A v B

Industrial Relations Commission (NSW)|2021-08-02

decision

This is an application for an extension of time within which to file an application for an unfair dismissal remedy made pursuant to s 84 of the Industrial Relations Act 1996 (the Act).

Pseudonym Order

I have considered the nature of the conduct that gave rise to the applicant's dismissal and the applicant's age, amongst other factors. Pursuant to s 164A of the Act, I am satisfied that it is both appropriate and necessary in the interests of justice to assign pseudonyms to the parties and those witnesses who provided statements in the proceedings.
The occupation of the applicant at the time of dismissal is largely irrelevant to these proceedings.
Given these proceedings concern jurisdiction, I do not propose to refer to the nature of the misconduct allegations put against the applicant. In that regard, it has been necessary to redact some parts of this decision.
For the purposes of the proceedings: 1. "A" is the applicant and shall be referred to as "the applicant"; 2. "B" is a New South Wales Government Department and shall be referred to as "the respondent"; 3. "C" is the applicant's de facto spouse; 4. "Dr D" is the applicant's treating doctor; 5. "E" is the respondent's investigator; 6. "F" is the respondent's Manager Professional Standards, People & Culture; 7. "G" is the applicant's Team Leader; 8. "H" is a Program Manager and is also G's supervisor; 9. "I" is the (then) Executive Director Compliance and Regulatory Services;

Background

I am satisfied the applicant's employment with the respondent came to an end on 19 February 2019, the date on which the applicant was formally dismissed. The 21-day period for the applicant to make the application within time therefore ended at midnight on 13 March 2019.
Almost a year later, the applicant filed an application with the Commission on 26 February 2020 seeking re-instatement and compensation.
This application was filed approximately 350 days beyond the time limit of 21 days prescribed by s 85(1) of the Act. The applicant seeks the Commission to exercise its discretion pursuant to s 85(3) and accept the application out of time.
The application followed an earlier application incorrectly filed with the NSW Civil and Administrative Tribunal (NCAT) "on or about" 8 March 2019. On 21 March 2019, the applicant received correspondence from NCAT stating the application had been filed in the incorrect jurisdiction and the appropriate jurisdiction was "Dept of Industrial Relations Commission" (sic).
The respondent opposed the application.
The parties sought the matter to be determined "on the papers".

