Australian Services Union of New South Wales v Ammberly's Single Women's Refuge Inc

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations (General) Regulation 2001 Public Sector Employment and Management Act 2002

Australian Services Union of New South Wales v Ammberly's Single Women's Refuge Inc [2003] NSWIRComm 16 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Clarke v Mid North Coast Health Service [1999] NSWIRComm 435 Commonwealth; Ex Parte Marks [2000] HCA 67 D'Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19 CASES CITED: Green v Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109 Greene v Mayne Nickless Pty Ltd t/as Armaguard [1998] NSWIRComm 40 Minister for Health v Ferry (1996) 65 IR 374. Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf and Susan Benfell) v Department of Education and Training [2008] NSWIRComm 16 Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 Smith v Director General of School Education (1993) 31 NSWLR 349 Syed Rizvi v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084

APPLICANT Mr D Brezniak of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Ms V McWilliam of Counsel Mr N Cureton, Housing NSW

DECISION: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Jeanette Suwaid re unfair dismissal pursuant to section 84 of the Industrial relations Act 1996

[2010] NSWIRComm 1064 1 This matter concerns an application by Jeanette Suwaid against Housing NSW for a remedy pursuant to s. 84 of the Industrial Relations Act 1996. Ms Suwaid's was advised that her temporary employment as a Client Service Officer with Housing NSW would not be renewed on 19 January 2009. She filed her s.84 application on the 4 February 2010. She sought reinstatement to her former position or monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner Connor on the 25 February 2010 at which time conciliation took place. However as no settlement could be reached and as the respondent pressed the issue that the application was out-of-time, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17. 3 The matter was re-allocated to the Commission as currently constituted and listed for hearing to deal with the out-of-time issue on the 21 May 2010. Further conciliation was conducted on that day and the matter re-listed for mention on the 4 June 2010. No settlement could be reached and Ms Suwaid sought to have the matter proceed to arbitration. As witness statements had not previously been filed by the respondent (only written submissions) and given the form of witness statement that had been filed on behalf of the applicant, further directions were issued in relation to the filing and exchange of witness statements and the matter set down for hearing on the 30 July 2010. 4 At the hearing Mr Brezniak, of Counsel, appeared on behalf of Ms Suwaid who gave oral evidence in addition to the witness statement filed (Exhibit 1).

5 Ms McWilliam, of Counsel, appeared on behalf of Housing NSW and called the following witness: Kelly Green - Access and Demand Coordinator, Mid Western City Area Branch, Housing NSW (Exhibit 5). Background and Chronology - based on the evidence filed and the transcript. 6 Ms Suwaid has three children and is separated from her husband. She is also a subsidised tenant of Housing NSW. The issue of her tenancy, arising from questions concerning her estranged husband, had been the subject of an on-going investigation by Housing NSW that had not been concluded as at the date of the hearing. 7 Ms Suwaid commenced employment with Housing NSW as a temporary employee engaged pursuant to s.27 of the Public Sector Employment and Management Act 2002 ( the PSEM Act) on 13 August 2007. 8 The terms of the temporary engagement were set out in an offer of employment dated 31 July 2007 which indicated that the period of employment was "13th August 2007 for a period up to 3 months." The offer of employment also indicated that temporary employment was dependent upon inter alia "satisfactory conduct and services", and also "subject to the availability of work and funds and may be terminated at any time subject to the provision of any required period of notice being given". Ms Suwaid accepted and signed the offer of employment on 3 August 2007. 9 On 12 October 2007 Ms Suwaid received a letter from NSW BusinessLink Pty Ltd, advising that approval had been given for her temporary employment to the position of Client Services Officer Grade 2/4 from the period 12.10.2007 up to 1.2.2008, again in terms of s.27 of the PSEM Act. The letter went on to advise as follows (Exhibit 1): Your employment will be reviewed during this period and your continued employment will depend upon your satisfactory conduct and work performance and the availability of work. If your temporary employment will be terminated earlier, you will be given one (1) week (sic) notice. Please note that your temporary employment does not guarantee permanent employment to the position. 10 On 17 October 2007, Ms Suwaid signed the 'Acceptance of Offer' section which provided as follows: I wish to accept my temporary employment under the terms/conditions and salary stated above. 11 NSW Businesslink is a NSW Government shared services network initiative providing a range of corporate services to the Department of Community Services (DoCS), Department of Housing, Department of Ageing, Disability and Home Care (DADHC) (as stated at the bottom of the letter of 12 October 2007 - Exhibit 1). 12 Ms Suwaid's temporary employment was subsequently continued by way of a series of letters which provided for stated periods of employment and were in identical terms to the letter referred to above, and were also issued by NSW BusinessLink. Attached to Ms Suwaid's witness statement were dated letters covering the following periods: 19 February 2008 - From 1/02/2008 up to 28/03/2008, 14 July 2008 - From 27/06/2008 up to 31/12/2008, 22 January 2008 - From 31/12/2008 up to 30/01/2009. 13 Ms Green has been employed by Housing NSW (in its various entities) for over 15 years, and in her current position for 7 years. She manages a team of 15 staff with the primary function of the team being "to support clients in accessing products to enter Housing NSW accommodation or other accommodation (social or private)." Her manager is Grant Johnson and she is supported by the Human Resources Division. Ms Lee Toohey is the Business Services Coordinator in that division who predominately manages all staff in the mid-west area (Exhibit 5). 14 As part of her management role Ms Green is involved in the renewal of contracts of employment for people within her team and liaises with staff in relation to their contracts of employment and also with Ms Toohey. She does not see the letters that BusinessLink sends to employees. 15 Towards the end of 2008 there was a recruitment drive carried out across Housing NSW for permanent positions. Ms Suwaid applied for a permanent position and participated in a telephone interview in November 2008. She also had a face-to-face interview on 5 December 2008 at Ashfield Housing and received written confirmation and advice about this interview (Exhibit 3). She also received notification by email about the requirement to provide various documents relating to identity verification etc. (Exhibit 4). 16 On 19 January 2009, Ms Green and Mr Johnson held a meeting with Ms Suwaid during which Mr Johnson advised her that there was no longer a vacancy for her and that her contract would not be renewed beyond its present date. 17 Ms Suwaid opted not to serve out her notice period (the extent of the period is disputed by Ms Suwaid) and finished up on 19 January 2009. 18 On 29 January 2009, the Staff Services Officer, HR Payroll, NSW Businesslink issued a Statement of Service for Ms Suwaid advising that her "Total periods of Service:" were 13.08.2007 to 23.01.2009 - Full 35 hpw (Temporary) with the 'Reason for termination of service' given as - "End of Contract". 19 As at the date of the conclusion of her employment in January 2009 she had not been advised as to whether or not her application for a permanent position with Housing NSW had been successful. Ms Suwaid was not advised until a letter of 9 September 2009 from Ms Dijanna Galea, Senior Recruitment Consultant, that her application for a permanent position had been unsuccessful (Exhibit 11). 20 On 13 September 2009, Ms Suwaid travelled to Syria with her children and stayed with relatives, she had had a booking to return to Australia on 23 November 2009. She had informed Housing NSW by letter that she would be travelling, and had also appointed a friend and neighbour to look after her property and also convey the letter to Housing NSW. 21 Whilst Ms Suwaid was in Syria one of her daughters became ill and required hospitalisation, then she herself became ill prior to her scheduled departure from Syria in November and was unable to travel for some time on medical advice. When she was well enough to travel she was unable to secure a return flight to Sydney until 1 January 2010. 22 There were no issues raised as to Ms Suwaid's work performance during her employment.

