Unfair Dismissal Application Accepted Out of Time Due to Legal Error

The Commission accepted an out-of-time unfair dismissal application due to legal representation error and the unique circumstances of the case, including the applicant's limited English proficiency and the referral to the Commission for Children and Young People.

Industrial Relations Commission of New South Wales

CITATION: [NAME] and [NAME] [2007] NSWIRComm 249

APPLICANT: [redacted] PARTIES: RESPONDENT: [redacted]

CORAM: Schmidt J

CATCHWORDS: Termination of employment - unfair dismissal - application lodged out of time - Commission's discretion to extend time to accept application - s 85(3) of the Industrial Relations Act 1996 - summary dismissal - grounds for summary dismissal challenged - complaints as to fairness of the interview process - English a second language - question of hardship - reference to Commission for Children and Young People - out of time filing result of representation error - leave sought granted

LEGISLATION CITED: Industrial Relations Act 1996 Legal Profession Act 2004

CASES CITED: [NAME] v [NAME] (2003) 125 IR 145

HEARING DATES: 26 September 2007 EXTEMPORE JUDGMENT DATE: 26 September 2007

APPLICANT: [redacted] SOLICITORS: [redacted] LEGAL REPRESENTATIVES: RESPONDENT: [redacted]

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Schmidt J

26 September 2007

Matter No IRC 1449 of 2007

[NAME] AND [NAME]

Application by [NAME] re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

EXTEMPORE DECISION

[2007] NSWIRComm 249

1 Mr [NAME] was summarily dismissed from his employment at [COMPANY] on 30 July 2007 for serious and wilful misconduct. He brought an application under s 84 of the Industrial Relations Act 1996 ('the Act') on 4 September 2007, seeking reinstatement in his former employment, on the basis that his dismissal was harsh, unreasonable or unjust. Section 85 of the Act requires that such applications be made within 21 days of the termination of the employment. [NAME] seeks the exercise of the Commission's discretion under s 85(3) of the Act, to accept the application out of time. 2 Section 85(3) provides: (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 3 The reason for [NAME]'s summary dismissal was not in issue. It was common ground that the dismissal followed [NAME], then employed as a wardorderlie, taking a photograph of a naked two year old patient in the emergency department of [COMPANY]. [NAME] used his mobile phone to take the photograph. He accepted that he had no consent to taking such a photograph. The matter was investigated by [NAME]'s employer, the [NAME]. [NAME] was interviewed twice, on the second occasion he was accompanied by a union representative. He received a copy of the transcript of the interview, which he amended and signed and later, a copy of an investigation report, recommending his dismissal. He was also given an opportunity to provide reasons as to why he should not be dismissed. [NAME] took legal advice and his solicitor made a written response, which was considered by the Area's Chief Executive, who made the decision that the employment should be terminated for serious and wilful misconduct, in breach of the NSW Health Code of Conduct. Notification of the circumstances was given to the NSW Ombudsman and Commission for Children and Young People and to the police. 4 [NAME] is a native Spanish speaker. His solicitor also spoke Spanish. In his application, [NAME] said that the advice which he received was that if he was dismissed, he could challenge the dismissal, but he did not then receive advice as to how the dismissal could be challenged, or that there was any time limit on doing so. 5 When he was dismissed on 30 July, [NAME]'s solicitor was overseas. [NAME] then sought other representation and spoke to his current solicitor, another Spanish speaker, on 13 August. This was when he learned of the time limit on making this application. [NAME] was advised that he needed to provide his solicitor with the relevant documents. He did so and on 31 August, he instructed that the application should be filed. That occurred on 4 September. 6 The reasons given for the application were that to the best of his recollection, [NAME] had never been provided with a copy of the NSW Health Code of Conduct and had never been made aware of its provisions. The photo he had taken was only of the child's 'face/upper part of his body whilst he was hanging to the side of his cot, as he impressed me as a very happy child.' He was never made aware that it was not permitted to take photographs within the hospital, or that he needed consent to take photographs. [NAME] denied having acted in an improper manner, or that the care of the child had been compromised, or potentially compromised by his actions. [NAME] also complained that his employer had failed to take into account, or to give any proper consideration to his unblemished conduct during the 12 years of his employment. 7 In an affidavit later sworn in support of the hearing of the out of time application, [NAME]'s evidence was somewhat different. He said that he only has limited command of English, at a 'functional level' and that he is able to 'conduct basic communications in the English language'. He was not provided with a Spanish interpreter at either of his interviews. He was nervous and upset and never imagined that he would lose his job over the incident. He had difficulty at times in following and understanding what was happening. 8 In cross examination, [NAME] explained that while he had understood that his employer regarded the situation to be a serious one, he had not had any bad intentions and did not believe it was serious. At the interview he felt threatened, but thought he might receive a warning or disciplinary action. When he spoke to the union representative, [NAME], she told him that dismissal was a possibility and he said that he would not acknowledge a dismissal was fair and he would take legal advice. 9 [NAME] explained that he later made a number of amendments to the answers he had given at the interview, after he was given a copy of the transcript. He explained that 'I asked my son to help me translate it and I made a number of amendments to my answers as they were written on the document as what was written down is not what I said or meant to say.' [NAME] gave the following example:

