Brady v Kennedy t/as "Sardines" - [2008] NSWIRComm 236 - NSWIRComm 2008 case summary — Zoe

NSWNSWIRComm

Brady v Kennedy t/as "Sardines"

[2008] NSWIRComm 236

Industrial Relations Commission (NSW)|2008-10-22|Before: Sams DP, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2008-10-22

Before

Sams DP, Mr P

Catchwords

Held

Source

Original judgment source is linked above.

Catchwords

Held

Judgment (28 paragraphs)

[1]

CITATION: Keith Mullins and New South Wales Department of Education and Training [2008] NSWIRComm 236

[2]

APPLICANT Keith Mullins PARTIES: RESPONDENT New South Wales Department of Education and Training

[3]

Application for relief from victimisation - various heads of claim - former school teacher - Teacher Improvement Program - transfer to another school - dismissal of teacher - application out of time - significant delay in filing claim - numerous applications to the Commission on same subject matter - whether sufficient reason exists to warrant exercise of discretion - conduct of employer - prospects of success - principles dealing with out of time applications - respondent's claim that application frivolous, vexatious and brought without reasonable cause - costs sought. CATCHWORDS: Held; similar considerations as s 85(3) of the Act - applicant did not address requirements of s 213(4) of the Act - no sufficient reason established to accept out of time application - applicant very familiar with Commission's procedures, particularly time limits on filing - previous unfair dismissal application discontinued - alleged circumstances not victimisation - delay of five years or seven months - no hardship to applicant - hardship for respondent - respondent faced with numerous unmeritorious applications - no basis for Commission to exercise discretion - application dismissed - further submissions as to costs.

[10]

