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T11945

 

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Kym Sherie Harris
(T11945 of 2005)

and

George Town R&SLA Club Inc.

 

COMMISSIONER JP McALPINE

HOBART, 15 June 2005

Industrial dispute - alleged unfair termination of employment - threshold matter - exceptional circumstances found

REASONS FOR DECISION

[1] On 15 February 2005, Kym Sherie Harris (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with George Town R&SLA Club Inc. (the respondent), arising out of her alleged unfair termination of employment.

[2] The application was listed for hearing on 4 March 2005 (Conciliation Conference) and 5 May 2005 at the Supreme Court, Cameron Street, Launceston, Tasmania.

[3] Ms D Butler, The Launceston Community Legal Centre Inc., appeared for the applicant. Mr J Pedder, Archer Bushby, Barristers and Solicitors, appeared for the respondent.

[4] Mr J Pedder, for the respondent, raised a preliminary objection in that the application had been lodged out of time. I chose to only hear argument around the threshold matter during this hearing.

[5] This matter concerns an application for an extension of time pursuant to s.29(1B) of the Act which reads:

"An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate."

[6] The application, pursuant to s.29(1A), lodged on behalf of the applicant was received in the Commission on 15 February 2005. The application seeks a remedy in relation to the applicant's alleged unfair termination of employment. The application is clearly subject to the time limit of 21 days specified in s.29(1B).

[7] There is no dispute the termination of employment took place on 17 January 2005, which renders the application eight days out of time.

BACKGROUND

[8] The applicant was originally employed on a casual basis in October 2003. Her employment was terminated on 17 January 2005. She regularly worked between 20 and 30 hours per week. There is some contention over the applicant's employment status, whether she was casual or permanent part-time.

[9] The events leading up to her dismissal began on 15 January 2005 with a serious altercation at the respondent's place of business (the Club) between patrons. The applicant was not a party to the altercation. However, her husband intervened and was assaulted.

[10] The applicant was rostered to work the next day, Sunday, 16 January 2005, which she did.

[11] As a result of the altercation on 15 January 2005, on 17 January 2005 the applicant and her husband attended their doctor to have tests to screen for communicable infections, such as HIV. On the same day, she also gave a statement at the Police Station in George Town regarding the incident.

[12] At approximately 3.50 pm on that same day, the applicant was contacted by Mr Harris (no relation) and asked to meet him at the Club as soon as possible. She was due to start her shift at the Club at 6.00 pm.

[13] At the meeting she was informed that the Club management had decided to terminate her employment. Mr Harris (no relation) could not give her a reason for her dismissal.

[14] At 9.30 am on Tuesday, 18 January 2005, the applicant received a telephone call from "her manager" and was invited to attend a meeting with board members at the Club that same day. She was informed at the meeting there had been complaints by other staff that she had been abusive during the incident on 15 January 2005.

[15] Within a few days the applicant was taken to the Accident and Emergency Department of the Launceston General Hospital complaining of stomach pains. She was to return there on a number of occasions before finally being hospitalized on 1 February 2005. Her condition was eventually diagnosed as being the result of post-traumatic stress, probably, according to Dr Ratcliff, triggered by her witnessing the altercation and the attack on her husband on the 15 January 2005.

[16] The applicant was intermittently hospitalized for some time and prescribed a range of medication including anti-depressants, sedatives and painkillers.

APPLICANT'S POSITION

[17] Evidence was presented by the applicant, which outlined the deterioration in her physical and mental health from a few days after the incident in the Club to more recent times. Her evidence was supported by evidence from Dr Angela Ratcliff MBBS, her treating doctor.

[18] Dr Ratcliff painted a picture of her patient initially showing signs of physical distress, progressing into post-traumatic stress. She outlined the applicant's hospitalization, her confusion and mental state and her eventual emergence from the traumatic state. Dr Ratcliff also provided the Commission with a description of the "cocktail" of drugs administered to the applicant. She elaborated on the effect the drugs would have in impeding rational decision-making and the considerable adverse effect on her ability to function normally.

