WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 01286

DELIVERED : FRIDAY, 7 DECEMBER 2007

FILE NO. : FBA 11 OF 2007

Appellant

AND

William Thomas John Valli

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S Wood

Citation : 2007 WAIRC 00612

File No : U 38 OF 2007

CatchWords:

Industrial Law (WA) - Appeal against decision of the Commission to extend time to receive application out of time under s29(1) and 29(3) of the Industrial Relations Act 1979 (WA) - Termination of Employment - Harsh, oppressive, unfair dismissal - Decision of Commission was a 'finding' under s49(2a) of the Act - Public interest requirement in s49(2a) not satisfied - Merits of appeal - Discretionary decision - Whether necessary for respondent to have provided acceptable explanation for the delay - Application of Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 - Whether Commissioner found acceptable explanation or properly considered the evidence - Lack of findings in reasons - Whether the Commission erred in its consideration of the merits of the substantive claim - Whether the Commission properly considered the evidence before it - Role of Full Bench – Appeal dismissed

Legislation:

Industrial Relations Act 1979 (WA) – s29(1), s29(1)(b)(i), s29(2), s29(3), s49(2a), s49(3)

Industrial Relations Commission Regulations 1985 – reg 102(4)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Ms M Saraceni (of Counsel)

Respondent : Mr D Schapper (of Counsel)

Solicitors:

Appellant : Deacons Lawyers

Respondent : Parry Street Chambers

Case(s) referred to in reasons:

Azzalini v Perth Inflight Catering (2002) 82 WAIG 2992

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Coulton v Holcombe (1986) 162 CLR 1

Grierson v International Exporters Pty Ltd (2006) 86 WAIG 2935

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Jackamarra v Krakouer (1998) 195 CLR 516

John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918

Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273

Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247

Norbis v Norbis (1986) 161 CLR 513

Australia and Others (1989) 69 WAIG 1873

Skinner v Broadbent [2006] WASCA 2

Case(s) also cited:

Aboriginal Legal Service of Western Australia Incorporated v Lawrence (2007) 87 WAIG 856

Anderson v Rogers Seller & Myhill Pty Ltd (2007) 87 WAIG 289

Appeal by Telstra-Network Technology Group (1997) 42 AILR 3-590

Civil Service Association of Western Australia v Shean (2005) 85 WAIG 2993

Coyne v Ansett Transport Industries (Industrial Relations Court of Australia, unreported 24 September 1996, Decision No 449 of 1996

Devries and Another v Australian National Railways Commission and Another (1992) 177 CLR 472

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Fox v Percy (2003) 214 CLR 118; 197 ALR 201

Gallo v Dawson (1990) 64 ALJR 458

Jackson v Newland (2006) 86 WAIG 933

Matthews v Cool or Cosy Pty Ltd; Ceil Comfort Home Insulation Pty Limited (2003) 84 WAIG 199

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Robowash Pty Ltd v Hart (1998) 78 WAIG 2323

Ryan v Hazelby and Lester trading as Carnarvon Waste Disposals (1993) 73 WAIG 1742

Sealanes (1985) Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia, the Food Preservers Union of Western Australia, Union of Workers, The Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (2005) 86 WAIG 5

Tip Top Bakeries v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1994) 74 WAIG 1189

Valli v Royal International (WA) (1997) 77 WAIG 3497

Worksafe Western Australia Commissioner v Anthony and Sons Pty Ltd t/a Oceanic Cruises (2006) 86 WAIG 2950

Reasons for Decision

RITTER AP:

The Application to the Commission

1          Section 29(1) of the Industrial Relations Act 1979 (WA) (the Act) provides that an industrial matter constituted by a claim that an employee has been harshly, oppressively or unfairly dismissed from his employment may be referred to the Commission by that employee.

2          Section 29(2) and (3) of the Act are:-

“(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept 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.”

3          On 2 March 2007 the respondent filed a notice of application under s29(1)(b)(i) of the Act in accordance with Form 2 to the Industrial Relations Commission Regulations 2005 (the Regulations).  The application asserted the respondent was employed by the appellant from April 1996 until 29 January 2007.  The application also said Mr Schapper was the respondent’s “authorised representative”.  A box was also ticked to indicate the respondent became aware of his right to make the application via his “Legal or industrial advisor”.

4          The application was filed more than 28 days after the date when the employment was said to be terminated.  The respondent therefore included in his application a statement of the “reason/s for not lodging this claim within 28 days of my date of termination of employment and why I consider it would be unfair not to accept the claim”.

