Commission refuses employee’s claim for ‘extreme delay’

In this case, the Full Bench of the Western Australian Industrial Relations Commission declined to consider an appeal lodged by an employee as it was presented outside of the stipulated timeframe. Moreover, the bench found that the “appeal” had no possibility of succeeding.

The time limit for appealing a decision of the Commission is 21 days.

According to records, the employee had a written agreement for a fixed-term contract with a Catholic college. His role was removed, and the employer refused to accept the alternative teaching role suggested by the employee. This led to the employer “declaring the contract null and void.” Subsequently, the employee took the case to the commission for denied contractual benefits, but it was rejected.

An appeal was then made against the decision of the commissioner to set aside the employee’s summons to call the Roman Catholic Bishop as a witness before the substantive hearing in the unfair dismissal application.

The employee’s filing of the appeal was beyond the allotted time frame for submission, so he asked for an extension to file it. He argued that the delay was due to him having to handle the substance of the case alone; failing to understand certain parts of the law and regulations; as well as difficulties in getting pro bono legal assistance.

HRD reported on a case where the employee similarly sought an extension of time with the same commission, but was rejected in the end, since she deliberately filed another proceeding under the Fair Work Act.

In this case, the Full Bench commented that the request for extra time was not only overdue by a year but was also submitted after the trial concerning his claim was finished; after the dismissal of his claim; after he appealed, after he filed four applications in the initial appeal, after the dismissal of all the applications, after he started a new appeal in the Industrial Appeal Court regarding his applications, and after the hearing of his earlier appeal and the announcement of the verdict was put on hold.

What factors should be considered if extension is granted?

According to the commission, there are generally four major “but not exhaustive factors” which are considered in the exercise of discretion: the length of the delay; the reasons for the delay; the prospects of success of the appeal; and the extent of any prejudice to the other party.

The Full Bench concluded that the employee’s appeal was unlikely to be successful, which meant that he couldn’t be granted an extension of time.

It said that even if the appeal had legitimacy, all the other factors worked against him. The commission noted that the 12-month delay was “extreme, and he had to prove that the other conditions were in his favour.”

However, he failed to explain the period from the end of the primary hearing to when he submitted the appeal and that this had resulted in a significant disadvantage to the employer that couldn’t be rectified anymore.

When a worker is “undecided” or has failed to fulfill strict requirements, case law has ruled that an employer “can’t be expected to wait” for the worker’s decision.

The Full Bench also determined that the appellant’s tardiness was an additional reason to reject the request for an extension and that he had not acted on the appeal within a reasonable manner. Ultimately, the appeal was dismissed.