2008 WAIRC 01645
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MICHAEL CHRISTIAN NICHOLAS
APPELLANT
-V-
DEPARTMENT OF EDUCATION AND TRAINING
RESPONDENT
CORAM PUBLIC SERVICE APPEAL BOARD
COMMISSIONER S J KENNER - CHAIRMAN
MR C FLOATE - BOARD MEMBER
MS E MCQUEEN - BOARD MEMBER
HEARD MONDAY, 17 NOVEMBER 2008
DELIVERED TUESDAY, 25 NOVEMBER 2008
FILE NO. PSAB 15 OF 2008
CITATION NO. 2008 WAIRC 01645

Catchwords Industrial law – Termination of employment – Appeal against decision of respondent to terminate appellant’s employment – Application referred outside of 21 day time limit – Principles applied – Appeal Board satisfied that extension of time to institute proceedings be granted – Industrial Relations Act 1979 (WA) s 27(1)(n), s 29(1)(b)(i), s 29(3), s 80(1)(e), s 80(I), s 80(J), s 80(L), s 80(L)(1), Industrial Relations Commission Regulations 2005 (WA) reg 107(2).
Result Decision issued
Representation
APPELLANT MR K TRAINER AS AGENT

RESPONDENT MR P WISHART


Reasons for Decision

1. This is an appeal by the appellant pursuant to s 80(1)(e) of the Industrial Relations Act 1979 (“the Act”) against a decision of the respondent to dismiss him. The decision of the respondent said to have given effect to the appellant’s dismissal, was contained in a letter dated 18 August 2008. The respondent denies it dismissed the appellant and says that his employment came to an end by reason of a repudiation of the contract of employment.

2. Whilst on the evidence referred to below, receipt of the letter of 18 August 2008 was contentious the notice of appeal was not filed until 15 September 2008, outside of the 21 day time limit for commencing such appeals, as prescribed by s 80J of the Act and reg 107(2) of the Industrial Relations Commission Regulations 2005.

3. As the appeal is out of time, the matter was listed for hearing as to whether the period within which to lodge the appeal should be extended.

The Appeal
4. The notice of appeal as filed on 15 September 2008 particularises the grounds of appeal in Schedule A as follows:
“I seek an extension of time on this application for reasons including that due to my current medical situation I am no longer residing at the address outlined in the correspondence and therefore did not receive the correspondence until 10 September 2008.
Upon receiving the correspondence I immediately began to act in relation to putting together this application.
By letter dated 18 August 2008 my employer informed me that it considered that I had repudiated my contract of employment with it and went on to say that “ accordingly (I am) no longer an employee of the Department of Education and Training”.
I deny that I had at any time repudiated my contract of employment with my employer. I have been absent from work due to illness since 5 March and since 16 May 2008 have been on what the Department calls ‘no pay status’.
I have at all times been, and remain, ready and willing and able to work for the Department subject being fit to do so. At no time have I indicated to the Department that I no longer wish to be employed by the Department.
The Department apparently had a medical report from Dr Joel Silbert to the effect that I was no unfit to return to work but the report came with the justification that the opinion of a consultant psychiatrist should be sought. This was not done. I maintain that the only reason I was absent from work was due to illness and that my employer knew this.
I have not defied any order from my employer to return to work, even though, due to my illness, I would have had difficulty in complying with such an order. In any event my employer has not ordered me back to work.
I received no opportunity to comment on the Department’s decision to dismiss me. Had I been given an opportunity to comment I would have done so and believe I would have had reasonable and persuasive submissions to make. I have been denied procedural fairness in relation to the decision to dismiss me.
The Department was aware I was unwell. Even though it had a medical report that I was fit to work this was not the report of a consultant psychiatrist, which the Department was advised to obtain. I was on ‘no pay’ status which I had to accept but acceptance of this status did not indicate an intention to no longer be bound by my employment contract. No action on my part indicated this so comprehensively as to amount to a repudiation. Further the Department accepted my repudiation without giving me an opportunity to comment. In all of the circumstances my dismissal was unfair.”