[NAME] asked: "Why did you wait for the parent to leave before taking the photo?"

My response is recorded as: "The child was alone and this touched me. It was singing, moving around and smiling. He was a hero."

10 [NAME] said that the response inferred that he had purposely waited until the child's parents left to take the photo, but that was not the case, as there were no parents around at the time, just the nurses. Despite this, [NAME] did not suggest that he took the opportunity to amend the transcript, in order to correct what he says was a wrong impression given by his recorded answer. 11 [NAME] explained that he contacted a Spanish speaking lawyer after receiving written advice that a recommendation had been made to terminate his employment. A few days later [NAME] was arrested, after being interviewed by the police. He spent five hours in custody before being released without charge. The police retained his mobile phone. 12 [NAME]'s solicitor then made a detailed, written response to the employer, referring to his exemplary 12 year employment history and denying that taking a single photograph, which he claimed to have immediately deleted from his phone, involved the breach of any term of his employment contract, or any law. [NAME] had given the employer access to his phone at the first interview, where no photo had been found, but he had never denied taking it. 13 It was then claimed that no harm had been suffered as the result of the conduct; that the investigation had been conducted with unwarranted zeal and that suspending [NAME] on pay while the matter was investigated, had had 'irretrievably defamatory effect', for which the employer was responsible. 14 It was suggested that [NAME] had acted 'innocently, perhaps naively and unwisely, but without malice and certainly for no ulterior or unlawful purpose which may warrant his summary dismissal.' He had taken the photo in front of other people and was inspired by sympathy towards the child. It was claimed that there was no basis established for the dismissal of an innocent family man, who was wholly unaware that he was precluded from taking the photograph in the first place. 15 It was also pointed out that it was known that [NAME], a native of Uruguay, had only basic command of English, yet he was not granted the opportunity to have an interpreter present, 'at the time of his interrogation'. [NAME] had great difficulty understanding most of what had been said at the interview, with the result that the process was entirely flawed. It should be noted that evidence given by [NAME] was to somewhat different effect. 16 The letter also explained that [NAME] was remorseful for the effect that his innocent action had generated, but it was maintained that he had done no wrong. Another meeting 'with the benefit of bilingual legal advice' was sought, so that he could be given a fair opportunity to answer questions. Advice was given as to the solicitors' contact details, while he was out of the country from 22 July. 17 There was no response to this correspondence and on 31 July, [NAME] received written advice of his dismissal. 18 [NAME]'s affidavit departed from the earlier material filed in support of his application, in that he said he had not received advice that he could make an unfair dismissal application to the Commission, at this time, only that he could 'fight for his job'. 19 [NAME] explained that he believed he would be exonerated once the police investigation was completed. By 13 August, he became anxious and contacted his current solicitor. He was then advised of the time limit on applying to the Commission. He was asked to drop in his documents and did so on 13 August, but it was not until 31 August that [NAME] contacted him to make an appointment. It was that day that [NAME] gave instructions to commence the proceedings. [NAME] also gave evidence about the consequences of the dismissal, particularly given the notice provided to the Commission for Children and Young People. 20 The respondent's case was that [NAME] was interviewed on Friday, 6 July after an allegation that he had taken a photo of a naked two year old child that day. He had admitted taking the photo and had shown his mobile phone to the interviewer, to demonstrate that he had deleted the photo. [NAME] was stood down on pay and was advised in writing of the serious nature of the investigation on 11 July. 21 A second interview was scheduled for 13 [NAME] was invited to have a support person present. He was accompanied to the interview by a [NAME] representative, [NAME]. A copy of the record of interview was provided on 16 July and on the same day, [NAME] returned the record, after having made amendments to it. On 19 July, [NAME] was advised of the recommendation that his employment be terminated and was invited to make submissions as to why that should not occur. 22 Correspondence was received from [NAME]'s solicitor on Saturday, 21 July. On 30 July, [NAME] was advised of his dismissal. 23 The respondent called evidence from [NAME], clinical nurse unit manager employed in the emergency department of [COMPANY]. She gave directions to [NAME] at work and on her evidence, she had no difficulty with him understanding her directions and she had observed him speaking English with clarity, including when she had spoken to him about the performance of his duties. 24 The respondent also called evidence from [NAME], the [COMPANY] sub branch representative at [COMPANY], who had accompanied [NAME] to the meeting on 13 July. On her evidence, she observed [NAME] answering questions put to him, without any difficulty. [NAME] did not ask for an interpreter. [NAME] also attested to the advice she gave [NAME] after the interview, as to the seriousness of the situation and that his job was in jeopardy. Her recollection as to what she had discussed with [NAME], differed somewhat to his. Nothing turns on that, so far as this application is concerned. It was common ground that the possibility of dismissal was discussed. 25 The respondent opposed the extension of time application, given that there was no issue that [NAME] had taken a photograph of a naked child at the hospital; that the applicant was well aware of the serious nature of the matter; that the applicant had no difficulty speaking or understanding English; that he did not need to seek the advice of a Spanish speaking solicitor and could have sought advice or assistance from his Union, but did not do so. He had consulted two solicitors over this matter, one before the decision to dismiss was made, the other afterwards. Neither took the necessary step of initiating the proceedings within the statutory time period. 26 The applicant's evidence, largely given without the assistance of an interpreter, showed that his command of English was sufficient to deal with the process the employer pursued in investigating what was a very serious matter, which the respondent had a statutory obligation to deal with. 27 In the circumstances it was argued that the Commission should not accept that the delay was explained by the applicant's difficulty in speaking English or any difficulty in obtaining the necessary advice within the limitation period. The respondent's conduct in dealing with the matter had not been such as to lead to an exercise of the Commission's discretion in the applicant's favour. Consideration 28 The law applicable to applications such as this, is well settled. A Full Bench of the Commission observed in [NAME] v [NAME] (2003) 125 IR 145 at [12] that: 12 ... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In [COMPANY] v [NAME] Employees Union of Australia (NSW Branch) on Behalf of [NAME] (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.

