100421820

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES TREVOR WAYNE BERNHARDT

APPLICANT

 -v-

 PLACER DOME ASIA PACIFIC

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE THURSDAY, 4 MARCH 2004

FILE NO/S APPLICATION 36 OF 2004

CITATION NO. 2004 WAIRC 10926

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Catchwords Industrial law -  Termination of employment – Harsh, oppressive and unfair dismissal – Acceptance of referral out of time – Application referred outside of 28 day time limit – Relevant principles to be applied – Commission satisfied applying principles that discretion should not be exercised – Acceptance of referral out of time not granted – Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 29(2), s 29(3).

Result Application dismissed.  Order issued

Representation

Applicant Mr T Bernhardt 

Respondent Ms N Wainwright as agent

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Reasons for Decision

(Ex Tempore)

1         The substantive application is one brought by Trevor Wayne Bernhardt against Placer Dome Asia Pacific.  The application is one brought pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (“the Act”) by which it is alleged that the applicant was harshly, oppressively and unfairly dismissed on or about 16 October 2003 from his position as a supervisor.  The application claims that he was unfairly dismissed by reason of his wrongful summary dismissal for misconduct.  The applicant, by his claim, seeks reinstatement. 

2         The respondent employer filed a notice of answer and counter proposal by which it contests the merits of the applicant's claim but also alleges that the application was lodged in this Commission outside of the time limit required by s 29(2) of the Act, that being 28 days. 

3         The applicant's application was filed on 12 January 2004 as evidenced by the date stamp of the registry.  It is apparent, therefore, that the applicant's claim is some eight and one half weeks or thereabouts outside of the 28 day time limit prescribed by the Act.  It is the case, of course, that by the Commission's own motion listing this application today, the Commission has a jurisdiction under s 29(3) of the Act to accept an application out of time should it be minded to do so in the exercise of a discretion. 

4         The facts in the matter before the Commission, presently, are relatively straightforward and they are as follows.  The applicant testified that he was dismissed by the respondent on 16 October 2003 by reason of two allegations against him; firstly, that he was sleeping on the job on occasions and, secondly, that he stole fuel from the respondent for the purposes of his private usage.   In relation to his dismissal the applicant commenced proceedings it is common ground, in the Australian Industrial Relations Commission (“the AIRC”) on 1 December 2003.  Shortly after his dismissal, it seems from the applicant's evidence some two weeks thereafter he commenced other employment with other employers.  Subsequent to filing the applicant's claim in the AIRC the applicant testified that he became aware, it seems, at least, up to or prior to 18 December 2003 that he had commenced his application in the wrong jurisdiction.  I will say more about that matter shortly.

5         Coming back to the circumstances immediately after the applicant's dismissal, he testified that either on the day or the day after he was dismissed by the respondent he sought legal advice from a firm of solicitors in Kalgoorlie.  According to the applicant's evidence that firm of solicitors was not able to see him for some weeks.  He thereafter, he says on his evidence about seven to 10 days after his dismissal  sought advice from Legal Aid as to his circumstances.  The applicant's evidence was that there was some suggestion, after consulting Legal Aid, that he may have 21 days to commence a claim challenging his dismissal within the federal system.

6         The applicant's evidence also was that he sought the assistance of a friend, it seems, a former colleague from the respondent company to provide some help to him in preparing his claim and that claim was, as I have already observed, filed in the AIRC on 1 December 2003.  I have also observed that, at least, if not prior, but as at 18 December 2003, the applicant was informed that he had commenced that claim in the wrong jurisdiction and he ought bring an application in this jurisdiction and was, at the same time, it seems, on the applicant's evidence, aware that a 28 day time limit applies in this jurisdiction and, indeed, that time limit had expired.

7         As to the merits of the applicant's claim, the applicant says that he denies the respondent's allegations against him, firstly, that he slept on the job and, secondly, that he stole fuel from the employer.  The applicant also complains that if the respondent had concerns in relation to these matters he ought to have had those matters brought to him "on the spot", as he said it, and if he was in the wrong then he should have been dismissed at that time and not some two months or thereabouts after as, on the facts, appears to be the case.  The applicant, however, accepts that he failed to commence proceedings in the proper jurisdiction and he accepts that that was his fault.  The applicant, moreover, says that he wishes to continue with this claim to clear his name.

8         The evidence from the respondent went mainly to the procedural issues that the respondent undertook in effecting the applicant's dismissal.  That evidence was adduced through the respondent's human resources superintendent, Mr Mincham.  His evidence was that once it came to his attention that the allegations had been made against the applicant, there was an investigation process put in train to enable these matters to be thoroughly investigated and allegations put to the applicant in the proper manner.  Mr Mincham acknowledged there was some considerable delay from the initial events, upon which the respondent made its decision to dismiss but testified that the delay was for the purpose of ensuring that the evidence obtained was reliable and the process, in short, was thorough.  The evidence before the Commission in relation to the applicant's claim is, necessarily, at this stage, given that this is an extension of time proceeding, somewhat scant.

