T5392
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr D Dannals and Minister for Public Sector Management
Threshold matter - Time for lodgement of application (Section 29(1B) and Section 21(2)(m) REASONS FOR DECISION This was an application by Mr Dannals pursuant to Section 29 of the Act concerning his termination of employment in November 1993 by the Minister for Public Sector Management (the Minister). At the commencement of proceedings, Mr McCabe for the Minister, raised a threshold matter relating to the time of the lodgement of the application by Mr Dannals. He submitted that Section 29(1)(B) of the Act stipulated a 14 day time limit in the following terms:
Mr McCabe submitted that the application made by Mr Dannals on 27 February 1995 was 58 days after the imposition of the 14 day lodgement period for applications which arose as a consequence of an amendment to the Act operative from 16 December 1994. Mr McCabe contended that Mr Dannals would have to convince the Commission that there were extenuating and compelling reasons why the Commission should exercise its discretion in accordance with Section 21(2)(m) of the Act to extend the time for making the application. He said no such reasons existed because:
In respect of that part of the ILO Convention dealing with the termination of employment at the initiative of the employer, Mr McCabe submitted that Mr Dannals had at least two opportunities to have his termination reviewed and on both occasions had not made application within the statutory time limits. The first of these related to appeal proceedings which were available to him pursuant to Section 66(1)(ii) of the Tasmanian State Service Act 1984 (the State Service Act) consequential to the outcome of an inquiry. Mr Dannals had 14 days to lodge an appeal which he did not do. Secondly in the winding up of matter T4358 of 1993, the Commission, as constituted in this matter, in its 4 May 1994 Reasons for Decision concluded that a fresh application could be made by Mr Dannals or by his employee organisation. Mr McCabe submitted nothing was done in respect of making application either by Mr Dannals or on his behalf following the decision in May 1994. Mr McCabe said in respect of the current application by Mr Dannals that it was:
Mr McCabe stated that 14 days was a fair and reasonable period for a former employee to seek to review his or her termination. He said that the Industrial Relations Act 1988 contemplated that period. Other States' provisions were also canvassed resulting in Mr McCabe to submit that "anything between 10 days to 28 days after termination" (Transcript p17) represented a reasonable time period for the lodgement of an application. Exhibit M1 tendered by Mr McCabe was a Reasons for Judgement by Judicial Registrar Parkinson in VI657 of 1994. The salient points were as follows:
Mr McCabe acknowledged that Parkinson JR had considered the circumstances in that particular case on the merits of what was put before him. Mr McCabe also submitted that Parkinson JR concluded that the period between 27 April 1994 and 1 June 1994 was a significant period of time that had elapsed after the 14 day period had ended. Mr McCabe said that this would have to be interpreted that the period from 12 May 1994, which was the fourteenth day after the date of termination to 1 June 1994, a period of 21 days, was not a reasonable time to allow the application to proceed. Mr McCabe compared that 21 day period to the 58 day period which represented the number of days Mr Dannals was outside the prescribed time limit for the lodgement of applications. It was contended by Mr McCabe that Mr Dannals would have to provide the Commission with extremely compelling reasons why he was not able to submit an application in the 14 day period required by the Act. Mr McCabe further submitted that extending the time prescribed would be prejudicial to the Minister in that Mr Dannals:
Mr McCabe said:
Mr McCabe submitted that Mr Dannals had foregone his rights and that he would put the employer in a highly compromised position if Mr Dannals were to be re-employed or reinstated. The Commission was told that Mr Dannals prior to his dismissal in November 1993 was suspended from 11 May 1992 and accordingly had not worked for the Ambulance Service for nearly 3 years. Since the date of his dismissal, a period of 15 months had elapsed during which time he had not undertaken any active service with the Ambulance Service. Mr McCabe stated that in that 15 month period Mr Dannals had not acted to have his termination reviewed. It was contended that Mr Dannals would be out of skill and extensive re-training would be required to bring him up to operational standard. Having dispensed with the services of Mr Dannals on two previous occasions following exhaustive inquiries, Mr McCabe submitted that it was obvious that the Department concerned did not consider Mr Dannals capable of performing as a competent ambulance officer. Submissions for Mr Dannals Miss Mackey appearing for Mr Dannals submitted that the time limit for making applications were not relevant in this case. She submitted as the termination occurred on November 1993 the law as it was then should be applied and that the amendment to the Act could not be given retrospective effect unless there were clear statutory intentions to the contrary. Miss Mackey said:
and later