Applicant

The applicant's Statement was filed on 18 May 2020. The applicant felt unwell and was unable to sleep at night following the dismissal: I had no reason to get up in the morning, whereas before, my job gave me a focus for the day and provided the opportunity to interact with other people. I am unable to maintain a relationship with my partner. I felt unwell all the time. I started to cry for seemingly no reason and am embarrassed by that. I was and continue to suffer from anxiety and depression and am now on medication in dealing with the side-effects of that medication. I obtained a letter from my doctor and a statement from my de facto spouse to assist in describing level of incapacity I've experienced since my dismissal.
The applicant further deposed: I was not able to function normally. I could not gather my thoughts properly to find out what the process should be and who I should apply to for review of my dismissal. I tried to write an application but every time I started I would begin crying. Only recently have I been able to find some help and put an application to the Industrial Relations Commission.
The applicant's Form 7A unfair dismissal application stated in part: Since the shock of the accusations my physical and mental health has deteriorated. I have been on medication for severe depression and have other medical issues, hence the lengthy delay in lodging my Application for Relief in Relation to Unfair Dismissal. I do apologise for the last ten (10) months as it has been very difficult to be motivated.
The Form 7A application also included correspondence dated 12 June 2019, approximately eight months earlier, from Dr D in the following terms (redacted to maintain confidentiality): To Whom It May Concern … REDACTED has been devastated by the charges laid against REDACTED. REDACTED. REDACTED lost REDACTED job as a result of this. I have been supporting REDACTED through this and REDACTED has required Lovan, antidepressant, to help manage.
Dr D does not state the applicant was medically unfit to lodge the application between 19 February and 12 June 2019. Nor does he make any comment on the applicant's general state of health concerning the "other medical issues" referred to in the Form 7A application and relied upon by the applicant in support of this application. Simply put, Dr D's medical opinion is general rather than specific.
A further letter dated 13 May 2020 from Dr D was attached to the applicant's Statement. Here, Dr D stated he had been the applicant's general practitioner since October 2001. During that time, the applicant had disclosed to him a significant number of life stressors that had caused marked depression in the past. However, prior to the allegations of misconduct and subsequent dismissal, the applicant was no longer reliant upon medication to treat the depression.
The applicant attended the consultation with Dr D following a fall in December 2018. During that consultation, the applicant disclosed that they were emotionally upset and had been suspended from work in response to serious allegations of misconduct.
In his correspondence dated 13 May 2020, Dr D provides a broad and general overview of the applicant's health and mental state: In May 2019, the applicant had resumed taking an antidepressant medication that had not been required for an extended period. It is only with input from (the applicant's) partner (C) that I have (a better understanding of what (the applicant) was hiding. According to (C), (the applicant) was totally dysfunctional after this event. (C)) relates how (the applicant) was often in tears and unable to get out of bed (and) … has lost … sense of self-worth. … (The applicant) has trouble motivating … to perform simple daily tasks to get by. … I referred (the applicant) to a psychologist for counselling and unfortunately, (the applicant) has not been able to access the (required) services … I later learnt that (the applicant) could not organise …. to arrange it. … In my opinion (the applicant) was incapable of responding to the demands made on … to defend … against the allegations of REDACTED. (The applicant) did not have resources to obtain counsel and could not meet the timetable set for appropriate legal actions. Further, (the applicant) has limited literacy skills relying on others to assist … in understanding and appropriately responding to communications. It is only after obtaining external pro bono assistance, that (the applicant) has been able to put together a coherent response to the allegations. I respectfully submit that (the applicant's) level of incapacity be appreciated by the Commission and the (applicant) be permitted the opportunity to properly respond to the allegations …
The applicant's reply submissions filed on 30 June 2020 contend the applicant was traumatised and continues to be traumatised by the dismissal and concomitant community gossip concerning the allegations that gave rise to the dismissal. In short, these factors triggered a traumatic event which had a significant impact on the applicant's mental health, providing a reasonable and sufficient explanation for the delay.
Further correspondence dated 24 June 2020 from Dr D was attached to the applicant's 30 June 2020 reply submissions. Dr D now considers the applicant's diagnosis "to be more appropriately Post Traumatic Stress Disorder": (1) I have been asked to expand on my assessment of (the applicant's) mental health. My initial diagnosis was adjustment disorder with anxiety and depression. However, I have been made aware of the full details of the situation (the applicant) was facing in the level of its impact on (the applicant). (2) I now consider (the applicant's) diagnosis to be more appropriately Post Traumatic Stress Disorder (PTSD). (3) I have used the DSM 5 Criteria for PTSD to form my diagnosis and set out my explanations correlate with the DSM 5 criteria (A) to (H).
Dr D proceeded to place the applicant's DSM 5 criteria in context and dealt with matters including the shock experienced following the allegations, and symptoms such as poor sleep, flashbacks and acute stress reactions when the applicant sees media reports related to allegations similar to those that had caused the dismissal.
Dr D elaborated on several symptoms experienced by the applicant and determined these mental health problems "became evident in about November 2018 and are ongoing for longer than one month". Dr D concluded: (The applicant) reports major negative impact on … social functioning. (The applicant) has limited contact with family and friends. (C) … reports that (the applicant) rarely leaves the home and … has spent many days in bed overwhelmed by the situation. (The applicant) has been unable to arrange appointments with a psychologist to who I referred …because … simply could not get … organised to do so. (The applicant) was not capable of dealing with the official bodies (the applicant) needed to apply to in respect of obtaining review of (the applicant's) dismissal.

A Statement in support of the applicant's case was also filed by the applicant's de facto spouse, C on 18 May 2020. Much of C's Statement largely dealt with merit and set out an overview of the allegations that led to the applicant's dismissal.
C confirmed the applicant had made an application to NCAT which was subsequently rejected on jurisdictional grounds. C also set out details concerning the "show cause" meeting with E in Sydney on 30 January 2019. C was the applicant's support person at that meeting.
C observed a significant change in the applicant's demeanour following NCAT's rejection of the initial application. The applicant had complained of being unwell "all of the time" and feeling "useless". C observed the applicant experienced some difficulty sleeping at night.
C expressed a view that the applicant was depressed as a result of NCAT's response and was "emotionally withdrawn". In that regard, C deposed that on or about 22 May 2019, the applicant stated Dr D had prescribed medication for anxiety and depression.
C further deposed: I recall (the applicant) wanted to make a claim for unfair dismissal. I recall that (the applicant) said to me with the effect: I just don't know what to do. Every time I try to do something about making a claim I get emotional and start crying again and can't get the words right'.