"How would you describe her mental and emotional state during that time?---Very difficulty to describe. She was definitely very, very stressed. I could barely speak to her without breaking down and crying - not me, Kym. She - for the first probably two weeks after the incident, she could barely string a sentence together. We had a lot of difficulty working out what was going on. When she was in George Town Hospital, I had a nurse sit with her for a few hours to try and tease out what the issues were, and that is when we started to get a sense of there had been some incident with something to do with work. An then I saw her probably three or four times after she left the hospital before I realised what was going on." 1

[19] From evidence, it appears the applicant was showing signs of her impending condition as early as 17 January 2005, albeit she only sought medical assistance on the 22nd January 2005.

[20] Ms D Butler, for the applicant, cited several authorities2 in support of her assertion the late application should be accepted under the "exceptional circumstances" provision.

RESPONDENT'S POSITION

[21] Mr Pedder did not challenge the medical evidence of Dr Ratcliff. He did, however, illustrate the applicant made no attempt before she became incapacitated to make application to this Commission under s.29 of the Industrial Relations Act 1984.

[22] Mr Pedder also argued the authorities from the NSW jurisdiction cited by Ms Butler should not be considered because they refer to "special circumstances" and not the perceived higher order "exceptional circumstances" of the Tasmanian legislation. I accept Mr Pedder's argument and rely on the decision by Abey C, dated 18 May 2004, Izard v R.G. Simmons as Trustee for R.G. Simmons Family Trust, T11310 of 2004.

EXTENSION OF TIME PRINCIPLES

[23] Whilst there is little by way of guidance for a consideration of "exceptional circumstances" within this jurisdiction, there is ample authority on the principles and considerations relevant to extension of time applications generally.

[24] Mr Pedder cited a decision by Abey C, dated 18 May 2004, Izard3 v R.G. Simmons as Trustee for R.G. Simmons Family Trust, T11310 of 2004. In this authority, Abey C considered the leading authorities on the matter of extension of time. I am comfortable in applying the process Abey C adopted to the instant threshold matter.

[25] The common threads in the authorities cited by Abey C point to the following as being relevant matters for consideration:

    · The length of the delay;

    · The explanation for the delay;

    · The prejudice to the applicant if the extension of time is not granted;

    · The prejudice to the respondent if the extension of time is granted;

    · Action taken by the applicant to contest the termination, other than applying under the Act;

    · Any relevant conduct of the respondent;

    · The nature and circumstances of any representative error; and

    · The applicant's prospect of success at the substantive hearing.

    [26] These considerations are to be underpinned by the following principles:

      · Prima facie the time limits should be complied with. There is public interest in the prompt institution and prosecution of litigation before the Commission;

      · Ignorance of the law is no excuse;

      · The onus rests on the applicant to demonstrate sufficient reason to justify an extension;

      · Each case must be considered on its own facts and circumstance;

      · The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time;

      · The discretion to allow out-of-time applications is directed towards ensuring that justice is afforded to both parties; and

      · Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

      Industrial Relations Act 1984

      [27] Prior to 1 January 2001, applications were required to be lodged within 14 days of the date of termination, with a discretionary power for the Commission to extend for "any further period the Commissioner considers appropriate in the circumstances".

      [28] This section was amended by the Industrial Relations Amendment Act 2000 [No. 104 of 2000]. The time limit was extended to 21 days, with the power to extend only when the Commissioner "considers there to be exceptional circumstances".

      [29] It is a common understanding Parliament intended, through the 2000 amendment, to both extend the time period and that more rigor be exercised in terms of granting an extension of time.

      [30] The phrase "exceptional circumstances" is not defined and there is little guidance available in terms of authority. In Schwerin v Equal Opportunity Board and Others [1994 2 VR at 287] McDonald J noted the Oxford English Dictionary 2nd ed. definition of "exceptional":

      "... of the nature of or forming an exception; out of the ordinary course, unusual, special ..."

