Green & Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109 (26 November 2004)

Last Updated: 7 December 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Green & Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109

FILE NUMBER(S): 2513

HEARING DATE(S): 05/08/2004

DECISION DATE: 26/11/2004

PARTIES:

APPLICANT

Amanda Green

RESPONDENT

Yum! Restaurant Pty Ltd

JUDGMENT OF: Bishop C

LEGAL REPRESENTATIVES

APPLICANT

Tzovaris Legal - Mr B Manning

RESPONDENT

Nation Retail Association - Mr C Broadbent

CASES CITED: Bagnat v Ian Liddell Pty Ltd

Breust v Qantas Airlines

Brisbane Regional Health Authority v Taylor

Clark v Ringwood Private Hospital (1997) 74 IR413

Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Aust (NSW Branch) (1993) 51 IR 186

Hunter Valley Developments Pty Ltd v Cohen (1984) 3n FCR 344

Kent Gorrell v Uwatec Pty Ltd (unreported)

Mark John Kelly v Southern Meats P/L 1999 (Unreported)

Sophron v Nominal Defendant (1957) 96 CLR 469

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

26 November, 2004

Matter No IRC 2513 of 2004

Amanda Green and Yum! Restaurant Pty Ltd

Application by Amanda Green re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2004] NSWIRComm 1109

1 This matter concerns an out-of-time application by Amanda Green made pursuant to S.84 of the Industrial Relations Act 1996. Ms Green was dismissed from her position of Area Manager with Yum! Restaurant Pty Ltd on the 3 March, 2004. Her application was filed on 28 April, 2004. she sought monetary compensation in lieu of re-instatement or re-employment.

2 The matter was listed for Conciliation and Directions before me on the 8 June, 2004. The applicant was not present at the conciliation proceedings, having moved to New Zealand, and was represented by Mr Manning, Solicitor of Tzovaras Legal. No settlement was able to be reached and the respondent pressed the issue that the application was filed some 35 days out of time.

3 The matter was set down for hearing on 5 August 2004 to deal with the jurisdictional issue of whether the Commission should exercise its discretion per S.85(3) and accept the application lodged out of time. Directions were issued as to the filing and exchange of witness statements.

4 At the hearing Mr Manning continued to appear on behalf of the applicant who was again not in attendance. Mr Broadbent from the National Retail Association appeared on behalf of the Company and had a Company representative present.

5 Affidavits had been filed by Tzovaras Legal on behalf Brendan Manning, Solicitor, Rosa Calandra, Solicitor and the applicant Amanda Green. Neither Rosa Calandra nor the applicant was present and available for cross-examination. Ms Calandra's affidavits were not tendered as evidence. Mr Manning advised that Ms Calandra could be made available if necessary. This was not pressed by Mr Broadbent. The issue of the availability of Ms Green for cross-examination was debated between the parties and the Commission in some detail. Mr Broadbent indicated that had he known the applicant was not going to make herself available then he would have had a Summons to Appear served.

6 Video conferencing as an option at a later date with the applicant giving evidence in person, was to be explored by Mr Manning with the Applicant. Following the hearing the Commission advised Tzovaras Legal of the necessity to contact the Industrial Registry to ascertain the procedures in place and costs applicable and to liaise with the Commission should that option be pursued. In the alternative that the applicant was not available for cross-examination then that issue would be dealt with in submissions and Mr Broadbent reserved his rights in that respect.

7 The Commission was to be advised if t he option of taking evidence from Ms Green by Video conferencing was to be carried out or whether reliance would be placed on the evidence as filed. Mr Manning was to seek instructions on that matter.

8 In the event that further evidence was not called Directions on a timetable for written submissions were made as follows:

Written submissions on behalf of applicant to be filed and exchanged by close of business Thursday 19 August, 2004.

Written submissions on behalf of the respondent to be filed and exchanged by close of business on Thursday 26 August, 2004.

Submissions in reply on behalf of the applicant to be filed and exchanged by 2 September, 2004.

9 That timetable was amended at the request of Mr Broadbent who did not receive the applicant's submissions until 26 August.

10 The applicant proceeded on the basis of written submissions only and they were filed on 20 August, 2004. Submissions in reply from the respondent were received on 10 September, 2004.

11 Correspondence was received from Mr Broadbent on 5 0ctober, 2004 advising that no submissions in reply to the respondent's submissions had yet been received from the applicant's Solicitors and pressed that this was a further indication of the applicant's tardiness in pursuing her claim.

12 Inquiries by my Assistant of Tzovaras Legal elicited that Mr Manning had in fact left the firm sometime after filing the submissions on behalf of the applicant and prior to the respondent's submissions being filed. A Mr Robinson had now taken over from Mr Manning and advised by phone on 5 0ctober that having read the submissions of the respondent he would not be replying to those submissions.

The Evidence

13 At the hearing on 5 August, 2004, an affidavit from Amanda Green, the applicant, was formally admitted (Exhibit 5) over the objections of Mr Broadbent as Mr Manning was cross-examined on the affidavit.