F is the respondent's Manager Professional Standards, People & Culture.
In a Statement filed on 15 June 2019, F set out details concerning the investigation into the applicant's conduct, the "show cause" meeting on 30 January 2019 and a further meeting on 19 February 2019 when the applicant was given a letter of termination.
Relevant to this matter concerning jurisdiction, F deposed that on 20 February 2019 he and another employee telephoned the applicant to discuss the further questions that were raised with G, the applicant's Team Leader the previous day. In that regard, F deposed a conversation with the applicant to the following effect ensued: A: Can I appeal the decision to fire me? F: There are no further rights to internal appeals within (B). However you can appeal the decision with the Industrial Relations Commission by making an unfair dismissal claim. A: How do I do that? F: Here's the phone number, 9228-5986.
F further stated the applicant was given the Industrial Relations Commission's phone number because it was apparent the applicant did not have internet access. F subsequently prepared a file note which was subsequently sent to F's email account on 22 February 2019. A copy of that file note was set out under Annexure REDACTED to F's Statement: At approximately 3:15 pm on Wed 20 Feb 2019, (H) and (F) spoke with (the applicant) by phone to respond to the questions … raised with (G) the previous day: (the applicant) was advised that there were no further review processes within (the respondent). (The applicant) could lodge an unfair dismissal claim in the IRC and was given the phone number of the IRC (9288-5986). … It was clarified that (the applicant's) employment with B was terminated. …

Applicant

In relation to the specific jurisdictional question before the Commission, the applicant submitted the Commission should accept the application because the circumstances surrounding the dismissal were exceptional. In March 2019, the applicant made a genuine attempt to dispute the dismissal "almost immediately". However, that application was made in the wrong jurisdiction which the applicant discovered on 21 March 2019 when formal advice from NCAT was received. The application was now out of time. Simultaneously, the applicant's health had deteriorated such that (the applicant) was "in no fit condition to deal with the matter".
The deterioration of the applicant's mental health caused by the trauma associated with the allegations resulted in "(a) complete incapacity to engage with the process of engaging with the legal system self-represented and preparing an application for unfair dismissal".
The level of incapacity experienced was "sufficient to create the abnormal circumstances justifying extension of time". In support of that proposition, the applicant sought to rely upon correspondence from Dr D dated 30 May 2020, and the Statements of C and the applicant filed on 18 May 2020.
The applicant contended the merits of the application support the grant of an extension of time pursuant to s85(3) of the Act to enable a review of the respondent's conduct relating to the dismissal on a number of grounds including:

the respondent relied on policy procedure documents that were not provided to the applicant until after the allegations of misconduct had been made.
the respondent's own documents classed part of the applicant's alleged misconduct as "acceptable conduct".
the respondent does not have the authority to review conduct alleged to have occurred outside work hours.
the respondent's failure to afford the applicant procedural fairness and provide the records of relevant witness interviews relied upon; and
the respondent's findings have not been substantiated to the standard required by Briginshaw v Briginshaw (1938) 60 CLR 336.

Respondent

In opposing the application, the respondent submitted there is no evidence before the Commission that the applicant was ignorant or unaware of the required time limit within which an application to the Commission must be made.
The applicant was dismissed for a serious breach of the REDACTED Code of Conduct and the REDACTED Work Procedure.
The investigation established, on the balance of probabilities, that the applicant's conduct had breached the relevant policy and procedures. Accordingly, there was a valid reason for termination and the applicant was notified of that reason and given opportunity to respond.
Section 85(3) requires the applicant to bear the onus of demonstrating that the justice of his or her case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan 45 ALR 411; Sholo v Secretary, Department of Education [2019] NSWIRComm 1059. The applicant has not satisfied that burden nor has sufficient reason for the Commission to grant the relief sought been provided.
The Commission may only accept an application made out of time if it considers that there is "a sufficient reason" to do so. In that regard, the Commission is required to have particular regard to those matters set out in s 85(3)(a), (b) and (c). In undertaking that consideration, the Full Bench in Skelly v Proud's Jewellers Pty Ltd (1994) 91 IR 3 at 6 observed: (i) there is a public interest in the prompt institution and prosecution of litigation before the Commission; (ii) the Commission should have regard to the cost and inconvenience of litigation not brought within prescribed time limits; (iii) the Commission, in taking all relevant matters into account, must endeavour to do justice between the parties having regard to all the circumstances of the particular case; and (iv) the ultimate exercise of discretion is governed by the requirements of justice in a particular case.

Reasons for and length of delay

The Act does not define what constitutes a "sufficient reason". Each case must therefore be decided on its own facts and circumstances. In this case, the following reasons for delay were sought to be relied upon:

the applicant had made a genuine attempt to dispute the dismissal and seek legal review but in the wrong jurisdiction;
the applicant was not aware the application had been filed in the wrong jurisdiction until 21 March 2019 at which point it was out of time; and
the applicant's mental health was such that (the applicant) was in no fit condition to deal with the matter.

