cursory reading of the Act to appreciate that there are time limits in these proceedings and there is an overwhelming obligation on the part of the applicant to comply with those time limits further say, your Honour, that the fact that the solicitor was unable to find Mr Britt for a number of days and therefore get some advice as to the bona fides of the claim do not stack up in terms of there being an acceptable reason.

PN75

I say in fact all that would have been required was for the solicitor to seek other advice. I mean, we all use different members of the bar. My practice is not confined to using certain members of Frederick Jordan. When appropriate I utilise others on the basis of time constraints. It would simply have been a matter for the applicant's solicitors to do similar things, or in fact to make a phone call to others in the club, so to speak. We all exchange information about these sorts of matters.

PN76

We say that in fact the solicitor was in some ways deleterious in his duties by saying there may be a claim made, you may have some options available yet he had no grounds. On his own submissions he knew nothing about the jurisdiction and he needed to seek counsel's advice. We say prima facie that those reasons are not acceptable and in fact Coyne v Ansett goes to the point on this matter.

PN77

I draw the bench's attention to paragraph 18 of our submissions and I note my friend's objections or my friend's comments about evidence being adduced from the bar table. This was a - - -

PN78

MUNRO J: I am sorry, Mr Baldwin, you referred us to Ansett. Where is the reference to that in your submissions?

PN79

MR BALDWIN: Your Honour, I am simply making those submissions from the bar table. I am prepared to submit copies of Coyne v Ansett if required.

PN80

MUNRO J: I note that the Commissioner relied on Clark in this representational error matter. What is the difference, if any, with - what's the case?

PN81

MR BALDWIN: Coyne v Ansett, your Honour. We say essentially that there is a requirement on the applicant to take some responsibility for the fact that the matter was out of time. That is essentially our argument and you will find that the matter was actually upheld before a full bench of Wilcox CJ, Ryan and Madgwick JJ on appeal so we say in fact there needs to be some obligation if you like taken on board by the applicant and it is simply not sufficient to rely upon solicitor's advice as to the merits when in fact out of his own words the solicitor in his affidavit had indicated that he was not experienced in this jurisdiction.

PN82

So we say in fact that ought to start alarm bells ringing in the applicant's head and he ought to take some steps of his own volition to ensure that the application was at least filed on time. All that requires is the matter to be filed, it does not go to the issue of the merits. The merits are there to be argued at first instance. The bench would be well aware that applicants are filing in this place as a matter of habit purely because they have been dismissed. Now they have no idea about the merits or otherwise but they have filed because they unfortunately appreciate that in filing they may in fact get a small pay out because it costs the respondent too much to run the matter. So we say that was not an overwhelming onus on the applicant to do that. All it required would be a trip down to William Street.

PN83

If I may take you to our submissions at paragraph 18. I note my friend's comments about the evidence given from the bar table. In response I would simply say that this was an objection on the basis of an out of time. It was not a matter that went to the merits, I think it is a - let me just say that if the redundancy program had not taken place the applicant would not be in this place. I think if there is an argument about whether in fact the redundancy actually took place, I suggest that that requires considerable work on the part of my friend.

PN84

As to the issue of prejudice if we revisit this matter, if this matter is remitted to the single Commissioner on the basis that the exceptional test was applied, we say incorrectly, we say inadvertently, the prejudice to my client is considerable inasmuch as this is a matter that in fact occurred last financial year. This is not something that can be easily remedied and whilst I appreciate and agree with my friend's submissions about the fairness or otherwise of a redundancy program there was no - I put it to my friend that there was no evidence put at first instance that went to those issues.

PN85

So, to argue that in fact there was no evidence put about the redundancy program, I say to your Honours and Commissioner that in fact it was a well-understood fact and if required evidence could easily have been adduced.

PN86

COMMISSIONER LARKIN: Mr Baldwin, the parties made submissions to the Commissioner in regard to whether it was bona fide redundancy or not, did they?