9         In relation to the Commission's determination of the matter, I turn to the relevant principles in relation to extensions of time which are now well settled before this Commission.  Those principles were, firstly, set out by the Commission, as presently constituted, in the matter of Nicole Azzalini v Perth In-flight Catering (2002) 82 WAIG 2992.  That decision was considered by the Full Bench of this Commission in the matter of the Director General of the Department for Education v Prem Singh Malik [2003] 83 WAIG 3056.  In that decision the Full Bench affirmed the approach of the Commission in Azzalini. 

10      In Azzalini, as affirmed by the Full Bench, a number of factors were set out as relevant considerations as to whether the Commission should exercise its discretion which it undoubtedly has to accept an unfair dismissal application out of time.  Those factors are five-fold and are, firstly, the length of any delay; secondly, the explanation for the delay; thirdly, steps taken, if any, by an applicant to evidence non-acceptance of the termination of employment and that it would be contested; fourthly, the merits of the substantive application in the sense that there is a sufficiently arguable case and, finally, whether there would be any material prejudice to an employer respondent in granting an application to extend time, although the absence of prejudice to a respondent without more is not a sufficient basis of itself to grant an application for an extension of time. 

11      The Commission turns to those principles in relation to the evidence before the Commission at this stage of these proceedings.  Firstly, the length of delay factor.  In this case it is apparent that the delay is substantial.  The applicant's delay in commencing these proceedings in this jurisdiction, as the Commission has already observed, is some eight and one half weeks after the expiry of the 28 day time limit prescribed by s 29(2) of the Act.

12      Secondly, the explanation for the delay.  The applicant says that he originally commenced proceedings in the AIRC on 1 December 2003, based upon what he then thought to be the proper jurisdiction having taken, at least, some advice it seems from, at least, a friend of his who was assisting him in this process.  I note, however, that that application filed in the AIRC on 1 December 2003 was, itself, some 18 days out of time in that jurisdiction, there being a 21 day time limit for commencing proceedings in that jurisdiction. 

13      The issue of jurisdiction was raised by the respondent employer in those proceedings and the applicant was put on notice of that fact.  As I have already observed, at least by 18 December 2003, if not before, the applicant was aware that the proper jurisdiction for his claim was this Commission and, moreover, and importantly, was also aware that a 28 day time limit applied in this jurisdiction and that 28 day time limit, had clearly expired by 18 December 2003.

14      The evidence of the applicant was that he took some time off for holidays around the Christmas early New Year period and obtained other employment in remote locations.  However, despite this, the evidence also is that the applicant did not take steps to have the application filed in this jurisdiction until 12 January 2004, some 25 days or thereabouts after he was notified of both the proper jurisdiction and the time limit which had, by that stage, well and truly expired.  There is no evidence before the Commission that the applicant otherwise took steps to obtain assistance from legal or other sources given his circumstances.

15      In relation to the third factor, that is, steps taken by the applicant to evidence a challenge to his dismissal, I accept on the evidence that there was some indication by the applicant at the time of his dismissal that he intended to seek legal advice regarding the termination of his employment and it seems also, on the evidence of Mr Mincham, that the respondent anticipated that a claim for unfair dismissal would be made against the respondent.  His evidence was, however, that he was somewhat surprised that upon the expiry of the relevant time limit no such claim had been served on the employer.

16      As to the merits of the substantive application in the sense that there is a sufficiently arguable case, given the allegations of the applicant and the nature of the issues in dispute, on the evidence before the Commission, presently, the Commission is not able to come to any tentative conclusion on the merits.  No issue was taken by the applicant with the procedure adopted by the respondent in his dismissal but he disputes the facts relied upon by the respondent.  In the absence of evidence from the respondent on the disputed factual issues, it is not open for the Commission to express any views on the merits of the application and therefore the Commission regards that matter as a neutral factor for present purposes. 

17      In relation to prejudice demonstrated in the present case, there is no prejudice demonstrated by the respondent above that which would normally be endured in having to defend such a claim, in any event, if the applicant's extension of time is granted by this Commission. 

18      Balancing all of these factors together on what is before the Commission by way of the evidence and other materials the Commission is not persuaded that it should exercise the discretion, in this case, to accept the applicant's application out of time.  It is the case that in these proceedings the applicant was out of time in his application in the AIRC, initially.  He then was on notice, it is common ground, from at least 18 December 2003, if not before that time, that he was required to file an application in this jurisdiction and, moreover, and critically, importantly, in my view that the 28 day time limit had well and truly expired by that stage. 

19      In my opinion, armed with that knowledge, it was incumbent on the applicant to take immediate steps or have immediate steps taken on his behalf to file an application in this jurisdiction to commence these proceedings.  The uncontroversial fact is that a period of somewhat in excess of three weeks elapsed before the application was eventually filed in this jurisdiction.  As the Commission, as previously constituted, has observed on previous occasions, there is an onus on applicants commencing proceedings in this jurisdiction to do so promptly and within time limits prescribed by the statute and, indeed, to prosecute their claims expeditiously.  In my view the time limits are in the statute for a good reason and the Commission is not satisfied, on what is before it on this occasion, that it ought to exercise a discretion to extend the time by accepting the application out of time pursuant to s 29(3) of the Act.  Accordingly, for all of those reasons, the application is dismissed and an order will issue in due course in those terms.