23 Various documents from BusinessLink not referred to above and produced under subpoena were also tendered as part of Ms Suwaid's case: 13 November 2008, email from Troy Cardoso-Vigors to various persons re not contacting Ms Suwaid (Exhibit 6). 8 September 2009 email from Jarrod Hockley-Franks to Carly Rossington re available information about a letter not having been sent to Ms Suwaid (Exhibit 7), Email exchange history from Carly Rossington concerning emails of 20/11/2008 and 9/12/2008 re "current CSO's from GWSD--need to keep an eye on" (including Ms Suwaid). (Exhibit 8), 8 September 2009 email from Carly Rossington to Jarrod Hockley-Franks re Ms Suwaid being a candidate who did not receive an unsuccessful letter (Exhibit 10) 24 Neither Ms Suwaid nor Ms Green had any knowledge of these documents.

The Evidence 25 Ms Suwaid deposed that some 10 other Customer Services Officers made applications for permanent employment at or around the same time as she did, including 5 others from her section. All 10 persons were advised of their success in securing a permanent position and she believed that this occurred during February 2009. As far she was aware she was the only person who was not advised on the same day and date as the other applicants as to the result of her application. She also believed that each of the other applicants who applied and gained permanent employment with Housing NSW had been in their temporary positions at the Bankstown office for a shorter period of time than she had. 26 Ms Suwaid said that when they were advised to apply for the permanent positions they were informed that if they were unsuccessful their temporary contracts may or may not cease because they were two different issues. She said that she did not understand that her employment would cease if she did not make it onto the eligibility list. 27 At the interview with Mr Johnson and Ms Green on 19 January 2009 she said that Mr Johnson apologised and said it had nothing to do with her tenancy or with the application for the permanent position but that he had to cease her contract as of today and that they would be happy for her to leave today or stay until the end of the week which was 23 January 2009. 28 She said she raised concerns about them terminating her contract when there was a policy in Housing, 'last in, first go', and on their team she was not the 'last in' from the temporary employees, she was the first one. She raised with Mr Johnson whether it had to do with her tenancy, and Ms Green said "No", and that if it was up to her she would keep her on and praised her work. Following the meeting Ms Green spoke to her and told her she had done well and that was not up to her and not her decision and that "it's due to staff movement". 29 Ms Suwaid said that they always used to get the letters about the renewal of the contracts after the period of time had ceased. She used to receive them in the mail at home and she would sign them and fax them through to BusinessLink. The contract said that it did not mean you will gain a permanent position but she always thought that with her work ability and experience she never doubted for one minute that her temporary contract would cease. She believed this because the environment in their team was pretty healthy amongst colleagues and she was always helping and supporting and being praised in particular by her Team Leader, Ms Green and her Counter Manager Kerry Kerr. 30 Ms Suwaid also understood that the personnel involved with her temporary position, and the personnel involved in relation to the employment of the permanent positions, were the same management. 31 Ms Suwaid acknowledged that she had received e-mails from Carly Rossington (Exhibit 4) in which she was told that the recruitment process would be finalised by the end of January 2009. She did not contact Carly Rossington at all in relation to the outcome of her application. She said she only had her contact details through work and she wasn't at work anymore. She also didn't know that she was the right person for her to contact. At the time they were finalising their applications and the various ID checks for all the stages of the recruitment and that was all she thought Ms Rossington was for, she didn't think she could be in contact with her about trying to get an answer as to whether she had been accepted or not in that position. 32 She did not contact Carly Rossington or the recruitment department because after she'd heard that all of her colleagues were approved or not approved for the permanent position and she thought that because she had a tenancy issue with Housing, and an employment application with them, that both of them would liaise together and that once one thing was finalised then she should be accepted for recruitment at that time. That was why she never tried to follow her application for employment through with BusinessLink or anyone else. 33 She agreed that she did not follow up her application with anyone in recruitment either before or after September 2009. She also agreed that after she received a letter concerning her application in September 2009 she took no steps to commence proceedings in the Commission. 34 Ms Suwaid deposed that after the termination of her employment on 19 January, she took advice from a lawyer who said to her ..."you have only 21 days to make a claim and that means that there are about three days left". She deposed that she said - "I am afraid that if I have a court case against my employers it will jeopardise my application for a permanent position with my employer the Housing Department". He said "it may or it may not, but it is your decision". 35 She maintained that she made the decision that she did not want to lose her chance of securing a permanent position and believed she had very good prospects of securing such a position. She did not give up hope even after she received a letter advising her that she had been unsuccessful. She still believed that she was well qualified for that position and well suited to the work. 36 After the termination of her employment she had some three or four meetings with Mr Lindfield at the Ashfield office. She could not remember the dates but thought they occurred in July, August and September. One of those meetings with Mr Lindfield was attended by her then Area Manager Ms Tara George. On each occasion she raised with Mr Lindfield her concerns that the termination of her employment had been caused by the allegations relating to her Housing Tenancy Subsidy benefit. On each occasion Mr Lindfield advised her that the allegations that were being investigated were a separate issue. 37 Ms Suwaid acknowledged in cross-examination that Ms George was the Manager of Housing Operations, and did not have anything to do with recruitment and she was speaking with her about her tenancy, she thought that that occurred maybe in August. She also acknowledged that Mr Lindfield was in the Fraud section and also did not have anything to do with recruitment and that she was speaking to him about her tenancy. 38 She also spoke to him about the fact that her application for permanent employment had not been answered, whilst all the other Customer Services Officers who had been applicants had been advised that of their success. She told him that she was being punished in her employment because of these allegations in relation to the tenancy and that the enquiry was unfair. 39 Ms Suwaid maintained that it was obvious to her that if she had commenced an application for unfair dismissal it would have involved taking her employers to court and it remained her belief that that would have jeopardised any chance for her to get a permanent position. She would not have done anything at all to jeopardise the application for permanent employment. She knew that court proceedings involved calling witnesses and cross examining them and contradicting them if necessary and even calling them unreasonable or unfair or unjust.

40 When her employment was terminated she approached the local member of Parliament (Mr Tripodi) who raised issues with the Housing Minister to examine her tenancy and employment with Housing NSW. Mr Tripodi had received notification that her employment was terminated due to staff movement and her tenancy was still under investigation.

41 Ms Suwaid believed that her dismissal was for reasons not connected to the performance of her work or to the end of any time period. She agreed that no one had told her that not getting the permanent job was because of the tenancy difficulties, but she believed that it was the reason.

42 Ms Suwaid gave further details of her travel to Syria in September 2009 and the subsequent issues arising concerning both the health of one of her daughters and her own health.

43 While she was overseas she rang Mr Lindfield in Ashfield and informed him of the illness of herself and her daughter and he stated that he would inform Bankstown Housing. 44 She was not applying for other jobs in 2009, but at the beginning of 2010 she did apply for a few positions but was unsuccessful. She considered that she would not have been successful because she needed referees and references to put on her application and she did not have any from her previous employment. Even if she had been successful she would still have commenced these proceedings. 45 Ms Green gave brief details of the duties involved in her management role and her practice concerning her involvement in the renewal of contracts of employment for the people within her team. In 2008 she had at least five people who were on temporary contracts of employment, including Ms Suwaid.

46 Ms Green indicated that Ms Suwaid's induction process was managed by the Business Services Unit managed by Ms Toohey on the first days. Ms Green did not personally participate in that induction process with her, the only part that she sat through with her was to go through the Code of Conduct because it was brought to her attention that Ms Suwaid was a resident of the social housing unit and they needed to make sure she knew about her responsibilities under the Code and how she was protected by it. Ms Green knew nothing about any history about tenancy issues concerning Ms Suwaid at that point.

47 Ms Green confirmed that whilst she discussed with Ms Suwaid the length of time the next letter from BusinessLink would specify that she was working, she was not responsible for, nor did she choose, the dates, that was not her role. She was aware of the letters that were sent to Ms Suwaid (but did not see them) as she would be advised by Ms Toohey, either verbally or in writing, as to an individual staff member's extension of contract and she would then put that information into the HR payroll system. 48 Ms Toohey would review the contracts that were coming up to run out and look at what available vacancies there were, and if they could offer an extension, they would talk to the staff member before the expiry of the existing contract. However Ms Green was not involved in whatever paperwork then got generated as a consequence of that decision. 49 Ms Green stated that from her experience in working for Housing NSW she was aware that sometimes the organisation undertook a fairly substantial recruitment drive for permanent positions due to high turnover of personnel. The time for such a recruitment drive arose towards the end of 2008 and was carried out across Housing NSW. She was informed of the process by her manager, Mr Johnson, and through various communications with the Human Resources Division.