PN87

MR BALDWIN: My understanding is no, Commissioner. If you look at the transcript, those issues essentially were not addressed. My friend, Mr Cole, made submissions in the matter simply saying that in fact there was a redundancy program of which he was one of 17 others. Now, my instructions are that in fact he was paid the appropriate redundancy outcomes as per the Metals Award and was paid all of his entitlements and redundancy pay so there were no submissions from either party as to the merits of the redundancy per se. But in fact I would suggest it is an agreed fact that it did in fact take place.

PN88

In conclusion we say that Commissioner Redmond at first instance was correct - - -

PN89

MUNRO J: I think perhaps, I am just not sure whether it is on the file but - well, it is certainly on the file but since I have taken account of it I should in fairness put the point. The file contains a letter ostensibly dated 12 April 2001 to the Australian Industrial Relations Commission and this is attached to the notice of the employer's appearance which was received on 22 May 2001 and it is entitled in the same file, 3267, the U file, it states over the signature of Michael Ham, Operations Manager, Pierlite Pty Limited with reference to Mr Ottinger's file:

PN90

Pierlite currently employs 304 personnel in our Padstow factory. Regrettably over the past three weeks we have had to retrench 18 people due to an unforeseen downturn in business, 8 of the employees retrenched were casuals, the balance being permanent ...(reads)... All actions taken were conducted within the Australian Industrial Relations guidelines as were the other 17 redundancies with all monetary entitlements being fully paid up.

PN91

I am not sure whether that is part of the evidence in the formal sense but it's fairly difficult to consider that it's not before the Commission at least as the employer's statement of its position and the background of the terminations which the applicant himself states as his reasons given for termination,

PN92

I was advised that because of a downturn of business my employment had been terminated.

PN93

MR BALDWIN: Thank you, your Honour. In closing we say that in fact the Commission in first instance did apply the appropriate test, that test being Kornicki v Clarke. We do take the view that in fact there may have been a typographical error in the submission in as much as there is no reference to the wording prior to that. There appears to be - if you read the decision the Commissioner correctly outlines what the test is, correctly outlines what the law is and makes his decision based on those appropriate tests. Unfortunately the wording comes out wrong.

PN94

We say, therefore, that in fact he did apply the correct tests as outlined in Kornicki v Clarke and finally we say that the acceptable explanation test which is the appropriate test in this instance is not - the reasons given by my friend as to the delay don't in fact pass that test. We say that in fact the applicant needs to take some responsibility for the matter, to rely upon solicitor's advice is insufficient and finally we say that the solicitor's approach in this matter is in fact deleterious and therefore to come to this place and say that because of my time delays we are seeking that the matter be remitted we say is not acceptable and in fact in line with the appropriate tests as outlined in Kornicki v Clarke. If it please your Honour.

PN95

MUNRO J: Thank you, Mr Baldwin.

PN96

MR BRITT: Thank you your Honours, Commissioner. If I could take you to the affidavit of Mr David Griffith Rose in the proceedings.

PN97

MUNRO J: 19 June 2001?

PN98

MR BRITT: Yes, your Honour.

PN99

COMMISSIONER LARKIN: I only have 16 August 2001 date stamped. Is there another one?

PN100

SENIOR DEPUTY PRESIDENT DUNCAN: It's sworn 19 June.

PN101

MR BRITT: Paragraph 3 of the affidavit provides that on 12 April 2001 the appellant first attended the offices where Mr Rose is employed and sought certain advice. Paragraph 4 then provides that on 24 April 2001 the appellant again attended the offices of Mr Rose. During that attendance Mr Rose states,

PN102

I advised the applicant that he may have an entitlement to bring an action for unfair dismissal ... (reads) ... should be lodged.

PN103

It is not the case that Mr Rose said you may have a claim and did nothing about it. It is also not the case that alarm bells should have started ringing in the appellant's head because his solicitor was inexperienced in that particular area. His solicitor admitted to being inexperienced in that area but provided a mechanism whereby he would be able to obtain advice.

