Birrell v Australian National Airlines Commission

Industrial Relations Commission (NSW)|2017-07-26

Judgment

The applicant, Mr Denis Dominguez, filed an application for relief from unfair dismissal under s.84 of the Industrial Relations Act 1996 ('the Act') on 8 May 2017. On 22 May 2017, the respondent Department of Finance, Services and Innovation ('the Department') filed a Notice of Motion and supporting affidavit, seeking that the application be dismissed as being outside the 21 day time limit provided by subsection 85(1) of the Act.
In this interlocutory proceeding Mr Dominguez seeks that the Commission accept his unfair dismissal application that is made out of time, pursuant to subsection 85(3) of the Act.
Conciliation took place on 25 May 2017 before Commissioner Murphy which was unsuccessful. A timetable was set for the parties to file their evidence and submissions in respect of the hearing of the Departments' Notice of Motion.
Mr Dominguez filed a signed statement on 2 June 2017. The Department filed a Reply to the unfair dismissal application on 9 June 2017. On the day of the hearing, Mr Dominguez handed up a further document entitled 'Outline of Oral Submissions' and Mr Cherry, Senior Employee Relations Advisor with the Department, handed up a folder of documents containing submissions and a number of annexures.
Neither party was legally represented. At the conclusion of conciliation, Commissioner Murphy explained the steps to be taken in preparation for the hearing of the Notice of Motion. These included providing signed witness statements setting out the facts each party asserted as relevant to whether the Commission should hear the application out of time, and a separate document in the form of an argument why the Commission should exercise its discretion in that party's favour.
The documents filed and handed up by both parties were a mixture of evidence and submission, although mostly submission. What evidence existed was largely inadmissible under the rules of evidence as to form and substance. However section 163 of the Act provides that the Commission is not bound by the rules of evidence and may inform itself on any matter and in any way that it considers to be just. In the circumstances of this matter, the Commission determined that the appropriate course was to admit the material submitted by the parties and provide an opportunity to call a witness in support of their case with the opportunity for cross-examination. This resulted in Mr Dominguez giving evidence on his own behalf and Mr Cherry giving evidence on behalf of the Department.

Background

On 24 March 2017, Mr Dominguez received a letter from the Secretary of the Department Mr Martin Hoffman dated 8 March 2017. The letter advised that the Department was terminating his employment, after giving him the opportunity to resign. The letter stated that Mr Dominguez had seven days from the date of receipt to provide any such resignation.
The Department submitted that it was exercising its authority under section 68(2)(a) of the Government Sector Employment Act (2013) ('the GSE Act') to terminate the employment of an employee after giving the employee an opportunity to resign, following a determination of unsatisfactory performance.
On 28 March 2017, Mr Dominguez sent an email to Mr Cherry inquiring what his 'severance pay' would be if he resigned as proposed in Mr Hoffman's letter or if he did not resign. Mr Cherry advised that the payment would be the same in either scenario because the payment consisted of accrued leave entitlements only. Mr Dominguez responded, noting that 'the only difference then is that the record will indicate I either resigned or was dismissed'.
On 29 March 2017, Mr Dominguez sent an email to Mr Cherry stating 'Please find attached my letter of resignation'. A letter of the same date was attached which stated 'I resign from my role as Senior Valuer grade 7/8, Valuation Services, as per Martin Hoffman's 8 March 2017 letter'. The resignation letter was signed by Mr Dominguez. On 30 March 2017, Mr Cherry responded to Mr Dominguez's email and letter, apologising for not replying the previous day, and advising 'I will process this ASAP for you and send it to payroll'.
There was no further correspondence between Mr Dominguez and the Department for a month, until on 1 May 2017 Mr Dominguez sent an email to Mr Cherry stating 'Centrelink requires that you send to me an employment separation certificate'. On 5 May 2017, a payroll officer sent Mr Dominguez his Employment Separation Certificate as requested.
On 8 May 2017, Mr Dominguez filed two unfair dismissal applications with the Commission. Both were signed by him on 5 May 2017.