5          The respondent wrote on the form:-

“informed Solicitor Derek Schapper 1/2 wks [weeks] after discharge.  Derek was/is representing me & he lost a week or two.  He informed me yesterday 2/3/07 to come in personally to 16FI [sic – agreed by parties to mean 16th floor; where the Commission registry is located] which I have done.”

The Answer

6          The appellant, then acting in person, filed a notice of answer and counter proposal on 22 March 2007.  The answer did not directly address the s29(3) issue but concluded that if the Commission “accepts the out of time claim, I will attend the conciliation conference to address this nonsense personally”.

The Hearing

7          The application proceeded to a hearing on 8 May 2007 and 19 June 2007 so that the Commission could decide whether it would accept the out of time referral.  At the hearing on 8 May 2007 the respondent was represented by Mr Schapper and the appellant appeared for herself.  At the adjourned hearing on 19 June 2007 Mr Schapper continued to appear for the respondent and the appellant was then represented by a solicitor Mr Cook.

The First Day of the Hearing

8          Mr Schapper made a brief opening on 8 May 2007.  In this he submitted that “the merits of the claim” was “of primary importance” in determining the application.  He submitted that the Commission needed to determine prima facie whether the respondent was terminated and whether that termination was unfair for the purposes of determining whether to accept the application out of time.  It was submitted that subsidiary questions were the length of the delay, the explanation for the delay and the prejudice to the appellant if any.  Mr Schapper pointed out that the length of the delay was minimal in that the application should have been filed before 26 February 2007 and it was actually filed on 2 March 2007.  It was submitted it would be difficult to imagine any prejudice to the (now) appellant in the claim being accepted out of time.

9          Mr Schapper then called the respondent to give evidence.  The respondent gave evidence about the facts and circumstances of his termination of employment.  Although it is unnecessary to set out the detail, relevant background from the evidence is that the appellant operates a fundraising business in which it seeks support on behalf of institutions like the Rotary Club of West Perth, Lions Clubs and Police and Citizens Youth Clubs.  The business operated from an office in West Perth.  The respondent said he worked full-time, five days per week, as a fundraiser for the business.  The respondent was paid a 20% commission.  The respondent said that at the time of his termination he was awaiting the payment of a “pledge” by a company for about $3000, which was paid after termination.  He said he received a commission of about $500 or $600 from that payout about 3 or 4 weeks after he left the appellant’s business.

10       In answer to a question in chief about why the filing of the claim did not occur until 2 March 2007, the respondent said:-

“Well, essentially I was waiting for the bulk of the money to come in.  I wasn’t quite sure of the legality.  You know, after 12 years of being engrossed and passionate about a charity business and involved from top to toe, I was, you know, not in a state of shock after being dismissed, but sort of in addition to that I had my head down and trying to promote my real estate and forget the charity work, because I didn’t, you know, I was emotionally involved with my charity work like most people are and, after 12 years, you have reason to be taken aback if you’re [sic] desk is cleared and you’re told to go.”  (T8/9).

11       Shortly after this the appellant cross-examined the respondent.  The cross-examination traversed many matters relating to the alleged termination of employment but not the reasons for delay in filing the application.  The topic also not covered in re-examination.

12       The appellant then gave evidence and was cross-examined.  Again the detail need not be canvassed.  Reference was made though to a statement by Mr David Powlay which the appellant asserted supported her case.  He was the floor manager of the appellant’s business and had been a long time friend of the respondent.  There was an objection to the statement of Mr Powlay being received into evidence when Mr Powlay was not present to give evidence.  Accordingly and upon application by the appellant, the hearing was adjourned.

13       Prior to adjourning the Commissioner made some observations.  (T42/44).  He said he found at that point the delay was minimal and from the answers of the appellant under cross-examination there was no prejudice to the appellant by the delay.  The Commissioner said the appellant was not notified of the challenge to the dismissal, if there was a dismissal, until the application was received.  The Commissioner said about the reasons for the delay:-

“… I’m a bit left in the dark about what the reason is, except that seemingly [the respondent] was looking to chase up some commissions.  But anyway, on those criteria, the matters weigh in the applicant’ [sic] favour.”

14       The Commissioner then said he was not in a position to make even a prima facie judgment about merits at that time.  The Commissioner referred to an assertion made by the appellant in her evidence that the respondent was not an employee.  The Commissioner pointed out that there had been no notice of that claim and if it was going to be asserted it should be put on the record by a detailed letter to the Commission.  The Commissioner said that on the face of the appellant’s answer there was no challenge to the respondent’s status as an employee. 