5. In short, the appellant complains that at all material times he remained an employee of the respondent and was absent by reason of a bona fide psychiatric illness.

6. The respondent alleges that the appellant’s absence from the workplace was unauthorised. Ultimately, the failure by the appellant to perform the duties as required constituted a repudiation of his contract of employment with the respondent.


Extension of Time
7. The extension of time proceeding was heard on 17 November 2008. After hearing submissions of the parties and the evidence adduced on behalf of the appellant, the Appeal Board announced its unanimous decision that the time for lodging the appeal would be extended to 15 September 2008 with reasons for decision to follow. Directions were also made for the future hearing of the appeal. These are our reasons for so concluding.

8. By s 80J of the Act and reg 107(2) of the Regulations, an appeal of the present kind is to be commenced within 21 days of the decision appealed against. Taking the date of 18 August 2008 for present purposes as the material notification of termination of the appellant’s employment, and allowing for delivery of the letter in the ordinary course of the post, that being by 19 August 2008, the notice of appeal is some three working days out of time.

9. By s 80 L of the Act the provisions of Part II Division 2 of the Act apply to the Appeal Board’s jurisdiction, in particular, for present purposes, s 27. By s 27(1)(n) of the Act, a power exists to extend any prescribed time, which reg 107(2) of the Regulations plainly is. By the terms of s 27(1)(n) of the Act, the Commission, and by necessary modification (s 80 L(1) of the Act) the Appeal Board plainly has the power to extend the time for lodging an appeal under s 80I: Re Coldham v Ors; Ex parte BLF 64 ALR 215; Arpad Security Agency Pty Ltd v FMWU (1989) 69 WAIG 1287; Maureen Dehnel v Dr Neil Fong Director General Department Health and Ors (2006) 86 WAIG 3310.

Relevant Principles
10. The jurisdiction and power to grant an extension of time for the institution of an appeal is a discretionary decision. In extensions of time applications generally, courts and tribunals are to consider the justice of the particular case in terms of the relative prejudice to the parties. The onus is on the appellant to establish that the discretion should be exercised in his or her favour. Generally, some consideration of the merits of the appeal is to be undertaken.

11. Whilst the representatives of the appellant and respondent made some reference to relevant principles for extensions of time in unfair dismissal proceedings before the Commission pursuant to s 29(3) of the Act, as considered in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683, it is important to observe that that case turned substantially upon the particular statutory framework prescribed under s 29 of the Act and in particular s 29(3), which provides that “The Commission may except a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so”.

12. Whilst the principles in Malik may be of some assistance in the present context, a more apposite approach in our view, given the range of different decisions from which persons may commence appeal proceedings under s 80I of the Act, and where the exercise of the statutory power to extend any prescribed time by s 27(1)(n) of the Act is under consideration, is that applicable to extensions of time to appeal and institute proceedings generally.

13. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, the Full Court of the Supreme Court of Western Australia considered general principles applicable to extensions of time for the institution appeals against primary decisions. In that case, Kennedy J at 198, considered that four relevant factors to take into account include the length of the delay, reasons for the delay, whether the appellant has an arguable case and any prejudice to the respondent.

14. In Chan v The Nurses Board of Western Australia [2007] WASCCA 123, the Court of Appeal (WA) considered and applied the principles discussed in Esther Investments. In particular, in relation to consideration of the relevant principles, Buss JA observed at pars 12-14 as follows:
“Application for an extension of time: principles
[12] In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, Kennedy J said, at 198:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
[13] Where the failure to appeal within time is attributable to the act or default of the applicant's solicitor (and not the applicant), that is a material consideration in the exercise of the Court's discretion. See Esther Investments per Kennedy J at 199 and per Rowland J at 204.
[14] In Gallo v Dawson (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms "as the justice of the case may require". His Honour said, at 459:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194–195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes (at 263–264); Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
Also see Jackamarra v Krakouer (1998) 195 CLR 516. “

15. We now consider the above mentioned four factors for the purposes of whether the Appeal Board should exercise the discretion in favour of the appellant and accept the appeal out of time.