Effective termination date

Both applications filed by Mr Dominguez stated his last day worked was 24 March 2017. In response to question 15 on the application form about the date of dismissal, Mr Dominguez answered that dismissal was first threatened on 10 November 2016, the final decision was 8 March 2017 and the decision was notified to him on 24 March 2017.
The Department submitted that the termination date was 29 March 2017, being the date Mr Dominguez submitted his resignation letter by email. This is the date that appeared on the Employment Separation Certificate as the date employment ceased. The Department also submitted that Mr Dominguez ceased being paid by the Department after 29 March 2017.
At the hearing, Mr Dominguez made submissions about the effective date of termination of his employment which impacted upon whether his application was filed within the 21 day time limit, as follows: 1. while he submitted his resignation on 29 March 2017, the Department never officially acknowledged or accepted it and accordingly there was no effective date for the resignation. On this argument, Mr Dominguez's employment had not in fact terminated and was ongoing; 2. the only official Departmental document acknowledging Mr Dominguez's cessation of work on 29 March 2017 was signed by the Department on 5 May 2017, being the Centrelink Employment Separation Certificate. On this argument, Mr Dominguez's effective termination date is 5 May 2017 and he therefore filed within the 21 day limitation period; and 3. the Employment Separation Certificate states that Mr Dominguez's leave ended on 20 April 2017, which is the effective termination date. On this argument, Mr Dominguez's effective termination date is 20 April 2017 and he therefore filed within the 21 day limitation period.
I do not accept these arguments, for the following reasons: 1. once notice of intention to terminate an employment contract has been communicated, it cannot as a general rule be withdrawn without the consent of the other party: Birrell v Australian National Airlines Commission (1984) 5 FCR 447. Mr Dominguez gave written notice of his resignation on 29 March 2017 and the Department did not consent to him withdrawing it. In any event, the Department did acknowledge Mr Dominguez's resignation via Mr Cherry's email of 30 March 2017. It ceased paying Mr Dominguez after 29 March 2017 consistent with the employment relationship ending on that date. I further note that if Mr Dominguez had not resigned, his employment would have ended on 29 March 2017, consistent with the letter from Mr Hoffman; 2. the Centrelink Employment Separation Certificate was not the only document from the Department acknowledging the cessation of Mr Dominguez's employment. As noted above, the email from Mr Cherry of 30 March 2017 acknowledged the resignation of 29 March 2017 and advised it would be 'processed'. The Employment Separation Certificate itself expressly states that the termination date was 29 March 2017. The date of 5 May 2017 is merely the date the Employment Separation Certificate was signed by the Department's payroll officer, when the certificate was administratively issued after Mr Dominguez's request for it on 1 May 2017; and 3. Mr Dominguez was not on leave from the Department until 20 April 2017. The Centrelink Employment Separation Certificate notes the quantum of annual leave and long service leave entitlements owing to Mr Dominguez. The date '20 April 2017' appears in the column headed 'date paid/to be paid' and is therefore not the effective date of termination of the employment. The Employment Separation Certificate separately and clearly states that the 'date employment ceased' was 29 March 2017.
I find that the effective termination date of Mr Dominguez's employment was 29 March 2017 and his unfair dismissal application is therefore 19 days out of time.

Applicable law

Section 85 of the Act provides as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.
Mr Dominguez did not lodge any application with the Fair Work Commission and this matter therefore falls to be determined solely under subsection 85(3) of the Act.
In exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, the Commission must determine there is 'sufficient reason to do so', taking into consideration the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act.
Each case is decided on its own facts and circumstances. Previous decisions are authorities on principles not factual circumstances: Jess v Scott (1986) 12 FCR 187 at 195. There is no prescription in the Act or in cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190.
In Marko Markovski and Director General of the Department of Health in respect of Sydney South West Area Health Service [2010] NSWIRComm 1043, Commissioner Connor summarised the key principles: 194 In Green & Yum! Restaurant Pty Ltd the Commission, as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as originally expounded by Sams D P in Kent Gorrell v Uwatec Pty Ltd ( unreported, IRC 1700/99, 5 July 1999) (with appropriate and relevant cases cited under each principle) 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 excuses no one).
The prima facie position is that an application brought out of time is excluded by subsection 85(1). An applicant therefore bears the burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416.
The approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing 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 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".
The overarching principle is that in exercising a discretion whether to accept proceedings brought out of time, the Commission is to consider the requirements of justice in a particular case, in the context of the particular statutory scheme: Hurrell at [13].

