Unfair Dismissal Application Dismissed for Being Out of Time

The Industrial Relations Commission dismissed the claimant's unfair dismissal application as it was filed out of time, over ten years after the date of dismissal. The Commission found no reasonable explanation for the delay and thus declined to hear the merits of the case.

Industrial Relations Commission of [NAME]: [NAME] v [NAME] [2006] NSWIRComm 1006

APPLICANT [NAME] PARTIES: RESPONDENT [NAME](S): 2766 of 2005

CORAM: Macdonald C

CATCHWORDS: Unfair dismissal - out of time application - ten years - no reason provided for late application - application dismissed

Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Superannuation Act 1916 [NAME]) Regulation 1992

HEARING DATES: 01/12/2005

DATE OF JUDGMENT: 02/16/2006

APPLICANT Appeared on his own behalf LEGAL REPRESENTATIVES: RESPONDENT [NAME], barrister

DECISION: INDUSTRIAL RELATIONS COMMISSION OF [NAME]: MACDONALD C

16 February 2006

Matter No IRC 2766 of 2005

[NAME] and [NAME]

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

_____________________________________________________________________________

PRELIMINARY DECISION

[2006] NSWIRComm 1006 1 The Commission has before it an application by [NAME] ("the Applicant") for unfair dismissal against [NAME] ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 This Preliminary Decision arises from an Out of Time issue pursued by the Respondent. 3 The unfair dismissal file was filed by the Applicant on 30 May 2005. 4 The matter came on for Conciliation and Direction on 22 June.

The Applicant represented himself and the Respondent was represented by [NAME], barrister and [NAME] of the Respondent.

During proceedings, the Applicant said he had been: · unfairly dismissed; · medically retired by the Respondent in 1995 by the recommendation of the state government medical officer; and · not restored to duty by the Respondent, contrary to the recommendation of the state government medical officer as of July 2003. [NAME] submitted that the Applicant was medically retired on 5 July 1995 and had been in receipt of retirement benefits since then till 2003.

[NAME] accordingly submitted that the Applicant's unfair dismissal application was 10 years out of time or, at best, 2 years out of time. There was also an issue as to whether the Applicant's employment had been terminated, at all, by the Respondent.

The Applicant also raised the position that his contract of employment had subsisted through all the years since 1995. This drew an inference that there had not been a dismissal. 5 A Report Back was held on 8 July. The matter remained unresolved. [NAME] raised the suggestion with the Applicant that he might seek some pro bono advice and perhaps telephone the [COMPANY] or the [COMPANY] in that regard. 6 A Report Back was held on 12 August. The Applicant had and was still seeking legal advice. 7 A Report Back was held on 16 September.

The Applicant had filed a witness statement, per direction of the Commission on setting out the issues as the Applicant saw it. [NAME] advised that the Respondent was in receipt of that statement but was still none the wiser as to the date of the dismissal as claimed by the Applicant. [NAME] sought that the matter proceed by way of a preliminary hearing on the issue of "out of time" application. [NAME] also pointed out that if there had been a dismissal in 1995, then this was prior to the operation of the Industrial Relations Act 1996.

The Commission set a preliminary hearing program on the issues raised by [NAME]. As the Respondent had raised these jurisdictional issues then the Respondent was directed to file its material first and it also carried the burden of proof. 8 The Preliminary Hearing took place on 1 December 2005.

The Respondent was represented by [NAME]. The Respondent filed its submissions on 21 October 2005. The Respondent also filed an Affidavit of [NAME] on the same date.

The Applicant represented himself. He had already filed a Statement on 9 September (per direction of the Commission in order to clarify the issues being raised by the Applicant). He also filed additional material (Affidavit) on 11 November, in response to the Respondent's material.

The Preliminary Hearing proceeded by way of submissions on the filed material only. No party sought to cross examine on the filed material (Affidavit or Statement).

