Basan v Commissioner of Police

Industrial Relations Commission (NSW)|2022-05-06

decision

There are two applications before the Commission filed by the same applicant, John Basan, a former serving police officer with the NSW Police Force. The first in time is an Application for Relief in relation to Unfair Dismissal filed in the Local Court, Wollongong, on 6 January 2020 ("unfair dismissal application"). The second in time is an Application for Relief from Victimisation filed in the same court on the same day ("victimisation application").
Both applications were filed by the applicant following his medical retirement pursuant to s 94B of the Police Act 1990. The decision to medically retire the applicant was made by Assistant Commissioner Leanne McCusker as delegate of the respondent, the Commissioner of Police, on 28 November 2019 with the applicant's last day of service being 12 December 2019. These proceedings have been held in abeyance awaiting the outcome of litigation concerning this Commission's power to hear and determine an unfair dismissal application by a police officer who had been medically retired. The issue was ultimately resolved in NSW Commissioner of Police v Cottle [2022] HCA 7 (16 March 2022) where the High Court held that this Commission did have the power to hear and determine such an application.
The respondent has raised an objection to the matters proceeding on the basis that both applications were filed outside of the time limits prescribed by the Industrial Relations Act 1996 ("IR Act").

The applicant's unfair dismissal application

It is common ground that the applicant's last day of service with the NSW Police Force was Thursday, 12 December 2019. In order for his unfair dismissal application to have been made within the 21 day time limit, it should have been made no later than Thursday, 2 January 2020.
There is some uncertainty as to when the unfair dismissal application was actually made. On Tuesday, 31 December 2019, within the 21 day time limit, the applicant sent an email to "irc_client_services@justice.nsw.gov.au" which contained the following: To the Registrar Please see the attached photo of the sign posted on the door of Wollongong Court house. As I had attempted to submit Form 7A and 19 yesterday but was unable to do so due the Court House being closed. However I did email these forms to the Industrial Relations Commission yesterday Monday 30th December 2019.
Attached to the email was a photograph of a sign which read in part: Wollongong Local Court will be closed from Monday 23 December 2019 and will re-open on Monday 6 January 2020
The Industrial Registrar sent a reply email to the applicant on the same day, 31 December 2019, which contained the following: Mr Basan, The registry and Local Court registries will reopen on 6 January, it would be advisable that in the mean time you post the applications to the IRC or lodge them once reopened.
The is no record of the applicant's unfair dismissal application having been received in the Industrial Registry on 30 or 31 December 2019 or subsequently until it was forwarded from Wollongong Local Court with the date stamp "RECEIVED COURT HOUSE WOLLONGONG 6 JAN 2020", on its face, four days out of time.