Reason for, and length of, the delay

On 8 May 2017, Mr Dominguez filed two applications with the Commission signed by him on 5 May 2017. The applications are identical save for the answer given to question 34, relating to late applications. In one application, stated by Mr Dominguez to be his first application, the reason for the application being filed late was as follows: I did not know about the 21 day time limit until after the time had expired. Initially I decided not to pursue an unfair dismissal claim as I was interviewed for a valuer position with a bank on 24 March 2017 and on 28 March 2017, I received a verbal offer of employment from the bank, subject to criminal and background checks. On 26 April 2017, the bank advised me they decided to withdraw their offer of employment after receiving an unsatisfactory background check result for me. The unsatisfactory result is most likely based on my forced resignation. I asked the background check consultant to provide information on the unsatisfactory result they initially refused but are now discussing my request with their freedom of information section. I'm hoping that a result of this application reinstates my correct professional reputation.
In the other application which Mr Dominguez sought to rely upon, the reason for the application being filed late was as follows: I was depressed after waiting two months for DFSI to make a decision, then forcing me to resign. During that period, my union should have, but did not advise me of my rights under the industrial relations commission or the 21 day time limit to apply for relief. It is only now that I have been able to gather myself and research the options available to me.
This was the application that was subsequently served on the Department, who were not aware of the first application that had been filed until the hearing of the Notice of Motion.
Both applications were supported by a statutory declaration sworn by Mr Dominguez. When asked about the two applications Mr Dominguez said he had spoken to someone in the Registry of the Commission who advised him he could withdraw one application and the other application would be destroyed. He could not recall who that person was.
Both applications formed part of the Commission's complete file that came before me. I consider it would not be in the interests of justice to ignore the first application, in circumstances where it contains a sworn document containing evidence directly related to the matter to be determined by the Commission. I have taken it into account, together with all of the other evidence presented in the matter.

Length of delay

The Commission must have regard to the length of the delay (section 85(3)(a)). The application is brought 19 days out of time in circumstances where a relatively short limitation period of 21 days is prescribed.
It is not a situation of a few days' delay due to, for example, misapplication or misunderstanding of filing procedures. It is almost the same period again as the 21 day limitation period. It is therefore not a trivial or negligible period of time. However it is the actions of Mr Dominguez during the limitation period and 19 day period thereafter until he filed his application that are significant in the circumstances of this matter.