The respondent sought to rely on F's evidence that on 20 February 2019, the applicant was told the dismissal could be appealed by making an application to the Commission. F subsequently provided the applicant with the Commission's telephone number. Accordingly, the applicant was squarely on notice from 20 February 2019 that there was a legal right to make an application to the Commission.
On 27 May 2020, solicitors for the respondent wrote the applicant seeking a copy of the NCAT correspondence dated 21 March 2019 rejecting the misfiled application. The applicant subsequently sent that correspondence on 15 June 2020. In that regard, it was the respondent's submission that if the applicant was able to take steps to file an application with NCAT, then "(the applicant) was clearly mentally and physically able" to take steps to deal with the matter and therefore also had the capacity to establish a legal right under the Act within the applicable timeframe in which the application should have been filed.
It was also the applicant's evidence that the initial application with NCAT was filed "only to be returned & redirected to Dept. Of Industrial Relations Commission (sic)". Accordingly, in the event the Commission does not accept F's account of discussions with the applicant and F's evidence of the subsequent file note, the respondent submitted in the alternative that as early as 21 March 2019, the applicant "was aware of the existence of the Commission and that being the appropriate jurisdiction within which to make an application".
Moreover, in the alternative, should the Commission determine that the applicant was not aware of the appropriate jurisdiction until 21 March 2019, the applicant did not file the application until 26 February 2020.
With reference to the applicant's reliance on a letter from Dr D dated 13 May 2020 to support the proposition that (the applicant) was unable to file the application within time because of (the applicant's) mental health, the respondent submitted: The evidence of the applicant refers generally to the applicant's condition and the manifestation of REDACTED mental health issues. However (it) does not provide any specificity as to (the applicant's) actual medical condition and how that actually prevented the applicant from making the application, or from taking any advice in respect of (the) termination … for such a significant period.
The respondent submitted the applicant's evidence concerning mental health does not provide an acceptable explanation for the delay in circumstances where the applicant:

was informed by F on 20 February 2019 about potential redress to the Commission:
was well enough to, and did, commence proceedings in NCAT;
was informed by NCAT on or around 21 March 2019 that proceedings may have been commenced in the wrong jurisdiction; and
understood from the NCAT correspondence that the action had commenced in the wrong jurisdiction.

Length of delay

The respondent submitted that an employer is entitled to know within a reasonable period of time whether a particular dismissal will be challenged and where challenged, those matters need to be dealt with expeditiously. Limitation periods are decided by Parliament to reflect the demands of justice and the general welfare of society.
The applicant's delay in filing was submitted to be both significant and substantial. In that regard, the respondent sought to rely upon the decision of Commissioner Sloan in Anthony Ian Fox v NSW Department of Industry [2018] NSWIRComm 1047 where at [25] the Commissioner observed: The application is brought more than 12 months out of time. Given that the legislature has set a time limit of 21 days, such a delay can only be regarded as substantial.
The respondent considered the applicant's delay in this matter was "substantial", being 12 months, and should outweigh all other considerations relied upon.
Moreover, given the delay in filing was significant, the applicant has an obligation to provide a credible reason for the whole period that the making of the application was delayed: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 197 IR 403 at 408-409.

Hardship

The respondent submitted that given the substantial delay in filing, it would suffer prejudice if an extension of time was granted. Moreover, a number of organisational changes had been implemented within the respondent's business since the applicant's dismissal. In that regard, I, who was the ultimate decision-maker in respect of the applicant's dismissal, was no longer employed by the respondent.
The respondent also contended that the memories of witnesses "will be adversely affected by the delay" and sought to rely upon the observations expressed by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 254: The public interest requires that complaints be lodged and dealt with as expeditiously as possible … Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively.

Conduct of the respondent

The respondent contended the applicant had been afforded procedural fairness which included a show cause letter issued on 8 January 2019, the applicant's subsequent response, the meeting with supervisors on 19 February 2019 that advised the applicant of the dismissal decision and the subsequent telephone discussion on 20 February 2019 "to clarify any questions regarding the termination of (the applicant's) employment".
The respondent considered the applicant's various responses prior to making the final decision to dismiss.
The respondent submitted that its own conduct had no bearing whatsoever on the lateness of the application. Rather, the respondent had sought to assist the applicant understand the rights available with respect to dismissal.
The respondent further submitted that in Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 at [13], Commissioner Newall stated that "conduct of the employer" within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing an application pursuant to s 84.