Application by Keith Mullins for relief from victimisation under section 213 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 236 1 Mr Keith Mullins ('the applicant') filed an application on 3 September 2008 under the victimisation provisions of the Industrial Relations Act 1996 ('the Act'). Those provisions relevantly being s 210 to s 213 of the Act. The applicant identified the Director General, Department of Education and Training as the respondent to the application. The applicant seeks various orders for relief, including orders for reinstatement as a teacher, the payment of lost remuneration, reimbursement of expenses in attending Commission hearings, for furniture storage and other unspecified amounts for lost superannuation and other benefits. For the claims he quantified, the amount is $180,178. 2 The applicant submitted that he had been victimised by the Department as far back as 2003, when he was employed at the Moree Secondary School and had been placed on a Teacher Improvement Program (TIP). He claimed he was further victimised when he was dismissed from his employment with the Department on 18 January 2008; although he had not worked as a teacher since 24 November 2004. He also claimed that he was victimised by being 'stripped' of his qualifications (by the Department) and thereby 'stripped' of his teaching career. 3 Assuming that the act of dismissal was itself the last incidence of victimisation, the result is that this application was filed significantly out of time, pursuant to the provisions of s 213(3) of the Act. That section requires an application under s 213(1) of the Act to be brought within 21 days of the alleged contravention of the relevant Part of the Act (s 210). This decision will determine whether the Commission will exercise its discretion such as to permit the application to be accepted out of time in accordance with s 213(4) of the Act. I shall return later to discuss the principles to be applied by the Commission having regard to the requirements of s 213(4). 4 It is relevant to observe at this juncture, that the applicant has lodged a number of applications under the Act in which he has sought various forms of relief, from what I understand to be essentially the same set of factual circumstances. These various proceedings were identified by Counsel for the Department as supporting its argument (in the present proceedings) that this application is either, frivolous, vexatious or brought without reasonable cause and should be dismissed. In summary, since November 2005, the applicant has brought an application for constructive dismissal: IRC 5948 of 2005, two applications for reinstatement of an injured worker: IRC 2784 of 2006 and IRC 459 of 2008, an application for unfair dismissal: IRC 156 of 2008 and a number of appeals in relation to decisions of members of the Commission: IRC 2789 and 3116 of 2006 and IRC 440, 980 and 1342 of 2008. It would be fair to say that the applicant, who has represented himself on most occasions, has been unsuccessful in all of these matters, in that they were either dismissed or discontinued. Notwithstanding the attractiveness of the respondent's primary submission that the present application should be dismissed forthwith, the Commission invited the parties at a listing on 8 October 2008, to file and serve submissions as to whether this application should be accepted out of time pursuant to s 213(4) of the Act. It is in consideration of those submissions and having regard for the relevant principles relating to late applications, that the Commission will determine this matter. SUBMISSIONS For the applicant 5 It is abundantly plain that the applicant researched and prepared his submissions without any assistance. Unfortunately, in doing so, the applicant did not directly address the requirements of s 213(4) of the Act in his first written submission. The best I can glean from his submission was that it canvassed his substantive complaints against the Department, being allegations that he was victimised during his employment by being placed on a TIP, transferred to another school and, ultimately, dismissed as a teacher. He maintains that these actions were contrary to various Acts and Departmental Policies and Procedures. 6 In a subsequent reply submission, the applicant quoted from sections of the Act and the Occupational Health and Safety Act 2000. His focus now appeared to be that he was subject to victimisation because he was reporting on alleged corrupt activity and that this somehow placed him in an unsafe work environment. The applicant referred to his qualifications and an incident in August 2003 which led to him being placed on a TIP. He believed that the Teachers' Federation was involved, at the time, in a 'hidden agenda' against him. He vehemently rejected the incident report and challenged his transfer to another school in 2004. He accused senior staff and Departmental officers of grossly contravening Policy, outright misconduct and negligence. He claimed he was victimised because the Department could not maintain a safe working environment for him and his health had suffered as a consequence of what had happened to him. He insisted that his rights had been abused and that his dismissal letter contravened the Department of Eduction and Training's Code of Practice, the Department's Corruption Prevention Framework and the Occupational Health and Safety Act. 7 The applicant further submitted that his claims should be processed because he had 'exposed and refused to agree with a malicious and ill conceived documentation drive without any knowledge and contrary to DET and OH&S policies'. He said it was in the public interest to grant an extension of time in 'unusual and complicated circumstances' to deal with the contravention by officers of the Department of Education and Training of various Acts and Policies. Department's Submissions 8 Mr Benson of Counsel, firstly outlined the statutory provisions in s 213(4) of the Act relevant to this application. Mr Benson said the applicant appeared to plead four counts of alleged victimisation. He claimed that he had been:

[14]

It was Mr Benson's contention that these grounds of alleged victimisation do not disclose any jurisdictional foundation to support claims of victimisation under s 210(1) of the Act. 9 In any event, Mr Benson submitted that the applicant had given no satisfactory explanation for the delay in filing this application, particularly when he had already made a number of other applications to the Commission. The delay is significant whether it related to events in 2003 or to his dismissal in January 2008. 10 Mr Benson said that the applicant had not demonstrated any hardship given that he had already pursued a claim of unfair dismissal and his prospects of success in these proceedings were extremely remote. There was no conduct by the Department giving rise to a claim of victimisation. 11 Mr Benson sought to have the proceedings dismissed with costs. He did so on the basis that the applicant's claims were unmeritorious and had been raised and dismissed in other proceedings. Costs were confined to Counsel's fees of $3,740. CONSIDERATION The legislation and relevant principles 12 Section 210 of the Act identifies a number of prohibited reasons which, if alleged, and not satisfactorily rebutted by the employer, constitute victimisation by an employer against an employee. The section is expressed as follows: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 13 An application for relief, made under s 213 of the Act, must be made within 21 days of the alleged contravention of s 210: see s 213(3). However, the Commission may exercise a discretion to accept an out of time application by virtue of s 213(4) of the Act which is in the following form: (4) The Commission may accept an application that is made out of time if the Commission considers there is 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 other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 14 In Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385, I referred to the similarities of this section to the discretion available to the Commission to accept an out of time unfair dismissal application under s 85(3) of the Act. At paras [94] and [95] I said: 94 As I apprehend it, there are no authorities of this Commission which have considered s213(4) of the Act and the Commission's discretion to accept an out of time victimisation application. It will be readily apparent, however, that s213(4) is in almost identical terms, and relevantly so for present purposes, to s85(3) of the Act - the provision dealing with out of time unfair dismissal applications.