The respondent's motion

On Monday 17 February 2020, the respondent filed a Notice of Motion seeking an order that the application be dismissed or otherwise set aside on grounds that included: 3. The Applicant's dismissal took effect on 12 December 2019. 4. The Unfair Dismissal Application was filed on 6 January 2020. 5. The Unfair Dismissal Application was filed one day out of time. 6. Subject to the Applicant establishing that there is a sufficient reason for the Commission to accept the Unfair Dismissal Application late, it must be dismissed.
The respondent's motion was supported by an affidavit sworn by Shivani Gosai, solicitor for the respondent, which contained the following: 2. On 13 December 2019, I appeared before Murphy C in the NSW Industrial Relations Commission in the company of my colleague, Martin Watts. I appeared on behalf of the Respondent, the Commissioner of Police, in respect of separate proceedings brought by the Applicant, Mr Basan (NSW IRC No. 2019/253118). 3. Following the hearing before Murphy C, I walked to the front counter of the Registry at the NSW Industrial Relations Commission with Mr Watts. I observed Mr Watts have a conversation with Registry staff. 4. While I was standing at the front counter, I observed Mr Basan approach the front counter, where he was served by a member of the Registry staff who I know to be Franca Jazzar, based on my previous dealings with her. 5. I overheard the Applicant. and Ms Jazzar having a conversation to the following effect: Mr Basan: Hi, can I please have an unfair dismissal application? Ms Jazzar: The application is available online. Mr Basan: Could I please have a hard copy? Ms Jazzar: Okay I will print it for you. 6. A short time later, Ms Jazzar returned to the front counter and handed a document to Mr Basan. I then overheard them have a conversation to the following effect: Ms Jazzar: Here are two copies of the unfair dismissal application. You have 21 days from the date of dismissal to lodge your application. You can file it here or you can go to a Local Court Registry to file it. Mr Basan: Okay, thank you.
In support of the motion to dismiss the applicant's unfair dismissal application, the respondent relied upon the following written submissions (footnotes omitted): The Application is out of time 9. Section 85 of the IR Act provides that an application for remedy by a dismissed employee must be made within 21 days after the dismissal. The dismissal occurred by the Applicant's medical retirement pursuant to s. 94B of the Police Act. … 11. Accordingly, subsection 85(1) makes it mandatory that applications made pursuant to s. 84 of the IR Act are filed within 21 days after the dismissal of the employee. Relevantly, the Commission may however accept an application that has been made out of time, pursuant to s. 85(3) if the Commission considers there is a 'sufficient reason to do so'. The Commission has a guided discretion to accept the Application out of time. However, that discretion must only be exercised where there is sufficient reason to accept the Application late, having particular regard to the reasons for, and length of, the delay, any hardship to the applicant or any other party, and the conduct of the employer relating to the dismissal. 12. There is no prescription in the IR Act or in cases as to what constitutes a 'sufficient reason to do so'. The relevant principles have been recently summarised in the decision of Dominguez and Department of Finance, Services and Innovation [2017] NSWIRComm 1053 (upheld on appeal in Dominguez v Industrial Relations Secretary (No.2) [2019] NSWIRComm 1003). The presumptive position is that an application made after 21 days from the dismissal of the employee is excluded by s. 85(1). The onus is on the Applicant to prove that there is a sufficient reason for his Application being out of time, and further that the justice of the case requires an extension. Each case must be decided on its own facts and circumstances. Decisions of previous cases do however serve as authority on principle. 13. Each of the factors ins. 85(3) is addressed below. Reason for and length of delay 14. Whether any reasons supplied for the delay are sufficient, are guided by the considerations set out in Director-General or Education and Training v Bond. 15. The Respondent has been belatedly made aware by the Applicant that he had emailed a copy of his Application to the Commission's Registry on 30 December 2019. The Respondent was not copied into the email. The Respondent was also belatedly provided with an email sent by the Applicant to the Commission's Registry on 31 December 2019, saying he attempted to file his Application at Wollongong Court House on 30 December 2019, but was not able to do so as the Court House was closed. He enclosed a photograph of a sign affixed to the door of Wollongong Local Court, stating it was closed from 23 December 2019, and would re-open on 6 January 2020. 16. This evidence, if led by the Applicant to explain his delay, does not provide an adequate explanation for his delay in filing the Application. The fact that Wollongong Local Court was closed from 23 December 2019 did not make any difference because he knew of the requirement under s. 85(1) of the IR Act, that the Application had to be filed within 21 days after the dismissal. Instead, he only sought to file the Application on 30 December 2019, and only filed as a matter of fact on 6 January 2020. 