Applicant's submissions in reply

The NCAT application lacked detail and clarity because of the applicant's distress and confusion in response to the allegations relied upon by the respondent. The NCAT application also illustrates that the applicant had no ability "to set out (the applicant's) claim appropriately or to establish … legal rights".
The allegations and the applicant's subsequent dismissal had caused psychological harm. The applicant was completely incapable of gathering sufficient thoughts to make any efforts to pursue the matter due to contracting post-traumatic depression and anxiety. In that regard, the applicant sought to rely upon the opinion of the treating medical practitioner, Dr D.
The applicant did not have the capacity to engage legal representation nor the emotional and physical capacity to pursue the legal right to appeal the dismissal within the legislated time frame.
There is a public interest in ensuring the respondent meets its obligations as a model litigant and does not take advantage of a person who lacks the resources to litigate a legitimate claim.
The applicant submitted the respondent has not demonstrated any prejudice in the event the Commission ruled to extend the time for lodging the application. Further, the various witness statements and transcripts of interviews provided to the decision-maker "should be expected to withstand the departure of one of the respondent's personnel".
The applicant denied F had provided information "on the avenue of appeal" and the telephone number of the Commission and denies being "therefore on notice of any right to bring an action in the IRC from 20 February 2019".
The applicant had been traumatised and continued to be traumatised by the dismissal "and concomitant gossip". The applicant was also afraid of retaliation.
The respondent has failed to demonstrate the applicant had been afforded procedural fairness in accordance with its Managing Conduct and Disciplinary Policy. Specifically, the respondent failed to particularise the allegations of misconduct with sufficient detail for the applicant to respond in a meaningful way during the investigation interviews.
The respondent had relied upon its REDACTED Work Procedure which had not been previously provided to the applicant or other co-workers. No induction training concerning these provisions had been provided.
The applicant raised several matters related to the Commission's consideration of whether to exercise its discretion and accept the application. These matters largely dealt with the merit of the application. The applicant also raised some objections to F's evidence, particularly a report to the Ombudsman that was not provided. Similarly, copies of witness statements, transcript of interviews or other evidence relied upon by the decisionmaker were not provided and subsequent requests for that material had been ignored. However, I note that there was no evidence the applicant had sought the production of these document by filing a Notice to Produce.

Statutory Framework

I have considered the statutory framework and the fundamental principles to apply to an application pursuant to s 84 that is brought late.
Section 85 of the Act relevantly provides: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular 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.
Subsection 85(1) makes it mandatory that applications pursuant to s 84 of the Act must be made within 21 days of the dismissal. It therefore follows that the prima facie position is that an application brought out of time is excluded by that subsection.
Subsection 83(2) establishes the precise circumstances where the Commission must accept an application that is made out of time. Those circumstances are not relevant to this application.
In exercising its discretion to depart from the prima face position and accept an application which is brought out of time, the Commission is required to consider whether there is a "sufficient reason to do so" in circumstances where each case is decided on its own facts and circumstances: Jess v Scott (1986) 12 FCR 187 at 195. It follows that when determining whether there is "sufficient reason to do so", the Commission must consider the various matters set out in subsections 85 (3) (a), (b) and (c) of the Act.
There is no exhaustive list of matters under sub-subsections 85(3) (a), (b) and (c) that may trigger an exercise of discretion so as to determine whether there is sufficient reason to accept an application made out of time. Nor is that discretion unfettered.
The approach to the exercise of the discretion under subsection 85(3) is well settled. For example, in Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], the Full Bench approved what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [12] .... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a 'sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 246(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a 'sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.' [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that 'the ultimate exercise of discretion is governed by the requirements of justice in a particular case'.
Accordingly, when exercising the discretion to accept proceedings brought out of time, the Commission must consider the requirements of justice in the particular case consistent with the context of the particular statutory scheme: Hurrell at [13].
Section 85(3) therefore requires the Commission, when considering whether to grant an extension of time, to consider the following matters: 1. the reasons for the delay; 2. the length of the delay; 3. hardship that may be caused to either the applicant or the respondent where the application is or is not rejected; and 4. the conduct of the employer relating to the applicant's dismissal.
The Commission must give each matter appropriate weight in assessing whether there is a sufficient reason for extending the time for the making of the application beyond the 21-day period. The discretion to extend the statutory time limit must be exercised in the context of the rationale for the existence of a time limit. The test involves both a broad discretion and a high hurdle of exceptional circumstances. The longer the delay in making the application the more difficult it will generally be to overcome that hurdle.
Moreover, limitation periods are enacted by Parliament as a matter of public policy. Critically, the intention of Parliament is that prima facie, an application filed out of time is excluded from the Commission's jurisdiction by subsection 85(1). The burden therefore shifts to the applicant to demonstrate that in the interests of justice, an extension of time to file an application should be made.
The High Court considered an application for an extension of time in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) where the majority determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside the statutory time period. At 552 - 553, McHugh J explained the rationale for limitation periods: Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. ... Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. (footnotes removed)
The majority also confirmed it is the applicant who bears the positive burden of demonstrating that the justice of the case requires an extension: … that an application for an extension of time under s 31(2) does not have a presumptive right to an order once the conditions in s 31(2)(a) and (b) have been satisfied. An applicant still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably, and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant. Section 31(2) does not require a weighing process between the potential prejudice to the applicant and prospective defendant.
More recently in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134, the High Court reaffirmed the significance of the two fundamental propositions established in its decision in Brisbane South. In a passage referring to Brisbane South, the majority stated: First an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time .... Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case.
In Brisbane South, McHugh J also stated at 553 and 554: A limitation provision is the general rule; an extension provision is the exception to it. ... ... The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
An inordinate delay in the making of an application within time may be taken as evidence of prejudice: Brisbane South at 551. Moreover, at 554-555 the High Court observed the test of prejudice must consider the fact that a defendant's potential liability expired at the end of the statutory limitation period and any extension of time would impose a new legal liability.
In Commonwealth of Australia v Smith [2007] NSWCA 168, Giles JA referred to the test to be applied if an extension of a limitation period was to be granted: [50] The primary regard is to prejudice to the respondent if an extension of the limitation period is granted. If there would be significant prejudice, the extension should not be granted: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [116]; Commonwealth of Australia v Smith at [127]; Commonwealth of Australia v Lewis at [29]; Commonwealth of Australia v Shaw at [36]. That does not mean that, absent a finding of significant prejudice, an extension must be granted, and the applicant must still discharge the persuasive onus: Parsons v Douglas (2001) 52 NSWLR 163; Commonwealth of Australia v Smith at [129]. ...