The Second Day of the Hearing

15       As I have said the hearing recommenced on 19 June 2007.  The respondent was given leave to re-open his case and called a second witness Ms Geraldine Rust, a former employee of the appellant.  The appellant then called Mr Powlay to give evidence.  The appellant’s final two witnesses were Ms Mary Allcott, an employee of the appellant and Mr Gregory Dyson, an assistant manager employed by the appellant.  Once again the detail of the evidence does not need to be set out.  The appellant did not adduce evidence or make submissions to support any claim that the respondent was not an employee.

16       The appellant’s counsel made the following submissions in closing:-

(a) The application was filed only a few days out of time and so it was accepted there was not much prejudice to the appellant.  (T75).

(b) Reference was made to the evidence of the respondent quoted above about the reasons for the delay.  It was submitted the Commission could infer from the contents of the application and the respondent’s evidence that he was aware of the time limit and had sufficient time to make the claim within time.  (T75).

(c) The Commission needed to form a preliminary view about whether there had been a dismissal.  It was submitted the evidence taken at its highest and most favourable to the respondent did not establish a dismissal.  (T76).

17       The submissions of the respondent’s counsel in summary were:-

(a) Mainly about the evidence on the alleged dismissal. 

(b) Even on the appellant’s version of events, there was a dismissal.  This was because the respondent was paid on a commission only basis and on the appellant’s evidence the respondent was told not to come into his office for a month. 

(c) This was a termination of employment.  (T76/77).

(d) Counsel also referred to the comments made by the Commissioner at the end of the first day of the hearing, set out earlier.  He submitted the comments were correct.  (T78).

18       A brief point in reply was made by the appellant’s counsel and the Commissioner then reserved his decision.

The Order and Reasons

19       On 17 July 2007 an order was made that “it would be unfair not to accept [the respondent’s] application pursuant to s 29(1)(b)(i)”.  On the same date the Commissioner published his reasons for decision.

20       In paragraph [2] of the reasons the Commissioner said:-

“The Industrial Appeal Court (IAC) set out the criteria for deciding such an application in Prem Singh Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683.  The delay in making the application is short and Mr Valli did not advise the respondent of any challenge prior to making the application.  There is no prejudice to the respondent in now having the matter heard.  The delay in making the application arose, on Mr Valli’s evidence, because he waited for the bulk of his outstanding commissions to be paid, he was not sure about the legality of the situation, he was in a state of shock and he had his head down promoting his real estate work.  These criteria weigh in favour of the applicant.”

21       The Commissioner then summarised the evidence of each of the witnesses about what happened on and around 29 January 2007, which was the critical date.

22       At paragraph [13] of his reasons the Commissioner said there were considerable differences in the accounts of the witnesses but “the key issue is whether [the respondent] was in fact dismissed”.  The Commissioner said he needed to assess the evidence of the appellant, the respondent and Mr Powlay.  The Commissioner said that having “seen [the respondent] give evidence I would treat the whole of [the respondent’s] evidence with some caution”.  ([14]).

23       At paragraph [16] however the Commissioner accepted the respondent’s evidence that he was required to take leave from his employment.  He found it was an enforced absence and one which was not open to the respondent to refuse.  Earlier, in paragraph [15], the Commissioner said that on the appellant’s evidence the respondent was at the very least suspended.

24       In paragraph [18] of his reasons the Commissioner said:-

“In Macken, O’Grady, Sappideen and Warburton, “Law of Employment” (fifth edition) they discuss “suspension” and make the point at p. 158 that, “an employer has no common law right to suspend an employee without pay”.  This issue was also canvassed by Gray J in Gregory v Philip Morris Ltd (1987) 19 IR 258 @ 279.  He stated, “The respondent could not suspend the applicant without pay, pending clarification of his membership status; suspension without pay is not open to an employer in the absence of a term of the contract of employment or of an award permitting such suspension.  See Re Application by Building Workers’ Industrial Union of Australia (1979) 41 FLR 192 @ 194.  To suspend the applicant on pay would have been to treat him more favourably than other employees of the respondent….”  The Full Court overturned this decision on appeal (Gregory v Philip Morris Ltd (1988) 80 ALR 455 @ 473) because they considered that the company should have explored the alternatives with Mr Gregory, including possibly obtaining his consent to suspension without pay.  However, they reiterated that unilateral action by an employer to suspend an employee without pay where there has been no consent by the employee is unlawful.”

25       In paragraph [19] the Commissioner said: “The question then as to whether [the respondent] was dismissed is answered.  [The respondent’s] suspension constituted a dismissal in the circumstances”.  In paragraph [20] the Commissioner said there “was no evidence that [the respondent] had been warned that his performance would need to improve or he would be suspended or dismissed.  I am not deciding the merits of the application at this point, except to say that the application at this time is at least arguable”.  This seems to be a reference to the unfairness of the dismissal.