17. The Applicant has not yet had an opportunity to explain the reasons for the delay. However, to the extent he relies on the matters referred to in paragraph 15 above, these are not a proper explanation for the delay. 18. In regards to the length of the delay, in the Respondent's submission, it amounts to a period of four days. The Respondent says that four days is not an insignificant period of time, having regard to the fact that the Applicant was notified of the anticipated dismissal on 29 November 2019 and expressly notified of the 21 day time limitation by the Registry on 13 December 2019. 19. The 21 day time limitation is a clear instruction by the legislature that the time limit is to be imposed, and to depart from it, there must be some material upon which to exercise the discretion in favour of an out of time application. What that means is that, even a case which on its face appears to involve an unfair dismissal is not guaranteed acceptance out of time. The statutory tests must be applied, and applied consistently. This is a factor that weighs against accepting the Application out of time. 20. The Applicant was made aware of the time limit for filing an unfair dismissal application, expressly by a Registry representative on 13 December 2019. While the Applicant has indicated that the Wollongong Court House was closed from 23 December 2019 to 6 January 2020, he did not attempt to lodge his Application until 18 days after his dismissal had taken effect, and after having knowledge of the dismissal for approximately 31 days. Thus, even if the Applicant relies on the matters set out in paragraph 15, it would not amount to an acceptable or reasonable explanation for the delay. 21. An illustration of this point arose in the federal jurisdiction, where an unfair dismissal application that was made 144 minutes out of time, due to no internet connection, was found not to be an acceptable or reasonable explanation. Saunders DP noted: [13] Although I have sympathy for the Applicant, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. 22. In that case, Saunders DP also noted that despite the worker attempting to lodge his application on the last allowable day, he could have used other means available to him to file his application in time. 23. Even if the Applicant was ignorant of the time limit (which on the evidence he was not), this is not necessarily an acceptable explanation for the delay. In a recent case Seymour C, considered the actions of the Applicant that demonstrated his state of mind at the time, noting in particular that his actions suggested 'proactivity, organisation and commitment'. The decision was upheld on appeal with the Full Bench endorsing the approach adopted by Seymour C. 24. The Applicant's conduct and actions leading up to the filing of the Application, suggest he took active steps to pursue his unfair dismissal claim as he obtained the unfair dismissal form one day after his dismissal had taken effect. 25. Additionally, the Applicant was advised by the Registrar, in an email dated 31 December 2019, that: "The registry and Local Court registries will reopen on 6 January, it would be advisable that in the mean time you post the applications to the IRC or lodge them once reopened." The Applicant was made aware that he could have, but did not, post the application to the IRC in order to ensure that it was filed in time, despite the Applicant having been advised that this was an acceptable filing method. While the advice from the Registrar also included an option of filing when the registries opened, it should be noted that this advice did not purport to extend the time period for lodgement. Hardship 26. As a general proposition, the Respondent will be put to hardship, as where a time limit exists and it has passed, it is entitled to regard itself as free from an unfair dismissal application once the time limit has passed. 27. There will also be hardship occasioned to the Respondent if it is required to expend time and resources defending an Application that has been made out of time. This is a factor that counts against the Application being accepted out of time. 28. The Commission must also consider the hardship to the Applicant. That hardship is the Applicant not getting an opportunity to run his case. However, it must be observed that the Applicant has also commenced a victimisation claim, contending that his medical retirement was allegedly expedited as a result of the Applicant commencing the Review Proceedings (NSW IRC No. 2020/7514). If that matter proceeds to a merits review (and there is a risk that it may not, as the Respondent has equally moved the Commission to dismiss those proceedings as well for want of jurisdiction), then it can be expected that the Applicant will still get an opportunity to conduct proceedings in which he seeks to highlight asserted injustices in the decision to medically retire him. In those circumstances, it will be a matter for the Applicant to set out what his hardship will be, if any, beyond having a chance to pursue his case. Conduct of the employer 29. With respect to the conduct of the employer, that refers to any conduct that might be relevant to the delay in the applicant filing his app!ication. The Respondent submits, that no conduct of the employer impacted the Applicant in filing the Application. This is a neutral factor. Conclusion 30. The Application is out of time. The starting position is that the Application is invalid. There is no sufficient reason for the Commission to accept the Application out of time, and the Commission should decline to do so. 31. The Application must be dismissed.