Length of and reason for the delay - s85(3)(a)

The Commission must have regard to both the length and reason for the delay. Here, the applicant brought an application approximately 350 days out of time in circumstances where a 21-day limitation period is prescribed. It is not a trivial or negligible period. Rather, it is a significant period to be considered.
The delay required to be considered is the period beyond the prescribed period for making an application and excludes the period from the date of the dismissal to the end of the 21-day limitation. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.
The applicant was initially unrepresented, and suffered shock and anxiety following the dismissal which, according to correspondence from Dr D, subsequently led to physical and mental illness. Despite this, the applicant was able to file an application with NCAT on or about 8 March 2019.
The Statement filed on 18 May 2020 states the applicant was formally notified of the dismissal by letter dated 12 February 2019. At that time, the applicant did not have the financial resources to engage legal representation.
I note that the respondent has nominated 19 February 2019 as the date of dismissal.
The applicant further acknowledged an application had been lodged with NCAT "for Administrative Review" within 21 days of the dismissal. At that time the applicant did not understand the application had been made to the incorrect jurisdiction. The applicant subsequently received correspondence from NCAT on 21 March 2019 that (the applicant) had filed the application in the wrong jurisdiction. On or about 8 March 2019, I lodged application for Administrative Review with the NSW Civil and Administrative Tribunal. I did not understand that I had made an application to the wrong jurisdiction. On 21 March 2019 received a letter from NCAT advising me that NCAT was the wrong jurisdiction.
The applicant acknowledged that NCAT's advice was to file an application with the "Dept of Industrial Relations Commission".
In my view, it is more probable than not that the applicant was therefore on notice from 21 March 2019 that the "Industrial Relations Commission" was the correct jurisdiction for filing the unfair dismissal claim.