14 Amanda Green deposed that she was terminated by the respondent by letter on 3 March, 2004. On 5 March, 2004 she attended the offices of Tzovaras Legal Lawyers and spoke to Mr Manning concerning her termination. She asked what she could do and was advised by Mr Manning that first a letter would be sent to see if they could settle and if not an application would be made to the Industrial Relations Commission. Ms Green requested that he "keep me informed".

15 0n or about 19 March she phoned Mr Manning from her home and he advised her that the respondent had rejected the settlement offer and an application would have to be filed. She said to "do what is necessary".

16 Ms Green deposed that she was aware of the 21 day time limit and relied on Mr Manning and his staff to ensure the application was filed.

17 0n or about 1 or 2 April, Ms Green telephoned Mr Manning and left a message that she would be moving to New Zealand and leaving Australia on or about 8 April and to call her if he had any news. She had previously been advised by Mr Manning that she would be contacted by letter or phone when a date for a Conciliation Conference was obtained.

18 On or about 3 May she received an e-mail from Tzovaras Legal advising of the Commission listing of 8 June, Ms Green deposed that she had previously advised Mr Manning that she would not be able to attend the Commission but would be available by phone to give instructions. She deposed that she was not aware at this time that the application had not been filed within the 21 day limit.

19 0n or about 24 June she telephoned Mr Manning who advised her that the application had not been filed within the 21 day limit and the other side had taken a jurisdictional issue. When she asked what he was going to do about it Mr Manning told her they needed to file an Affidavit to explain the situation.

20 They then discussed the affidavit and when she inquired about the position of the other side she deposed that Mr Manning said: "they are pretty hostile, they do not want to settle, looks like they are going to run to a hearing".

21 Ms Green deposed that she was unaware the application was filed outside the 21 day limit and assumed that when she telephoned Mr Manning's office on 19 March that the application would be filed within the 21 day limit.

22 Whilst she had been asked to produce her phone records the phone account did not record local calls.

23 Ms Green deposed that she was currently employed as a HR Coach and earnt $NZ56,000.

24 She considered the manner in which she was dismissed was harsh and unfair as she was given no warning and no opportunity to answer the allegations or "prove" her performance to ensure she maintained her employment.

25 Mr Brendan Manning, Solicitor, confirmed in his Affidavit (Exhibit 1) that he conferred with Ms Green on 5 March and advised her he would "look after everything and call her when they got a date for hearing".

26 That day he advised Rosa Calandra one of the four junior solicitors he supervised that Ms Green was a new client with an unfair dismissal claim to be filed having been dismissed on 3 March. He told her she had 21 days to file the claim and was told that that could be done. Ms Calandra was then given the file and told if she had any problems to speak to him and it must be filed within 21 days. He then left the file with Ms Calandra and attended to other duties.

27 His affidavit which indicated this conversation took place on 4 March was corrected in oral evidence to 5 March.

28 0n or about 8 March Mr Manning wrote to the respondent as follows:

"Yum! Restaurants International

[address supplied]

Attention: Mr Keith Warren

Dear Mr Warren,

AMANDA GREEN

We are instructed to act on behalf of Amanda Green.

0ur client has instructed us that her employment as terminated by you on 3 March 2004.

You have dismissed our client in a manner which was harsh, unreasonable and unjust. We are instructed to commence proceedings in the New South Wales Industrial Relations Commission.

Without prejudice and save as to costs, our client will accept 3 months pay as full and final settlement of her claim.

The offer of settlement is open for 7 days and on expiration of that period we will commence proceedings in the Industrial Relations Commission without further notice.

We look forward to your earliest reply.

Yours faithfully,

Tzovaras Legal

Brendan Manning

Senior Associate"

29 He obtained from Ms Green's file a printout which Ms Calandra told her she had obtained in relation to the unfair dismissal claim. On it in Ms Calandra's handwriting was "date of dismissal was 3 March had to do it by 24 March". He had no further discussions with Ms Calandra on Ms Green's claim and assumed it had been filed within the 21 day limited.

30 Mr Manning deposed that on or about 22 April he received a facsimile from Ms Green inquiring as to her claim as follows:-

Rebecca Denny

From: Amanda Green ([email address supplied])

Sent: Friday, 23 April 2004 3:04PM

To: Rebecca Denny

Subject: Re: Unfair Dismissal

Hi Rebecca,

My date of birth is 11 April 1974. My commencement date of employment with Yum Restaurants was 22 April 2003. I moved to NZ on 9 April 2004.

Regards,

Amanda Green:"

31 0n or about 23 or 24 April he spoke to Ms Calandra and queried whether she had filed Ms Green's application. He was told she did not have the file. He told her she did and a search of her office located the file. Mr Manning took the file and commenced drafting the application which was filed on 28 April, 2004.

32 If he had been advised by Ms Calandra that the application had not been drafted and filed he would have taken all necessary steps and actions to ensure that the application was filed within the 21 day limit. Failure to file within the time limit was due to an oversight by Ms Calandra and a failure by Mr Manning to supervise her adequately.

33 Mr Manning further deposed that on the 8 June he had a conversation with Ms Green in which he advised her the claim was not filed within the 21 day limit. She replied that she didn't know it had to be filed within 21 days. His affidavit actually did not have this date inserted. This was provided in oral evidence.

34 In response to a Summons to Produce served on Tzovaras Legal by the respondent, three other relevant documents were tendered.