Principles governing the exercise of the Commission's discretion pursuant s 85

The principles governing the exercise of the Commission's discretion to accept an unfair dismissal application out of time were recently discussed by Commissioner Stanton in A v B [2021] NSWIRComm 1058 in the following terms: 71. Subsection 85(1) makes it mandatory that applications pursuant to s 84 of the Act must be made within 21 days of the dismissal. It therefore follows that the prima facie position is that an application brought out of time is excluded by that subsection. 72. Subsection 83(2) establishes the precise circumstances where the Commission must accept an application that is made out of time. Those circumstances are not relevant to this application. 73. In exercising its discretion to depart from the prima face position and accept an application which is brought out of time, the Commission is required to consider whether there is a "sufficient reason to do so" in circumstances where each case is decided on its own facts and circumstances: Jess v Scott (1986) 12 FCR 187 at 195. It follows that when determining whether there is "sufficient reason to do so", the Commission must consider the various matters set out in subsections 85 (3) (a), (b) and (c) of the Act. 74. There is no exhaustive list of matters under sub-subsections 85(3) (a), (b) and (c) that may trigger an exercise of discretion so as to determine whether there is sufficient reason to accept an application made out of time. Nor is that discretion unfettered. 75. The approach to the exercise of the discretion under subsection 85(3) is well settled. For example, in Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], the Full Bench approved what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [12] .... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a 'sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 246(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a 'sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.' [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that 'the ultimate exercise of discretion is governed by the requirements of justice in a particular case'. 76. Accordingly, when exercising the discretion to accept proceedings brought out of time, the Commission must consider the requirements of justice in the particular case consistent with the context of the particular statutory scheme: Hurrell at [13]. 77. Section 85(3) therefore requires the Commission, when considering whether to grant an extension of time, to consider the following matters: (a) the reasons for the delay; (b) the length of the delay; (c) hardship that may be caused to either the applicant or the respondent where the application is or is not rejected; and (d) the conduct of the employer relating to the applicant's dismissal. 78. The Commission must give each matter appropriate weight in assessing whether there is a sufficient reason for extending the time for the making of the application beyond the 21-day period. The discretion to extend the statutory time limit must be exercised in the context of the rationale for the existence of a time limit. The test involves both a broad discretion and a high hurdle of exceptional circumstances. The longer the delay in making the application the more difficult it will generally be to overcome that hurdle. 79. Moreover, limitation periods are enacted by Parliament as a matter of public policy. Critically, the intention of Parliament is that prima facie, an application filed out of time is excluded from the Commission's jurisdiction by subsection 85(1). The burden therefore shifts to the applicant to demonstrate that in the interests of justice, an extension of time to file an application should be made. 80. The High Court considered an application for an extension of time in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) where the majority determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside the statutory time period. At 552 - 553, McHugh J explained the rationale for limitation periods: Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. ... Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. (footnotes removed) 81. The majority also confirmed it is the applicant who bears the positive burden of demonstrating that the justice of the case requires an extension: … that an application for an extension of time under s 31(2) does not have a presumptive right to an order once the conditions in s 31(2)(a) and (b) have been satisfied. An applicant still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably, and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant. Section 31(2) does not require a weighing process between the potential prejudice to the applicant and prospective defendant. 82. More recently in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134, the High Court reaffirmed the significance of the two fundamental propositions established in its decision in Brisbane South. In a passage referring to Brisbane South, the majority stated: First an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time .... Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. 83. In Brisbane South, McHugh J also stated at 553 and 554: A limitation provision is the general rule; an extension provision is the exception to it. ... ... The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. 84. An inordinate delay in the making of an application within time may be taken as evidence of prejudice: Brisbane South at 551. Moreover, at 554-555 the High Court observed the test of prejudice must consider the fact that a defendant's potential liability expired at the end of the statutory limitation period and any extension of time would impose a new legal liability. 85. In Commonwealth of Australia v Smith [2007] NSWCA 168, Giles JA referred to the test to be applied if an extension of a limitation period was to be granted: [50] The primary regard is to prejudice to the respondent if an extension of the limitation period is granted. If there would be significant prejudice, the extension should not be granted: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [116]; Commonwealth of Australia v Smith at [127]; Commonwealth of Australia v Lewis at [29]; Commonwealth of Australia v Shaw at [36]. That does not mean that, absent a finding of significant prejudice, an extension must be granted, and the applicant must still discharge the persuasive onus: Parsons v Douglas (2001) 52 NSWLR 163; Commonwealth of Australia v Smith at [129]. ...