Medical evidence

There is no compelling evidence that the state of the applicant's mental health was such that it would have prevented the application from being filed within "the whole of the time" post the 21-day limitation period, particularly given the applicant was able to make an application to NCAT on or about 8 March 2019 - within the 21-day limitation period. There is no real time medical evidence to support the claim that by the time the NCAT response on 23 March 2019 was received, the applicant's health had deteriorated as claimed. On the contrary, the medical evidence is retrospective.
The Form 7A set out correspondence from Dr D dated 12 June 2019 in the following general terms: To Whom It May Concern … REDACTED has been devastated by the REDACTED laid against him. REDACTED. REDACTED lost REDACTED job as a result of this. I have been supporting REDACTED through this and REDACTED has required Lovan, antidepressant, to help manage.
There is no specific evidence that the applicant sought to see Dr D or seek medical advice until well after the 21-day deadline had passed.
Dr D does not state the applicant was medically unfit to lodge the application within the 21-day period. Indeed, during that time an application was filed with NCAT. Nor does Dr D make any comment on the applicant's general state of health concerning the "other medical issues" referred to in the Form 7A application and relied upon by the applicant. Simply put, Dr D does not state the applicant was suffering "severe depression" immediately following the dismissal on 19 February 2019 and that illness prevented the application being made within the statutory timeframe.
Moreover, Dr D does not give a medical explanation to support the applicant's contention that illness had prevented the application being made for the entire period from the expiry of the time limit through to 12 June 2019. No details are given concerning intervening medical appointments or when the applicant was prescribed the medication, Lovan.
Critically, Dr D does not provide an explanation concerning why the applicant was able to file the NCAT claim within the time limit but unable to file in this jurisdiction shortly after NCAT's determination concerning jurisdiction.
In my view, it is not unusual for employees to be distressed or suffer shock and trauma following dismissal. Nor is it unusual for employees not to be fully aware of their right to make an unfair dismissal claim. Such claims are frequently the subject of media and political attention. They do not, on their own, generally provide a basis for determining that a sufficient reason exists to justify an extension of time.
The Statement filed on 18 May 2020 states the applicant felt unwell following the dismissal and had subsequently been prescribed medication for anxiety and depression. When that medication was prescribed is not stated. Moreover, the applicant does not state this medical condition had prevented the making of an application for the whole of time between the NCAT correspondence dated 21 March 2019 and date of filing in this Commission on 26 February 2020.
Similarly, while Dr D's 13 May 2020 correspondence provides a broad and general overview of the applicant's health and mental state, it does not state the applicant's health and mental state was such at the time so as to prevent the application being made for the whole of the time up to 26 February 2020. Accordingly, I consider Dr D's medical evidence concerning the applicant's health and mental state for the period ending 13 May 2020 to be otherwise too generalised.
The 13 May 2020 correspondence states the applicant "was incapable of responding to the demands made … to defend … against the allegations" and "could not meet the timetable set for appropriate legal actions". On its face, this is a retrospective opinion and in making such statements, Dr D has relied on "input" from C that the applicant "was totally dysfunctional" post dismissal, rather than relying on objective evidence such as contemporaneous evidence provided by a psychologist. Dr D has not attached any relevant clinical notes or referred to specific observations made following consultations with the applicant during the period ending 13 May 2020.
I have considered this material closely. In my view, Dr D's opinion lacks specificity. He makes no comment concerning the applicant's actual mental health at the time of filing with NCAT nor at the time it was rejected by that Tribunal. Moreover, Dr D does not provide any details or reasoning in support of the applicant being clearly capable of responding to the respondent's request for a copy of the NCAT "rejection" correspondence sought in May 2020. The applicant's response here shows a rational thought process which the applicant was able to exercise.
There is also no evidence to suggest that Dr D's medical practice or the applicant's partner, C, who has provided a Statement in this matter, sought to assist the applicant to make the appointment with the referred psychologist. Similarly, there is also no evidence to suggest that following NCAT's rejection, the applicant or partner sought assistance from any third party, including the Commission Registry, to assist with the filing the application.
In correspondence dated 24 June 2020 attached to the applicant's 30 June 2020 reply submissions, Dr D now retrospectively considers the applicant's diagnosis "to be more appropriately Post Traumatic Stress Disorder". Notwithstanding his 13 May and 24 June determinations, Dr D does not state the medical condition was such that for the whole time, illness prevented the applicant from making the necessary application. The applicant must provide an acceptable and credible reason explaining the whole of the period the application was delayed and how that correlated with the illness.
In this matter, the applicant seeks to rely on the fact that the dismissal was stressful. However, the applicant was able to complete and make an application to NCAT. When informed that this application had been filed in the wrong jurisdiction, it was contended that the applicant's mental health state had prevented the filing of an application in this Commission. Increased stress and anxiety following dismissal is a notorious fact and the possibility of incurring shock is not uncommon amongst dismissed employees and is not by itself, an acceptable explanation for delay and particularly where that delay is significant.
There is certainly no evidence to support the proposition that the applicant's cognitive functioning was impaired during the 21-day period immediately following the dismissal. The NCAT application removes any such doubts. Nor, in my opinion, is there "real time" specific medical opinion that the applicant's cognitive functioning was so seriously impaired that it restricted the ability to file a correct application for the whole of the 350-day delay.
The applicant was clearly both physically and mentally capable to respond to the 27 May 2020 request by the respondent to supply a copy of the NCAT correspondence advice concerning jurisdiction. The correspondence was subsequently provided on 15 June 2020.
In my view, an extension of time application represents a high hurdle to clear. Accordingly, it must follow that the longer the delay, the more difficult it is to achieve an extension.
The nature of applicant's mental illness as explained on three separate occasions by Dr D cannot be accepted to explain the totality of the delay. I am not persuaded by the evidence advanced by the applicant that the applicant's mental health condition was the sole reason for the late lodgement of the application. Dr D's correspondence relied upon by the applicant does not in my view supports such a conclusion.
In summary, I do not consider the reasons for delay relied upon by the applicant provide a credible explanation for the entire period of the delay. While the medical evidence does provide a generalised and retrospective diagnosis, it does not provide any detailed insight into the extent to which the applicant was incapacitated for the entire period claimed.