PN104

My friend's submission then is that Mr Rose should have contacted a number of counsel. In respect to that submission Mr Rose was here on 20 June available for cross-examination in respect to his affidavit. The respondent did not require on that day Mr Rose to be cross-examined on this affidavit and it's too late, in our submission, to come along and now say well Mr Rose could have found other counsel. It would have been appropriate on 20 June to ask those questions but no such questions were asked. So, on the evidence that was before the Commission Mr Rose had put in place a process whereby he would obtain advice.

PN105

Then, in relation to the affidavit, if I could take you then to paragraph 7. Mr Rose provides that Mr Ottinger was to come into the office and to bring certain papers and then Mr Ottinger attends the offices on 9 May. This is not a case where the applicant did nothing. This is a case where the applicant, or the appellant, sought advice and when information was requested of him provided that advice to his solicitors. We say that in all the circumstances when you look at the timetable which is set out in paragraph 23 of our written submissions that there was, in fact, an acceptable explanation for the delay.

PN106

In relation to my friend's submissions that the appellant could have come down to 80 William Street and filed an application that begs a number of questions all of which, of course, were not asked of the appellant on 20 June. One, did he know you had to come to 80 William Street? Did he know where the Commission was in fact located? Did he know how to commence proceedings? Did he know whether he was covered by a Federal award at the time of his termination? Did he know whether the provisions dealing with unfair dismissal cover persons in a redundancy situation? None of those questions were asked and in the absence of those questions not being asked you can't now put submissions that the appellant should have known or did know of his rights and how to proceed in relation to those rights.

PN107

In relation to my friend's reliance on Coyne your Honours, Commissioner, would note that a quotation from that decision is set out at paragraph 19 of Commissioner Redmond's decision in particular at the end of page 4. In relation to that particular judgment and I quote from his Honour Marshall J:

PN108

However as Wilcox J made clear in Hunter Valley Developments Pty Ltd and Cohen (1984) 3FCR at 344 ... (reads) ... therefore some blame should be visited upon the applicant for the slow reaction of his solicitors.

PN109

In relation to the evidence in the proceedings, the issue of termination was first raised on 12 April 2001, some two days following the appellant's termination, with his solicitors. It is then discussed on 24 April. It is at that time the appellant's solicitor raised the possibility, and nothing more than the possibility, of an application being brought to this Commission and then put in place a process. Following the completion of that process, in our submission, the appellant acted with reasonable haste to file his application under section 170CE.

PN110

Furthermore, in our submission, this is not really a case of delay by the solicitor, it's a case of ignorance on the part of the solicitor and the desire of the solicitor to obtain advice before commencing proceedings. It may or may not be the case that people lodge applications in this Commission as a matter of course. In our submission, that's not something that should encouraged. It's important, in our submission, that people be aware that they may have some merit in bringing their claim and the situation should not be, in our submission, that merely to protect oneself in relation to a time frame, that each and every person who is terminated within the jurisdiction of this Commission should, in fact, be forced to file an application before they can obtain competent advice.

PN111

In our submission, that is the effect of the submission of my friend. In relation to the issue of reasons for termination, issue was, in fact, raised by counsel for the applicant on 20 June, and I'd refer the Commission to page 3 of the transcript, at paragraph 18. I'd also refer the Commission to the affidavit of Mr Ottinger, at paragraph 5.

PN112

COMMISSIONER LARKIN: I don't think I have that, Mr Britt, Mr Ottinger's affidavit. I think the other members of the Full Bench have it.

PN113

MR BRITT: I can provide the Commissioner with an unsworn copy.

PN114

COMMISSIONER LARKIN: If you do have it.

PN115

MUNRO J: I think it might be the case that all copies have been left on the file. They were lodged.

PN116

COMMISSIONER LARKIN: I have the transcript. Oh, the affidavit is connected to the transcript. No, that's Mr Rose's.