35 Exhibit 2 - E-mail of 15 April 2004 from Brendan Manning to Rebecca Denny as follows:

"Rebecca Denny

From: Brendan Manning

Sent: Thursday, 15 April 2004 8:57 AM

To: Rebecca Denny

Subject: FW: Amanda Green's new contact details

------0riginal Message-------

From: Amanda Green ([email address supplied])

Sent: Thursday, 15 April, 2004 8:01 AM

To: Brendan Manning

Subject: Re: Amanda Green's new contact details

Hi Brendan,

Could you please give me an update on where we are up to with my unfair dismissal claim?

Regards,

Amanda Green

Amanda Green <[email address supplied]> wrote: Hi Brendan,

I have moved back to New Zealand and my new contact details are:

[address, phone and fax details supplied]

Regards

Amanda Green"

36 Exhibit 3 - E-mail of 23 April from Rebecca Denny to Amanda Green as follows:

"Rebecca Denny

From: Rebecca Denny

Sent: Friday, 23 April 2004 10:59 AM

To: [email address supplied]

Subject: Unfair Dismissal

Dear Amanda,

In relation to your unfair dismissal would you please provide the following information so that we may attend to the filing of your Application:

1. Date of Birth?

2. Commence date of employment?

3. When did you move to NZ?

We look forward to your urgent reply.

Regards,

Rebecca

Tzovaras Legal"

37 Exhibit 4 - Facsimile of 22 April, 8.35a.m. from Amanda Green to Brendan Manning - this contained the following message under the address:

"Dear Brendan,

Please find below my new contact details

(Ms Green's new address, phone and fax details were then included).

Could you please let me know where we are up to with my unfair dismissal claim.

Yours Sincerely

Amanda Green"

38 Mr Manning was cross-examined extensively on both his and Ms Green's affidavits and the above exhibits.

39 Mr Manning had no further discussion with Ms Calandra after 5 March. He could recall a telephone call from Ms Green around 19 March which could have been on his mobile however he did not have a diary note of that as he had been out of the building. It was then brought to his attention by his Secretary in respect of some correspondence from Amanda Green of 15 April advising of new details.

40 He could not recall getting the e-mail or forwarding it to Rebecca Denny. E-mails coming into his office go onto his computer and when he was out of the office his Secretary read his e-mails and forwarded them to her computer.

41 Mr Manning also indicated that whilst the letter of settlement to the respondent was dated 8 March that would have been the date he sent it and he suspected it would have been dictated 3 or 4 days earlier. His policy was to do letters on the day he received instructions or dictate them on the same day as opening the file.

42 He instructed Ms Calandra on 5 March and was expecting her to file the application. He didn't wait to speak to her until he'd heard back from the letter. It was a standard letter sent out and one didn't have much hope that a matter would settle. If Yum! Restaurants had responded he would have taken the file back and they would have had discussions.

43 He accepted that it was ultimately his responsibility as supervisor to ensure the claim was filed. He did not tell Ms Calandra to wait for any response to the letter. She had been involved in drafting three other unfair dismissal claims and this was a simple claim.

44 Mr Manning agreed he did not give Ms Green any update on her claim in response to the e-mail of 15 April. He didn't know if Rebecca Denny gave any response. In fact he couldn't recall the e-mail of 15 April at all. He'd seen it subsequently on the file.

45 He conceded it would have been sent on the day and at the time noted on his computer. Rebecca Denny, his Secretary, had followed it up in some way but how he could not say. He liked to think she would be aware that in litigation things need to be actioned and he was always pretty adamant about that.

46 He initially said he became aware of the fax of 22 April and he spoke to Rosa Calandra about it around 23 April but he had no notes of that. The fax may have sat in the tray in the office. All correspondence to him goes to his Secretary.

47 However he subsequently said it was the e-mail of 23 April addressed to Rebecca Denny (Ex 3) that triggered his enquiry. He recalled speaking to Ms Calandra soon after that and found it hadn't been done. He was very abrupt with her and took the file back but because he was in the middle of something he drafted the claim the next day. He could only recall the e-mail of 23 April not 15 April. He did not know what prompted Rebecca Denny's request to Amanda Green for her details.

48 Mr Manning could not recall seeing the Company's letter of response of 15 March although it appeared he'd seen it because he was aware of saying to someone, he expected it was Ms Green, that they hadn't responded but that may have been earlier. He didn't really know and he didn't have the letter. He had no independent recollection of reading the letter and didn't speak to Ms Calandra about it. Mr Manning had no diary note of the conversation Ms Green referred to in her affidavit where she said she was told by him on the phone that the company had rejected the offer. He could remember the substance of the call but not the date.

49 He confirmed he had been in phone contact with Ms Green prior to her dismissal on 3 March.

50 Mr Manning drafted the application, filed it and wrote to Ms Green advising her the matter was listed. The claim was also sent to her - this was done by e-mail on 3 May. He didn't inform Ms Green that it was out of time at that stage because no objection had yet been taken. He was informed on the day of conciliation that the jurisdictional point was pressed and he advised her then it couldn't be resolved and the jurisdictional issue was raised by the respondent.

