Australian Industrial Relations Commission

COMMISSIONER EAMES MELBOURNE, 4 JUNE 1997

Extension of time for lodgement of application.

A certificate was issued in this matter on 24 January 1997 by Vice President McIntyre pursuant to s.170ED(2) of the Workplace Relations Act 1996, certifying, inter alia, that the parties were unable to settle the matter by conciliation and the proceedings were referred to the Industrial Relations Court, at the election of the parties.

At a directions hearing held on 14 March 1997 before Judicial Registrar Farrell, it was ordered that the hearing date that had been fixed for 4 April 1997 be vacated, and that the file be referred back to the Northern Territory Registry of the Commission. The matter had been referred back to the Commission as a result of Judicial Registrar Farrell drawing to the attention of the parties, the unreported decision in Carrasco v Kleenmaid (IRCA 557 of 1996, Moore J, 15 November 1996). That decision indicated that the Court did not have the jurisdiction to determine the proposed application by the applicant, for an extension of time.

The matter then came before the Commission as currently constituted on 22 May 1997 to hear the application for an extension of time.

Mr Spargo for the applicant put that relying on the provision that is essentially to avoid unfairness, the Commission should exercise its discretion and grant an extension of time, to allow the matter to be heard. He submitted that the applicant, Mr Richardson believed at all times that his employer did not have a valid reason for dismissing him. His affidavit evidence, which could not be tested as Mr Richardson was not present at the proceedings, indicated he had seen his old job advertised, when he had been terminated for reason of being surplus to requirements. He then went down a path of exploring if he had redress through the Human Rights and Equal Opportunity Commission, and did not realise until much later, he could pursue his grievance under the terms of the Industrial Relations Act 1988 and now the Act that replaced it, the Workplace Relations Act 1996. Mr Spargo also put, that if one was legally qualified one may have taken a different path, but the applicant was not, hence the delay occurred.

Mr Spargo also drew my attention to a decision of the High Court in Brisbane Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866 at 871, in particular the judgement of McHugh J as to the approach to be taken in exercising a discretion. At page 872 his honour stated "The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible".

Mr Young for the respondent, put the following submissions referring to the line of authorities dealing with extensions of time and adopting principles set out in a decision of Wilcox J as he then was in Hunter Valley Developments Pty Ltd and others v Cohen (1984) 3 FCR 344. It was put that these authorities are relevant to the exercise of discretion. They were Williams v Mitchell Shire Council [Print N9222] Whelan C 28 February 1997 and E. Wood v Manpower Engineering Contractors Pty Ltd [Print N9726] Watson DP 26 March 1997. The pertinent part of his honours decision was said to be by Mr Young, "In exercising this discretion, the prescribed period for the lodgement of applications is not to be ignored and the prime rule is that proceedings commenced outside the period will not be entertained. In my view, the discretion within s.170CE(8) should be exercised within the context of the period of 21 days for lodgement of applications presented within s.170CE(7). It would seem to follow that generally it would be unfair not to accept an application lodged out of time in the absence of an acceptable explanation for the late lodgement."

The most outstanding feature of this application is that it was lodged some 22 months after the dismissal, and Mr Richardson would need to establish very good reasons for that time delay to be accepted. It was put that Australia Post had a number of positions become vacant

which had now been filled prior to these proceedings or the discrimination proceedings being issued. If they had known Mr Richardson was issuing a reinstatement application they may have acted differently and is now prejudiced by the late application.

It was also put by Mr Young that the applicant in his affidavit, tendered in these proceedings believed he had no remedy for unfair dismissal in the Industrial Relations Court, because he had been on a three month contract with the respondent. This, it was put, shows that he was aware of regulation 30(b) and accordingly had enough knowledge of the Act to be aware of the time limit.

The other matter to be taken into account was as follows, put by Mr Young:

"action taken by the applicant other than by making an application for review under the Act is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction has to be made between the case of a person by non-crucial means who has continued to make the decision maker aware that he contests the finality of the decision who has not rested on his rights. And the case where the decision maker was allowed to believe that the matter was finally concluded.." (Transcript page 10)

He also referred to a recent decision which also was said to be relevant to this situation, namely Jaqueline Brodie-Harris v MTV Publishing Limited (VI 1725 of 1995 - Marshall J - 31/10/95). In this decision his honour again referred to, and summarised the principles set out in the Hunter Valley Developments v Cohen decision, referred to earlier.

In all the circumstances and taking into account the submissions from the bar table and the various cases and decisions to which I have been referred, I am not satisfied that there is an acceptable explanation of the delay of 22 months in the lodgement of this application.

I have accordingly decided not to exercise the Commission's discretion to accept the application. I do not consider that it would be unfair not to accept the application.

The application by Mr Richardson is not accepted - out of time.

BY THE COMMISSION:

COMMISSIONER

Decision Summary

		Termination of employment - unfair dismissal - unlawful termination - extension of time - application 22 months out of time - no acceptable explanation of delay - application dismissed.
C Richardson and Australia Post.
U No 80403 of 1996	Print P1589
Eames C	Melbourne	4 June 1997