Mr Dominguez's state of mind

Mr Dominguez submitted that the reason for his delay was because he was depressed, rendering him incapable of filing his application within 21 days of the resignation date. At the hearing he submitted a letter from a psychologist, Mr John Cameron, dated 7 June 2017. Mr Cameron confirmed that Mr Dominguez consulted him on three occasions on 23, 28 and 29 March 2017 and that Mr Dominguez was suffering symptoms consistent with an Acute Depressive Episode. Mr Cameron stated his professional belief was: …that Mr Dominguez was under the duress of his medical condition at the time he agreed to resign, but has also suffered increasing symptoms since then whereby he has not had the resilience to enact unfair dismissal processes.
Mr Dominguez gave oral evidence that in the period after his employment ended, he was 'mentally drowning', 'in a very bad state of mind' and 'in a depressed mental state".
The Department submitted that actions taken by Mr Dominguez after his employment ended do not indicate that his state of mind was such as to prevent him bringing an unfair dismissal application within the 21 day limitation period. Such actions demonstrating Mr Dominguez was 'cognisant of thought' pointed to by the Department were as follows: 1. Mr Dominguez applied for another job and attended job interviews; 2. Mr Dominguez filed a claim in the Australian Human Rights Commission on 1 May 2017. It was rejected on 5 May 2017 on the basis there was no discrimination issue. It was on that day, 5 May 2017, that Mr Dominguez signed the two unfair dismissal applications in this Commission, which were subsequently filed on 8 May 2017; and 3. Mr Dominguez stated that he did not apply to Fair Work Australia because he understood the New South Wales government was not under that jurisdiction. This showed a thought process by which Mr Dominguez was able to consider his actions.
The Department submitted that the real reason for delay in filing was a change of mind by Mr Dominguez when Mr Dominguez realised his Centrelink certificate stating 'resignation' rather than 'termination' meant payment of his Newstart allowance was delayed. Mr Dominguez requested the Centrelink certificate from the Department on 1 May 2017. It was supplied on 5 May 2017 to Mr Dominguez by email and to Centrelink electronically.
I am not persuaded on the evidence that Mr Dominguez was suffering from a mental illness that prevented him taking the necessary steps to file his unfair dismissal claim within time. That is not to say that Mr Dominguez did not feel depressed in the period leading up to the end of his employment and thereafter. However there is not strong evidence that he experienced symptoms of such a nature and degree that he was rendered incapable of taking any action to prosecute his unfair dismissal claim during the 21 day limitation period.
Mr Dominguez confirmed he had not attended any appointment with Mr Cameron since 29 March 2017. Mr Cameron therefore had no direct observation of Mr Dominguez's state of mind in the period up to 19 April 2017 (the end of the limitation period), or thereafter when Mr Dominguez subsequently filed the Australian Human Rights Commission claim on 1 May 2017 and the unfair dismissal claim on 5 May 2017. Mr Cameron's letter does not detail Mr Dominguez's 'increasing symptoms' since his resignation, the duration of those symptoms and how they impacted Mr Dominguez's ability to enact dismissal processes.
Accordingly, Mr Cameron's letter of 7 June 2017, containing an opinion given retrospectively without a consultation with Mr Dominguez and lacking relevant detail, can be given little, if any, weight.
I turn to the actions taken by Mr Dominguez relied upon by the Department as demonstrating his presence of mind. Mr Dominguez's application to the Australian Human Rights Commission was made on 1 May 2017. It therefore comes after what I consider to be the key period, being the limitation period of 21 days ending 19 April 2017. Similarly the application made to this Commission on 8 May 2017 (and correct selection of this jurisdiction rather than Fair Work Australia), occurred after the period Mr Dominguez says he was unable to take action due to his mental state.
However the steps taken by Mr Dominguez in respect of the National Australia Bank job occurred immediately and squarely within the key period from 24 March 2017 to 19 April 2017. In my view, preparing a written employment application and preparing for and attending interviews demonstrates proactivity, organisation and commitment. These actions are inconsistent with the position that Mr Dominguez was incapable of filing his unfair dismissal claim because of depression. Unlike in Clark v Family and Community Services Ageing, Disability and Home Care Services [2014] NSW IRComm 1022, on the available evidence I am not satisfied Mr Dominguez was experiencing 'paralysis of will and conduct'.
The credibility of Mr Dominguez's argument that he was suffering from a level of depression that made him incapable of filing an unfair dismissal claim is further weakened by the evidence of him seeking and obtaining alternative employment that subsequently fell through. Mr Dominguez acknowledged in the first application he filed with the Commission that 'Initially I decided not to pursue an unfair dismissal claim as I was interviewed for a valuer position with a bank on 24 March 2017 and on 28 March 2017, I received a verbal offer of employment from the bank, subject to criminal and background checks.'
Mr Dominguez confirmed that he did apply to the National Australia Bank after his employment with the Department ended. He recalled he had an interview in late March or early April 2017, and in late April the Bank withdrew their offer of employment to him. Also on or around 27 April 2017, Mr Dominguez said he found out about a job with the ACT government that had just closed on or around 25 April 2017. Mr Dominguez stated that this 'didn't help his state of mind either, because that would have been a good job'.
I agree with the Department's submission that Mr Dominguez's delay in filing arose because he had a change of mind, although not because of the Employment Separation Certificate. I consider that Mr Dominguez's change of mind occurred because he received what must have been extremely disappointing news from the National Australia Bank on or around 26 April 2017 that they were withdrawing the verbal offer of employment previously made to him on 28 March 2017.
This may have caused Mr Dominguez to then seek the Employment Separation Certificate from the Department on 1 May 2017, to provide to Centrelink to enable him to access benefits. However the reason Mr Dominguez delayed bringing his unfair dismissal claim in the period that he was eligible to do so was because he had sought, and believed he had obtained, alternative employment.
I find that Mr Dominguez did not intend to pursue an unfair dismissal claim, or indeed any claim in relation to his employment with the Department, until after the National Australia Bank withdrew its offer of employment to him on or around 26 April 2017, which was by that time outside the 21 day limitation period under the Act. He then commenced taking steps to seek redress against the Department in respect of the cessation of his employment with them - firstly in the Australian Human Rights Commission, then in this Commission.