51 He did not consider it strange that Ms Green didn't bother to contact him between 8 and 24 June to find out if she'd been offered any money. Mr Manning said he called her after the conciliation on the 8 June, downstairs on his mobile. This did not accord with what Ms Green said was the first contact and advice about being out of time which was 24 June. Mr Manning said the call of the 24 June was the second phone call to organize affidavits.

52 He agreed the affidavits were inaccurate and said that was because there was an obvious lack of system management in his office that prevents these serious incidents. He agreed there was an absence in his recollection that didn't coincide with Ms Green.

53 There were inconsistencies because everyone drafted their affidavits independently. He did not think it would be reasonable for Ms Green to recall 8 June as a very important date to recall as the date for conciliation. He had a conversation with her on 24 June but didn't refer to it in his affidavit because after the conciliation conversations he didn't consider it relevant to this point, it was to do with completing an affidavit. He had a few conversations with her about drafting her affidavit He could not tell if her statement was true on her behalf he could only say what he did and what he recalled. On his recollection he first made her aware the application was out of time on 8 June.

54 Mr Manning said that one of the reasons for late lodgement was that she'd gone overseas and that was what was put in the claim. However he did not rely on that. He agreed Ms Green would have been aware the claim was lodged out of time if she had read the claim and understood it when it was e-mailed to her on 3 May.

55 Mr Manning conceded that the e-mail of 23 April from Rebecca Denning seeking Ms Green's details so that "we may attend to the filing of the application" would indicate that the claim hadn't been lodged - on reading it as a lawyer that would automatically trigger that belief. He did not know what Ms Green would have thought though on reading that e-mail.

56 Mr Manning was taken to Ms Green's affidavit where she said at paragraph 4 that she was aware of the 21 day limit and indicated that whilst he didn't have his notes of the 5 March it was one of the things he specified to people with unfair dismissals.

57 Mr Manning conceded that his recollection of the conversation he had with Ms Green on 8 June wasn't reflected in her affidavit and that his recollection of when she said she didn't know it had not been filed within 21 days was different to her recollection.

58 The Commission took Mr Manning to the website extract attached to his affidavit which was in the file and had Ms Calandra's writing on it and the reference to "had to do it by 24 March". He initially relied on this document as Ms Calandra having obtained it prior to 24 March. However after being taken to the print-out date of 14 April, 2004 appearing in the lower right hand corner he agreed that was the date the print out had been obtained and confirmed by the use of the past tense "had" by Ms Calandra.

59 The Commission explained to the parties that a similar exercise had been carried out prior to the hearing of accessing the Department of Industrial Relations website and similarly the print out recorded the hearing day of 5 August, 2004.

60 Mr Manning had just included the document as it was in the file in that particular chronological order. He was unaware of anything happening between the 14 and 15 April as he did not have the file. He agreed it indicated Ms Calandra knew on 14 April that the claim should have been filed by 24 March. If he had been told that he would have expedited the matter before the 22 or 23 April. He did not know if Ms Calandra had seen the e-mail of 15 April from Ms Green - that e-mail had gone to him.

61 Mr Manning also agreed the application wasn't then filed until Wednesday 28 April, it had to be typed, filed and served and checked.

62 Mr Manning in reply indicated that his affidavit was drafted based on what was in the file and a reconstruction of events from that and his recollection. The inconsistencies would be due to the fact that there was not chronological diarisation of that and also more than one person was involved. However it as not either his or Ms Green's position that the application was filed within time. Clearly it was out of time and clearly it was the legal representative's fault.

SUBMISSIONS

63 Mr Manning submitted that the basic facts were essentially agreed between the parties and were as follows:

The Applicant terminated by letter 3 March, 2004.

· The Applicant instructed Brendan Manning of Tzovaras Legal on 5 March, 2004 with sufficient detailed instructions to enable drafting of an application for unfair dismissal.

· The Applicant relied on her legal representative in relation to instituting proceedings in the Commission.

· The applicant moved to New Zealand on or about early April.

· The applicant e-mailed her legal representative on 15 April

enquiring as to the status of her case.

· The 21 day period pursuant to S.84 of the Act expired on 24 March,

2004.

· · The application was filed by the applicant's legal representative on

28 April, 2005, 35 days out of time.

64 Mr Manning submitted the applicant relied on the affidavits of Rosa Calandra, Brendan Manning and Amanda Green and the bundle of documents produced in response to the Summons for Production of Documents filed by the respondent. The applicant also relied on the answers to cross-examination of Mr Manning on 5 August, 2004 before the Commission.

65 It was submitted that it was not disputed that the substantial reason for the failure to file the application within the 21 day period was as a result of representative error.

66 S.85 (3) gives the Commission a "wide discretion" to allow parties to deviate from the strict requirements of legal form if fairness so demands.

67 In exercising its discretion the Commission must be satisfied that a "sufficient reason" had been made out and may accept an application out of time having regard to:

(a) the reason for, and the length of the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

(c) the conduct of the employer relating to the dismissal.

68 In relation to (a) the reason was representative error. The applicant's legal representative did not file the application in time even though they were given sufficient instruction by the applicant to draft and file the application. This was borne out by the fact that the applicant was not aware that her application had not been filed until after the 21 day limit had expired.