Reason for and length of delay - ss 85(3)(a)

The reasons for the delay in making the applicant's unfair dismissal application are relatively straightforward. The applicant attended the Wollongong Local Court on Monday 30 December 2019, 18 days after his last day of service, to file his unfair dismissal application. He was unable to file the application because the court registry was closed for the Christmas break, reopening on Monday 6 January 2020.
The Industrial Registry was also closed for the Christmas break. However, on Tuesday 31 December 2019, the applicant made contact via email with the Industrial Registrar and advised her of the local court closure and that he "did email these forms to the Industrial Relations Commission yesterday…" (at [9]). The respondent was "belatedly made aware" of these events (paragraph 15 at [15]).
Whilst there is no record of the application having been received in the Industrial Registry by email on either 30 or 31 December 2019, there is no reason to doubt the genuineness of the applicant's belief that he did email it. The respondent apparently accepts that the applicant did, in fact, email his unfair dismissal application to the Industrial Registry on, at the latest, 31 December 2019, which was within the 21 day time limit. Given this apparent acceptance by the respondent, I find it somewhat surprising that the respondent contends that the application was not "made not later than 21 days after the dismissal of the employee". The respondent has not identified any basis for the Commission to hold that, by emailing the application to the Industrial Registry on 30 or 31 December 2019, the applicant has not "made" an application within the time limit specified in ss 85(1) of the IR Act.
In any event, the applicant was advised by the Industrial Registrar to "post the applications to the IRC or lodge them once reopened" (at [11]). He followed that advice and filed the application at the Wollongong Local Court on Monday 6 January 2020, the first day the court had reopened after the Christmas break and only four days after the expiry of the 21 day time limit prescribed by s 85 of the IR Act (at [4]). Given the time of year and the circumstances in which the applicant found himself at that time, I regard a delay of four days in filing his unfair dismissal as insignificant in the context of this case.
It is difficult to conceive of a more compelling set of circumstances which would warrant the exercise of the Commission's discretion to accept an unfair dismissal application out of time. It follows that I reject the submissions put in support of the respondent's motion at paragraphs 15-25 of the written submissions (at [15]).

Hardship - ss 85(3)(b)

Considerations of hardship weigh strongly in favour of accepting the application out of time. To do otherwise would deprive the applicant of the right to have his unfair dismissal application heard and determined in this Commission, a right which the High Court has only recently determined resides in a NSW police officer who has been medically retired (NSW Commissioner of Police v Cottle).
On the other hand, the hardship that the respondent will be put to if the application is accepted out of time is minimal. It was put against the applicant that, on 13 December 2019, he was made aware by registry staff of the 21 day time limit for filing unfair dismissal applications (at [14]). However, as a result of Ms Gosai overhearing the conversation between the applicant and registry staff, the respondent was aware as early as 13 December 2019 of the applicant's intention to file an unfair dismissal. It could not have come as a surprise to the respondent that the application was eventually filed on 6 January 2020 at the Wollongong Local Court.
It is unfortunate that it is now almost 2½ years since the events that gave rise to this application. That is unfortunate for both parties but none of that delay can be sheeted home to the applicant. It came about entirely as a result of the respondent taking a jurisdictional objection to the applicant's unfair dismissal which was not finally withdrawn until the Cottle litigation had concluded in the High Court earlier this year.
No issue concerning the conduct of the employer relating to the dismissal arises for consideration in this matter (ss 85(3)(c)).
Having regard to what is stated at [17]-[24] above, I determine that "the justice of the case" requires an extension and the applicant has established that there is a sufficient reason for the Commission to exercise its discretion in his favour. I propose to make an order in favour of the applicant.

Order

Pursuant to ss 85(3) of the IR Act, I order that the Application for Relief in relation to Unfair Dismissal filed by the applicant on 6 January 2020 be accepted out of time.

The applicant's victimisation application

The applicant's victimisation application was also filed by him at the Wollongong Local Court on 6 January 2020 in circumstances similar to those relating to his unfair dismissal application set out above which I do not repeat.
In the victimisation application, the applicant asserts, amongst other things, that the respondent "knowingly victimised (the applicant) because the applicant participated in proceedings relating to an industrial matter being the right of the applicant under section 174 of the Industrial Relations Act 1996 pertaining to a public sector disciplinary appeal currently before the Industrial Relations Commission .19/253118. The Commissioner of Police pursuant s94B of the Police Act 1990 expedited the medical retirement of the applicant in the midst of the appeals process of the applicant denying the applicant an opportunity to vigorously defend the sustained complaint made by the NSW Police Force pursuant to s173 (2) of the Police Act 1990". It should be noted that the initial application by the applicant in this Commission in August 2019 was brought pursuant to s 174 of the Police Act, not the IR Act (Matter No. 2019/00253118). This was an application for review of an order made pursuant to s 173 of the Police Act, not a public sector disciplinary appeal.

The respondent's motion

A Notice of Motion filed by the respondent on 17 February 2020 sought an order dismissing or otherwise setting aside the applicant's victimisation application. The grounds and reasons in support of the motion included the following:

Victimisation Claim out of time 1. The Applicant has brought a Victimisation Claim pursuant to ss. 210 and 213 of the Industrial Relations Act 1996 (IR Act). 2. Pursuant to s. 213(3) of the IR Act, the Victimisation Claim needed to be filed no later than 21 days after the alleged contravention concerned. 3. In the Victimisation Claim, the Applicant contends that the contravention was in the form of the Respondent allegedly expediting the Applicant's medical retirement as a result of the applicant bringing review proceedings pursuant to s. 174 of the Police Act 1990 (NSW) (Police Act) (NSW IRC No. 2019/253118). 4. The date when the medical retirement was allegedly expedited is not specified by the Applicant in the Victimisation Claim. 5. The Applicant's medical retirement took effect on 12 December 2019. The Applicant was notified, on 29 November 2019, that he was being medically retired and that his final date of service would be 12 December 2019. 6. The Respondent contends that, if the alleged contravention involves a decision purportedly being made to expedite the Applicant's medical retirement, that decision, and the alleged contravention, must have occurred prior to 29 November 2019. 7. If the date of the alleged contravention is: (a) taken to be the date of dismissal, being 12 December 2019, then the Victimisation Claim is one day out of time; (b) taken to be the date the Applicant was notified he was to be medically retired, being 29 November 2019, then the Victimisation Claim is 14 days out of time; and (c) taken to be a date prior to the Applicant being notified he was to be medically retired, being an unknown date on which a decision was purportedly made to expedite his medical retirement, then the Victimisation Claim is at least 14 days out of time. 8. Subject to the Applicant establishing that there is a sufficient reason for the Commission to accept the Victimisation Claim late, it must be dismissed.