SUBMISSIONS For the Respondent 9 [NAME], barrister for the Respondent, made de the following submissions in support of the Respondent's application to dismiss the unfair dismissal application on the ground of Out of Time: (a) [NAME] had not put forward an explanation as to his delay in filing his unfair dismissal out of time. (b) [NAME] says that he was dismissed in 1995 and that date is pre the operation of the Act and the Act has no provision providing for retrospective operation of itself in respect of an unfair dismissal application. [NAME] referred to a decision of Boland J dealing with an out of time issue where in that case, the dismissed employee's unfair dismissal application concerned a 10 year old dismissal that took place when the Industrial Relations Act 1990 applied ("the 1990 Act"). [NAME] submitted that to the extent that Boland J decided that the 1990 Act grounded jurisdiction for his Honour to consider that particular 10 year out of time unfair dismissal application, then his Honour was wrong to do so. (c) [NAME] was not dismissed, nor constructively dismissed from his employment. He retired from his employment due to an incapacity. (d) [NAME]'s incapacity was not such as to preclude him from filing an unfair dismissal application. (e) Even if incapacity was a reason why he did not file an unfair dismissal application, then this reason no longer applied on 9 July 2003, when [NAME] was declared medically fit. Having been declared medically fit on 9 July 2003, he did not file his unfair dismissal application until 30 May 2005. No reason for that some 2 year delay in filing has been offered by [NAME]. For the Applicant 10 [NAME] made submissions reflecting the two documents filed by him: Statement filed by [NAME] on 9 September 2005 (exhibit 2); and Affidavit filed by him on 11 November 2005 (exhibit 3). The latter document was filed in response to the Out of Time material/submission filed by the Respondent. 11 [NAME]'s Statement (ex. 2) set out his employment history with the Respondent and the issues pertaining to his health. Thus: (a) He became a probationary fire-fighter in early 1981. (b) In later years he became stressed at work. The earliest date given in that regard is 1990. (c) He accepted retirement on 5 July 1995 in lieu of dismissal. The retirement certificate was issued by HealthQuest's Government Medical Officer. (d) The state of his health was reviewed pursuant to a mandatory requirement per s29 (4) (4a) Superannuation Act 1916. (e) Pursuant to a complaint to the Ombudsman, HealthQuest lifted the permanency of his retirement and he was declared fit to resume work as a senior fire-fighter on 9 July 2003. (f) Despite being fit, the Respondent had not offered restored employment to [NAME]. (g) He submitted that his employment subsists under s48 Superannuation Act 1916. (h) He maintained that the Respondent could not lawfully enforce retirement on him, by overturning a decision by the Government Medical Officer who declared [NAME] fit in July 2003. 12 [NAME]'s Affidavit set out his reply to the filed material of the Respondent. Thus: (a) The Respondent abrogated its power to terminate his employment under clause 15 [NAME]) Regulation 1992. (b) The Respondent refused to provide rehabilitation of his workers compensation injury and made adversarial medical reports available from the Workers Compensation Jurisdiction, so as to be used by the Government Medical Officer for his retirement. (c) He agreed to retirement because it was the only form of rehabilitation offered, being in lieu of dismissal. (d) He considers that the Respondent exercised a suspension of appointment by a form of constructive dismissal. He had not volunteered for retirement. (e) The Government Medical Officer had declared [NAME] fit for work as a senior fire-fighter on 9 July 2003 - but no work had been offered to [NAME]. (f) He strongly believed that his employment still subsisted pursuant to the Superannuation Act 1916. Respondent in Reply 13 [NAME] for the Respondent stressed that [NAME] had himself said that his termination had occurred in 1995. This was when he retired. 14 [NAME] rejected [NAME]'s submissions pertaining to the operation of s51 of the Superannuation Act. That section provides that a person may be re-employed if that person comes off a pension. Section 51 does not mandate re-employment: it directs attention back to the employer who may re-employ the person. 15 [NAME] pointed out that [NAME] said on the on hand that he accepted retirement but then at other times, submits that he was forced to accept retirement. Even if there was some pressure exerted on [NAME] to retire (as in constructive dismissal) this happened in 1995 and hence the unfair dismissal application was some 10 years out of time on that construction of the evidence. CONSIDERATION 16 The discretion to extend time in unfair dismissal matters is established by section 85 (3) of the Act. There are various discrete factors contained in paragraphs (a), (b) and (c) of section 85 (3) which the Commission is to have regard in order to determine whether sufficient reason exists to accept an application made out of time.