69 In relation to (b) the applicant would lose her ability to make a claim. The only undue hardship on the respondent was that there was some delay in having the claim resolved.

70 The meaning of the words "sufficient reason" were not precisely defined in the Act nor did the Commission consider it appropriate to do so - see Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Aust (NSW Branch) (1993) 51 IR 186.

71 S.85 was not a mandatory cut off point for an application. The Commission had discretion to extend if satisfied a sufficient reason existed see Kent Gorrell v Uwatec Pty Ltd (unreported) Sams DP. IRC1700/99 5 July 1999.

72 The principle of representative error occurred where the delay in instituting proceedings could be attributed to the act or omission of a legal representative. Depending on the circumstances of the case that may be sufficient reason to extend time. See Clark v Ringwood Private Hospital (1997) 74 IR413.

73 In Sophron v Nominal Defendant (1957) 96 CLR 469 in the matter of Comcare v A'hearn a Full court of the Federal Court held that "delays by a solicitor need not be visited upon a client and inexcusable delay on the part of a solicitor may amount to an acceptable explanation for the delay in making an application". The court referred to a distinction that should be drawn between delay properly apportioned to the Applicant's representative where the Applicant is blameless and delay occasioned by the conduct of the Applicant. Hunter Valley Developments Pty Ltd v Cohen (1984) 3n FCR 344.

74 In deciding whether representative error was sufficient reason to allow the Commission to exercise its discretion the actions of the applicant should be looked at to see if she had exercised due care and diligence in pursuing her claim. In this matter the applicant had:-

· Attended her legal representative 2 days after her dismissal.

· Given sufficient instructions to enable a claim to be drafted and filed.

· Made inquiry after the 21 day limited had expired as to the status of

her case.

75 This was not a situation where the applicant had not taken action until just before or after the 21 day period. She had acted prudently in instructing her legal representative immediately upon her dismissal and giving full and proper instructions for the lodging of a claim.

76 The respondent was of the view that the failure of the applicant during the period 5 to 24 March to follow up her claim displayed a lack of due care and diligence in enquiring whether the claim was lodged within the 21 day period. If the respondent's reasoning was the benchmark for what was due care and diligence then all applicants/litigants would be required to follow up on a daily basis with their lawyers to ensure every aspect of their case was attended to in accordance with the prevailing legislation. This was clearly not what the courts envisioned when referring to applicant's exercising "all due care and diligence".

77 Mr Manning summarized the facts of the matter and submitted the alleged failure of the applicant to make enquiries during the 21 day period should not be held against her as an ordinary person in her position should be able to rely on her legal representative without having to constantly follow up on her solicitors to ensure her instructions were carried out or that they had acted in a manner that protected her legal interests.

78 The applicant requested that the Commission exercise its discretion pursuant to S.85(3) and accept the application made out of time.

79 Mr Broadbent for the respondent referred to the relevant provisions of the Act in S.85(3) as to the Commission's discretionary powers. He submitted that the applicant was experienced in the field of Human Resource Management and Industrial Relations having worked in that field for many years. Her witness at the meeting where she was dismissed had similar experience. Her affidavit evidence also confirmed she had full knowledge of the time limit. There was no question therefore that the applicant was not aware of the time limit and its importance.

80 In the alternative the applicant instructed Solicitors within 2 days of dismissal and should have been made aware of the time limit for lodging a claim if she was not already aware of it. The principle of Ignorantia Legis Memineris Excusat must also be considered in such applications.

81 Reliance was placed on Brisbane Regional Health Authority v Taylor in relation to the principles involved in considering time limits.

82 It was also submitted that the burden of proof was on the applicant in this matter - see Bagnat v Ian Liddell Pty Ltd - "Accordingly, when an Applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has a positive burden of demonstrating that the justice of the case requires that extension" - (Brisbane Regional Health Authority v Taylor).

83 The applicant had "failed utterly" to discharge this burden of proof. She did not attend proceedings on 8 June and did not notify either the Commission or the respondent that she did not intent to appear in person.

84 The Commission on that date indicated the issues to be addressed including representative error and issued Directions for a new hearing on 5 August, 2004 at which time the respondent should have had the opportunity of cross-examining witnesses who provided statements. The statements provided were "sketchy" in their content, failed to mention relevant occurrences and were in many instances contradictory. It was submitted that no weight could be placed by the Commission on those statements.

85 The applicant relied solely on representative error neither the applicant nor her representative dealt with the applicant's conduct in any sufficient detail to enable the Commission to form the conclusion that her conduct could not be brought into question. She had also chosen to rely on untested evidence to discharge the burden of proof. In choosing not to attend the inconsistencies and inaccuracies in her evidence could not be fully examined.

86 It was submitted that the applicant's conduct must be seriously questioned and was a significant contributory factor to the length of the delay.

87 Mr Broadbent relied on Breust v Qantas Airlines in relation to the accepted factors to be considered by the Commission as follows:-

Length of Delay

88 The length of delay was significant at 35 days, more than double what was allowed by the legislation.

89 The significance of the delay was made more serious by the fact that the applicant was or should have been aware of the time limit.