50 It was her understanding that from the recruitment drive an eligibility list was to be created for the entire Greater Western Sydney Division, not just the Mid Western City Area. At the same time the Sydney Central Division was carrying out a recruitment drive with an eligibility list to be created for that Division as well. All temporary and permanent positions in the relevant Division were to be filled from the next person on the eligibility list.

51 During the period when the recruitment drive was occurring she was Acting Business Services Coordinator for about 4 to 5 weeks while Ms Toohey was on leave. As part of this role she called a meeting at the Bankstown office with all the staff on temporary contracts in her section including the Access and Demand team. She remembered that not all of her team was present but specifically remembered Ms Suwaid being there. 52 During the meeting she went through what the recruitment process was to make sure everyone knew what he/she had to do to apply. The process was to occur over several months. The first stage being the application process; the second stage a telephone interview; the third stage a face-to-face interview; the fourth stage a performance/combat check, a referee check and a police check and then the General Manager would sign off on the particular recruitment file. An employee would go onto the eligibility list only if they were successful in completing all these stages. 53 She told people that if they wanted to continue working with Housing NSW they had to apply in that recruitment round because the eligibility list that would be created would be used to fill any permanent and temporary vacancies, if there were any, at the conclusion of the process. She also advised that anyone who was unsuccessful in the recruitment drive would not be considered for further temporary and permanent positions and their employment would cease. 54 She also kept a 'tick sheet' in her notebook, being a list of the people on temporary contracts at the time, to ensure that she told everyone affected by the recruitment drive about its repercussions for their employment. She remembered ticking off every Bankstown member she had spoken to including Ms Suwaid. 55 Ms Green stated that she was not involved in the actual recruiting and finalising of employees on the eligibility list. She was also on holidays overseas for three weeks over November-December 2008 which was a period when face-to-face interviews were conducted. When she returned from her holiday she said that she was made aware that Ms Suwaid had not been offered a face-to-face interview. As a result of this she knew that Ms Suwaid's application had been unsuccessful and because of what she had communicated to her about the process she believed that she understood her employment would cease if she did not make it onto the eligibility list.

56 In cross-examination Ms Green was taken to Exhibit 3, the e-mail from Jody McGlynn to Ms Suwaid advising of the details of her face-to-face interview on 5 December 2008. She indicated that she was not aware of the face-to-face interview and it was her understanding that not having the face-to-face interview meant she had to be terminated because she wasn't successful in the recruitment process as were other employees also who were unsuccessful. 57 She stated that every staff member was spoken to about the outcome of his/her application, however this may have occurred after January 2009 as the recruitment process took place over a number of months.

58 She was not involved in the process of formal notification and believed that that notification would not have occurred for many months because of the scope of the recruitment drive and no one was formally notified until the eligibility list was finalised. She had no involvement in the entire recruitment process other than the initial stages, it was all done by BusinessLink, that was part of the process they were engaged to perform. 59 Ms Green did not see any list of those who were successful or those who were put on the eligibility list. She had been advised that there was a substantial number who had applied to have a permanent position in that round of recruitment but did not know what that number was. There were five in her team with three who got onto the eligibility list but didn't get permanent positions which meant they could stay with temporary contracts. 60 Ms Green agreed that if there were no vacancies available then there had been a general practice within Housing of 'last on, first off'. The recruitment was for some specific vacant positions but they were also looking at having a pool of additional persons. 61 Ms Green deposed that in January 2009 a person who permanently 'owned' his/her position came back into the area, but she was not aware of who it was because that person was not in her team. That meant that someone in the area who was 'temporary' had to finish up. She said this was how the public service system operates.

62 She said the first 'driver' for letting Ms Suwaid go was the permanent officer coming back to their position. Also, because she had not been successful in the second round of recruitment, her manager, in consultation with his manager, determined that she would be the person that would be released, because there would not be any ongoing work beyond the end of her contract. 63 She said that as Ms Suwaid had not got through to the second round of the recruitment process, the Manager, Mr Johnson, in consultation with Clive Bradshaw, the Area Director determined that Ms Suwaid's contract which was ending in January would not be renewed so as to make way for the permanent returnee elsewhere. This information was related to her by Mr Johnson, but she no longer recalled the precise words he used. She had no input into this decision.

64 As to the meeting on 19 January 2009 Ms Green deposed that during the meeting she heard Mr Johnson say to Ms Suwaid words to the effect of: "There is no longer a vacancy for you. Your contract will not be renewed beyond its present date. ......... You have the option of either staying for the remainder of the contract, or finishing up and Housing NSW will pay you out to the end of your contract"

65 Ms Green said that they gave her this option because she wanted to give her the opportunity of going and looking for other work but Ms Suwaid opted to finish that day.

66 She did not recall, and did not believe, that Mr Johnson said at the meeting that "this has nothing what ever to do with your difficulties with Housing". She had had discussions with him, after that interview when they debriefed and she didn't believe that was what he would have said. She did not know anything of what was happening with Ms Suwaid's tenancy issue and did not speak to Mr Lindfield, it had nothing to do with her. 67 Ms Green said that during the meeting Mr Johnson explained that the recruitment process would still proceeding and that she would get an outcome once it had all been finalised. He did not use language saying that she may still get a position, he knew he could not formally advise her that she had been unsuccessful at that stage. She could not advise Ms Suwaid either because it was outside her delegation to provide that information. She could not tell her that she had been unsuccessful because not all final processes had been completed. 68 She did not consider that at that meeting Mr Johnson lied to Ms Suwaid, he just advised her that the process was still proceeding. 69 She confirmed that following the meeting she did remember going outside and speaking to Ms Suwaid and trying to comfort someone that was upset but couldn't remember exactly what she said and didn't recall anything being said about her tenancy issue. 70 Once the recruitment process had been rolled out the advice came through from Ms Toohey as to who had been placed in particular vacancies and to the best of her knowledge she received that advice in late February. Ms Suwaid was not the only person whose contract ceased following the recruitment person, one other person (as named in her witness statement) was in the same position. 71 Ms Green was aware that there were issues with Ms Suwaid's tenancy but had no involvement at all with that. She was not aware that there was an investigation going on at the time her employment was terminated. She also did not see any letter subsequently sent to Ms Suwaid. She had no further dealings with Ms Suwaid after her termination.

72 Mr Brezniak made oral submissions on behalf of Ms Suwaid that supplemented the written submissions filed (Exhibit 12) and in doing so took the Commission in some detail to relevant extracts from the cases cited in support of those submissions.

73 It was submitted that the question of jurisdiction for the Commission to consider was twofold, whether the Act excluded an application made in respect of an employee said to be employed in "temporary employment" under and pursuant to s.27 of the PSEM act and whether the application made by Ms Suwaid was precluded by reason of its lateness. 74 Mr Breziak outlined with some particularity the history and circumstances of the employment of Ms Suwaid as detailed in the various letters to her from BusinessLink. It was noted that notwithstanding the letters and the periods of employment referred to therein, that she worked continuously for NSW Housing until the date of her termination. At least one of the letters (14 July 2008) provided for approval given well after the commencement of the period of employment for which it was applicable and was also accepted by Ms Suwaid after the commencement of that period. 75 The Commission was also taken to the relevant provisions of s.27 and s.28 of the PSEM Act.

76 It was observed that apart from the salary and conditions regarding the review of the period of employment and satisfactory conduct there was nothing else evidencing the conditions or terms of her employment and she was required to accept the temporary employment. All letters were in similar terms.