PN117

MR BRITT: Then if you go to the last one, the last two pages of that document, there should be an unsworn copy of the affidavit.

PN118

MUNRO J: It's before Mr Rose's.

PN119

COMMISSIONER LARKIN: I don't have it, I've got Mr Rose's. Yes, than you, Mr Britt, for that.

PN120

MR BRITT: Commissioner, just very briefly, and your Honours, if I can then just refer you to paragraph 5, which deals with the process of the termination, and I think it's accepted that, in fact, the termination did take place on 10 April. That's, the first time, in our submission, the appellant was aware that he was to be terminated, and there are certain cases, such as Windsor Smith v Liu, that deal with the need to have an appropriate process and some warning in respect to redundancy. That's not a matter which is the subject of this appeal. We accept the finding of Commissioner Redmond that the merits of the matter were a neutral factor in his consideration.

PN121

What we do, in fact, challenge is whether there was an acceptable explanation for the delay which we say that there was, for the reasons set out in paragraph 23 of our written submissions and, secondly, whether the appropriate test was applied. My friend has already conceded that the appropriate test was not applied and then submits that the reasoning process was the correct reasoning process. Well, in our submission, if you are applying a test of exceptional explanation rather than acceptable explanation, that the correct reasoning for the test to exercise a discretion under section 170CE(8) has, in fact, not been complied with. That is an error of principle and we say, for that reason, this appeal should be granted. Unless the Bench has any further questions, they are our submissions.

PN122

MUNRO J: Thank you, Mr Britt. We will adjourn for short time.

SHORT ADJOURNMENT [11.21am]

RESUMES [12.10pm]

PN123

MUNRO J: We have reached a unanimous decision and we will publish our reasons for our decision in due course however, we indicate in point form effectively that decision. We are satisfied that we should grant leave to appeal and leave to appeal accordingly is granted. We are satisfied that the appellant has established a ground of error in the reasoning of the decision appealed from. That error arises from the absence of a finding or findings specific to the considerations that the Commissioner adopted as the guiding basis or principles that he would apply in determining whether or not it would be unfair to the applicant to not grant the extension of time or to grant it.

PN124

We consider that an error in the exercise of discretion appears from the failure to make a direct finding about the presence or absence of an acceptable explanation for the delay in circumstances where the explanation was clearly based upon the failure of the legal representatives. The Commissioner indicated that he would be guided by a requirement to consider the conduct of the applicant as a central consideration in deciding whether the alleged representational error provided an acceptable explanation for the delay in filing the application.

PN125

However the Commissioner's conclusions about the test he indicated he would apply do not appear to have directly answered the question that he had posed for himself as a central consideration. Having regard to the uncontested circumstances of the applicant's recourse to his legal representatives, we consider that there is substance in the contention that there was a failure to properly exercise the discretion. In all the circumstances of the case, although the nature of the error is less apparent because it is constituted in part by an omission of details that might not always be necessary in a decision of this character.

PN126

We are satisfied that there is a failure to properly exercise the discretion to an extent that leads us to conclude that a sufficiently substantial wrong has occurred. In that context, we are referring to the test paraphrased from House v R. Having regard to all the circumstances of the case, and most notably to the conduct of the applicant in the period between the termination of his employment and the filing of his application, we are satisfied that it would be unfair to not extend the time for lodging the application by nine days to 10 May 2001.

PN127

Accordingly we shall allow the appeal, set aside, Commissioner Redmond's order and substitute an order extending the time to lodge the application to 10 May 2001. We direct that the application in U3267 of 2001 be referred to the Registrar for further action. We shall publish our reasons for this decision as soon as possible. The Commission will adjourn.

ADJOURNED INDEFINITELY [12.14pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #01 APPELLANT'S SUBMISSIONS DATED 5/9/2001 PN10
EXHIBIT #P1 RESPONDENT'S SUBMISSIONS DATED 24/9/2001 PN10