Brisbane South Regional Health Authority v Taylor

LEGISLATION CITED: Industrial Relations Act 1996

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Director-General of Education and Training and Bond [2009] NSWIRComm 40 CASES CITED: Hurrell v Queensland Cotton Corporation Limited [2002] NSWIRComm 139 Green & Yum! Restaurant [2004] NSWIRComm 1109 Syed Rizvi and South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084

APPLICANT: Mr P Macken, Solicitor and, Mr R Reitano of Counsel LEGAL REPRESENTATIVES: Leigh Virtue & Associates, Solicitors

RESPONDENT: Mr N Rudd Sydney South West Area Health Service

DECISION: - 55 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Marko Markovski and the Director-General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health

Application by Marko Markovski re unfair dismissal pursuant to section 84 of the Industrial Relations Act DECISION

1 This matter concerns an application by Marko Markovski against the Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health ("SSWAHS") for a remedy pursuant to s. 84 of the Industrial Relations Act 1996. 2 Mr Markovski was dismissed from his part time position of Ward Assistant at Royal Prince Alfred Hospital by SSWAHS on the 28 October 2009. He filed his s.84 application on the 10 February 2010. He sought reinstatement or monetary compensation in lieu thereof. 3 The matter was listed for conciliation and directions before Commissioner Tabbaa on the 4 March 2010 at which time conciliation took place. However as no settlement could be reached and as the respondent pressed the issue that the application was out-of-time, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17. 4 The matter was re-allocated to the Commission as currently constituted and listed for hearing to deal with the out-of-time issue on the 24 April and 22 May 2010. 5 On the 10 May 2010, SSWAHS issued Summonses to Give Evidence pursuant to s.165(3)(b) upon on the following persons: Julie Cowdrey, Organiser, Health Services Union, Gerard Hayes, Industrial Officer, Health Services Union

6 At the hearing Mr Macken, Solicitor, and subsequently, Mr Reitano, of Counsel, appeared on behalf of Mr Markovski who gave oral evidence in addition to the witness statement filed (Exhibit 2). 7 Mr Rudd, Senior Human Resources Officer - Industrial Relations, appeared on behalf of SSWAHS and called following witness who gave oral evidence in addition to the witness statement filed: Jacqueline Mills - Director, Human Resources, SSWAHS (Exhibit 5). 8 Ms Julie Cowdrey and Mr Gerard Hayes of the HSU attended the Commission on the 22 May 2010 in accordance with the Summonses issued, and gave oral evidence.

Background and Chronology - taken from the evidence as filed.

9 Mr Markovski is aged 54 and has three children aged from 18 to 28. He commenced employment with the SSWAHS on the 24 February 1997. 10 His employment was covered by the terms and conditions of the Health Employees (State) Award and the Health Employees Conditions of Employment (State) Award. 11 Mr Markovski worked 25 hours a week, Monday to Friday, from 4.30 p.m. to 9.30 pm. 12 Mr Markovski deposed that from 1997 until 2007, although his position was described as that of a Ward Assistant, his duties involved those of a courier, walking around hospital picking up and delivering pathology samples to various sections. 13 He suffered a work related injury in mid-2007 for which he received workers compensation benefits. 14 In December 2007 Mr Markovski provided a handwritten letter to David Beard dated 6 December 2007 giving his permission for his doctor, Dr Ristevski, to discuss his " Return to Work" owing to his "medical condition". 15 Mr Markovski returned to work in February 2008 and was required to do courier work for only four days per week and ward duty for one day. He deposed that he did not agree to these changes. In March 2008 his work was again changed to 3 days courier work and 2 days of ward duty. He deposed as to issues he had with these changes. For its part SSWAHS disputes that his employment was of a split nature maintaining that he had always been employed as a Ward Assistant. 16 On the 30 June 2008, Mr David Beard, Operational Nurse Manager, and Mr Markovski's supervisor, wrote to Mr Markovski advising that he had "received a number of complaints from Ward 5 East regarding your performance and attendance whilst assigned to work in that area." The letter went on to say that the allegations of his "ongoing poor performance despite undergoing a tailored personal education and training session on 27 February are a particular concern". As a consequence he was required to attend a meeting with Mr Beard and Ms Lutwyche, Nursing Executive Officer, on 1 July 2008. He was also advised that he could have an independent support person if he wished. (Exhibit 5 - JM1). A copy of the letter was also provided, at about that time, to Ms Mills. 17 Prior to the interview Mr Markovski had sought annual leave which was subsequently granted by Mr Beard, (although the dates were changed), for the period of 14 July to 1 October 2008, some 10 weeks. 18 During the interview on 1 July 2008, a number of issues were raised and discussed with Mr Markovski - work performance, staff being unable to find him and leaving the ward without completing his work. Mr Beard advised him that on his return from annual leave he would be rostered onto shifts where he could have "further support and supervision". He would be working his contracted hours, however he would be working during the day shift when he could be supervised by the Nurse Unit Manager (NUM). He was due to commence to new hours on his return to work from annual leave on the 2 October 2008. 19 Minutes of the meeting were kept (Exhibit 5 - JM2), which were forwarded to Mr Markovski together with a covering letter confirming the outcome of the meeting and advising the detail of his new rostered hours (Exhibit 5 - JM3). He was also provided with a copy of the Code of Conduct with those relevant areas in which Mr Beard believed he needed to improve, marked and highlighted. (The marked and highlighted Code of Conduct was not in evidence). Mr Markovski was further advised that he was to contact the Nursing Administration Unit (NARMU) two weeks prior to his return to obtain his work roster and placement. 20 Mr Markovski acknowledged that he had received the letter in a document he signed on the 5 July 2008 (Exhibit 5- JM4)