77 It was submitted that there was no discussion with Ms Suwaid regarding the change in the length of her approval for temporary employment or any of the conditions of each of those offers, she was simply required to sign the acceptance of the offer at the foot of the page.

78 Mr Brezniak submitted that it appeared that Housing NSW considered that it had the right to vary, unilaterally, the length of the term of the employment approval period and that it exercised that right. He further submitted that there could not be said to be an agreement based upon the mutual intention of the parties, nor could it be concluded that there was any agreement between Ms Suwaid and Housing NSW to the terms of a series of fixed term contracts. The approvals were not in the nature of a contractual document, but rather in a form to be completed by a temporary employee for administrative purposes of recording the period of employment and hours of work and salary. The letters contained no other information of the type that would normally be included in an employment contract. 79 It was submitted that the "approval for your temporary employment" letters reflected a series of appointments not inconsistent with.27 of the PSEM Act that were not fixed term contracts. Each of the letters were of varying periods of time from a few months until about six months and each of these variations occurred without the consent of Ms Suwaid.

80 It was essentially submitted that Housing NSW had difficulty in these proceedings in its arguments that conformity with the statutory requirement was evidence of a fixed term contract and relied on the decision of Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf and Susan Benfell) v Department of Education and Training [2008] NSWIRComm 16 and Smith v Director General of School Education (1993) 31 NSWLR 349. 81 It was submitted that just as in the circumstances of the facts in the above two cases, the true cause of the employment ending was that Housing NSW decided, (for whatever undisclosed reason), at some time prior to the expiry of the appointment period that it no longer wanted MS Suwaid as a Customer Service Officer and used the expiry of the appointment period as a convenient occasion to advise her that she was no longer required. It was submitted that it should not be concluded that her employment was terminated because the appointment period expired relying on Benfell. 82 Reference was also made to Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 concerning the question of whether a casual employee had been dismissed, where it was concluded that despite the completion of a fixed period of casual employment there may, nevertheless, be a continuing common-law contract of employment. 83 Benfell was also relied on as to the question of whether Ms Suwaid could have had an expectation or otherwise that her employment relationship would continue beyond the end of the term identified in the BusinessLink letters. 84 Mr Brezniak traversed the relevant provisions of the Industrial Relations Act s.83 (2) concerning exempt employees and Regulation 6 of the Industrial Relations (General) Regulations 2001 which exempts from the unfair dismissal provisions, inter alia:- a) Employees engaged under a contract of employment for a specified period of time if the specified period is less than six months. 85 Reference was also made to s.27 of the PSEM Act concerning subcategories of temporary employees as well as s.30 which provides that "the appropriate Department Head may dispense with the service of a Departmental temporary employee at any time". 86 It was submitted that if it were intended by means of the letters of employment to ensure that Ms Suwaid would be precluded from recourse to the Commission, then that purpose failed for a number of reasons including among them the late notification of each appointment and by reason of the fact that at least one individual period of employment was for a period longer than six months. It was also significant that the employment letters were accepted after the commencement of the employment periods. Written consent was not a condition precedent to accepting the employment on the terms set out in each of those letters. 87 The late notice of appointment in the letters meant that Ms Suwaid remained employed with the expectation of continuing employment and that expectation was confirmed by the continuation of her employment which followed. In relation to circumstances indicating that a series of contracts race specific period may amount to a single continuing contract and a continuous employment relationship reliance was placed on Clarke v Mid North Coast Health Service [1999] NSWIRComm 435, D'Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19, and Minister for Health v Ferry (1996) 65 IR 374. 88 It was submitted that the features of the contract of employment as referred to above, including Housing NSW's own characterisation of the contract, were fatal obstacles in the way of an argument that the Commission lacked the jurisdiction to hear Ms Suwaid's unfair dismissal application. 89 Further it was submitted that in these proceedings there was no evidence of any unsatisfactory conduct on Ms Suwaid's part and certainly no evidence that her work performance was lacking, nor was there any evidence that there was a shortage of availability of work. Ms Green made mention of someone returning, but there was no name given or what permanent position they had, all that was left was that the reason for her termination proceeded on a misconceived understanding of what the true facts were. 90 It was submitted that the evidence of Ms Green could not be relied on as to the reason for termination of Ms Suwaid given that the fact of the face-to -face interview having taken place undermined the whole of the description given by Ms Green of the recruitment process. It was baldy asserted that Ms Suwaid had not made it to the second stage of the interview. This would result in the Commission being cautious about accepting Ms Green's evidence about the circumstances of what was known by her at the time of the termination. It was also submitted that Ms Green withheld telling the truth to Ms Suwaid which reflected what went on behind the scenes as evidenced by the subpoenaed material in Exhibit 8. This document indicated that, whilst on its it face did not interfere with the selection process, it showed that there was a concern about the selection process and persons were being made aware of concerns about Ms Suwaid's situation and it was known from the evidence that those persons were from BusinessLink. 91 In relation to be reasons for the delay in filing the Commission was taken to the relevant evidence of Ms Suwaid as well as the relevant provisions of the Act. 92 It was submitted that the termination of Ms Suwaid's employment on 19 January 2009 was a termination in the real sense, that is, her "temporary" employment was otherwise to continue until 30 January 2009. 93 It was submitted that Ms Suwaid would have jeopardised her application for a permanent position by making claims and giving evidence against her employer in a claim alleging wrongful dismissal during the time her application for a permanent position was under consideration. Further it was submitted that this was the view that any sensible minded employee would take or be likely to take in such a predicament. Ms Suwaid was justified in taking a negative view of her prospects if she did such a thing. 94 That was not the only consideration because Ms Suwaid was also the recipient of a housing benefit and there were claims made about this housing benefit which were in the background. This was alive and present and within the knowledge of the recruitment agency and an employee might have misgivings about the fact that her employers were not frank with her about what effect that background enquiry was having. That could be seen in what took place in the termination of her employment. 95 It was submitted that the Commission should not hesitate to give Ms Suwaid the benefit of the doubt up until September 2009. 96 Ms Suwaid claimed in her evidence that she did not get a reply to her application until September 2009. Her complaint was corroborated by the subpoenaed material in Exhibit 10 indicating that letters were sent out on 6 March 2009 and Ms Suwaid was missed. Her claim was also corroborated by reason of the circumstances of the complaint she made to the people who were investigating her tenancy. 97 Further one or two days after receiving the letter from Housing NSW on 9 September 2009, Ms Suwaid travelled overseas. Housing NSW knew well in advance of her travels, and her due departure date, as she had advised them by letter. She had booked a return to Australia on 23 November 2009, but returned on 3 January 2010. She was delayed by reason of both her ill-health and the ill-health of her daughter, with medical evidence of such provided. When Ms Suwaid returned to Australia in January 2010 she almost immediately attended the office of a lawyer and took steps herself to file an application with the Commission. This was the first opportunity that she had had to file such an application. 98 It was submitted that there did not seem to be any attack on that evidence by Housing NSW.

99 It was submitted that Ms Suwaid was currently unemployed and had sought employment from many sources. She had been unable to obtain other employment, in part, because she did not have any reference or offer of reference from Housing NSW. She suffered anxiety living at home with her children without the benefit of income from employment. Because of her employment termination regarded by many at her workplace and who she met as having been responsible for a fraud committed upon Housing NSW arising from rumours and speculation concerning the situation of her housing tenancy and investigation by the Housing Fraud Unit. 100 It was further submitted that at the time of her dismissal Ms Suwaid was the longest serving temporary employee and that other employees who were temporary employees had been in employment for much shorter periods of time than she had and that as far as she was aware there was in place a policy of the shortest length of service employee being terminated before the longer term employers. This was also confirmed by the evidence of Ms Green.