26       The Commissioner concluded in paragraph [21] as follows:-

“Having then considered all the relevant criteria I would find that it would be unfair not to accept this application, it being out of time, and I will order accordingly.”

The Notice of Appeal and Amendment

27       On 21 August 2007 the appellant filed a notice of appeal against the order made by the Commission. 

28       In the notice of appeal the appellant’s name was styled “Julie-Anne Friessbourg”.  Counsel for the appellant brought to our attention that the application cited the (then) respondent as “Julie Anne Friesbourg” (with one “s”).  Additionally, she was named in the order on 17 July 2007 as “Julie Anne Friesbourg J.A.F. Promotions”.  Counsel explained the appellant’s name and the business in which the respondent asserted he was employed, were correctly styled in the notice of appeal.  In the circumstances I do not think the anomaly in the application or order is of consequence.  Neither counsel submitted it was.

29       The Full Bench also referred counsel to the mention of s29(1)(b)(i) in the order of the Commission.  There was some discussion about whether this was the appropriate section.  In my opinion the issue is not material to the determination of the appeal.

30       Attached to the notice of appeal was a schedule containing the grounds of appeal.  The decision appealed against was a “finding” as defined in s7 of the Act.  Accordingly, s49(2a) of the Act applied, which is as follows:-

“(2a) An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.”

31       The notice of appeal did not comply with r 102(4) of the Regulations, which requires a statement of “reasons why it is considered that the matter is of such importance that in the public interest an appeal should lie.”  Indeed the notice of appeal did not refer to the requirement for leave.

32       A document described as the appellant’s amended notice of appeal was filed on 4 October 2007.  The purpose of the filing of this document was to seek to add ground of appeal 1(7) about the requirement for leave under s49(2a) of the Act.  Proposed ground 1(7) did not set out why the public interest requirement was satisfied, it simply asserted that it was.  This still did not comply with r 102(4).  Despite this, the Full Bench advised at the hearing of the appeal that an order allowing the amendment would be made in due course.

The Grounds of Appeal

33       The grounds of appeal as amended are:-

“GROUNDS OF APPEAL

1. The Commissioner erred in fact and law in extending the time in which the Respondent had to lodge his harsh, oppressive or unfair dismissal application.

PARTICULARS

(1) The Commissioner erred in finding that there was an acceptable explanation for the Respondent’s delay in filing the application.  The Respondent’s evidence that he:

(a) was waiting for “the bulk of his outstanding commissions to be paid”;

(b) was “not sure about the legality of the situation”; and

(c) “was in a state of shock and he had his head down promoting his real estate work.”

does not, on balance, provide a satisfactory explanation for failing to lodge his application within the prescribed timeframe.

(2) The Commissioner failed to take adequate account of the fact that on the Respondent’s Form 2, Notice of Application dated 2 March 2007, that the Respondent sought legal advice on 1 February 2007, 2 days after the alleged termination.

(3) The Commissioner erred in failing to give due consideration to the fact that the Respondent did not take any step to notice the Appellant that he was contesting the alleged termination, apart from filing the application itself.

(4) The Commissioner failed to give adequate consideration to the lack of merits in the Respondent’s substantive claim, in that:

(a) the Respondent was engaged as an independent contractor and not as an employee; and

(b) in the alternative, if the Respondent is found to be an employee, that there was no termination of employment at the initiative of the employer, or at all.

(5) The Commissioner failed to give adequate consideration to the fairness as between the Respondent and other persons in a like position are relevant to the exercise of the Court’s discretion, in that the Commissioner extended the time in which the Respondent had to lodge his unfair dismissal application when the Respondent had sought legal advice within the 28 day time limit.

(6) The Commissioner erred in exercising his discretion in preferring the Respondent’s evidence over that of the Appellant’s, notwithstanding the Commissioner’s [sic] concluded that the Respondent’s evidence should be treated “with some caution”.

(7) It is in the public interest as outlined in section 49(2a) of the Industrial Relations Act (WA) for the appeal to be heard.”  (footnotes omitted)

Leave to Appeal

34       The appellant accepted the correctness of the observations I made about the public interest requirement in s49(2a) of the Act in Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 at [13]-[14] as follows:-

“13 In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”.  As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest.  The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal.  The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.