90 Her legal representatives were or should have been aware of the time and were instructed within 2 days of dismissal.

91 If the applicant had been unaware or unrepresented the significance of the 35 days could be diminished. On the facts that was not the case and the length of the delay in its own right is significant and a hurdle for the applicant.

92 The applicant's own inaction contributed to the delay. A reasonable person with the intelligence and experience of the applicant would have taken steps to ensure the claim was filed, rather than rely solely on representatives.

93 The applicant took no positive steps to query if her claim had been lodged and this was indicative of a lethargic and unconcerned applicant.

94 It was reasonable to expect an applicant of her business experience to have chased up her Solicitors. She instructed them to "keep, her informed" which they did not. She as aware a letter was to be sent to the respondents. There was as failure to advise of a response and this should have put her on notice that they may have needed chasing up. Still she did not enquire in certain terms whether her claim had been lodged.

95 The applicant as aware of date by which the application should. After that time she received no correspondence from her solicitors. Any reasonable applicant would have checked whether the claim had been filed. She took no steps to at all to check on her claim. This conduct was highly relevant in view of the applicant's knowledge, intelligence and business experience. It also demonstrated the applicant's general apathy towards her claim.

96 The Explanation for the delay:

In her application the only reason given for the delay was because she moved to New Zealand about 8 April subsequent to instructing her Solicitors and was unable to complete the application prior to the move. Even if this were true, it was submitted that this was an insufficient reason for delay.

97 It was submitted that this later came out to be an untruth and concerned the respondent and should concern the Commission. It was an attempt to mislead and cover up the real reason, being the applicant's apathy and failure to take reasonable action.

98 These errors remained untested due to the applicant's unavailability for cross-examination. Only the representative errors could be tested. The Commission should not place too much reliance on those errors as the applicant by her failure to attend and her failure to provide an accurate and complete statement effectively denied the Commission the ability to make a complete judgement.

99 If the extension of time was granted it could only be done by accepting representative error as being a sufficient reason. Whilst there was representative error it cannot be determined that that was either the sole or primary reasons for the delay.

100 Mr Broadbent relied on Mark John Kelly v Southern Meats P/L 1999 IRC3694 Bishop C. which cited with approval Clark v Ringwood Private Hospital AIRC 1159 of 1997 on looking at whether representative error constituted a sufficient reason for delay as follows:

"i. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

ii. A distinction should be drawn between delay properly apportioned to the Applicant's representative where the Applicant is blameless and delay occasioned by the conduct of the Applicant.

iii. The conduct of the Applicant is central....for example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the Applicant left the matter in the hands of their representative and took no steps to inquire as to the status of the claim....

iv. Error by an Applicant's representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted...."

101 Applying those principles to the present case it was submitted that the failures of the applicant's representatives did not amount to a sufficient reason and that the applicant was far from blameless in the application being lodged out of time for the reasons already referred to.

102 In addition the applicant should have been aware as at the 19 March that the respondent was making no offer to settle her claim and she should therefore have subsequently phoned and checked before 24 March whether her application had been lodged.

103 Finally it was submitted that as the applicant's affidavit was so brief, did not deal specifically with many of the issues and as she did not present for cross-examination "the central issue" as referred to in Kelly could not be determined. In any event it could not be determined in such a way as to relieve the applicant of any blame.

104 Prejudice of the Applicant

The prejudice to the applicant was that she could not have her claim heard. However, it was submitted that that was the only prejudice as the merits of her claim were weak. The respondent submitted that a simpler and cheaper alternative was available to the applicant by seeking redress against her Solicitors for their negligence.

105 If both the applicant and her representatives considered her claim meritorious there was a higher level of importance on both parties to have ensured matters were monitored more closely and the claim was lodged in a timely way.

106 In addition the applicant sought 6 months compensation rather than re-instatement. She moved to New Zealand not long after her dismissal and was now gainfully employed. She was employed by the respondent for less than 1 year. It was therefore unlikely the applicant, even if successful, would attain any significant compensation awarded. The applicant had mitigated her loss and therefore any prejudice to the applicant was reduced. Any prejudice to be suffered was minimal and to be attributed to her failure to ensure her claim was prosecuted within time.

Prejudice to the Respondent

107 The prejudice to the respondent was the cost and inconvenience of defending the claim. That in itself was not a sufficient reason to refuse an extension.

108 The respondent operated a highly competitive service industry under tight budgetary constraints. Reliance was placed on Brisbane South Regional Health Authority v Taylor 1996 (HCA) 25 "People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them..."

Conduct of the Respondent Since Termination

109 The respondent's conduct since termination had not contributed to the delay. A termination letter was provided. It had responded promptly to the letter of the applicant's Solicitors even though it did not request a reply. It was made clear a settlement would not be discussed and the claim defended.

110 The respondent submitted that the evidence produced by the applicant had not satisfied the applicant's duty to discharge the burden of proof on her.

111 The evidence of the applicant and her Solicitors were contradictory in a number of respects. These were referred in detail by Mr Broadbent as to phone calls, faxes and conversations that took place.

112 Telephone records were requested but could not be obtained apparently. Whilst the applicant said her phone call to Mr Manning was a local call the respondent believed it had been made from South Australia.

113 These were contradictions in the applicant's statement about whether she was aware of the 21 day limit (para 4 and 6).