In support of the motion, the respondent relied upon an affidavit sworn by Chief Inspector Robert Danks on 1 April 2020 which contained the following: 2. On 28 November 2019, I was provided with a letter to deliver to Constable John Basan from the Commander of Human Resources Command. I was tasked with doing this as Constable Basan was an officer within my command, albeit he had not been at work for a significant period of time, due to being on extended sick leave. The letter indicated that a decision had been made to medically retire Mr Basan with effect from 12 December 2019. 3. In the morning of 29 November 2019, I recall trying to contact Mr Basan via telephone, but he did not answer my call. I then sent him a text message asking him to call me back. I do not have a copy of this text message as I have since switched to using a new phone. 4. Later that morning (I do not recall the precise time), Mr Basan returned my call. I recall having a conversation with Mr Basan in which I said words to the following effect, "Hi John. The Commissioner's Delegate has decided to medically retire you with effect from 12 December 2019". 5. I recall that Mr Basan acknowledged this information in my conversation with him. I also recall that we then went on to briefly discuss Mr Basan's future employment options, the collection of his Police uniform, and the return of his personal items. I recall saying words to the effect of, "Sergeant Peterson will meet with you to organise the return of your Police uniform and property, and he will return your personal property to you". I otherwise cannot recall the precise details of our discussion. 6. At 1:10pm on 29 November 2019, I sent an email to Mr Basan, attaching the letter from the Commander of Human Resources Command… 7. At 2:43pm on 29 November 2019, Mr Basan responded to my email…
The respondent also relied upon written submissions filed on 9 April 2020 which contained the following (footnotes omitted): The Application is out of time 76. The Application has also been filed out of time. In the absence of any sufficient reason to explain the delay, the Commission should not accept the Application out of time, and it should be dismissed. 77. Section 213(3) of the IR Act provides that an application for relief from victimisation must be made within 21 days after the alleged contravention occurred. According to the Applicant, the alleged contravention is that the Respondent expedited his medical retirement because he commenced the Review Proceedings. The Applicant does not state the date on which the alleged contravention occurred. 78. If the Respondent made a decision to expedite the medical retirement process (which the Respondent denies), it must have been made before the medical retirement decision being made on 28 November 2019. The letter sent to the Applicant on 29 November 2019 refers to a process that is followed for the medical retirement of police officers. The word 'expedited' suggests that a decision was made to hasten that process. It follows that this must have occurred before 28 November 2019. 79. The Applicant received notification of the decision on 29 November 2019. On the same day, the Applicant responded to the email where that message was communicated and made arrangements for the return of his equipment. He therefore was put on notice of the medical retirement decision from that date. 80. The 21 days that the IR Act prescribes for the filing of victimisation claims commenced running (at the latest) on 28 November 2019. Accordingly, the last day for filing and service was 20 December 2019. The Applicant did not file his Application until 6 January 2020. 81. The Applicant claims that he had emailed a copy of his Application to the Commission's Registry on 30 December 2019. The Respondent does not know whether this, in fact, occurred. The Respondent was not copied into the email. The Respondent was also belatedly provided with an email sent by the Applicant to the Commission's Registry on 31 December 2019, saying he attempted to file his Application at Wollongong Court House on 30 December 2019, but was not able to do so as the Court House was closed. 82. The fact that Wollongong Local Court was closed from 23 December 2019 does not change the fact that the Application had been lodged late because the Applicant was required to commence proceedings before that time. 83. The Commission has a discretion to accept the Application out of time. However, that discretion must only be exercised where there is sufficient reason to accept the Application late, having particular regard to the reasons for, and length of, the delay, any hardship to the applicant or any other party, and the conduct in relation to which the order is sought. The onus is on the Applicant to prove that there is a sufficient reason for his Application being out of time. The presumptive position is that the Application is incompetent unless the Commission allows an extension of time. 84. The Applicant has not explained the reasons for the delay. The Commission will be guided, in determining whether any reasons supplied for the delay are sufficient, by the decision of the Full Bench in Prehn v Department of Environment and Conservation (No 2). There is no prescription in the IR Act or in cases as to what constitutes a "sufficient reason to [accept the Application out of time]". 85. In regards to the length of the delay, it amounts to a period of at least 17 days. The Respondent says 'at least' because, as set out above, the contravention, if it occurred, must have occurred prior to 28 November 2019, but the precise date of that alleged contravention is not pleaded or known. 17 days is not an insignificant period of time. It is nearly twice the length of time that the legislature has deemed fit to provide to applicants to bring such proceedings. This is a factor that weighs against accepting the Application out of time. 86. In regards to hardship, plainly hardship will be occasioned to the Respondent if it is required to expend time and resources defending an Application that has been made out of time. This is a factor that counts against the Application be accepted out of time. 87. The Commission must also consider the conduct in respect of which orders are sought in the Application. As traversed above, the Applicant contends his medical retirement was expedited. The Applicant seeks an order for remuneration or financial benefits lost or foregone as a consequence of the alleged victimisation. The Applicant calculates that loss as $704,022.85. The Respondent accepts that this is strictly an order that the Commission is empowered to make under s. 213(2)(c) of the IR Act. 88. However, s 213(4)(c) directs the Commission's attention to the conduct the subject of the Application. In that regard, the focus is on the asserted expedition of the Applicant's medical retirement. However, once the objective preconditions in s. 94B of the Police Act are met, the discretion conferred on the Respondent to retire a police officer on medical grounds is unfettered and can be exercised at any time. The Police Act prescribes no process that must be followed. It is notable that the Applicant does not contest that the objective preconditions have been satisfied for his retirement. Logically, it is difficult to see any basis for him to continue as a police officer once he had been assessed as medically unfit and incapable of discharging his duties. 89. The Applicant says, at paragraph B(1) of the Application, that his medical retirement was expedited "in the midst" of his Review Proceedings, thus "denying [him] an opportunity to vigorously defend the sustained complaint…" The medical retirement occurred at an early stage in the Review Proceedings. The Applicant has filed evidence in those proceedings, but the Respondent has not. There has not yet been any hearing. The Review Proceedings are currently stayed. There is not yet any motion by the Respondent to have the Review Proceedings set aside, although there may be a question as to their utility if the Applicant is not reinstated as a police officer. Suffice it to say that, at this stage, even taking the Application at its highest, the Applicant has not been denied an opportunity to present his case against the finding of misconduct made by the Respondent. 90. The Applicant states, at paragraph B(2) of his Application, that he contends the Respondent has contravened s. 210(1)(d) of the IR Act, in that he has been victimised for exercising functions under the IR Act. The Applicant has not identified what those functions are, and he will not be able to do so, as he did not exercise any functions under the IR Act. Conclusion … 91. Further, and in the alternative, the Application is out of time. The starting position is that the Application is invalid. There is no sufficient reason for the Commission to accept the Application out of time, and the Commission should decline to do so. 92. The Application must be dismissed.

