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T12391

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Barry Kingston
(T12391 of 2005)

and

T & E Gadzinski (Tomas Gadzinski, Elzbieta Gadzinski)

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT P C SHELLEY
COMMISSIONER T J ABEY

HOBART, 3 January 2006

Appeal against a decision handed down by Commissioner J P McAlpine arising out of T12176 of 2005 - Appeal rejected - decision upheld

REASONS FOR DECISION

[1] This is an appeal by Barry Lyle Kingston (the appellant) against a decision of Commissioner McAlpine in which he declined to exercise his discretion to extend the time for lodgement of an application by the appellant made pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act) finding that "there is no case for an extension of time, based on the existence of exceptional circumstances and therefore the application is dismissed."1

[2] The parties were advised at the conclusion of proceedings that the appeal would be dismissed and we would issue our reasons in due course. These are our reasons.

Background

[3] An application pursuant to s.29(1A) of Act was lodged by the appellant alleging that his termination of employment by T&E Gadzinski (the respondent) was unfair. The envelope containing the application was postmarked Somerset 5pm 18 July, 2005, and was addressed to the Department of Infrastructure, Energy & Resources.

[4] The application, signed by the applicant, had the date 5 April, 2005 crossed out and was dated 18 June, 2005; the application was received by the Commission on 22 July, 2005.

[5] The appellant commenced work with the respondent on 6 March, 2005, and claimed that he ceased working for the respondent on 28 March, 2005. A period of employment of some 22 days. The application was some 95 days outside the prescribed time limit for lodgement.2

The submissions before Commissioner McAlpine

[6] The Commissioner dealt with the threshold matter and addressed the principles which apply to an application for an extension of time. He listed the matters for consideration as follows:

"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.

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."

[7] The appellant, it seems, was employed by the respondent on a lease agreement which stipulated that "notwithstanding anything herein before contained in the event of either the owners or the lessee committing any breach of the conditions herein contained the agreement is immediately terminated and becomes null and void."

[8] On 20 March, 2005, the respondent advised the appellant, in writing, of complaints received in respect to his work performance and breaches of the contract agreement. By letter dated 28 March, 2005, the respondent advised Job Net Tasmania, Burnie office, that the appellant had been terminated due to a number of breaches of his contract despite warnings and discussions about his work performance.

[9] By letter dated 5 April, 2005, the respondent received correspondence from Trafford Legal advising that the firm acted for the appellant seeking immediate reinstatement. The letter said: "Take Notice that if we do not receive such written confirmation from you in that time we may lodge an application with the Industrial Relations Commission seeking our client's reinstatement and/or compensation of around $12,000.00 from you. Such an application may be made without further notice and at your expense."

[10] On 15 September, 2005, the Commissioner adjourned the proceedings for two weeks to allow the appellant to provide further information in support of his argument that his legal representative had failed to act as instructed by him and lodge his application with the Commission. The appellant provided a written submission to support his claim received by the Commission on 29 September, 2005.

[11] Commissioner McAlpine found however that the appellant was "unable to produce any evidence to substantiate this claim."3

[12] The Commissioner issued his decision dismissing the application by decision dated 4 October, 2005. A copy of the decision was forwarded, by normal post, to the appellant at the address provided.

[13] On 24 October, 2005, the appellant presented a further letter to Commissioner McAlpine in support of his unfair dismissal claim. At that time he was informed by registry staff that a decision had been issued on 4 October, 2005, in respect to his application. That decision dismissed his claim. The appellant claimed not to have received a copy of the decision. It is noted that the letter forwarded to his supplied address was not returned to the Commission albeit there was a spelling mistake in the street name.

[14] A notice of appeal was received on 10 November, 2005.

The appeal

[15] The ground of appeal is as follows:

"The Commissioner did not provide enough evidence due to my lawyer failing to follow instructions on my behalf of processing the application in regards to the decision that was made."

[16] The appeal is filed outside the prescribed time limit. The decision by the Commissioner is dated 4 October, 2005 and the appeal was filed 10 November, 2005. S.71(1) of the Act requires that an appeal be filed "within 21 days after the date of service of the notice relating to the decision."

[17] Accordingly the appeal is some 16 days out of time.

[18] The respondent did not challenge the out of time filing and was prepared to deal with the appeal. Whilst it is arguable whether the Commission can in fact extend the time for filing an appeal we were prepared to give the appellant the benefit of the doubt inasmuch as he claimed not to have received a copy of the decision.

[19] In considering an appeal the Commission relies on the principles established in the decision of the High Court in House v The King (1936) [55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan] which provide:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[20] We accept that the appellant is aggrieved by the decision below. However, other than his submissions from the bar table he has been unable to produce any evidence to support his claim that representative error was the reason for the late lodgement. Following further correspondence from the appellant Commissioner McAlpine contacted Trafford Legal; the claims made by the appellant are denied by Trafford Legal who say they informed the appellant that, subject to the Commission accepting the submission of the respondent, that "on the balance of probabilities ...any claim by you ...would probably not be successful."

[21] We note that there are inconsistencies between the appellant's version of events and those of Trafford Legal. The appellant claims to have instructed Trafford Legal on 25 March, 2005, however he was still employed on that date his termination taking effect on 28 March, 2005. Trafford Legal write that the appellant paid some monies towards legal costs in respect to the application on 21 April, 2005. By that date the prescribed 21 days for lodging an application had passed, likewise the letter from Trafford Legal dated 19 May, 2005, seeking instructions, which notes, incorrectly, that applications must be filed within 14 days, is also well outside the 21 day filing time period.

[22] Further, it is noted that the application which was eventually filed is in the applicant's handwriting and was originally dated 5 April, 2005.

Considerations

[23] Prima facie an applicant is required to comply with the prescribed time limit for filing an application. The onus rests with the applicant to demonstrate sufficient reason for any non-compliance and in this matter the Commissioner was not satisfied that the appellant had provided sufficient reason to meet the `exceptional circumstances' test.

[24] The appellant was not able to demonstrate any error on the part of Commissioner McAlpine sufficient to revoke his decision. Nor was he able to demonstrate that the Commissioner had acted upon a wrong principle, had allowed extraneous matters to affect his decision, had mistaken the facts or failed to take into account any material consideration.

[25] Prima facie, and in consideration of the information presented, it would seem unlikely that the appellant's substantive application would be successful. He was employed for a period of some 3 weeks and the respondent would argue that there were a series of performance issues during that period, including being late for work, which would justify his termination. Further it would seem unlikely that the relationship would have continued much past the date of termination.

[26] We are of the view that the appellant could have filed his application within the time period and should have done so, it would seem that he had completed the appropriate form by 5 April, 2005, some 8 days after termination, being the same day he sought advice from Trafford Legal. If the appellant has a grievance with Trafford Legal he should seek rectification elsewhere. Trafford Legal claim to have informed him of the time limit requirement. In any case, ignorance of the law is not an acceptable excuse.

[27] We note in passing that it is arguable whether the appellant was in fact an employee. He is acknowledged as the lessee of the taxi cab, rather than an employee of the respondent, he pays the taxi owners (the respondent) a percentage of earnings less costs of fuel etc, and no income tax is deducted from earnings by the owners and is the responsibility of the appellant (the lessee).

[28] We dismiss the appeal and uphold the decision of Commissioner McAlpine.

 

P L Leary
PRESIDENT

Appearances:
Mr B L Kingston
Mr T & Mrs E Gadzinski

Date and place of hearing:
2005
December 16
Hobart

1 Decision T12176 of 2005 para 22
2 S29(1B) of the Act
3 Decision T12176 of 2005 para 20