101 It was submitted that the management of the Housing Department premises leased to Ms Suwaid was undertaken from the same Bankstown office from, and at, which place she was employed. Her senior serving officers and superiors at no time put to her in a direct fashion any anxieties which they may have had about her tenancy. Despite the fact that she was a member of staff she was not confronted about the concerns regarding her Housing tenancy before inquiries were made about her situation. In fact, there was, underway, a full scale inquiry into whether Ms Suawaid had deceived Housing NSW concerning her tenancy and whether, in fact, she had declared wrongly that she lived alone at that place. 102 It was submitted that although it was mentioned at her termination that the tenancy matter had no part in the decision to terminate her employment, the circumstances pertaining to the tenancy situation were decisive in her termination. Ms Suwaid submitted that she was treated less fairly than any ordinary recipient of Housing premises in that it was never put to her that the Fraud Unit of Housing NSW had concerns which needed to be resolved by inquiries from others who knew and know the applicant. 103 It was submitted that Housing NSW terminated Ms Suwaid's employment in a hurry and before the end of her existing contract. She was terminated summarily and for the reason that factors outside of her good service were influencing the employer to effect the dismissal. Housing NSW was concerned about her Housing Department tenancy and the investigation of her by the Internal Fraud Unit. It was submitted that Ms Suwaid was denied procedural fairness in connection with that matter.

104 Ms McWilliam for Housing NSW also made oral submissions elaborating on the written submissions as filed (Exhibit 13). 105 The Commission was taken to the relevant provisions of the Act concerning out of time applications as well as the general principles established from High Court authority as cited in re Commonwealth; Ex Parte Marks [2000] HCA 67 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The principle of what was necessary to do justice between the parties had also been applied in cases before this Commission: see Bagnat v Ian Liddell Pty Ltd [2000] NSWIRComm 1007 (4 February 2000) where an application to extend time for a delay of 20 days was refused; and McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 (30 October 2002) ('McClymont') where an application to extend time for a delay of 56 days was refused. 106 Reliance was also placed on Kent Gorrell v Uwatec Pty Ltd. (unreported, Sams DP, Matter IRC1700 of 1999, 5 July 1999) where the principles articulated by the High Court above, and in the context of other decisions of this Commission, were applied, and the relevant principles as applying under s 85(3)extracted and summarised. 107 It was submitted that the period of delay was in excess of a year - 378 days or 18 times the 21-day period allowed under the Act. In considering the length of the delay the decision of Cambridge C in Schwager v Church Stores [1999] NSWIRComm 485 was also relevant.

108 It was submitted that Ms Suwaid was aware that her employment had ceased. She was also provided with legal advice regarding the time limitation prior to the period expiring. She had ample time in which to commence proceedings and deliberately chose not to protect her position. This factor was decisively against her. 109 Ms McWilliam submitted that the explanations offered for the extensive delay were entirely deficient. Ms Suwaid's evidence was she was awaiting the outcome of an application for permanent employment and did not wish to jeopardise that application by commencing proceedings, then she went overseas. While she was overseas her daughter had her tonsils out and on one day in November Ms Suwaid went to hospital with tightness in her chest, following which tests revealed no abnormality. None of these matters could possibly be relevant to, let alone explain, a delay of more than a year.

110 It was submitted that the application for a permanent position was an entirely separate matter and irrelevant to any proceedings for unfair dismissal. The reasoning the Commission was asked to accept was that Housing NSW may have taken into account separate and unrelated legal proceedings in considering the merit of her application for a permanent position. This would clearly be an abuse of the selection process and no such presumption against Housing NSW should be made.

111 It was submitted that the evidence did not support Ms Suwaid's genuine intention to commence unfair dismissal proceedings absent her outstanding application for permanent employment. She did not follow up that application and did not at any stage, prior to commencing proceedings, notify Housing NSW of her belief that her 'dismissal' was harsh or unfair. 112 The lack of any intention on the part of Ms Suwaid in this respect was supported by the fact that once the letter of 9 September 2009 resolving the application for permanent employment was received, she still did nothing for a period of four months. Rather than diligently prosecuting her claim, or even notifying Housing NSW of her intention to do so, she went on holidays. There is no sufficient explanation for the failure to write even one letter during that period. Further the medical evidence did nothing to support Ms Suwaid's claim and no account should be taken of evidence pertaining to her daughter, as it had no bearing on her ability or capacity to either send a letter or instruct legal representatives to commence proceedings in the Commission.

113 To the extent that any consideration was given to Ms Suwaid's medical certificate, on her own evidence, she was only restricted from travelling for a period of three weeks. There was still a period from 13 December 2009 to 4 February 2010 (a period which in itself was significantly more than 21 days) when Ms Suwaid was both fit to return home, and fit to lodge her application, but again chose not to do so.

114 It was submitted that the preponderance of the evidence would lead to a conclusion that Ms Suwaid in fact had no intention to commence any unfair dismissal proceedings for a year following the cessation of her employment. The Commission's attention was drawn to Syed Rizvi v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084 and Green v Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109 as being relevant cases on this issue. 115 It was submitted in relation to hardship that in Ms Suwaid's case it was no more than the usual hardship that any dismissed employee it would experience. Housing NSW had a legitimate right to believe that following expiration of the limitation period the matter of her termination of employment was not under challenge see Greene v Mayne Nickless Pty Ltd t/as Armaguard [1998] NSWIRComm 40.

116 Ms Suwaid sought reinstatement, but her position had long been replaced. Accordingly, there may be hardship to Housing NSW, the employer, in the potential for reinstatement and the exposure to further expenditure of public funds on a possible reinstatement. 117 It was submitted that there was no evidence that the conduct of Housing NSW in any way inhibited, or prevented Ms Suwaid from filing her application within time. However if it was accepted that the present proceedings had the capacity to affect an application for permanent employment, then the firm resolution that issue occurred on 9 September 2009 and there was a further period of more than format months when nothing was done and no conduct of the employer impacted on that delay.

118 For these reasons it was submitted that the Commission should not grant an extension of time to Ms Suwaid and accept her unfair dismissal application.

119 It was further submitted that the unfair dismissal provisions under the Act did not apply because Ms Suwaid was at all times a temporary employee under s. 27 of the PSEM Act. The Commission was referred to the various letters referred to in Exhibit 1 where such was expressly stated. 120 Under s 28 of the PSEM Act, the maximum period under which a person may be employed as a temporary employee is 3 years. Ms Suwaid's period of employment with the respondent was well within this period. Under s. 30 of the PSEM Act, the appropriate Department Head may dispense with the services of a Departmental temporary employee at any time.

121 It was submitted that these express terms of the PSEM Act clearly envisaged temporary employment contracts that may be continually renewed up to a period of 3 years without converting such contracts into permanent ongoing employment so as to enliven the unfair dismissal provisions under the Act.

122 It was submitted that Ms Suwaid's commencement letter twice noted in the opening paragraph that she was being offered 'temporary employment' and stated that it was ..."subject to the availability of work and funds and may be terminated at any time subject to the provision of any required period of notice being given". Subsequent letters reiterated that the position was for 'temporary employment', that the employment was for a limited term and governed by s. 27 of the PSEM Act and that, ... "your continued employment will depend upon... the availability of work. If your temporary employment will be terminated earlier, you will be given one (one) week notice. Please note that your temporary employment does not guarantee permanent appointment to the position".

123 In each renewal of her contract of employment, the precise term of the contract was specified in writing, as was the salary. Each letter also stipulated a requirement that Ms Suwaid confirm acceptance of the 'offer' of employment.

124 Ms McWilliam refuted the contentions advanced concerning a lack of any agreement to the terms of the contract and submitted that Ms Suwaid continued to turn up for work and her agreement was evidenced by her conduct. The fact that a signature occurred at a later date did not mean that there was no contract ever, that just formalised the situation that was occurring which was agreement to the conditions set out in the letters.

125 Submissions on behalf of Ms Suwaid relied on Benfell to suggest that her contract of employment was actually a series of appointments rather than a series of fixed term contracts. Benfell was a case where the hours of work, and consequent remuneration, were unilaterally changed by the employer, and where the applicant in question signed an employee acknowledgement rather than a contract. In Ms Suwaid's case, the terms of the letters of offer as referred to above clearly established that the facts of the present case were not on all fours with those in Benfell.