Length of Delay
16. As noted above, leaving aside for the moment the respondent’s contention that there was no dismissal from employment, the letter from the respondent to the appellant dated 18 August 2008, tendered as exhibit A2, was the instigating event leading to the commencement of this appeal by the appellant. As also noted above, assuming that the letter was delivered to the appellant in the ordinary course of the post, and omitting any consideration for present purposes, of the contention surrounding the receipt by the appellant of the letter, it would be deemed to have been received by the appellant on or about 19 August 2008.

17. On this basis, the time for filing the appeal would be 21 days from 19 August that being 9 September 2008. The appeal was not in fact filed until 15 September 2008 being some six calendar days or three working days, being days upon which the Registry is open for business, out of time. Therefore, the length of the delay in the present case is relatively short.

Reasons for Delay
18. On the evidence led by the appellant, and not contradicted by the respondent, the appellant says that due to his declining mental state from the time at which he last attended for work in March 2008, until August 2008, he was unable to adequately manage his day to day affairs. The appellant’s testimony was to the effect that his condition reached the point where he was unable to attend to basic day to day functions such as paying bills, to the extent that utilities were cut off at his residence; he was suffering almost complete withdrawal from social interaction with friends and family; he felt consistently tired and fatigued despite sleeping in some cases up to 14 hours per day and was on his evidence, generally unable to function normally. The appellant’s evidence was that he completely failed to respond to any mail received by him to the extent that upon his evidence, and others who gave evidence on his behalf, the appellant’s letter box was overflowing with unopened mail and other articles.

19. The appellant said in his evidence that during this period he had been attending his general practitioner and had been taking prescribed anti- depressants but they had not overcome his symptoms.

20. The appellant testified that he did not see exhibit A2, the letter of 18 August 2008 from the respondent, until it was brought to his attention by his mother who also gave evidence. Mrs Nicholas testified that she noticed a progressive decline in her son’s state of mental health prior to August 2008. She also gave evidence that she noticed the mail box at the appellant’s residence overflowing with mail and other articles, and that the garden and the premises generally were in an unkempt state. Her evidence was that she collected mail from the appellant’s residence, which included exhibit A2. When Mrs Nicholas saw the content of exhibit A2, she was concerned by it and the impact it may have on her son, given his mental state. She held the letter for some 10 to 14 days, to consider what she should do. Mrs Nicholas said she ultimately informed the appellant about it and showed him it’s content in approximately early September 2008. None of this evidence was challenged by the respondent.

21. Another witness called on behalf of the appellant Ms Allen, who was at material times the appellant’s partner, generally confirmed the appellant’s evidence and that given by Mrs Nicholas as to the decline in the health of the appellant. Ms Allen is also a registered psychologist.

22. The appellant also gave evidence that he did not see an earlier letter dated 7 May 2008 from the respondent to him, enclosing a copy of a medical report from a Dr Silbert dated 27 February 2008, until the time he first saw exhibit A2, in about early September 2008.

23. The medical report from Dr Silbert, which arose seemingly as a result of a referral of the appellant by the respondent for a medical assessment, suggested that the appellant at that time had capacity for work. It is also noted however, that the appellant presented with the “development of a psychological and/or psychiatric state arising over the past 1.5 years”. It was further recommended in the medical opinion that the appellant be “forthwith” referred to a consultant psychiatrist “to establish a clear and unequivocal diagnosis”.

24. It is reasonably clear from the medical report, that Dr Silbert’s opinion and prognosis as to the appellant’s condition at that point, in February 2008, was qualified by his recommendation that there be an immediate assessment by a consultant psychiatrist. It was common ground that no such assessment took place.

25. Additionally it is the appellants’ uncontradicted evidence that from about March 2008, his mental state progressively became worse as has been outlined above.

26. Importantly also, was the appellant’s evidence that as soon as he had exhibit A2 brought to his attention, he took action to challenge his purported dismissal by initially commencing proceedings pursuant to s 29(1)(b)(i) of the Act, alleging he had been harshly, oppressively and unfairly dismissed by the respondent. That application, U116 of 2008, was filed in the Registry of the Commission on 12 September 2008. The appellant subsequently commenced the present appeal and concurrently discontinued application U116 of 2008 on 15 September 2008.