21 On the 1 October 2008 Ms Mills received a copy of an email sent by Mr Beard to Ms Julie Cowdrey, HSU Organiser (responding to an email from the HSU) advising that Mr Markovski's leave had been approved; Mr Markovski had been sent a letter "clearly articulating" the new shift arrangements; receipt of which had been acknowledged by him, and that Mr Beard expected him to report for duty at the next day at 7.am (the 2 October). Mr Beard also indicated that Mr Markovski had not responded to the 3 July letter as requested by 1 August, and that Mr Beard had further written to him on 11 August requesting a response to that letter, but neither he nor the HR Department had received a response from Mr Markovski (Exhibit 5 - JM5). 22 Mr Markovski did not present for work on 2 October and did not advise anyone of his absence. On the 9 October he attended for a number of hours providing a medical certificate stating that he was unfit due to medical reasons from the 8 October to 17 October 2008. 23 On 8 October Ms Mills received an email from Ms Cowdrey questioning the ability of SSWAHS to change Mr Markovski's shifts on the basis of documentation received from him relating to his employment which indicated that he was employed by RPA to do a 4.30 to 9.30 pm shift. She viewed this as his contract of employment, which had never changed and was a binding document (Exhibit 5 -JM6). 24 Ms Mills replied to Ms Cowdrey via email the same day advising that she had checked Mr Markovski's file and his actual contract did not indicate the shift, it only stated 25 hours per week. The form that he had faxed showing the hours was the interview summary only and not the contract of employment (Exhibit 5 - JM6). 25 On 8 October 2008, Mr Beard also sent an email to Ms Cowdrey (copied to Ms Mills) indicating that after consideration of the matter they had determined that Mr Markovski would be required to work 25 hours per week Monday to Friday on morning shifts (0700 - 1230) for a period of six months commencing on the date he was to return to work, namely 2 October. Absence since that date would either be at his expense or as annual leave. It was indicated that it was expected that Mr Markovski would present for duty the next day. His place of work was to be the Perioperative Unit (CPU) under the direction supervision of the NUM, Ms Fedel. The email went on to specifically advise that for any absences such as sick leave Mr Markovski "needs to contact NARMU on 9515-7735 and advise one of the Nurse Managers of his absence" (Exhibit 5 - JM7).

26 There was no further correspondence between the SSWAHS and HSU on this matter.

27 On 16 October 2008, Ms Mills received a copy of a medical certificate from Mr Beard that had been sent in by Mr Markovski stating that he was unfit due to a "medical condition" for the period 18 October to 27 October (Exhibit 5 - JM8).

28 The medical certificate had been faxed through with what appeared to be a business name, titled "Markovski Pty Ltd", at the top. As a consequence Ms Mills asked Mr Beard to clarify with Mr Markovski whether he was engaged in any secondary employment and if so remind him of the Area Health Service's policy on secondary employment. The Secondary Employment Policy was in evidence (Exhibit 5 - JM9) 29 On 27 October 2008, Mr Beard wrote to Mr Markovski concerning the correct procedure in relation to sick leave, and drawing to his attention the policy which required that absences be reported by telephone as soon as practicable. It was also advised that the medical certificates whilst "considered evidence of the nature of the absence, do not in themselves constitute notification of absence. There is also no assurance that your fax has in fact been received." He was directed to ensure that appropriate notification of absence from duty was made in accordance with the policy and that that should be by phone contact. 30 In relation to secondary employment Mr Beard noted that there was no evidence of a request to carry out secondary employment on Mr Markovski's file, however the medical certificate had been faxed from a business fax number with the business name of "Markovski Pty Ltd" and that the phone number was the same number as listed on a "Changed Personal Details" form on his personnel file signed by him as being his home phone contact number. 31 Mr Markovski was then advised that permission for secondary employment was to be sought from the General Manager and therefore it was requested that Mr Markovski confirm in writing by Monday, 10 November 2008 if he was engaged in secondary employment and if this was in the case he was directed to completely "Application for Secondary Employment" form and forward this with his response. The relevant policies were attached to the letter.

32 A copy of this letter was provided to Ms Mills at around that time.

33 Mr Markovski continued to fax through medical certificates to NARMU stating that he was unfit for work up to 14 November 2008. From 15 November 2008 Mr Markovski faxed through medical certificates stating "fit for usual hours and usual days" and avoid "stress at work".