126 When Ms Suwaid's employment ceased, it was pursuant to the conclusion of her period of employment under her contract, the terms of which were included in the letter dated on 22 January 2009, not pursuant to any 'dismissal'. Housing NSW relied on the evidence of Ms Green as to the circumstances giving rise to the cessation of employment. Ms Green clarified her evidence in the witness box that she was away when the particular stage of the process concerning face-to-face interviews was occurring and so she could not indicate whether or not that had occurred. Her understanding from Mr Johnson was that Ms Suwaid had not made it onto the eligibility list but that she could not be informed of that because the process in relation to other applicants were still continuing. Ms Green was not challenged on that evidence and it should be accepted. 127 It was submitted that Ms Suwaid's employment contract was simply not renewed. In reply to submissions on behalf her behalf, the lack of evidence of any unsatisfactory performance relied upon, supported the fact that the contract did just end, as opposed to being terminated for a particular reason. There was no evidence and no legal authority to support any contention that Housing NSW was under an obligation to renew her employment.

128 It was submitted that in the face of the express provisions of the PSEM Act, and the factual circumstances of this case as stated by Ms Green, there was no basis for a legitimate expectation of continuing employment to arise, or for any finding that the applicant was engaged under a single continuing contract of employment. The authorities cited on behalf of Ms Suwaid were not relevant to the present case because those authorities either related to contracts not governed by the PSEM Act, or provisions under Commonwealth Industrial Relations Regulations that are different to the New South Wales legislation: see Australian Services Union of New South Wales v Ammberly's Single Women's Refuge Inc [2003] NSWIRComm 16 where D'Lima was similarly distinguished.

129 In conclusion it was submitted that for the above reasons, the Commission did not have jurisdiction to adjudicate the dispute between the parties. Consideration

130 I have carefully considered the evidence and submissions of the parties in this matter as well as the authorities cited. 131 Ms Suwaid filed her s.84 application on 4 February 2010, some 369 days after she was notified on 19 January 2009 that her temporary employment with Housing NSW would not be extended beyond its current term (30 January 2009) and 127 days after she was notified in writing by letter of 9 September 2009 that her application for a permanent position was unsuccessful. Either period represents a significant number of days in excess of the prescribed 21 day filing limit permitted by the Act. 132 Housing NSW opposes the granting of an extension of time for Ms Suwaid to bring her s.84 application essentially on the basis that an insufficient reason has been advanced for the delay in filing. It is also contended that the Commission does not have jurisdiction to entertain her s.84 application as a consequence of the provisions of the PSEM Act as they relate to the temporary nature of Ms Suwaid's employment with Housing NSW. Further Housing NSW contends that Ms Suwaid's temporary employment contract was not renewed for two reasons firstly, that she had been unsuccessful in being placed on an eligibility list following a recruitment process at the end of 2008 and secondly, due to the return to work in January 2009 of a permanent employee thus requiring that a temporary employee not be continued in their employment. No issues were raised as to Ms Suwaid's work performance and indeed Ms Green expressed her preparedness and preference for Ms Suwaid to continue working for Housing NSW but the decision was out of her hands. 133 S. 85(3) gives the Commission a broad discretion to allow an applicant to depart from the strict requirements of legal form, if fairness so demands. However in exercising its discretion the Commission must be satisfied that a "sufficient reason" has been made out and may accept an application out of time having particular 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 all the employer is the application is or is not rejected, and c. the conduct of the employer relating to the dismissal. 134 In Syed Rizvi v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084, the Commission as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as summarised and succinctly expressed by Sams D P in Kent Gorrell v Uwatec Pty Ltd ( unreported, IRC 1700/99, 5 July 1999) and applied in numerous decisions since, as follows: 1 The Commission's power to accept out of time applications is discretionary. 2 The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3 It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances. 4 There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing. 5 There is a public interest in the prompt institution and prosecution of litigation before the Commission. 6 The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties. 7 Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8 Ignorantia legis neminem excusat (ignorance of the law and excuses no one). 135 In Director-General of Education and Training v Bond [2009] NSWIRComm40. The Full Bench observed at 14 that, "The law applicable to applications such as the present is well settled", citing with approval Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR at [12] - [15] as follows: [12]... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. 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 2.564(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".

[14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual soap and stands is giving rise to late lodgement, including any attempt to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.