14 The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.”

35       In her written outline of submissions the appellant’s counsel submitted the public interest requirement was satisfied because the proposed appeal demonstrated that in making a discretionary decision the Commissioner erred.  In her oral submissions counsel also said the proposed appeal raised matters of public interest being the jurisdiction of the Commission when the respondent was a commission only paid agent, the role of the Full Bench in determining appeals on the basis of alleged errors in credibility findings and how fairness in s29(3) of the Act was measured.

36       The respondent’s counsel correctly submitted that none of these matters were previously particularised.  Nevertheless counsel did not seek an adjournment or time to make written submissions in answer to them.  The respondent opposed leave to appeal being granted because none of the errors identified in the grounds of appeal or the arguments made by counsel at the hearing satisfied the public interest test. 

37       I accept this submission.  Although the proposed appeal involves questions of importance for the appellant they do not satisfy the public interest criteria as identified in Murdoch University.  In my opinion the principles to be applied by the Commission in determining the question contained in s29(3) of the Act are well established.  The present appeal does not cavil with these principles but really argues about the application of the principles and the findings of fact made by the Commissioner.  The question of the Commission’s jurisdiction with respect to commission only paid employees does not properly arise as it was not argued at first instance (Coulton v Holcombe (1986) 162 CLR 1; s49(4) of the Act).  The way in which to decide appeals against credibility findings is also settled.  (See Grierson v International Exporters Pty Ltd (2006) 86 WAIG 2935 at paragraph [50] ff).  This is not therefore a “matter” which in my opinion attracts the exercise of the discretion in s49(2a) of the Act.  Accordingly the appeal should be dismissed. 

38       I also make the following respectful comments about s49(2a) of the Act in the context of s49 as a whole.  Section 49(2a) is not clearly worded.  It does not with clarity say that “leave to appeal” is required although this is the effect of its contents.  There is also some tension between s49(2a) and s49(3) of the Act for appeals “instituted” against findings.  I discussed this tension in the context of s s49(11), where an application for a stay may be made after an appeal is “instituted”, in John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918 at paragraphs [20]-[30].  I concluded that an appeal against a finding was “instituted” when filed even though at that point the Full Bench had not made a decision about whether the appeal should lie.  Regulation 102(4) in the use of the word “appeal” operates on a consistent basis with my reasons in John Holland.  With respect though, in my opinion these aspects of s49 would benefit from legislative attention.

39       As the appeal was fully argued and in case there is an appeal against the dismissal on the basis of s49(2a), it is appropriate to go on and consider the other grounds of appeal.  In doing so I will ignore the fact that in my opinion the appeal should be dismissed for the reasons already expressed.

The Grounds of Appeal Generally

40       The appellant accepted the decision of the Commissioner involved the exercise of a discretion.  Accordingly an appeal could only succeed if the discretion had miscarried because of an error of the type identified in House v The King (1936) 55 CLR 499 at 504/5, Norbis v Norbis (1986) 161 CLR 513 at 518/9 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21] and [72].

41       The appellant submitted that in reaching the conclusion that an extension of time ought to be granted the Commissioner incorrectly applied, and/or gave insufficient weight to evidence relevant to the application of, the criteria set out in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.  The appellant relied upon the summary of these cases and the applicable criteria set out by Kenner C in Azzalini v Perth Inflight Catering (2002) 82 WAIG 2992.

42       In Malik the Industrial Appeal Court decided an appeal where the sole ground was that the Full Bench erred in its construction of s29(3) of the Act by holding an applicant had a positive obligation to establish merit in the proposed claim.  At paragraphs [25]-[27], Steytler J said:-

“25 In my respectful opinion, that reading of s 29(3) adds an impermissible gloss to the simple meaning of its words.  The Commission is empowered to accept a late referral if it would be "unfair" not to do so and, while an assessment of the merits "in a fairly rough and ready way" (see Jackamarra v Krakouer (1998) 195 CLR 516 at [9]) will often be an important consideration, there is nothing in the words of s 29(3) which imports any obligation, on the part of an applicant, to establish any degree of merit (and it should not be overlooked, in this regard, that the Commission is given broad powers to dismiss a matter summarily under s 27(1)(a) of the Act).  It is, of course, difficult to imagine that it would ever be unfair to an applicant to deny him or her the right to lodge a referral out of time where it was positively shown that the applicant had no prospect of success.  However, that is a very different proposition from one to the effect that an applicant has, in every case, an obligation to show that he or she has some prospect of success.

26 Like E M Heenan J, I consider that the principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite.   As E M Heenan J has said, Marshall J there identified the following six "principles" (at 299 - 300):

"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant.  It will show that the decision to terminate is actively contested.  It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."