27. In view of the unchallenged evidence of the appellant as to these issues, we consider that the appellant has established an adequate reason for the delay in commencing the appeal.

Arguable Case
28. For the purposes of considering an extension of time to appeal, any assessment of the merits of the proceedings is to be made on a broad brush basis. As was said by Brennan CJ and McHugh J in Jackamara v Krakour (1998) 195 CLR 516 at par 9:
“Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess ‘the merits’ in a fairly rough and ready way”.

29. As we have already observed above, the only testimony lead in these proceedings was by and on behalf of the appellant, which has been outlined above. Whilst it seems from exhibit A1, that Dr Silbert considered that as at February 2008, whilst suffering a psychological and/or psychiatric condition, the appellant had some capacity for work, he clearly strongly was of the view that a further psychiatric assessment should be undertaken. This was not done at that time by either the respondent or the appellant. The appellant’s evidence was however, that over recent months, of his own initiative, he has been attending a consultant psychiatrist, a psychologist and his general practitioner for further treatment.

30. We have also referred to the appellant’s unchallenged evidence that after about March 2008, his condition deteriorated substantially, such that he was unable to undertake basic functions in the course of day to day living. Additionally, is the appellant’s evidence that at all material times, he considered that he remained on unpaid sick leave or “no pay” status as set out in exhibit A2.

31. There was no evidence that the appellant was in contact with the respondent in the period between March and August 2008, despite his obligations as an employee of the respondent. Also however, there was no evidence that the respondent, apart from exhibit A1 being the letter of 7 May 2008, had any contact with the appellant over this same period either. In particular, there was no evidence to explain the gap in time between Dr Silbert’s medical report dated 27 February 2008, and when a copy of it was sent to the appellant under cover of the letter of 7 May 2008.

32. The respondent’s submission was that as set out in exhibit A2, the appellant repudiated his contract of employment with the respondent by his absence without any ongoing contact and it no longer regarded the appellant as its employee. It is not entirely clear from the letter as to when it was that the respondent asserted that the contract between it and the appellant was repudiated, but it is open to draw the inference that it was at least from the date of the letter, that being 18 August 2008, and this has been reasonably assumed for the purposes, as set out earlier, as the period of delay by the appellant in commencing the appeal.

33. The doctrine of repudiation involves a circumstance where a party to a contract evinces an unwillingness or inability to render substantial performance of the contract or a breach of a term of a contract occurs: Koompaahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 241 ALR 88 per Gleeson CJ, Gummow, Heyden, Crennan JJ at pars 44-49. Repudiation by one party gives the party not in breach, known as the innocent party, the option to affirm the contract or to accept the repudiation and regard the contract as at an end. This step, by an innocent party, known as the election, is required for employment contracts as with other species of contracts: Automatic Fire Sprinklers v Watson (1946) 72 CLR 435; Byrne v Australian Airlines Ltd (1995) 185 CLR 410. Whether the respondent’s letter of 18 August 2008 constitutes an acceptance of the appellant’s alleged repudiation is arguable but if so, it may well also constitute a dismissal at law.

34. An alternative basis on which the respondent seemed to suggest the employment of the appellant came to an end was, following an exchange with the Bench, frustration of the contract on the grounds of illness. This is a difficult area of the law and ultimately turns on the facts of each individual case: Simmons Ltd v Hay [1964] NSWR 416; Finch v Sayers [1976] 2 NSWLR 540.

35. On balance, and on the footing that only a “rough and ready” assessment is to be made of the merits at this stage of the matter, we are not persuaded that the appellants’ case is unarguable. There clearly are issues that arise for determination.

Prejudice
36. In all cases where an extension of time to institute proceedings is granted, the opposing party will always suffer the prejudice of having to meet the proceedings. Apart from this, the respondent did not advert to any other particular prejudice it would suffer as a consequence of the grant of the extension of time to appeal in this case.

Conclusion
37. The time within which to lodge the appeal is extended to 15 September 2008 and the Appeal Board ordered accordingly.