Case for the applicant

On 20 May 2020, the applicant filed an affidavit sworn by him which contained the following: 6. On or around 25 July 2019 I was served a s 173(2) Order by Superintendent Rochester dated 17 July 2019, demoting me and making me the subject of a disciplinary transfer out of the Police Transport Command. 7. On 12 August 2019, Carroll & O'Dea Solicitors acting on my behalf, lodged an application under s 174 of the Police Act with the Industrial Relations Commission, seeking a review of the Order made by Superintendent Rochester dated 17 July 2019. 8. Carroll & O'Dea Solicitors assisted me, pursuant to a grant of assistance from the PANSW under its Financial Legal Assistance Scheme, until conciliation in the IRC had finished. A representative of the PANSW assisted me on one occasion before the Conciliation process finished (after Carroll & O'Dea had ceased to act for me), but I could not afford to pay for external legal assistance after the grant of assistance with the PANSW finished, and so I was self-represented in the s 174 Review proceedings since in or around 1st October 2019 after my application to the NSW Police Association Financial Legal Assistance Scheme seeking a review of a section 173 oder had been declined 9. On or around 1st November 2019, I lodged a Summons to Produce documents pertaining to the Industrial Relations Commission pertaining to case number 2019/00253118 seeking the matter to be dealt with by the Industrial Relations Commission as conciliation with the NSW Police Force was unsuccessful. The Summons to Produce document authorised by the registrar of the Industrial Relations Commission was provided to Mr Martin Watts of K & L Gates Solicitors acting on behalf of the Commissioner of Police. An order to set aside the Summons to Produce document was made by Bryan Belling the solicitor for the Commissioner of Police on 11th November 2019. 10. On or around 29 November 2019, I was contacted by Chief Inspector Danks by telephone, advising me that I was to be medically retired effective 12 December 2019. 11. Later that day I received (by email) a letter from Assistant Commissioner Leanne McCusker as delegate of the Commissioner of Police, confirming that I was to be medically retired effective 12 December 2019. The letter advised me that "The Deployment and Transition Unit attached to the Workforce Safety Command has referred an application to me for consideration of medical retirement"... 12. I did not make an application to be considered for medical retirement. I do not know who made this application or when this application was made, although from a "Medical Retirement "Frequently Asked Questions" document from the NSW Police Force…, I understand the application may be made by my Command…, will be referred through the ordinary chain of Command…, files that are "recommended" for medical retirement are referred to the Commissioner's Delegate fortnightly…, and that it can take between 1 and 3 months for that process from start to finish to be complete. 13. An injury Management Report compiled by Acting Senior Management Advisor Amanda Skala on 21st June 2019 states that I had not reached Maximum Medical Improvement (MMI). The report also states that they have provided suitable duties and proposed return to work plans throughout the rehabilitation process which is incorrect. I was not provided with any suitable duties as there were no placements within the North, South West, Central and Southern Regions of the NSW Police Force. I was offered Central Police Transport Command as part of my punishment relating to the section 173 order. I maintain that duties within my medical restrictions should have been applied whilst the section 173 order was being appealed. I maintain that the decision to transfer me to Central Police Transport Command does not comply with my medical restrictions, is extremely harsh in that it does not consider the high risk of fatigue which is contradictory to their Fatigue Management Policy. 14. My application under s 174 was filed on 18 August 2019, approximately 3 months prior to being notified by Assistant Commissioner McCusker on 29th November 2019 that I have medically retired. 15. I was medically discharged from the NSW Police Force with my last date of service being 12 December 2019. 16. When I ceased to be a sworn member of the NSW Police Force, I understand I also ceased to be eligible to be an ordinary member of the PANSW. 17. At all relevant times I have lived in Kiama Downs, New South Wales. The closest local court registry to my home is the Wollongong Local Court. 18. On Monday, 30 December 2019, I attended Wollongong Library with my former work colleague and friend Frank Cavallaro. I completed an application alleging unfair dismissal, and an application alleging that I had been unlawfully victimised by the Respondent. Once the form was endorsed by a Justice of Peace, Frank and I then walked to Wollongong Local Court to file the applications as I have previously have done before at Wollongong Local Court pertaining to matters before the Industrial Relations Commission. 19. When Frank and I arrived at the Wollongong Local Court Registry, I saw a sign on the front door of the local court. The sign advised the registry was closed between 23 December 2019 and 6 January 2020. 20. Frank Cavallaro on my behalf contacted the telephone number recorded on the sign. Frank then informed me that they advised to contact the Industrial Relations Commission directly. 21. Frank then used his mobile phone and contacted the Industrial Relations Commission on my behalf. I used Frank's phone and had a conversation with a female employee of the Industrial Relations Commission registry who advised me to send a copy via email to the Industrial Relations Commision. I was then sent an email by that registry officer dated 30th December 2019. 22. In accordance with the advice I received, on 30 December 2019 I emailed a copy of the application alleging unfair dismissal, and a copy of the application alleging unlawful victimisation, to the email irc client_services@justice.nsw.guv.au... 23. The conduct I allege as victimisation is that the Respondent expedited my medical retirement (ground 1 of my application), and invalidly medically retired me (ground 3 of my application because I had made application to and sought to participate in proceedings before the Commission (my s 174 Review application), and to deny me the opportunity to have the s173(2) Order reviewed by the independent umpire, ie the Industrial Relations Commission (which I say falls within the protection from victimisation in s 2l0(1)(g) and/or (d) of the Industrial Relations Act). 24. In accordance with section 213 (3) of the Industrial Relations Act 1996 where an application for an order under this section must be made within 21 days after the contravention concerned. I understood that the victimisation in grounds 1 and 3 to take effect on 12 December 2019. I was aware of the 21 day time limits for both the unfair dismissal and victimisation claims through information I had read on the Industrial Relations Commission website and after information I located in the Industrial Relations Act 1996. 25. Martin Watts the Solicitor for the Respondent had knowledge that I intended to dispute my dismissal when attending the Industrial Relations Commission on 13th December 2019 in relation to the Summons to Produce documents before Commissioner Murphy. 26. I submit that on the 30th December 2019 when I attended Wollongong Local Court to lodge my unfair dismissal and unlawful victimisation applications, and then sent my applications to the IRC that day by email, that I did file my application within 21 days of 12 December 2019. 27. On 6 January 2020, when the Wollongong Local Court reopened I attended and submitted my documents which were stamped "Received Courthouse Wollongong, 6 Jan 2020). 28. After obtaining some information from the Association, I applied to become an Associate Member of the PANSW, which was approved by a meeting of the Executive in April 2020.