114 When she advised Mr Manning by phone of her move to New Zealand she did not enquire as to her unfair dismissal claim.

115 There were inconsistencies between Mr Manning's evidence about his phone calls to the applicant after the claim was lodged and the applicant's statement.

116 In conclusion it was submitted that the applicant had failed to discharge the burden of proof and establish a sufficient reason to grant an application for an extension of time. Whilst there was representative error that could be established the applicant was not blameless in the delay and her conduct had significant bearing on the claim being lodged out of time.

117 The applicant's conduct demonstrated an apathetic approach to this whole matter. She did not demonstrate "all due care and diligence in ensuring her application was filed out of time". Whilst she was not available for cross-examination there was sufficient evidence available to suggest the applicant's conduct had a bearing on the application being lodged out of time.

118 Both the applicant and her representative had demonstrated conduct that did not indicate a willingness to be frank and open in respect of these proceedings. By producing sketchy and disjointed evidence combined with the applicant's unavailability for cross-examination they had effectively stood in the way of the Commission to be able to make a finding in favour of the applicant.

119 If the applicant was not going to be available for cross-examination then a much more detailed affidavit should have been prepared.

120 The reasons put forward by the applicant were not sufficient to warrant the granting of an extension of time and the Commission should not exercise its discretion to grant such an extension.

CONSIDERATION

121 I have very carefully considered the evidence both oral and written in this matter together with the written submissions of the parties. The only evidence before the Commission is that of Mr Manning and the applicant Ms Green.

122 There is no doubt that there was significant representative error on behalf of Ms Green's representatives Tzovaras Legal Lawyers . They clearly provided inferior service to her in not ensuring her claim was filed within the 21 day limit. There was fault with Rosa Calandra who appears to have done nothing about the file until possibly prompted around 15 April by Ms Green's e-mail requesting an update on her claim and in an apparent second e-mail that day providing her new address and contact details in New Zealand. However there was clearly no response to her query hence her facsimile message of 22 April again querying where they were up to with her claim.

123 Again there was no response to that request but it promoted the e-mail from Rebecca Denny of 23 April requesting her date of birth, date of commencing employment and when did she move to New Zealand.

124 What is unclear is what prompted Ms Calandra's downloading of information from the Department's website on 14 April and on which printout she clearly indicted the claim had to be made by 24 March. However apparently no contact with Ms Green of any kind was made until 23 April and the request for details.

125 0ne would have thought that in any event the details of her date of birth and date of commencing employment was fairly important information that would have been ascertained in the interview with her on 5 March. Clearly at that time there was in fact insufficient detail provided to complete the claim. If completing the claim had been done promptly that insufficiency of information would have been discovered in time to make a timely application.

126 That also raises the issue of why alarm bells didn't go off in Ms Green's head at that request. She had already sent two communications requesting information on her claim and had received no reply. When she did receive a reply it was to request further information which surely should have suggested to her at that time that there was a problem with the claim and that it probably had not been lodged.

127 Mr Manning became aware of the problem of the unlodged claim on 22 or 23 April - he appears unclear on which date and by exactly what means. Whilst he said he immediately took charge of the file the application still didn't get lodged for a further 5 days bringing the out-of-time period to 35 days.

128 The applicant was evidently e-mailed the application on 3 May and advised

it was listed on 8 June. Again one would have thought alarm bells would have gone off in the applicant's mind when she read that the application had clearly been filed out-of-time as the question at 33 on whether the application had been filed out of time had the "yes" box marked and a reason for out-of-time filing (moving to New Zealand) was given. If she was e-mailed the application she clearly would not have seen the Registry stamp of the filing date. However, she should have been aware at that time that the application was filed out of time, yet made no attempt to contact her Solicitor to query this. She indicated in her affidavit that she was aware of the 21 day time limit yet maintained she was not told about the claim being out-of-time until 24 June when Mr Manning rang her and also told her she'd need to provide an affidavit as the matter was going to a hearing.

129 This clearly does not accord with Mr Manning's evidence that he phoned her about this on 8 June straight after the proceedings. I find it beyond belief that Ms Green did not refer to his phone call on that date in an affidavit she swore on 29 June. The hearing of 8 August as actually set on 8 June at the conclusion of the conciliation proceedings - this information does not appear to have been conveyed to her even on Mr Manning's evidence - he said he told her it would have to go to a hearing. The actual evidence of the applicant on this issue would have been particularly important, as would her evidence about the issues of the e-mails and facsimiles, yet no reference at all is made of any of that in her affidavit.

130 Clearly Mr Manning, in discussing her affidavit evidence, did not properly advise her of her need to establish what she had done to ensure her claim was prosecuted.

131 She did indeed give clear instruction on 5 March to commence a claim and was aware the first step was the sending of a letter to the respondent. She was aware on 19 March that the respondent had responded rejecting the settlement offer and that the claim would therefore have to proceed. If a s she says she was aware of the 21 day limit she would have known that at 19 March (a Friday) that the claim would have had to have been lodged by the following Wednesday, 24 March.

132 Whilst she makes two subsequent queries about how her claim is going, the lack of positive response and the request for further information as said earlier should have started the alarm bells ringing.