Access to advice

Mr Dominguez submitted that another reason for his delay was that events occurred around Christmas and New Year, making it difficult to talk to lawyers who could assist. I reject this submission. The key period was on and from 24 March 2017, being the date the Department advised Mr Dominguez of its decision to terminate his employment, well after the Christmas and New Year period.

Representative error

In his second application filed with the Commission, Mr Dominguez stated that during the period of 2 months waiting for the Department to make a decision then forcing him to resign, 'my union should have, but did not advise me of my rights under the Industrial Relations Commission or the 21 day time limit to apply for relief'. In his statement dated 2 June 2017, Mr Dominguez stated that he was 'relying on his union, who are experienced in IRC matters, but unfortunately I found their advice was unreliable'.
Mr Dominguez was a paid member of the Public Sector Association ('PSA'). PSA representatives had sat in as phone support persons on meetings that occurred between Mr Dominguez and the Department as part of the investigation and discipline process.
Mr Dominguez gave evidence that he had a conversation with Mr Nathan Bradshaw of the PSA shortly after he was forced to resign on or around 29 March 2017. He told Mr Bradshaw he was not happy with the advice that the PSA had given him. This related to the PSA hotline allegedly giving Mr Dominguez wrong advice about the award applicable to his employment. Mr Dominguez also says that when discussing his case with a PSA representative prior to the termination, he was not advised that he could have filed a threatened dismissal application. Mr Dominguez acknowledged that around the time his employment ended, Mr Bradshaw said to him 'Oh well, it's probably not appropriate then that we represent you or support you'.
There was no evidence that Mr Dominguez sought advice from Mr Bradshaw or another PSA representative about his options specifically in respect of the termination of his employment on or after 29 March 2017 and they failed to advise him he had 21 days to file an unfair dismissal claim.
Mr Dominguez considered he was not 'getting the right support' and that the PSA did not have 'New South Wales experience in particular'. He was entitled to hold this opinion and decide not to use the PSA's services. However the evidence does not support a submission that the PSA failed to advise Mr Dominguez there was a time limit for an unfair dismissal claim and that this caused or contributed to him failing to file within the 21 day limitation period.

Hardship to employee

Under subsection 85(3)(b) of the Act, the Commission must have regard to any hardship that may be caused to either party, if the application is or is not rejected.

Hardship arising from dismissal

The hardship to Mr Dominguez if the application is rejected is that he will not be able to pursue his unfair dismissal claim. That is a hardship suffered by every out of time applicant whose application is rejected. I accept Mr Dominguez's submission that he has suffered financial hardship arising from his unanticipated loss of work and difficulties in finding comparable alternative employment. After the loss of the National Australia Bank job, Mr Dominguez has obtained alternative employment, although he submits the remuneration is not comparable. However I do not consider he has demonstrated hardship beyond that which is generally suffered by an employee in his situation.