136 Of course, in this matter, it must be said at the outset, that it was Ms Suwaid's evidence that not only was she fully aware of the 21 day limitation as a consequence of legal advice that she was given following the cessation of her employment in February 2009, but she chose not to make an application because of her concern that it would adversely affect the application she had made for a permanent position with Housing NSW. She did not receive advice as to the outcome of that application until 9 September 2009. 137 The 21 day time limit is there for a reason. To ensure that applications are dealt with expeditiously and an outcome, one way or another, determined. This is in both the interests of applicants and employers (and it should be said the public interest) and will not be lightly departed from, as has been enunciated in decision after decision of this Commission. 138 I do not consider it reasonable that Ms Suwaid did not make an application following the cessation of her employment in January 2009. Simply because she had made application for a permanent position with Housing NSW is not in my view a sufficient reason for her not to have pursued a s.84 application if she considered that the termination from her temporary position was unfair and she sought to either be reinstated to that position or some alternate remedy as available under the Act. 139 Mr Brezniak has asserted that was not unreasonable for Ms Suwaid, and indeed that any person in her position would not consider it unreasonable, to hold the belief that to make such an application would prejudice an application for a permanent position. 140 I am unable to accept that argument. Appointments in the public sector are made on a merit basis as provided for in s.19 of the PSEM Act. That is well-known within the public sector. Ms Suwaid had worked in the public sector for almost 3 years. The nature of the appointment process involved in relation to the recruitment process undertaken across Housing NSW at the end of 2008 was explained to Ms Suwaid by Ms Green. The Commission accepts the evidence of Ms Green about that process, the fact that it involved the filling of both permanent positions and the creation of an eligibility list covering both permanent and temporary positions, and was a very broad ranging process applied right across the metropolitan area. Whilst the exact number of persons who applied for positions was not known to Ms Green (she could not confirm in cross examination whether it would have been as many as 100), she was aware that it involved a considerable number of applicants. The process involved was explained to Ms Suwaid and indeed the documentation provided to her before the face to face interview on 5 December (Exhibit 3) is clearly indicative of such a merit based appointment process. 141 Indeed were this a matter that, absent the jurisdictional issues raised, was to be dealt with on its merits as to whether the circumstances of Ms Suwaid's termination from Housing NSW was harsh, unjust and unreasonable, then it would be relevant have evidence tendered and tested as to the interview process, the selection criteria applied and how Ms Suwaid fared on a merit basis as compared to all the other persons interviewed. That evidence was not before the Commission in these proceedings. 142 I accept that Ms Green was clearly mistaken in her belief that Ms Suwaid had not been offered or participated in a face-to-face interview. Ms Green was away on annual leave at the time. It is clear from the evidence that Ms Suwaid did not successfully complete the interview process in that she was not either offered a permanent position or placed on the eligibility list. It seems to me that all that has happened is that Ms Green has misunderstood the position (there was no detailed evidence of exactly what was said to her and by whom) and taken the issue of not having made it through the interview stage to mean that she didn't participate in an interview rather than she was simply did not have a successful outcome at the interview stage. 143 Either way this was simply Ms Green's understanding of what had happened in relation to Ms Suwaid in a process in which she was not directly involved and where she was absent from the workplace when that interview took place. What is more significant is her subsequent knowledge, conveyed to her by her superiors, that a permanent person was returning to the area and that as a consequence a temporary employee was to be let go. This is not an unusual situation in the public sector. When Ms Green spoke to Ms Suwaid privately following the meeting on 19 January she told her that the reason for the termination was "staff movements". That also accords with Ms Suwaid's evidence as to the information that was subsequently provided by the Minister for Housing to her local member of Parliament, Mr Tripodi following enquiries made by him on her behalf. 144 The simple fact of the matter it is that Ms Suwaid was not offered a further temporary employment contract for the above reason and also because she did not make it onto the eligibility list on a merit basis as a consequence of the recruitment process. Just because Ms Suwaid believed that she was "well qualified" for the position and "well suited" for the work is not to the point, it is evident that other applicants were ultimately considered more appropriate for the position than she was based on the selection criteria applied. 145 I accept Ms Green's evidence that Ms Suwaid was not the only person in the team to be so affected. Whilst all five members of the team applied for a permanent position, two members were unsuccessful, Ms Suwaid and another person, Ms Suwaid maintained that the other person continued working until sometime in February, however there was no evidence as to the period of temporary employment applicable to that person. 146 Ms Suwaid's temporary employment was concluded with the requisite week's notice as per her employment letters and she was given the option of staying until Fri 23 or finishing up that day (which she opted to do). It is also unfortunate that Mr Johnson was unable to advise in that meeting of 19 January that she had not been successful in either her application for a permanent position or placement on the eligibility list as the recruitment process had not yet been completed. 147 I do acknowledge that it was somewhat odd, to say the least, that she would receive the usual letter of approval for temporary appointment from BusinessLink for the period 31/12/09 to 31/01/10 by letter of 22 January 2010 after she had been told that she was to be let go before the end of that period and not be offered further a temporary appointment. However this appears to be consistent with previous letters that were dated after the commencement of the temporary employment period. I do not consider it of particular relevance to the issues to be determined in this matter. 148 I also note the relevant provisions of the PSEM Act as set out in s.20 'Eligibility lists' as follows: (1) When a vacant position is advertised in accordance with this Part, the appropriate Department Head may, in connection with a determination of the merit of the persons eligible for appointment to the position, create an eligible ability list for the position. (2) An eligibility list for a position is a list of eligible applicants (namely the persons who duly applied for appointment to the position and who are eligible for appointment but not selected for appointment) arranged in order of merit (with merit determined by the appropriate Department Head in accordance with section 19 (1)). (3) An eligibility list for a position remains current: (a) in the case of a list prepared in relation to a base grade or entry-level position, for 12 months after the list was created, or (b) in the case of a list prepared in relation to a position that is not a base grade or entry-level position, for six months after the list was created. (4) An eligibility list need not comprise all the eligible applicants so long as the list contains the applicant or applicants of greatest merit. (5) An eligibility list is applicable not only to the position in relation to which it was created but also to any other position in that that the appropriate Department Head determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created. (6) In deciding to appoint a person to a vacant position that has not been advertised in accordance with this part, the appropriate Department Head may, despite section 19 (3), select from among the persons who are on an eligibility list that is current and applicable to the position (and who are available for appointment) the person with the greatest merit according to the order of merit in the eligibility list. (7) .......... 149 Ms McWilliam is correct in submitting that there was no obligation on Housing NSW to offer Ms Suwaid a further temporary appointment when her current temporary appointment expired. Quite apart from any issue of the eligibility list, a continuation of temporary employment would have purely have depended on the availability of work/staffing requirements and, in the current well-publicised public sector climate, budgetary constraints and would have been a management decision. 150 There is simply no evidence that there was any other reason for Ms Suwaid's employment to be concluded by Housing NSW than those advanced above. 151 Ms Suwaid appears to contend that not only was the investigation into her housing tenancy relevant and the reason for her termination, but also the reason she was not successful in her application for the permanent position. She also has complained that she was not spoken to about this issue by her workplace managers. 152 However, I accept that the issue of her tenancy was an entirely separate matter and had nothing to do with her employment or the reason for her employment ceasing. It would have been quite improper for her managers to have spoken to her about the issue. Indeed it is clear from the evidence that in January 2009, while enquiries may have been under way and she subsequently had meetings with Mr Lindfield of the Fraud Unit at Ashfield, any investigation had not been concluded either then or as at the date of the hearing. In that event it is hard to see any relevance arising from the housing tenancy issue when there has been no outcome of those enquiries/investigation to date and certainly none as at the date that her temporary employment ceased. 153 Even if it could be remotely considered that Ms Suwaid had some justification in not making an immediate application after the 19 January 2009 because of her concern as to how that might affect her application for the permanent position, that justification could hardly be maintained over the ensuing months when she heard nothing about the outcome of her application and was aware that others had been advised as to their success or otherwise. To say that she thought that once the tenancy issue was resolved then Housing NSW would also resolve her application is quite unreasonable and illogical and there was no basis for such an opinion in my view. Did she really think that one area/section of Housing NSW would hold open a permanent position for her whilst another different area/section investigated an issue arising from the tenancy with Housing NSW when other applicants had been advised as to their success or otherwise and probably taken up positions as a consequence. I consider that no reasonable or sensible person could possibly hold to that view. 154 I accept that Housing NSW's actions in not advising Ms Suwaid that she was unsuccessful in her application for the permanent position at the same time as they advised other unsuccessful candidates on 6 and 11 March 2009 was entirely careless, inexcusable and indeed inexplicable. 155 However, having said that, the evidence shows that Ms Suwaid made no attempt whatsoever to make any enquiry of those involved in the recruitment process or indeed in her former employment area at Housing NSW as to the outcome of her application. In my view any reasonable person would have become concerned at the delay and contacted the employer to ascertain the situation. Whilst Ms Suwaid was involved in subsequent meetings with Housing NSW, they were with Mr Lindfield from the Fraud Unit and clearly only concerned her tenancy and had nothing to do with her former employment. Those meetings took place at Ashfield rather than at Bankstown where she had been employed. It was apparently as a result of mentioning to Mr Lindfield that she had not received any notification about her application, that some action seems to have flowed from that resulting in the 9 September letter to Ms Suwaid. The earliest that could have happened was sometime in July, based on the evidence of Ms Suwaid as to when she met with Mr Lindfield, but could also have resulted after her meetings in August or September. In any event it still leaves a considerable and entirely unacceptable period of time (February to July) during which she makes not contact with anyone at Housing NSW about either the issue of her temporary employment ceasing or the outcome of her application for the permanent position. 156 As far as any relevant conduct of the employer relating to a dismissal (s.85(3)(c)) is concerned, whilst there was inexcusable and unreasonable delay in advising Ms Suwaid as to the outcome of her application for a permanent position and this might normally be taken into account, I do not consider it relevant in this matter as Ms Suwaid took no action herself to enquire as to the outcome of her application and essentially sat on her hands for some months until raising the issue with Mr Lindfield as dealt with above. 157 I have also considered the issue of hardship that might be visited upon Ms Suwaid should she not be allowed to proceed with her s.84 application (s.85(3)(b)). Her evidence went to issues of personal hardship that she is experiencing and difficulties with securing alternate employment. In Uwatec, Sams D P also made the following relevant observations at p.13 in relation to the hardship visited on an applicant if a claim were not allowed: There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, 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 various varying degrees of hardship, nevertheless, are able to file within time.