The various factors contained with paragraphs (a), (b) and (c) of section 85 (3) represent the primary issues for consideration, but do not limit the consideration of the Commission. Various supplementary factors may also be included dependant upon the specific circumstances of each case. It is convenient to approach the consideration in this instance by reference to the various factors that can be identified in section 85 (3). Length of Delay: s85 (3) (a) 17 [NAME] put forward no one definite submission as to the date of dismissal. Sometimes he gave the date as' 1995 (medically retired) and sometimes he gave the date as July 2003 (when he was declared medically fit to resume work as a fire-fighter).

The former date represents a delay of about 10 years in filing his unfair dismissal application. If the Commission was to accept the latter date as the date of dismissal then the delay is about 21 months.

The delay period, in either scenario above, is so significant, as to cause an immediate focus on the reason(s) for such a lengthy delay in filing the unfair dismissal application. 18 The Commission finds that the date of cessation of [NAME]'s employment is 1995. This date represents his retirement from the services of the Respondent. Reason(s) for Delay: s85 (3) (a) 19 [NAME] did not put forward a reason(s) for the delay in filing his unfair dismissal application.

[NAME] had filed a Statement (ex. 2) on 9 September, pursuant to a suggestion by the Commission for him to do so. This was so that the Respondent (and the Commission) could clearly understand his working history with the Respondent. The Commission did not expect that this document would set out the reason(s) for the delay in filing his application.

[NAME] also filed an Affidavit (ex.3) on 11 November 2005. This document was in response to the Respondent's submissions on why his late application should not be accepted by the Commission. Regrettably for [NAME], he did not set out a reason(s) for the ten year delay (from the time of this constructive dismissal as alleged by him). For [NAME] not to provide a reason(s) for the delay, is a serious omission on his part. Hardship - s85 (3) (b) 20 Section 85 (3) (b) refers to the hardship that may be caused to [NAME] or the Respondent if the unfair dismissal application is or is not rejected.

The hardship for [NAME] if his application is rejected, is the loss of the opportunity of pursuing reinstatement.

The hardship to the Respondent, should the application be allowed to continue to a hearing on the merits of the case, is that the Respondent would have some difficulty in presenting all of its evidence, in that [NAME]'s personnel file has been misplaced. As well, memories fade. The Respondent asserts accordingly it would be prejudiced and suffer an injustice should the application not be rejected. Conduct of the Employer - s85 (3) (c) 21 There was no evidence provided of conduct of the Respondent being a cause for the delay in the lodgement of the application.

CONCLUSION 22 There is a time limitation of twenty one days set for the lodgement of unfair dismissal claims. This time is set for obvious reasons. There is also a discretion provided for the Commission to extend this time limit, but an applicant bears an onus to establish that sufficient reason exists for any extension of time to be granted. 23 In the present matter, the length of delay was significant at around ten years in excess of the statutory limit.

[NAME] provided no reason to explain the ten year delay in filing his unfair dismissal application. ([NAME] had alternately submitted he had been dismissed some 21 months ago, but again no reason provided to explain the delay in filing his application). And so, it matters not whether the Commission considers the length of delay to be ten years or 21 months, there is still no reason to explain the delay.

Without a reason by [NAME] to explain the delay, the Commission has nothing to contemplate and therefore the Commission grants the application lodged by the Respondent to dismiss the unfair dismissal application because it was lodged out of time. 24 In coming to that conclusion, the Commission does not have to make a finding on [NAME]'s submission that the Commission had no jurisdiction to deal with the unfair dismissal application, because the dismissal date was at a time prior to the operation of the Industrial Relations Act 1996 - and that Act had no provision providing for retrospective operation of itself in respect of an unfair dismissal application. 25 Accordingly, the Commission declines to consider further [NAME]'s unfair dismissal application.

A Macdonald Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.