Prospects of unfair dismissal claim

The prospects of success of the unfair dismissal application are relevant to the consideration of hardship to the employee, in the exercise of discretion under subsection 85(3)(b), as set out in Hurrell supra.
Mr Dominguez submitted he had not resigned but rather been constructively dismissed. He argued that if he had not tendered his resignation on 29 March 2017, his employment would have been terminated by the Department as notified in the letter from Mr Hoffman dated 8 March 2017. He alleges that he was 'forced and coerced' into resigning.
The contention that Mr Dominguez resigned and that as a result no termination at the initiative of the Department occurred was not raised by the Department in its Notice of Motion, which related to the application being outside the 21 day limitation period. At the hearing, the Department was asked whether it conceded Mr Dominguez was constructively dismissed from his employment. The Department did not so concede and reserved its position if the matter proceeded to a hearing.
Irrespective of the characterisation of the termination as a resignation or a dismissal, the effective termination date was 29 March 2017. Accordingly, whether a constructive dismissal occurred is relevant only as one aspect of the overall assessment of the merits of Mr Dominguez's unfair dismissal claim.
In my view, there is some prospect of Mr Dominguez establishing that the Department was the true initiator of the termination of employment. In Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336, Sams DP noted as follows: [81] A dismissal (be it constructive or otherwise) has been defined as a "termination at the employer's initiative", or where the conduct or actions of the employer is the real and effective initiator of the termination of employment. [82] The oft quoted authority for the above definition is that found in Allison v Bega Valley Council, 63 IR 68 at p72-p73: .... In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.
The Department submitted that no constructive dismissal arose because of the provisions of the GSE Act, which confers statutory power on the Department to provide the option of resigning to employees who are terminated for unsatisfactory performance, constituting a benefit to the employee. The basis of this argument is not immediately apparent and it was not ventilated in submissions by either party. The issue would need to be determined at a hearing of the unfair dismissal application. I simply note for present purposes that in a preliminary assessment of Mr Dominguez's claim, the argument that he was constructively dismissed has some merit.
However assuming Mr Dominguez met the threshold of a constructive dismissal, he must then establish that the disciplinary outcome of termination taken by the Department was harsh, unreasonable or unjust.
There are four incidents forming the allegations against Mr Dominguez. Mr Dominguez disputes two allegations as being previously dealt with and/or without foundation. The remaining two allegations are the more serious issues relating to Mr Dominguez using his work email address to communicate his personal opinions about matters connected with his work for the Department, as follows: 1. Mr Dominguez wrote to a third party, a Dr Mangioni, criticising how he represented the valuation methodology used to provide the current New South Wales land value based system, where Mr Dominguez had no authority to make a submission on behalf of the Department; and 2. Mr Dominguez wrote to IPART expressing concern about how Dr Mangioni represented the valuation methodology and requested IPART consider Mr Dominguez's submission.
In a letter to Mr Dominguez dated 10 November 2016, the Department particularised its concerns about the alleged conduct as follows: As Dr Mangioni expressed in his email to Mr Simon Gilkes and Mr Michael Parker, following the receipt of your email, he is an independent researcher and is qualified to make his own assessment of the rating, taxing and valuation systems in New South Wales. The fact that you may disagree with some of the views he expressed does in no way entitle you to launch such an attack on Dr Mangioni with the Valuation Services name behind you. In fact you should be aware that your views are not representative of the management of the Valuer General or Valuation Services. To this extent your email was unprofessional and reflects poorly both on the Agency and on the Valuer General. Finally in an environment where reform is being openly discussed any engagement with IPART is critical, your email clearly indicates that Valuation Services is resistant to change which is not a view which is valued by IPART. Your email therefore puts at risk the perception that the Agency is willing and open to engage in a transparent dialogue about reform of the industry. As a result of your email, both Mr Gilkes and Ms Welanyk felt obligated to contact Mr Mangioni, who as a recognised expert in land-based rating and taxing systems within many published works on their theory and practice and as such, whose opinion is valued by IPART, to apologise for the inappropriateness of your email and to reassure Dr Mangioni that the views expressed by yourself do not represent the view of the Valuer General or the Agency. Your email to Dr Mangioni is not only completely inappropriate, but potentially jeopardised the goodwill and credibility of the Agency in addressing the reform agenda which had the potential impact of limiting their involvement in the future discussions. You wrote to IPART expressing your concern with how Dr MangionI represented the valuation methodology to provide the current New South Wales land value-based system. Again the email was sent from your work address and included your Valuation Service email signature block. You requested that IPART consider your out of date submission. At no stage did you advise that you views did not express those of Valuation Services until asked by IPART at which stage you clarified that it was a personal submission. Had you not been asked this question by IPART, it would have been natural to assume that your position on the matter represented the views of the Agency. Your submission to IPART is a clear breach of the Code of Ethics and Conduct and in particular, section 2.11 Seek approval before commenting publicly on the work of the department. You had no approval to provide a public comment to IPART which your email represented until clarified which is feasibly grossly negligent due to the potential ramifications.
In his response dated 1 February 2017 to the Department's proposed disciplinary outcome of termination, Mr Dominguez acknowledged he sent these communications and that they were inappropriate, in that he should not have used his work email address. He submitted, and continues to submit, that the only relevant incidents are the two allegations relating to his use of the Valuation Services email account. He says that these occurred over only a 7 or 8 day period, do not constitute a 'repeated pattern of unsatisfactory performance' and that the Department's action was therefore disproportionate and harsh.
Mr Dominguez stated at hearing that while he has obtained other employment, reinstatement or re-employment remained the primary remedies sought. In light of the conduct admitted by Mr Dominguez in respect of the two email allegations, and the employer's stated attitude to that conduct, I consider reinstatement and re-employment would likely be impracticable. Any remedy would therefore be limited to compensation.
In order to be awarded compensation, Mr Dominguez would need to persuade the Commission that his admitted conduct, even if not 'repeated' or a 'pattern', was insufficiently serious to justify dismissal. In my view, the Department's concerns about Mr Dominguez's conduct in sending the emails have substance. Mr Dominguez also submitted that he was denied procedural fairness. On Mr Dominguez's own statement, the Department provided him with particulars of the allegations, an opportunity to respond prior to making findings on those allegations, a 'show cause' letter in respect of the proposed disciplinary outcome and an opportunity to respond to that letter, together with meetings at which Mr Dominguez was provided the opportunity to have (and did have) a support person from his union participate.
I have not heard all of the evidence relating to the unfair dismissal application. However, on the written material I have seen at this time, I consider Mr Dominguez would face challenges in establishing the dismissal was harsh, unreasonable or unjust. I am not persuaded that Mr Dominguez's claim is so meritorious that it justifies the exercise of discretion in his favour when weighed against the other considerations, particularly the length and reason for the delay. In any event, an applicant with an arguable or even a good case is not, for that reason alone, guaranteed admission of a late application: Brisbane South Regional Health Authority v Taylor at 553.

