The Public Service Appeal Board (Appeal Board) has dismissed an appellant’s application to grant an extension of time within which to appeal in relation to an appeal that was out of time.

Background

The appellant was employed by the respondent until being terminated because of a failure to provide evidence of COVID-19 vaccination. An association or company trading under the name ‘Independent Workers’ Union of Australia’ (IWUA) purported to file an appeal to the Appeal Board against the termination decision on the appellant’s behalf. The appeal was out of time, as it was outside the period of 21 days after the date of the decision appealed against, in accordance with reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA) (IRC Regulations). The appellant applied for an extension of time.

Contentions

The appellant contended the reason for the delay was the errors of the IWUA and that they acted on the IWUA’s incorrect advice. The appellant’s submissions referred to the IWUA as their union. The appellant submitted that two cases relating to vaccination requirements under way in the Supreme Court of Western Australia were of relevance to the merits of the appeal.

Findings

The Appeal Board noted, with supporting case law, that it has the power pursuant to 27(1)(n) of the Industrial Relations Act 1979 (WA) (IR Act) to extend the prescribed time in which to institute an appeal.

The Board considered Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817, which applied principles from various other authorities. The Appeal Board noted that these authorities set out four main but not necessarily exhaustive factors; the length of the delay; the reasons for the delay; the prospects of the applicant in succeeding in the appeal; and the extent of any prejudice to the respondent. The Appeal Board noted it was for the appellant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all the circumstances.

The Appeal Board noted that IWUA representatives provided incorrect advice to the appellant regarding the appeal on four occasions. The Appeal Board noted that neither the IWUA nor the incorporated association that held IWUA, were registered organisations of employees under the IR Act. The Appeal Board accordingly found that the IWUA did not have standing or any right to represent the appellant in this jurisdiction. The Appeal Board accepted that the appellant relied on the incorrect advice of the IWUA, considered the principles relating to representative error and noted that this was not an adequate explanation of the delay. However, it noted that in the circumstances, it was unreasonable to accept and rely on the IWUA’s advice.

The Appeal Board considered prejudice to the respondent and the appeal’s prospects of success and noted that the appellant’s submissions did not demonstrate that the merits of the appeal should weigh in favour of a grant of extension. The Appeal Board considered that while there was an explanation for the delay, which was not lengthy, the appellant had not shown that the interests of justice require an extension of time to appeal be granted. The Appeal Board noted that all other facts were neutral or slight either away and ultimately, did not detract from the Appeal Board’s sense that the requirements of justice in the situation did not warrant an extension. The application was dismissed.

The decision can be read here.