13 Similarly, in Skelly v Prouds (sic) Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in [NAME] v [NAME] t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in [NAME] , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

14 To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.

29 In this case, the matters relied upon by [NAME], were the unfairness of the process, given his limited command of English; the circumstances in which the proceedings came to be commenced out of time, namely representation error and that the consequences of granting the leave sought were not significant for the employer, given the period of time which had elapsed and its position, it being plainly ready and able to defend the case which the applicant sought to bring. 30 In proceedings such as this, if [NAME] is given leave to proceed, it is relevant to consider that there will be an evidentiary onus falling on the employer, who has exercised the right to summarily dismiss, to establish that the circumstances which existed, were such as to entitle it to exercise that right. There can be little question that a situation where an employee at a hospital, taking an unauthorised photograph of a naked two year old patient in a cot in the emergency department, may well give rise to a right in the employer to summarily dismiss that employee for misconduct. That such conduct may also be in breach of an employee code of conduct, could only assist the employer in satisfying the evidentiary onus which fell upon it. That [NAME] was aware of the code of conduct, will be in issue in the proceedings. 31 If given leave to proceed, [NAME] will have the onus of establishing that his summary dismissal was unfair. He claims that he was unaware of the applicable code of conduct; that he was unaware that he was not permitted to take photos at the hospital, and that he could not do so without permission; that he only took a photo of the child's face and upper body and that the care of the child was not compromised by his actions. He also relies upon his 12 years of unblemished employment history and the investigation procedure which the employer pursued, whereby it failed to ensure that he had the benefit of a Spanish interpreter. [NAME] in fact required the assistance of an interpreter, is in issue. 32 The case [NAME] wishes to advance is plainly not without difficulty, but nor could it be described as a hopeless case. These are matters which must be considered, given the approach of the Full Commission in [NAME] at [21] to [22], where it was observed:

Prospects of success

21 In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospects of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a "sufficient reason" has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits. 22 Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion: [NAME] at 269. Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary considerations: [NAME] v [NAME] Authority of New South Wales (1995) 62 IR 190 at 193 - 194. It should be emphasised, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature.