133 There is clear apathy and lack of diligence on the part of the applicant in pursuing her claim. Whilst her absence on 8 June could possibly have been excused on the basis that she had re-located to New Zealand and commenced a new job her failure to be present at the hearing of her out-of-time claim cannot so readily be excused. The time and costs of flights to New Zealand compare favourably with similar flights to Hobart or Adelaide or to a slightly lesser extent Brisbane. Both Mr Broadbent and the Company representative flew down from Brisbane for both the Conciliation proceedings and the hearing on 5 August. Ms Green was employed in a senior position in a well paying job in New Zealand, her position was hardly that of say a low paid wages employee who had had to move interstate to find work and could not afford to make the trip to Sydney.

134 I also have to say that the case run by her Solicitors was also less than she had a right to expect. Mr Manning's affidavit had an extremely obvious but incorrect date that was corrected in oral evidence. He had also in fact left blank the date in June when he rang her - this also was supplied in oral evidence.

135 It was also abundantly apparent that he had not taken the time to thoroughly go through her file, put documents in order or consider the implications of the various documents and their timing. The Commission had to point out to him that the website print out he placed reliance on for Rosa Calandra being aware the application had to be filed by 24 March (and therefore her fault for not doing so) was not actually printed out until 14 April. That was obvious on a first glance at the document by the Commission.

136 The inconsistencies between Mr Manning's affidavit and Ms Green's are significant. There was also a failure to have Rosa Calandra present for cross-examination and therefore her witness statement was excluded. Whilst he said she was available, as it became clear representative error was accepted by both parties, her evidence became less significant overall.

137 It is abundantly clear from the evidence that representative error exists in relation to the filing of the claim outside the 21 day limit.

138 Sams D.P. in Kent Gorrell v Uwatec Pty Ltd (unreported) 5 July 1999 IRC1700/99 cites the relevant cases on this issue. Martin v The Nominal Defendant Walsh J. 1957 W.N. at 123; D.S. Williams & Safeway - Bairnsdale AIRC Dec.587/97 M Print P1433; D Clark v Ringwood Private Hospital AIRC Dec 1159/97 S OPrint P5279 & Sebastian v Roads & Traffic Authority 1995 62 IR 190.

139 Sams D.P. re-affirmed the findings he had made in Uwatec in Bimalananda Maity v Express Publications Pty Ltd (2001) NSW IR Comm 169.

140 Similarly applying the principles enunciated in those cases I find that there was clearly representative error on the part of the applicant's legal representative.

141 However in Uwatec Sams D.P. was examining the conduct of the applicant and found that the failure to file within time rested on the applicant for the reasons outlined. He also made the following relevant observations at page 17 in relation to the hardship visited on the applicant if the claim were not allowed.

"There is no doubt that every dismissal of employment bring with it some degree of hardship, either person, emotional or financial. The applicant is not "Robinson Crusoe" in this respect. In my view, s.85(3)(b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing varying degrees of hardship, nevertheless, are able to file within time (see Thomas v Repco Auto Tech)."

142 The applicant gained a well-paid job in her field of expertise when she moved to New Zealand in early April some one month after her termination and indeed before the application was filed.

143 Mr Broadbent makes a valid point that even if the applicant were ultimately successful on the merits any order as to compensation would have to take into account her length of service of some 10½ months, the short period out of work and that she had gained alternate employment albeit at a lesser rate (even given the NZ/Aust exchange rate). Even taking the case at its highest merits she could not have realistic expectations anywhere near the six months claimed.

144 There was no conduct on the part of the respondent that in anyway contributed to the delay. There was a prompt letter of termination in clear terms. There was a prompt and unequivocal response to Mr Manning's letter of 8 March.

145 Whilst I am able to find without difficulty that there was clear representative error in causing the out-of-time application applying Uwatec I have had some difficulty in assessing the applicant's role in the issue and whether she has discharged her responsibilities not only in pursuing her claim but in discharging the necessary burden of proof for the Commission to exercise its discretion.

146 That difficulty clearly arises from the evidence, both the conflicting evidence on the one hand and a lack of certain clear evidence on the other. Whilst there is evidence of contact from her enquiring as to her claim that does not come until after the 21 day limit is reached and the absence of any response does not result in any action on her part to ensure her claim has in fact been filed. When there is a response the nature of that response should have alerted her to the problem. She should also have been aware that her application had been filed out of time and the reasons given when she received a copy by e-mail. One wonders if she even bothered to read it. If she had she would surely have contacted her solicitors straight away to discuss that issue.

147 I am also concerned at the applicant's nonchalance in not appearing for the hearing and in not giving a more detailed affidavit. She had the option made available of subsequently either appearing in person on a further date or giving evidence by Video Conferencing. She took up neither option. Instead she has chosen to rely on the evidence filed and accepted.

148 Based on that evidence I am not satisfied that the applicant did take all steps necessary to ensure her claim was filed within the 21 days. She was clearly a person of intelligence, knowledge and experience who should have done more if she was genuinely interested in pursuing a claim against the respondent. She failed to do that.

149 I therefore decline to exercise my discretion pursuant to S.85(3). The application is therefore dismissed.

E.A.R. BISHOP

Commissioner

LAST UPDATED: 06/12/2004