27 Those "principles" or considerations are not exhaustive and, putting to one side the uncontestable proposition that there must be something positively to satisfy the Court that it would be unfair not to accept the referral out of time, none of them is necessarily decisive and each case will turn upon its own individual facts and circumstances.”

43       Steytler J dissented on the outcome but not on a basis which affects the authority of what his Honour said in these paragraphs.

44       Pullin J at paragraph [44] of his reasons said:-

“44 The result is that the correct approach to applications under s 29(3) of the Act is to consider the sole criterion of whether it would be unfair not to grant the extension.  Factors which are relevant will vary from case to case.  The length of the delay and the reasons for the delay will usually be relevant factors.  The merits of the substantive application will usually be a relevant factor, but it is not a sine qua non.”

45       E M Heenan J in his reasons at paragraph [67] emphasised that great care should be taken in using any test which did not employ the precise statutory language contained in s29(3) of the Act.  At paragraph [74] his Honour quoted the above passage of the reasons of Marshall J in Brodie-Hanns.

46       In my opinion Malik sets out the approach which the Commission ought to follow in deciding s29(3) applications.

Grounds 1(1) and (2)

47       These grounds are both directed to the Commissioner’s findings about whether there was an acceptable explanation for the delay.

48       The appellant submitted the respondent’s evidence about the delay in filing was:-

(a) He was waiting for “the bulk of his outstanding commissions to be paid”.

(b) He was “not sure about the legality” of the situation.

(c) He was “not [sic] in a state of shock after being dismissed”.

(d) He had his head down promoting his (new) real estate work.

49       The appellant pointed to paragraph [2] of the reasons for decision and in particular the final sentence.  It was submitted the Commissioner erred if he decided the respondent had given an acceptable explanation for the delay which therefore supported a favourable exercise of the discretion.  A difficulty with this paragraph of the Commissioner’s reasons is that there was no analysis of the evidence of the respondent about the delay.  The Commissioner said he was following Malik but did not say if or if so why he found the respondent’s explanations acceptable.  The final sentence contains a hint perhaps that he did but does not with respect contain any analysis or clear conclusion.

50       The appellant submitted the time limit imposed by the Act is to be complied with.  This point is accepted and is made in the authorities referred to earlier.  It was also submitted that the “time limit of 28 days must be complied with unless there is an acceptable explanation for the delay”.  If this submission includes the assertion that absent an acceptable explanation for delay the discretion to accept the application cannot be exercised then I do not accept this.  To construct and apply such a rule would be a gloss on what the legislation says and is contrary to the approach mandated by the IAC decision in Malik.  Whilst ordinarily the explanation for the delay may be a factor of some relevance, it cannot be said that in every case where there is not an acceptable explanation for the delay the Commission ought to inevitably find there will be no unfairness in not accepting the application out of time.  Whether there is a good explanation for the delay is a factor which can be weighed up along with others in deciding the question posed by s29(3) of the Act. 

51       The appellant also relied on the terms of the application as filed.  This recorded the respondent became aware of his right to make an application through a “Legal or industrial advisor”.  This was linked to the reasons in the application for not lodging the claim within 28 days, quoted above.  It was submitted the Full Bench could infer that if the respondent consulted Mr Schapper one to two weeks after his “discharge” and the respondent said he became aware of his right to make the application from a “Legal or industrial advisor”, the “advisor” was Mr Schapper and a legal practitioner of his experience would have told the respondent the time limit.  I think there is some merit in this submission.  There can at times be a fine line between speculation and inference but I think the facts relied on do support the inference that the appellant contends.  Additionally the respondent did not assert lack of knowledge of the time limit in either his evidence or application.  He merely tried to explain the lateness.  Therefore I think the inference should be drawn that he knew of the time limit.  The “fact” referred to in ground 1(2), the timing of seeking of the advice from Mr Schapper, was not mentioned by the Commissioner.  In the circumstances I think it can be concluded that this fact was overlooked or not considered.  (Skinner v Broadbent [2006] WASCA 2 at [37]).  Ground 1(2) is therefore established.