Miss Mackey submitted that as at November 1993 when Mr Dannals was terminated the Act as it stood at that time contemplated that the Commission had jurisdiction in respect of disputes involving persons dismissed as employees and who, when no longer holding that status subsequent to the dismissal, might be reinstated. Also that the Commission had powers to make orders in respect of that termination. Miss Mackey stated that as at November 1993 Mr Dannals had the capacity, in his own right, to access the Commission. This was by virtue of amendment No 59 of 1992 effective from 1 March 1993. Miss Mackey said:
Miss Mackey contended that Section 29(1) processes were adopted by Mr Dannals in bringing his application in this matter forward. She submitted that Section 29(1) applied to industrial disputes that had arisen or which may arise. It was submitted, in essence, by Miss Mackey that at the time the industrial dispute arose in this matter, Mr Dannals was a former employee as he had been terminated and that the term employee in Section 29(1) must be read to include former employees for that Section to make sense. Miss Mackey informed the Commission that:
Miss Mackey contended that if the definition of employee was not read down to include former employees it would make the jurisdiction of the Commission otiose by denying access to the Commission of individual employees. She said that this would fly in the face of the statutory intention that such employees have the right to apply. Miss Mackey stated that the statutory intention was made clear by virtue of the December 1994 amendments to the Act which put beyond doubt that former employees could apply to the Commission. She submitted that the tenor of the December 1994 amendments provide a tool for interpretation of the Act as it existed prior to that amendment. Miss Mackey informed the Commission that this process was relied upon by His Honour Mr Justice Cox in the Newtown Timber Case wherein reference to Pearce's Statutory Interpretation in Australia,1 His Honour stated:
Miss Mackey contended that as at November 1993 the Commission had jurisdiction to deal with termination of employment and Mr Dannals had power to request or apply (transcript p61) to the Commission. She said the introduction of a 14 day time limit in December 1994 post dated the dismissal of Mr Dannals and had the effect of altering his legal rights. Miss Mackey said:
Miss Mackey also supported that proposition with a High Court decision and in particular the decision of the Chief Justice, His Honour Mr Justice Dixon, where he said:
Having regard to the foregoing Miss Mackey submitted that Mr Dannals had a right, unfettered by specific time constraints, to apply to the Commission. Miss Mackey said the subsequent introduction of a time limit materially offended his rights and therefore cannot apply to him retrospectively. On the question of extending time pursuant to Section 21(2)(m) Miss Mackey contended that this matter fell into the category where the discretion available to the Commission should be exercised by it. She stated that her submissions on that point would also apply to the general question of delay. Miss Mackey said:
It was contended by Miss Mackey that whether the Commission was acting in accordance with equity and good conscience to extend the time would rely on an evaluation of a number of factors including:
Miss Mackey emphasised that each case turned on its own facts and by the very nature of the Commission's discretion the decision of Parkinson JR was of little relevance and little use to the Commission. This was particularly so, Miss Mackey said, because the Industrial Registrar did not in any way seek to define the factors on which he exercised his discretion. Miss Mackey submitted that in the case of Mr Dannals he had given evidence to the Commission in order to provide an insight to events occurring from the time around his dismissal. The point was made by Miss Mackey that Mr Dannals' actions or inactions predating the dismissal were irrelevant. As to the failure of Mr Dannals to utilise the appeal procedure available to him pursuant to Section 66 of the State Service Act, Miss Mackey submitted that he had given reasonable explanation as to that failure. She said after the dismissal was affected Mr Dannals:
It was submitted by Miss Mackey that part of the reason why Mr Dannals did not pursue any application in the Commission following the handing down of Reasons for Decision in T4358 of 1993 was that he had made frequent representations to the Tasmanian Ambulance Service to obtain an interview with the Director of Ambulance Service in order to discuss the issues. According to Miss Mackey he was invited to do so but was frequently and over a long period rebuffed and not given an audience. Miss Mackey contended that it was ironic given the circumstances surrounding Mr Dannals that the Minister should make submissions concerning delay when it took the Minister slightly less than two years to effect that dismissal from the date of the original event. She made the point that the compromised position of the Minister advanced by Mr McCabe in the event an extension of time was granted related to issues concerning reinstatement. Miss Mackey submitted that this issue was not relevant to the question of extending time. She said that issues concerning the appropriateness and the difficulty of reinstatement were best canvassed after a decision was made on the merits of the case and should be dealt with at that time. In concluding her submission Miss Mackey reiterated that the 14 day time limit did not apply to Mr Dannals. If it did then the Commission should exercise its discretion because: - the matter had been continued to be agitated - there had been stress caused by the proceedings taken against Mr Dannals and during the interim period he had suffered from that stress - representations were made in T.4358 of 1993 that the Minister would not seek to set aside any future application and no specific time frame was placed on that application being made - that it was reasonable in the light of the Minister's representations and his statutory entitlements as he believed them to be as at November 1993 that no issue would be taken with delay in instituting fresh proceedings Submissions in Reply Mr McCabe rejected that Mr Dannals continued to have rights to make an application unfettered by time constraints after the proclamation of the amendments operative from 16 December 1994. He argued that the law applied as amended unless the contrary was expressly provided for by the amending legislation. Mr McCabe conceded:
However Mr McCabe said that Mr Dannals did not take advantage of that possibility. Mr McCabe made the point that His Honour Mr Justice Cox in the Gurr case had drawn to his attention that a claim made more than 12 months after a dismissal could not be said to be sufficiently proximate in time to have arisen out of the relationship between employers and employees as such. It was said by Mr McCabe that His Honour Mr Justice Cox did not rule on this aspect in the Gurr case but that the issue of delay arose out of a judgment of His Honour Chief Justice Gibbs in Slonim v Fellows 154 CLR at 505. Mr McCabe extrapolated by making the point that if 12 months delay was regarded to be a concern then 15 months delay as in the case of Mr Dannals was "certainly significant" (Transcript p70). Mr McCabe submitted that the unwarranted delays had ensured that the employer/employee relationship had well and truly exhausted by the time Mr Dannals lodged his application on 27 February 1995. Mr McCabe contended that it was unlikely, having regard to Slonim v Fellows that an industrial dispute could flow in the circumstances relevant to Mr Dannals. He said that reasoning supported the submissions made by him in respect of the ILO Standards of General application which related to appeals being heard within a reasonable time after termination. Mr McCabe reiterated that Mr Dannals had been given every opportunity to appeal the Head of Agency's intention to recommend his dismissal. He had been through that process in 1992 and was well aware of his rights of appeal. Also despite the Commission's decision in T4358 of 1993 Mr Dannals did not respond by lodging an application. Mr McCabe submitted that by failing to act promptly either in respect of the mechanisms that were available to him under the State Service Act or the Industrial Relations Act 1984 Mr Dannals had exhausted his opportunities. Accordingly Mr McCabe submitted that the Commission should find pursuant to Section 21(2)(c)(ii) of the Act further proceedings are not necessary or desirable in the public interest. Finding There can be no doubt that Mr Dannals was totally aware that he could have exercised appeal rights pursuant to Section 66 of the Tasmanian State Service Act 1984 prior to his termination in November 1993. He declined to exercise those rights because he considered that the appeal would have been against the recommended penalty of dismissal and not against the findings of the discipline inquiry conducted by Mr Cousland. Subsequently at the time of his dismissal in November 1993 he also did not make application to the Tasmanian Industrial Commission pursuant to Section 29 of the Industrial Relations Act 1984. Nor did he make an application following the handing down of the Commission's decision on 4 May 1994 in matter T.4358 of 1993. Certainly Mr Dannals may have been of the belief that representations regarding his dismissal were being made on his behalf to the Minister for Health and Community Services. Also that initiatives taken by him and by his medical specialist to seek redress against his dismissal obviated the need to take the necessary steps to have the matter brought before the Commission. It is acknowledged that Mr Dannals was involved in a stress claim which was not found and accepted to be management induced until July 1994. Notwithstanding all of those circumstances, including that he may have concluded he had a right to make an application at any time, a period of over twelve months had elapsed from the date of his dismissal in November 1993 to when the Act was amended in December 1994. During that period application could have been made with the Commission which would not have been subjected to the specific provisions of Section 29(1B) of the Act. Even so, given the opportunities not exercised by Mr Dannals to have his dismissal addressed by way of the Commission processes available to him an argument from the Minister that he had waived his right to appeal would have been entirely understandable. Against the background of those missed opportunities or more precisely the voluntary election by Mr Dannals not to avail himself of State Service Act appeal rights or to initiate Commission proceedings up until now I am of the opinion that this matter should be brought to an end given the very significant effluxion of time. That opinion is reinforced considering that the application I am required to consider is also substantially out of time. Accordingly I have determined not to exercise the Commission's discretion to extend time pursuant to Section 21(2)(m) of the Act. With regard to the submissions of Miss Mackey that an amending Act "cannot have retrospective operation to alter rights" (Transcript p.61) unless there is a clear statement to the contrary, my view is that even if that was a sustainable proposition, the timing of the application by Mr Dannals is so long after the date of his dismissal that it is rejected on that basis alone.
R K GOZZI Appearances: Date and Place of Hearing: |