[15]

95 That being so, and bearing in mind the synergy between the unfair dismissal provisions and the victimisation provisions of the Act (to which I later refer), I am of the view that consideration of s213(4) may be had by reference to the authorities on the general powers of courts to accept out of time applications and, more particularly, the powers of this Commission to accept an unfair dismissal application out of time. 15 The general principles applying to the waiver of time limits for the filing of civil claims was helpfully discussed by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case McHugh, J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. 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 (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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. 16 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a 'sufficient reason' has been made out by the applicant. Consistent with each case being decided on its own facts and circumstances, the term 'sufficient reason' is not defined in the Act, as it is not appropriate to do so. In this regard, I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, where a Full Commission observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121.

[20]

The facts and circumstances of this case 20 Mr Mullins is no stranger to this Commission or the Commission's practices and procedures. Indeed, Mr Mullins is not unfamiliar with the provisions of the Industrial Relations Act. He has been a frequent litigant in this Commission since 2005. On my count, this is his tenth substantive application. He has filed at least five applications and five appeals under various sections of the Act. In the present case he has referred to other legislation and policy documents of the Department of Education and Training. In light of his litigious history, it could hardly be suggested that he was unaware of the requirements of s 213(4) of the Act to file his claim of alleged victimisation within the prescribed period of 21 days. Moreover, he must have been aware of the filing deadline, because he had filed an earlier unfair dismissal claim (matter IRC 5948 of 2005), almost a year after he claimed to have been constructively dismissed. While that application was dismissed for want of jurisdiction on another basis, the out of time application was a 'live' issue in that case and Mr Mullins must have known it to be so. In addition, recently, on 10 June 2008, Schmidt J published a decision in which Mr Mullins had sought to extend time to appeal a decision of the Full Bench of the Commission. In that decision, her Honour referred extensively to the principles relevant to extending time to appeal. That appeal was also dismissed: See Mullins v Department of Education and Training [2008] NSWIRComm 115. 21 By any measure, the length of delay in filing this application is very substantial. If the claim, as submitted, relates to conduct by the employer in 2003, then the delay is over five years. If the applicant's dismissal is the final act of alleged victimisation, as he claims, then the application is around seven months out of time. With such lengthy delays in filing, and having regard for his other activities in the Commission, the applicant is faced with significant hurdles in convincing the Commission to exercise its discretion in his favour. 22 In any event, the applicant did not give any reason - let alone a sufficient one - as to why he failed to file this claim within the statutory time period of 21 days. This is a fundamental requirement of s 213(4) of the Act. On this basis alone, I would refuse to exercise my discretion to extend time for the filing of the claim. That said, I have also had regard to the other specific requirements of s 213(4) of the Act. I can apprehend no hardship will be visited on the applicant in circumstances where he has already filed and discontinued an unfair dismissal claim in March this year, and, where I shall later explain, his prospects of success in this matter could only be described as extremely remote. On the contrary, if there be any hardship at all, it must fall squarely upon the Department. The Department has had to investigate and defend a series of claims which, on any objective view, have little or no merit. The fact the respondent is a large Government Department, is, of course, irrelevant, as it must surely be contrary to the public interest to have taxpayer monies wasted through unnecessary legal costs, and wasted time and resources required to defend such claims. In this regard, I refer to what I said in Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 6) [2008] NSWIRComm 163: 55 The Commission is acutely conscious of the fact that any costs order against the applicant will involve a very significant sum of money; an amount the respondent may never be able to recover. A constant plea of the applicant is that she has no job and has very limited financial resources in comparison to the RTA. However, the impecuniosity of a party, or the relative imbalance of the resources available to an unrepresented litigant vis a vis a large Government employer, is not a consideration as to whether a costs order should be made - subject to it being justified according to the statutory tests. As was said by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at par 92: Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principles. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority have "available to them almost unlimited public funds"...