52       The acceptableness of the explanation for the delay was a matter to be assessed by the Commissioner.  In my opinion however there is merit in the submission that the explanations given by the respondent in his evidence were not cogent.  If I was considering the application, I might well have formed the view that the explanations were not acceptable.  I have earlier quoted the relevant passage of the respondent’s evidence.  I find it hard to see that the respondent waiting for the appellant to receive the pledge from the business or him being paid the consequent commission were valid reasons for not filing the application within time.  It is unclear what the respondent meant when he said he was not “quite sure of the legality”.  This may relate to his entitlement to the commission from the pledge but it is neither a clear nor acceptable explanation.  Next the transcript quotes the respondent as saying he was “not in a state of shock after being dismissed”.  From the context it appears likely the respondent intended to say that he was in a state of shock.  This assertion is understandable on the facts as found by the Commission.  It would not on its own in my opinion explain why the respondent did not file the application within the period of 28 days.  The respondent was clearly able to take advice from Mr Schapper within that time.  There was no independent or medical evidence about “shock”.  Although this was not necessary to support a colloquial claim of “shock” it suggests the “shock” was not that severe.  The respondent also said he had his “head down” trying to promote his real estate business.  Again this may be so but it does not necessarily provide a good explanation for not taking the relatively short amount of time necessary to file the application.  The lack of detail also tends to undermine the explanation.

53       Accordingly, in my opinion the Commissioner may have erred if he made a finding that there was an acceptable explanation for the delay in filing the application.  It is unclear however if this is what the Commissioner found.  This is because he did not, with respect, deal separately or clearly with the issue of the explanation.  The Commissioner’s statement that the “criteria weigh in favour of the” respondent did not explain how or why he arrived at this conclusion.  The Commissioner should in my respectful opinion have taken this step.  (See Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273).

54       In my opinion the absence of an acceptable explanation for the delay was a factor which weighed against the exercise of the discretion in the respondent’s favour.  As the Commissioner did not find or at least clearly express his conclusion, in my opinion it is difficult to ascertain if ground 1(1) is established.  I am prepared to assume however that it is.

55       If grounds 1(1) and (2) are upheld it does not mean the appeal will necessarily succeed.  The appeal does not succeed just because the Commissioner made an error in the assessment of relevant criteria in deciding the question posed by s29(3) of the Act.  In the circumstances of this appeal it is only if the Full Bench concludes the error led to a wrong exercise of the discretion that the appeal will be allowed.  Put slightly differently, if despite any errors made by the Commissioner, the Full Bench is nevertheless of the view that the discretion ought to have been exercised in favour of the respondent, the appeal will be dismissed.

56       This issue will be considered after an examination of the other grounds.

Ground 1(3)

57       I have already referred to the contents of paragraph [2] of the Commissioner’s reasons.  There is specific reference in the paragraph to the respondent not advising the appellant of any challenge to the termination prior to the making of the application.

58       The reference to a failure to give “due consideration” in the ground is an attack upon the weight which the Commissioner placed upon this factor.  Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 520 said that “an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”  In my opinion, this applies to the current appeal ground.

59       I do not accept the Commissioner erred as asserted.  In this instance, the failure to advise the appellant that the termination was liable to be challenged was of no real consequence.  There was no prejudice to the appellant which was said to flow from this.  Accordingly, it was not a factor of much weight.

Ground 1(4)

60       This ground also suffers the difficulty of an assertion that there was a failure to give “adequate consideration”.  It again brings into focus the warning of Stephen J quoted above.  Ground 1(4)(a) can be quickly disposed of.  The issue that the respondent was engaged as an independent contractor was not pressed before the Commissioner.  I have earlier referred to the Commissioner’s observations at the end of the first day of the hearing.  The issue was not taken up again prior to or at the adjourned hearing on 19 June 2007.  Accordingly, the Commissioner cannot be criticised for failing to give any “adequate consideration” to the issue. 

61       Ground (1)(4)(b) occupied much of the oral submissions of the appellant.  Although the drafting of this sub-ground is a little awkward, the assertion appears to be that the Commissioner did not give adequate consideration, if the respondent was an employee, to there being no termination of employment.  The issue of whether the respondent was an employee can be put to one side, because as just stated this was not placed in issue before the Commissioner.  The intent of the ground and submissions of the appellant was to establish the Commissioner ought to have found there was no termination of employment. 

62       It is relevant to consider the nature of the hearing before the Commissioner.  It was effectively an application to extend time.  It was not a hearing about whether there had been a dismissal/termination for the purpose of determining jurisdiction.  If the extension of time was granted, and the application did not settle, it would proceed to arbitration.  At the arbitration, to succeed the respondent would need to prove that he was dismissed and unfairly so.  It is apparent the appellant contests whether there was a dismissal.  This was not however an issue which the Commissioner was required to determine as part of the s29(3) hearing.  To proceed on this basis would at least partly conflict with the approach mandated by Malik.  The IAC emphasised that the merit of the claim may be relevant.  Steytler J referred to a merits assessment in a “fairly rough and ready sort of way” (quoting Jackamarra).  His Honour also said if it “was positively shown that the applicant had no prospect of success” it would be difficult to imagine unfairness.  This was the framework within which the Commissioner was required to operate.  As submitted at least at times by counsel before him, the Commissioner did not need to decide the merits in other than an arguable or “prima facie” way.