Hardship to the applicant or the respondent - s 85(3)(b)

The Commission is required to have regard to any hardship that may be caused to the applicant or the employer in the event the application is accepted or is rejected.
The applicant submits post-traumatic stress was suffered as a result of the dismissal in addition to ongoing trauma from the contributing community gossip. Financial hardship was also incurred.
The applicant further submitted the respondent should meet its obligation as a model litigant to ensure it does not take advantage of a claimant who lacks the resources to litigate a legitimate claim.
For its part, the respondent submitted that it would suffer prejudice if the application was allowed to proceed, particularly given the extremely substantial and significant delay.
The respondent further submitted there had been several organisational changes within its business. Most notably, the ultimate decision-maker who approved the applicant's dismissal had resigned. The respondent also considered the memories of witnesses would be adversely affected by the delay.
I find that the applicant will suffer hardship and continue to suffer a degree of hardship if this application for extension of time is rejected. However, the applicant's hardship is no different to the hardship experienced by other applicants whose application is rejected by the Commission.
There is authority for the general proposition that where a time-limit exists within which to bring a claim, the respondent to that claim is entitled to regard themselves as free from suit once that time-limit has passed: Katsantonis v Inner West Council [2017] NSWIRComm 1015 at 34.
I am very conscious of the applicant's age, the nature of the allegations and the community concerns raised in evidence. The application seeks "to clear" the applicant's name. I understand the reasons why the applicant is aggrieved by the dismissal.
If hardship to the applicant is to be considered as a global factor weighing in favour of acceptance of an out of time application, the hardship that may be caused to the applicant if the application is rejected must be more than just the loss of the opportunity to have the application considered by the Commission.
I accept that the respondent would suffer some prejudice in the event the Commission granted the extension sought. Equally, as I have stated above, the applicant would also suffer prejudice if the application was rejected. Although the absence of prejudice is not of itself a reason to grant an extension of time, it is a consideration supporting a finding of "sufficient reason".
An applicant's prospects of success are relevant to the consideration of hardship to prompt the exercise of the Commission's discretion under s 85(3)(b). In this matter, the material filed by the parties concerns primarily the respondent's jurisdictional objection. On a preliminary view, I consider the applicant would face some challenges in making out that the dismissal was harsh, unreasonable or unjust having regard to all the circumstances that gave rise to the dismissal.
On balance, I consider hardship to be a neutral factor.

Conduct of the employer relating to dismissal

Section 85(3)(c) requires a consideration of the conduct of the employer relating to the dismissal. Conduct here only concerns the conduct of the employer insofar as it might be relevant to the delay in an applicant filing an application pursuant to s 84.
However, in the absence of any cross-examination of F, there is no basis for criticism of the respondent. I accept the evidence of F which reveals that the employer afforded the applicant some details concerning rights to appeal unfair dismissal before this Commission.
I accept that the applicant may have misunderstood information given by F as a result of the shock and dismay felt at the time. Age and literacy may have also been relevant.
I do not consider the respondent's conduct had any bearing on the applicant lodging the application out of time.

Conclusion

Section 85 does not allow the Commission to accept an application made out of time on the grounds that the applicant had previously made a similar application under State law relating to the same dismissal, as is the case here.
Mere ignorance of the statutory time limit is not a circumstance that gives rise to "sufficient reason".
Parliament has chosen to condition the discretion to extend the time for making an application. A "sufficient reason" has been mandated. That said, it must follow that Parliament has legislated on the basis that an employee who is aggrieved at being dismissed is expected to seek out information on any available remedy in a timely fashion such that any delay on account of ignorance of the statutory time limit is not, of itself, a "sufficient reason".
In this matter, it seems more probable than not that the applicant's NCAT application is indicative of the fact that potential remedies had been pursued albeit in the incorrect jurisdiction. It also follows that it is more probable than not that the applicant was aware that some form of time limit applied.
I have given consideration to the applicant's reasons for delay, the length of that delay, the conduct of the respondent relating to the dismissal and all of the evidence and written submissions of the parties before the Commission relevant to the consideration of this application. I have also considered the applicant's claim that the respondent has failed to comply with certain policies or procedures.
In the circumstances of this case, I am satisfied that when considered as a whole, with due regard to the balance of prejudice or hardship between both parties, there is insufficient reason to warrant the exercise of the Commission's discretion pursuant to s 85(3) of the Act in favour of accepting the application lodged out of time.

Orders

I make the following orders: 1. The application made by A pursuant to s 85 of the Act that the Commission accept the application pursuant to s 84 of the Act out of time is refused. 2. The application made by A pursuant to s 84 of the Act is dismissed for reason that it is not brought within time. J D Stanton Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2021

Industrial Relations Act 1991(NSW)

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (21)

Cited By (5)