[25]

9 A similar submission was made in Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 where the respondent government department applied for costs following the refusal by the Full Bench to grant leave to appeal. The respondent relied in support of its application on Oshlack v Richmond River Council at [96] where it was observed that costs orders were not made to punish unsuccessful parties but to indemnify successful parties and, in the absence of any misconduct on the part of the successful party, that party should be entitled to its costs. 23 As to s 213(4)(c), I would conclude that there can be no basis for an allegation that the Department's conduct was such as to justify the applicant's claims being accepted out of time and proceeding any further. 24 I have attempted to understand the basis of the applicant's case as best I can, given his confusing and, sometimes incomprehensible submissions and his propensity for using extreme and intemperate language. Seemingly, his case is based on his view that firstly, his circumstances have wider implications for the 'teaching fraternity' and secondly, his case is brought 'under unusual and complicated circumstances'. As to the first argument, leaving aside that he did not elaborate on how his circumstances have wider implications, even if this was so, he has failed to demonstrate this to be the case in any of the other applications he has had before the Commission arising from the same set of circumstances. If this case has wider implications, then why didn't any of his other applications have the same implications? In any event, I do not accept that his grievance with being placed on a TIP and his ultimate dismissal for misconduct (in refusing a lawful direction to transfer to Wagga Wagga High School), in any way, disclose circumstances which have wider implications for teachers generally. The facts and circumstances surrounding these matters, in so far as I understand them, are entirely specific to his performance and conduct at the relevant time. I would add that, in my experience, TIPs are a well accepted, agreed mechanism for helpfully addressing perceived shortcomings in a teacher's performance. In addition, the applicant's dismissal from employment could hardly be said to have wider implications when he discontinued his unfair dismissal proceedings in March 2008. 25 Secondly, true it is that this application has been brought under 'unusual and complicated' circumstances. A review of the applicant's past litigation is testimony to that conclusion. I cannot recall a pattern of litigation in this Commission quite like that which has been embarked upon by the applicant. However, these unusual circumstances have arisen, not through any actions or conduct of the Department, but are the creation entirely of the applicant. In any event, the assertion that an extension of time should be granted merely because a case is 'unusual or complicated' cannot, of itself, properly form the basis of constituting a sufficient reason for the favourable exercise of the Commission's discretion under s 213(4) of the Act. 26 The other rather curious aspect of the applicant's submission is the reference to occupational health and safety. Presumably, he came across the words in s 210(j) of the Act and has attempted to mould them to his particular circumstances. Two observations may be said about this submission which demolish its relevance to these proceedings. Firstly, there was no evidence that he had ever made a complaint about a workplace matter which he considered unsafe or a risk to his health. Secondly, if there had been such a risk, it begs the question as to why he has waited so long to raise it? In any event, I consider the applicant was merely 'clutching at straws' when he attempted to link his circumstances to this head of jurisdiction in s 210(j) of the Act. 27 Notwithstanding the matters I have just referred to, it seems to me that the applicant's claims of victimisation, when applied to the specific heads of power under s 210 of the Act, would have little prospect of success. The claims appear to fall under the following categories. He was victimised because he was:

[27]

c. unfairly and/or unlawfully dismissed from his employment on 18 January 2008. 28 The first claim can be readily disposed of. Putting aside the reality that the Department could not (even if it wanted to), 'strip' the applicant of his qualifications, the applicant, in his first submission of 22 October 2008, attached his certificates of qualifications; presumably to demonstrate his competence as a teacher. Moreover, in his oral submissions at the listing of the matter on 8 October 2008, he indicated he had worked as a teacher in the private sector this year. In light of his own admissions, it is difficult to imagine how the applicant can rationally claim that his career has been 'stripped' from him. 29 As to the second category of claim, I have serious doubts that placing a teacher on a TIP in order to assist in improving the teacher's performance, could form a basis of a victimisation claim under s 210 of the Act. That a teacher might feel aggrieved by being placed on a TIP is perfectly understandable, but it could hardly be said to constitute any of the definitions of victimisation identified in s 210 of the Act. 30 In regard to the applicant's dismissal on 18 January 2008, this would, prima facie, be the applicant's strongest ground of alleged victimisation. As I said in Donovan at [110]: 110 It seems to me that in a particular set of circumstances, there may be features of an unfair dismissal case which are similar to, and raise similar considerations, to a case prosecuted by an employee under Pt1 ch5 of the Act. For example a dismissal might be found to be unfair based, inter alia , on the victimisation of the employee. Conversely, the ultimate victimisation of an employee might well be said to be his/her dismissal. 31 That said, it cannot be ignored that the applicant has already sought relief in respect to his alleged unfair dismissal (matter IRC 156 of 2008). Not only did the applicant not proceed with that application (for reasons which are unknown to me) but the application was discontinued at his request. The applicant has advanced no reason why this claim of victimisation, based on his alleged unfair dismissal, should be distinguished from the unfair dismissal provisions of the Act which he has already availed himself of. In my view, the applicant is doing no more than seeking to reactivate his earlier unfair dismissal proceedings in circumstances where they have been brought to an end at his own initiative. Such conduct is totally unacceptable. It cannot be tolerated. 32 In my view, the applicant's overall conduct in filing numerous unsuccessful applications to this Commission concerning the same subject matter, amounts to an abuse of the processes of the Commission. It is apparent that he waits until one application has been concluded (and invariably dismissed or discontinued), and then trawls through other sections of the Act in the vain hope of finding a section which he believes he can apply to his particular circumstances. When on each occasion he has failed, he moves on to something else. Inevitably, this would mean he would be confronted with the difficulty of meeting strict time limitations to file particular applications. And so it has here. 33 Nevertheless, the applicant has received considerable indulgence from this Commission. I have already referred to the many applications and appeals he has filed. However, a point must be reached where he would be well advised to desist from this litigious and obsessive campaign against the Department and those he has complained about. In my opinion, that point has been well and truly reached. The applicant has told me that he has worked for a term this year in the private sector. My strong advice to him would be to seek further work in the private sector and move on with his life. 34 As to the question of costs, while I accept the applicant was put on notice as to the Department's claim of costs against him, he has not responded in any way to those submissions. Did he simply forget to do so? In giving him the benefit of the doubt, I propose to offer him a further opportunity to respond to the Department's submission in that regard. Accordingly, the applicant is directed to file and serve any submission he wishes to put as to costs by 4pm on 19 December 2008. The Department has until 4pm on 16 January 2009 to reply to any submission so filed. I will consider the application for costs separately, on the Department's submission already filed and on the submissions which may be filed according to the above timetable. 35 In conclusion, I would offer the applicant a few words of warning: he should stop making wild, unsubstantiated allegations of corruption against named teachers and officers of the Department. He has produced not a shred of evidence to sustain such allegations. By continuing to attack the reputations of named individuals, he risks those persons and/or the Department taking action against him. 36 For the reasons herein expressed, the Commission declines to exercise its discretion to allow application IRC 1471 of 2008 to be filed outside the 21 day time limit set by s 213(3) of the Act. The proceedings are thereby concluded, save for the Commission's subsequent decision on costs as referred to in para 34. Peter J Sams, AM Deputy President

Brady v Kennedy t/as "Sardines"

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