63       Despite this it seems that the Commissioner went further than he was required to and positively decided there was a dismissal.  In paragraph [16] the Commissioner did not simply find the respondent’s position or evidence to be arguable, he accepted it, despite the earlier expressed reservations about the respondent’s evidence.  In paragraph [15] the Commissioner decided the respondent had been suspended and in paragraph [18] the Commissioner cited Macken in support of the proposition that a suspension constituted termination.  In paragraph [19] the Commissioner found that there was a “dismissal in the circumstances”.

64       Although the Commissioner did not decide whether the termination of employment was harsh, oppressive or unfair, the reasons show he made a finding on an important fact which was to be disputed at the final hearing of the application.  He did not simply decide whether this part of the application was arguable in a “rough and ready” sort of way.

65       The appellant does not complain about this as such; instead as I have mentioned she sought to persuade the Full Bench that the Commissioner ought to have made a finding that there was no termination.  The appellant’s counsel then took the Full Bench to a number of passages of the evidence.  (T75-76).  I have considered these.  It is not necessary to detail this evidence.  I am not satisfied the evidence was such that the only conclusion the Commissioner could properly reach was there was no termination.  As is apparent from the transcript of the evidence and the Commissioner’s reasons, there was conflict between the evidence of different witnesses.  The Commissioner assessed the evidence of the respondent with care and made a finding that his evidence on a key fact was accepted.  Given the difficulties of an appeal court assessing the correctness of a finding based in part upon credibility and the limited enquiry about the merits which the Commissioner was required to make, I am not satisfied the asserted error occurred.  (On credibility findings and appeals see Skinner at paragraphs [32]-[37] and Grierson at [50] ff).

66       In addition, if there was a “suspension” as the Commissioner found, it was at least arguable there was a dismissal.

Ground 1(5)

67       This ground can be quickly disposed of.  I am not satisfied there is any basis upon which the Full Bench could decide the Commissioner erred as asserted.  In her outline of submissions, the appellant referred to the decision being likely to encourage other applicants to delay filing proceedings.  I do not accept this is established.

Ground 1(6)

68       Again this ground can be quickly disposed of.  The Commissioner clearly expressed that he treated the evidence of the respondent with care. Nevertheless, he accepted the respondent’s evidence as set out in paragraph [16] of his reasons.  The Commissioner was not prevented from making this finding by his earlier expression of caution in looking at the respondent’s evidence.  The finding was not inconsistent with what the Commissioner earlier expressed. 

Conclusion on Appeal

69       As I have set out, grounds 1(1) and (2) are the only grounds which are or I have been prepared to assume are established.  The appeal will be allowed if the errors made by the Commissioner led to a wrong exercise of the discretion.

70       The question for the Commissioner was whether it would be “unfair not to” accept the referral by the respondent.  The Commissioner took into account relevant factors as identified in Malik.  I have found or assumed that it is established the Commissioner failed to take into account that the explanations given for the delay in filing the application were not cogent and that the contents of the application form supported such a conclusion.  Additionally, it must be accepted that time limits are ordinarily meant to be observed and the mere failure of any prejudice to an employer, as here, will not necessarily lead to the exercise of the discretion in favour of an employee.  In the present case however the findings by the Commissioner established the claim has merit.  The delay in the filing of the application was not in any way substantial; it was only three or four days out of time.  As stated by Steytler J in Malik, there must be something positively to satisfy the Commission that it would be unfair not to accept the referral out of time.  In the present case, the merit of the claim as found by the Commission, the short period that had expired since the end of the 28 day time limit and the lack of prejudice to the respondent were factors which pointed positively to the exercise of the discretion in the respondent’s favour.

71       Accordingly, even if grounds 1(1) and 1(2) are upheld, I am not satisfied the Commissioner erred in concluding it would be unfair not to accept the application.

Conclusion and Orders

72       As I have said, in my opinion the appeal should be dismissed because this is not an appropriate “matter” favouring the exercise of the discretion under s49(2a) of the Act.  Even if the appellant passed the s49(2a) hurdle however the appeal should be dismissed on the merits for the reasons I have expressed.

73       In my opinion, the appropriate orders are:-

1. The appellant has leave to amend the notice of appeal to the form of the document filed on 4 October 2007.

2. The appeal is dismissed.

74       A minute of proposed order should in my opinion be published in these terms.

HARRISON C:

75       I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.

MAYMAN C:

76       I have had the advantage of reading the draft reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing further to add.