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.