158 Many applicants would also be in the same position as Ms Suwaid in that a dismissal would have adverse effects on their families and their personal and financial circumstances and they may encounter difficulties in obtaining alternate employment. Whilst I sympathise with Ms Suwaid in that regard I do not consider that she has raised any "additional or excessive hardship" over and above that normally encountered by any employee on being terminated. Ms Suwaid chose not to make a s.84 application within time in February 2009. She also appears to have chosen not to make applications for, or seek other employment in 2009, presumably because of the application she had made for the permanent position with Housing NSW. 159 The mere fact that she does not have a reference from her former employer or a referee should not necessarily impact on an application for another job. I am well aware, from my involvement in public sector matters, that it is not the practice for a public sector employer to provide a reference to an employee on termination or resignation. There was no evidence that Ms Suwaid had made any attempt to obtain a referee from her former employment with Housing NSW and had been unsuccessful. Given the evidence of Ms Green as to her satisfaction with Ms Suwaid's work performance and indeed that if it was up to her she would have continued in employment, I am sure that there would have been no problem in obtaining a referee from amongst her former supervisors. In reality the fact that she was not actively seeking employment during 2009 is far more likely to be a difficulty for her than any lack of a reference/referee from Housing NSW. 160 Any delay in filing must be solely attributed to Ms Suwaid's conscious and deliberate decision to await the outcome of her application for a permanent position rather than file a s.84 application in relation to the temporary position she alleges she was terminated from in an unjust and unfair way. Yet she made no enquiries or sought to ascertain the outcome of her application other than essentially raising it after some months had elapsed and with those investigating the quite separate and distinct issue of her housing tenancy, a matter not related to her employment situation. 161 Ms Suwaid relies on the letter of the 9 September letter 2009 advising her as to the unsuccessful outcome of her permanent position as the date from which the delay in filing should be calculated and has advanced reasons for the delay that then resulted as being her visit to Syria and the subsequent medical issues that arose concerning both herself and one of her daughters. 162 She also relies on the fact that Housing NSW knew of her overseas trip because she had advised them of this by way of a letter delivered by a friend and neighbour who was also keeping an eye on her property. However this was advice from a tenant to the owner/controller of the subsidised rental premises she rented. It could not be said to be any notification to her former employer. As far as her former employer was aware there were no issues arising as a consequence of their decision to notify her on 19 January 2009 of the intention to cease her temporary employment and to not offer her further temporary employment. 163 Whilst I also sympathise with the problems that Ms Suwaid encountered whilst overseas, nevertheless Ms McWilliam is correct in saying that there was nothing to prevent her sending a letter or making a relevant phone call. She could have, at the least, advised Housing NSW by letter or telephone of an intention to make application for unfair dismissal, and indeed contacted the Solicitors from whom she had previously sought advice in relation to her rights as to an unfair dismissal application and issued instructions to commence proceedings on her behalf. 164 Ms Suwaid returned to Australia on 3 January 2010, however she still did not make the application within 21 days, the application being made on 4 February 2010, some 11 days beyond the 21 day period. In normal circumstances that sort of delay would be considered fairly minor and unlikely to cause an applicant to have their application rejected by the Commission on an out of time basis depending on the particular circumstances of that applicant. 165 I am unable to accept that 9 September 2009 is the relevant date from which the delay in filing should be calculated and the reasons for any delay then arising to be taken into consideration. That was not the date when she was notified of the cessation of her temporary employment with Housing NSW. That was merely the date when she was notified that she was unsuccessful in her application for a permanent position with Housing NSW. 166 I do not consider that awaiting the outcome of the application for a permanent position was sufficient reason to delay making an appropriate s.84 application in relation to her temporary employment which ceased in January 2009. 167 I also note the possible further relevant provisions of s.22 (1) of the PSEM Act :- 22. Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. 168 A further matter that is also relevant to the Commission's consideration of whether a "sufficient reason" has been advanced for the delay in making an application is whether Ms Suwaid has an arguable case and her prospects of success. 169 The further jurisdictional issue pressed by Housing NSW is relevant to this consideration. However, even absent that jurisdictional issue, Ms Suwaid's prospects of success would, in my view, be extremely limited given the reasons already canvassed above viz., no issue raised as to work performance, the merit based recruitment process undertaken, her failure to gain a permanent position, her failure to make the eligibility list, the return to work of a permanent employee, and thus the requirement to release/let go a temporary employee as a consequence etc. 170 In relation to the last mentioned point, Ms Suwaid also relied on Housing NSW's failure to follow its policy of 'last on, first off' for temporary employees, a policy confirmed by Ms Green. However this policy would have to be applied within the parameters of the provisions of s.28 of the PSEM Act which provides that the maximum period a Departmental temporary employee may be employed is three years. Ms Suwaid's temporary employment was of some 18 months duration in all. It would be logical, in the light of s.28, that a temporary employee with the most service and nearest to the three-year period would be let go if there was no permanent position going to become available at the end of that three-year period rather than someone with the least service. 171 There was no evidence before the Commission as to the periods of service of other relevant temporary employees apart from Ms Suwaid's assertion that they had less service than she did. Nor is there any evidence that the length of her temporary employment was a factor that had any relevance to the Housing NSW's consideration to not offer her further temporary employment. That leaves only those reasons that have been put forward by Housing NSW, which are accepted by the Commission. 172 Having carefully considered the evidence and submissions of the parties I consider that Ms Suwaid's prospects of success, quite apart from the jurisdictional issue raised, would be extremely limited.

173 However Housing NSW have pressed the further jurisdictional issue that Ms Suwaid is not entitled to bring a s.84 application as the unfair dismissal provisions do not apply to her by virtue of the nature of her temporary employment under the PSEM Act. 174 In responding to this claim Mr Brezniak has misconceived the basis for that jurisdictional challenge. Housing NSW does not rely on the exemption provisions arising under Regulation 6(a) of the Industrial Relations (General) Regulations 2001. Those provisions are not applicable to the circumstances of Ms Suwaid's employment. As a consequence, the authorities cited by Mr Brezniak are also not particularly relevant or of assistance to the Commission. 175 I do not consider it necessary to deal with the issue of whether or not there was an ongoing contract of employment or a series of employment contracts There was a degree of fixation on the nature of the contractual relationship that I do not consider it relevant to the issues to be determined in this matter in the light of the very specific provisions of the PSEM Act concerning temporary employment. 176 Ms McWilliam has characterised Ms Suwaid's position as being a temporary employment contract continually renewed under the express terms of the PSEM Act without converting that contract into permanent ongoing employment so as to enliven the unfair dismissal provisions under the Industrial Relations Act, with Ms Suwaid's temporary employment simply coming to an end and not being renewed. She further distinguishes the cases cited by Mr Brezniak on the basis of the differing regulatory regimes applicable when compared to the PSEM Act, and particularly so in relation to Benfell. I agree with those submissions. 177 Both advocates took the Commission to the relevant provisions of the PSEM Act. Having carefully considered those provisions I concur with the submissions of Ms McWilliam on behalf of the Housing NSW. Section 30 of the PSEM Act gives the Department Head the right to "dispense with the services" of a temporary employee at any time. Even if I was to accept the argument put forward by Mr Brezniak that on 19 January Ms Suwaid was terminated as from 23 January rather than the 30 January, the end of the contract, and that that was a termination "in reality", it is clear that Housing NSW had the right to either let the temporary employment run to its natural end on 30 January, or as they did, appropriately notify an employee prior to that date of their intention not to offer further temporary employment and bring that employment to an end with a week's notice. Indeed Housing NSW pursuant to s.28 could have simply dispensed with Ms Suwaid's services at any time prior to 19 January. 178 The terms of her letters of appointment made the temporary nature of that employment and that there could be no ongoing expectation of employment quite clear to Ms Suwaid in terms that cannot possibly have been misunderstood by any reasonable person. Further, there was the information provided at the time of the recruitment process at the end of 2008 as to the establishment of an eligibility list for such temporary employment which would have served to confirm the nature of such temporary employment. 179 On the jurisdictional issue raised by Housing NSW I therefore conclude that the provisions of the PSEM Act as applying to the temporary nature of Ms Suwaid's employment preclude her from making a s.84 application under the Industrial Relations Act 1996.

180 Ms Suwaid has not discharged the onus of establishing a "sufficient reason" for failing to lodge her claim of alleged unfair dismissal within the prescribed time period in the Act.

181 It follows that the Commission declines to exercise its discretion, pursuant to s.85 (3) of the Act such as to permit the application to be accepted for determination.

182 The Commission has also concluded that in any event it also lacks the jurisdiction to entertain Ms Suwaid's application.

183 The application is therefore dismissed and these proceedings concluded accordingly.

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