33 In accordance with the statutory scheme, given his dismissal on 30 July, [NAME] ought to have filed his application by 20 August. He had taken advice from his union and from a solicitor, before his dismissal. He took advice from his second solicitor on 13 August, after his dismissal on 30 July, when there was plainly still sufficient time for his application to have been brought. There was no real explanation of that delay. 34 Nevertheless, on 13 [NAME] was advised of the limitation period which applied and of the necessity of instructing his solicitors with the relevant documentation. On his evidence, he provided that documentation the same day, but did not see his solicitor again until after the limitation period, namely on 31 August, with the result that the application was not brought until 4 September, over two weeks out of time. 35 The Act requires that consideration be given to whether there is 'sufficient reason' for the application being brought out of time; the reason for and length of the delay; any hardship caused by the acceptance or rejection of the application and the employer's conduct in relation to the dismissal. 36 As to the latter, the employer's right to dismiss summarily for misconduct in the circumstances is challenged; the fairness of the decision and the fairness of the process pursued by the employer in investigating the conduct, is also in question. On the material which the parties have led, there were certainly reasonable steps taken by the employer to ensure that [NAME] was given a fair appreciation of the misconduct alleged against him, as well as a proper opportunity to explain his conduct. He attended one of the meetings with a union representative and had the opportunity to seek legal advice, which he availed himself of, and to make representations, which were then considered by the decision maker, before making the decision to dismiss. Whether that process was ultimately fair, given [NAME]'s known circumstances, including that he was a native Spanish speaker, with a particular command of English, is in issue. 37 There has plainly been a reasonable delay in bringing this application, given the statutory limitation period imposed by the Parliament, of 21 days. The delay was explained by [NAME] as the result of the approach taken by his lawyers. There was unquestionably sufficient time for the application to have been brought within time, when he consulted his present lawyers on 13 August - another seven days. There was no real explanation for the further 22 days which it took to commence the proceedings, other than the solicitors' failure to give [NAME] timely advice, so as to ensure that the application could be made by 20 August. 38 In making that observation it should be clearly understood that I do not accept the submission that it was not reasonably possible for the applicant's solicitors to have provided advice to the applicant about an unfair dismissal application, within the prescribed limitation period, given the provisions of s 347 of the Legal Profession Act 2004. Solicitors ought not to conduct themselves on the basis of a view that such an approach will readily lead to this Commission exercising its discretion to grant an application such as this. Implicit in accepting instructions in circumstances such as those which confronted the applicant's solicitors in this case, was that the necessary steps would be taken to ensure that timely advice was given to the applicant, so that the statutory limitation period could be observed. 39 At the very least, if a limitation period is not able to be adhered to, the normal courtesy of informing the employer, within the limitation period, of the advice having been sought and the possibility of an out of time application being brought, should be adhered to, if there is to be any expectation of the Commission exercising its discretion favourably to an applicant, in such circumstances. 40 Nevertheless, the submissions, so advanced, had to lead to the conclusion that there was clearly error by the applicant's legal advisers, in this situation. In the past, such error has been accepted as a proper basis for extending time. In the circumstances, I came to the view that in this case, it must follow that there has been 'sufficient reason' advanced for the application having been brought out of time. 41 Finally, the question of hardship has to be considered. There are always undoubtedly serious consequences flowing for an employee whose employment has been summarily terminated for serious misconduct. In this case, those consequences are exacerbated by the impact of the referral to the Commission for Children and Young People, which undoubtedly will diminish [NAME]'s prospects of obtaining other employment. Also to be weighed is the right of the employer not to have a dismissal for serious misconduct challenged, if an application for reinstatement is not brought within the statutory limitation period. That, of course, is a factor also always present when an application such as this is brought. In this case, also of undoubted relevance is that [NAME]'s employment involved working with vulnerable young children, which must be accepted as an important factor to be weighed in the balance. 42 In all of the circumstances, I have concluded, however, on balance, that the leave sought must be granted, as a matter of justice between these parties. I have been influenced in reaching this conclusion by the complaints advanced in relation to the fairness of the interview process, particularly the failure to respond to the request of 21 July, which, if it had been accepted, would have remedied any complaints as to procedural fairness, given [NAME]'s command of English. That consideration, when considered together with the fact that the late filing flowed from adviser error and the undoubtedly difficult consequences of a dismissal accompanied by a reference to the Commission for Children and Young People, have led me to the view that the application must be granted. Orders

43 For the reasons given, I order that the leave sought be granted. The matter will now be listed for conciliation. ------------------------

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