Hardship to employer

I am required to consider hardship to the employer. As a general proposition, where a time limitation exists within which to bring a claim, a party who might be a respondent to that claim is entitled to regard themselves as free from suit once the time limit has passed: Katsantonis v Inner West Council [2017] NSWIRComm 1015 at 34.
The Department was not put on notice by Mr Dominguez that he contested the dismissal, or even that he considered himself dismissed rather than having resigned, until the claim was filed on 8 May 2017. Nothing in the email correspondence with Mr Cherry on 30 March 2017, or the Department's payroll staff on 1 May 2017, disclosed a potential claim.
The Department acknowledged the only hardship it would face would be preparing for and conducting a case in response to the unfair dismissal application. Consideration of hardship to the employer is therefore a neutral consideration in the exercise of discretion in this matter.

Conduct of employer relating to dismissal

The 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer relevant to the delay in Mr Dominguez filing his unfair dismissal application. Subsection 85(3)(c) does not permit the exercise of discretion in favour of an applicant because the Commission considers the dismissal itself as unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998); Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012.
The Department's conduct had no bearing on Mr Dominguez lodging out of time. From the time Mr Dominguez tendered his resignation on 29 March 2017, the Department had no interactions with him until the Employment Separation Certificate was requested on 1 May 2017, which was duly provided on 5 May 2017.
Consideration of conduct of the employer is therefore a neutral consideration in the exercise of discretion in this matter.

Consideration

I accept Mr Dominguez's evidence that he did not know about the 21 day time limit for an unfair dismissal claim in this jurisdiction. However ignorance of the relevant time limit is only one factor in exercising the discretion within the context of the statutory scheme.
At the time his employment with the Department ended, Mr Dominguez could have explored and instituted an unfair dismissal or other claim in respect of the cessation of his employment with the Department. As he acknowledged, he initially decided not to. Instead, Mr Dominguez made a decision to apply for another job and to rely on a verbal offer of employment made by the National Australia Bank. The offer was withdrawn, which is a regrettable turn of events. However balancing all of the factors in this matter and having regard to the requirements of justice, I do not consider it to be a sufficient reason for the Commission to permit him to bring a claim out of time. I decline to exercise my discretion to accept his unfair dismissal application.

Orders

That the application made by Mr Denis Dominguez pursuant to s.84 of the Act is dismissed, for reason that it is not brought within time. JANE SEYMOUR Commissioner

Amendments 11 January 2019 - Paragraph 10 - Spelling mistake changed - Hofffman to Hoffman 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: 11 January 2019

Industrial Relations Act 1991(NSW)

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (1)

Cases Cited (15)

Cited By (4)