      [31] McDonald J went on to note with approval, the comments of Hedigan J in Owens v Stevens [unreported, 3 May 1991] who was considering the expression "exceptional circumstances" as appearing in Sch. 5 of the Magistrates Court Act. [Vic]:

      "The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendants and the victims. It may be that circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

      Courts have been both slow and cautious before essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."

      [32] In light of these observations it would seem sensible to be guided by the principles established by the various industrial tribunals. As such, I agree with Abey C, that the considerations and principles summarized earlier in this section to be relevant to an application for an extension of time pursuant to s.29(1B).

      [33] For an application to be successful there would need to be an additional element, or elements, consistent with the ordinary and natural meaning of the word "exceptional".

      FINDINGS

      [34] I now apply the principles outlined earlier in this decision to the facts of this case.

      [35] The application was lodged some eight days out of time. This is not a significant delay, however the application was still out of time.

      [36] In the instant application, the tardiness of making the application was not due to lack of awareness of the 21-day limit, nor some technical issue with communications, nor indeed, with human error. The applicant, from evidence was not capable, physically or mentally, of lodging an application with the Commission. The evidence from Dr Ratcliff in my view was compelling.

      [37] I believe the applicant would be prejudiced if an extension of time is not granted. Her failing health impeded her ability to see the matter through at the time. The situation was beyond her control.

      [38] Nothing was put which would lead me to conclude that the respondent would be placed in a position of prejudice should the claim be allowed to proceed.

      [39] The applicant asserted she sought and was given an explanation for her dismissal from members of the Club committee. Her deteriorating medical condition denied her the opportunity to consider and respond to the allegations.

      [40] The respondent has not had an opportunity to tender evidence in the substantive matter yet. I therefore cannot make any determination regarding its conduct in relation to the respondent's influence on the application being late.

      [41] I have no evidence representative error was a factor in the lateness of the application.

      [42] As no evidence has been tendered in the substantive matter, I cannot determine the applicant's prospect of success.

      [43] I turn to the application of "exceptional circumstances" to the request for extension of time. As defined earlier; out of the ordinary, unusual, special. In the instant matter, failure of the applicant to lodge an application, in time, I believe, was beyond her rational control. Her hospitalization, the regime of "potent" prescribed drugs and her subsequent inability to articulate her concerns leads me to believe this is indeed an exceptional circumstance.

      [44] I acknowledge the respondent's assertion, that there was time before she was hospitalized for the applicant to lodge an application. However, the only time constraint stipulated in the Act is that of the 21-day limit. Indeed, the insidiousness of an illness such as post-traumatic stress, I suspect, would not allow one to prepare for the eventuality. It follows there was not requirement for the applicant to submit an application in the days preceding her hospitalisation and subsequent failure of health.

      [45] It should be noted that some dates of hospital attendance and doctor visits may not be quite accurate resulting from Dr Ratcliff having limited notes with her. However I do not believe these potential minor inaccuracies are material to the threshold matter

      [46] I find there is a case for an extension of time, based on the existence of "exceptional circumstances", and I so Order.

      [47] A further hearing to deal with the alleged unfair termination of employment of the applicant will be held at the Supreme Court, Cameron Street, Launceston, Tasmania on Friday, 22 July 2005 at 9.15 am. The Notice of Hearing is attached.

       

      James P McAlpine
      COMMISSIONER

      Appearances:
      Ms D Butler, The Launceston Community Legal Centre Inc., appeared for Kym Sherie Harris
      Mr J Pedder, Archer Bushby, Barristers and Solicitors, appeared for George Town R&SLA Club Inc.

      Date and Place of Hearing:
      2005
      March 4
      May 5
      Launceston

      1 Transcript, para 254
      2 Exhibits A.2, A.3 and A.4
      3 Transcript, para 318