Respondent's reply

On 26 June 2020, the respondent filed written submissions in reply which contained the following (footnotes omitted): The Application is out of time 4. The Applicant has filed and served an affidavit dated 20 May 2020, on which he relies in relation to the hearing of the Respondent's Notice of Motion. The affidavit is relevant only to the out of time question. The Applicant also relies on two volumes of material that have previously been filed and served in his application made under s. 174 of the Police Act 1990(NSW) (Police Act) (2019/253118). The Respondent does not object to the Applicant's reliance on those two volumes of material, albeit the substantial majority of the material has no apparent relevance to the current questions to be determined. 5. The evidence of the Applicant is consistent with the evidence of Chief Inspector Danks regarding the chronology of the key events. It confirms that, on 29 November 2019, the Applicant was informed orally by Chief Inspector Danks, and in writing by letter from Assistant Commissioner Leanne McCusker, the Respondent's delegate, that the Applicant was being medically retired pursuant to s. 94B of the Police Act. The Applicant replied to Chief Inspector Danks by email the same day, confirming he received the message that he was being medically retired. 6. Based on the material before the Commission, the following chronology can be distilled: (a) on 7 May 2018, Dr Kipling Walker (a Police Medical Officer) opined that "Cst Basan is not fit for operational duties" ; (b) on 22 December 2018, Dr Walker opined that "Cst Basan is currently unfit for any duties in the NSWPF. He is probably permanently unfit for operational duties"; (c) on or around 2 May 2019 (the precise date of the email is unclear), Dr William Kirby (a Police Medical Officer) opined that the Applicant's, "fitness for duties needs to be re-evaluated after [he is served with papers relating to potential disciplinary action]"; (d) on 17 May 2019, the Applicant was served with a notice under s. 173(5) of the Police Act; (e) on 21 June 2019, the Applicant responded to the s. 173(5) notice; (f) on 25 July 2019, the Applicant was served with an order under s. 173(2) of the Police Act; (g) on 12 August 2019, the Applicant filed his application for review under s. 174 of the Police Act with the Commission; (h) on 29 November 2019, the Applicant was contacted and informed he was to be medically retired, with his last day of service to be 12 December 2019. 7. The Applicant's fitness to perform his duties had been an ongoing issue for over 18 months prior to his medical retirement taking effect. It is apparent that the Applicant's fitness for duties was not just scrutinised only after the s. 174 review proceedings were filed. Rather, the Respondent had been assessing the Applicant's medical fitness and capacity to perform his duties as a police officer for more than a year before the s. 174 proceedings were filed. 8. If the Applicant's contention that his medical retirement had been expedited due to his s. 174 review proceedings having been commenced has any valid basis (which is denied), then it seems at odds with the fact that a period of almost 16 weeks had elapsed between the proceedings commencing and the Applicant being notified of the medical retirement. It is also inconsistent with the Applicant having been given notice of the medical retirement, when the Respondent has no statutory obligation to give any notice. 9. The Applicant's evidence establishes that he took no steps whatsoever between 29 November 2019 and 30 December 2019 to progress the preparation and filing of the Victimisation Application. He began preparing the application on 30 December 2019 and sought to file it the same day. There is no explanation given for why the Applicant did not seek to prepare the Victimisation Application far earlier. It must be inferred that there was nothing preventing the Applicant from doing so, and there is no explanation for the delay beyond the Applicant being dilatory. 10. Indeed, contrary to his suggestion in his affidavit that he emailed the Victimisation Application to the Registry on 30 December 2019, after discovering Wollongong Court House was closed that day, in fact, he did not email it to the Registry until 31 December 2019. At a time when one might have expected the Applicant to be moving swiftly, particularly when the Applicant was expressly advised by Registry staff on 30 December 2019 to file the Victimisation Application by email, the Applicant did not immediately do so, but instead, waited until the following day. The reason for this delay, albeit short, is equally unexplained, and difficult to understand. 11. The Applicant's only explanation is that, while he knew there was a 21 day time limit, he understood the victimisation "took effect" on 12 December 2019, when he was medically retired. 12. This is not consistent with the Victimisation Application as filed. The Applicant re-characterises his alleged victimisation to the act of medical retirement, in and of itself. However, the Applicant, in the Victimisation Application, asserts that the alleged victimisation occurred at an anterior stage, by the Respondent having expedited the decision to retire him on medical grounds. The Applicant knew of the medical retirement decision on 29 November 2019. Even taking the most beneficial view to the Applicant, the Victimisation Application needed to be filed by 20 December 2019. It was sent to the Commission Registry by email on 31 December 2019, making it (at least) 11 days out of time, even if the emailing of the application form was accepted as the date the Victimisation Application was made. It was not sealed until 6 January 2020. 13. In light of the Applicant's evidence, and by reference to the principles set out in the Respondent's primary submissions (at [83]-[90]). the Respondent sets out a more detailed assessment of each of the factors in s. 213(4) of the IR Act below. Reasons for the delay 14. The Applicant has not supplied any explanation for his delay. As he bears the onus for providing an explanation, the absence of any evidence is a significant factor weighing against the Commission exercising its discretion to grant an extension of time: Prehn v Department of Environment and Conservation (No. 2) [2007] NSWIRComm 34 at [17]-[20]. Length of the delay 15. The Respondent has nothing further to add to paragraphs [81] and [85] of the primary submissions, other than to acknowledge that the Respondent now accepts the Applicant emailed a copy of the Victimisation Application to the Registry on 31 December 2019. The Respondent repeats the observation that the Applicant has not explained why he did not send this email on 30 December 2019, having been advised by the Commission to do so. Hardship to the Applicant 16. The Applicant has not led any evidence of any hardship he will suffer if his proceedings are not accepted out of time. 17. The Respondent refers to paragraph [86] of the primary submissions. Conduct relating to the Application 18. The Respondent refers to paragraphs [87] to [90] of the primary submissions, and paragraphs [6] to [12] above. Conclusion 19. There is no proper basis on which the Commission could be satisfied that the Applicant has met his onus of proving that there is a 'sufficient reason' to warrant exercising the Commission's discretion to accept the Victimisation Application out of time. The Applicant's failure to file his Victimisation Application on time is not explained, or at least, is not satisfactorily explained. The factors the Commission must consider either weigh against an extension of time being granted or are otherwise neutral. 20. The Victimisation Application must be dismissed. 21. In the Respondent's submission, with a view to trying to progress these proceedings as far as meaningfully can be achieved, the out of time objection should be determined up front. There is nothing preventing that part of the Respondent's motion from being determined now. Subject to the Applicant's agreement, that determination can occur on the papers based on the evidence and written submissions supplied by the parties. If the Commission determines not to accept the Victimisation Application out of time, then the proceedings come to an end. If it is accepted out of time, this becomes one less matter that needs to be addressed at any oral hearing of the Respondent's motion.

Reasons for and length of delay - ss 213(4)(a); Hardship - ss 213(4)(b)

As I apprehend the case put by the applicant, the alleged victimisation of him by the respondent as a result of him instituting proceedings pursuant to s 174 of the Police Act, was the expediting of his medical retirement by engaging in a course of conduct that culminated with his actual medical retirement with his last day of service being 12 December 2019. On this basis, the 21 day time limit in ss 213(3) did not expire until 2 January 2020. On the basis of what is set out at [17]-[19] above, it is arguable that the applicant's victimisation application was "made within 21 days after the contravention concerned" (see also paragraph 15 of the respondent's submissions in reply at [34] where the respondent "now accepts the Applicant emailed a copy of the Victimisation Application to the Registry on 31 December 2019.").
However, for abundant caution, I am prepared to approach the matter on the basis that the applicant's victimisation application was made on 6 January 2020, when it was filed ai the Wollongong Local Court, four days out of time.
For reasons similar to those set out at [17]-[26] above, the applicant has established that there is a sufficient reason for the Commission to exercise its discretion in his favour. I propose to make an order in favour of the applicant.

Orders

Pursuant to ss 213(4) of the IR Act, I order that the Application for Relief from Victimisation filed by the applicant on 6 January 2020 be accepted out of time.
It follows that the respondent's motions in both the applicant's unfair dismissal application and victimisation application, to the extent that orders are sought on the basis that the applications were made out of time, are dismissed.
I so order.
These proceedings are stood over for directions before me by teleconference at 1.00pm on Tuesday 17 May 2022. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2022

Industrial Relations Act 1991(NSW)

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Judgment (16 paragraphs)

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