34 On 27 November 2008, Ms Mills received a copy of the secondary employment application from Mr Markovski. (Exhibit 5 - JM 11). The explanation provided for the approval as sought was - "I am a sole parent with three children at home. I need the additional income to support my family." The work sought to be undertaken was for Trans Dominion Holdings Pty Ltd, Monday to Friday, 20 to 35 hours per week in "handyman work".

35 Ms Mills recommended that Mr Markovski's secondary employment application not be granted as he was absent due to ill-health. She wrote to him on 16 December 2008 advising that his application for approval to undertake secondary employment was rejected (Exhibit 5 - JM 12).

36 On 18 December 2008, Ms Mills received a written request for further information relating to the application being rejected from Mr Markovski's Solicitors, Paul A. Curtis & Co (Exhibit 5 - JM 13) 37 On 22 December 2008 Ms Mills advised Mr Markovski's Solicitor in writing that such a request for personal information required a fee of $66 (the standard fee), which was subsequently paid to SSWAHS on 21 January 2009. 38 On 2 February 2009, Ms Mills wrote to Mr Markovski's Solicitor providing the information as requested, which was that the Executive Director did not approve his application as he was absent from duty due to ill-health, but if he received a full clearance and returned to his role as a Ward Assistant, Monday to Friday day shift, then he was welcome to resubmit a secondary employment application for consideration (Exhibit 5 - JM14). 39 In May 2009 Ms Mills was advised by Ms Megan Smith, Return to Work Coordinator, that Mr Markovski's worker's compensation claim had been declined in December 2008. No advice had been received from Mr Markovski concerning this. 40 Ms Mills deposed that as Mr Markovski's medical certificates repeatedly referred to "avoid stress at work", she sought to obtain further information from him to enable the development of a return to work plan for him.

41 On 2 June 2009 Ms Mills sent a detailed letter to Mr Markovski advising inter alia the following (Exhibit 5 - JM 15): · That as his workers compensation claim had been declined by the insurer Employer's Mutual with effect from 17 December 2008, his manager could no longer offer unlimited access to suitable duties and/or reduced hours of work. · His pre-injury position was still available to him i.e. day shift during the week for a minimum period of six months. · To assist his return to the pre-injury position it was proposed that he be offered a new one month "Return to Work Programme" monitored by the Return to Work Coordinator. · He was required to have his treating medical practitioner clarify exactly what "avoid stress at work" involved. · Once Ms Mills had received this letter of clarification she would advise the Return to Work Coordinator to draw up a plan to be discussed with Mr Markovski and his treating medical practitioner. · SSWAHS would only be able to hold open his position for a limited period of time and if he was unable to return to his pre-injury duties and hours he would be required to take his own leave entitlements. · He was to undertake the full duties of the position one month after the programme commenced and would be required to provide medical certification as to his fitness to return to pre-injury duties prior to that day with a copy supplied to Mr Beard and HR Department, · Further medical assessment might be required following his return to pre-injury duties and he would be advised in advance of such requirement. 42 Ms Mills' letter further advised Mr Markovski that "should you not return to pre-injury duties at the completion of one month an assessment of your continuing employment with Royal Prince Alfred will be made". It was indicated that should he wish to discuss the issue with Ms Mills to telephone her (phone number provided). 43 Ms Mills received no reply to the letter of the 2 June, however Mr Markovski forwarded another medical certificate stating he was "to avoid stress at work". On 29 June 2009, Ms Mills sent another letter to Mr Markovski seeking that he have his medical practitioner clarify what "avoid stress at work involves" and reiterating the previous requests outlined in the 2 June letter (Exhibit 5 - JM 16). 44 Ms Mills received no reply to her letter of 29 June from Mr Markovski and on 6 August 2009 she sent another letter to Mr Markovski requesting that he have his medical practitioner clarify what "avoid stress at work" involved. She also requested that he contact her to enable a meeting to be arranged with his manager, Mr Beard, the Return to Work Coordinator and Ms Mills. He was advised that he was able to bring a support person to the meeting. He was asked to contact Ms Mills by phone (with her direct work number provided) by close of business on 14 August 2008 and that if she was unavailable, to leave a message on her voicemail with a contact number so his call could be returned. He was reminded that SSWAHS could only hold his position open for a limited period of time and that should he not return to pre-injury duties an assessment of his continuing employment would be made. (Exhibit 5 - JM 17). 45 Mr Markovski deposed that he did phone Ms Mills on the number provided, it went through to a voice message and he left a message for her that he had rung and asked her to call him. At no time was his call returned. 46 Ms Mills deposed that at no time did Mr Markovski contact her or leave any message as she had requested him to do in her letter of the 6 August. 47 Mr Markovski maintained that he did contact Ms Mills by the telephone and left a message but was not contacted in return. This is disputed by SSWAHS. 48 On 7 September 2009, Ms Mills sent a further letter to Mr Markovski referring to her earlier letters of the 2 and 29 June and 6 August, repeating the requests made in those letters and again requesting that he contact her by phone (phone number supplied), this time by close of business Friday, 18 September 2009, to enable a return to work meeting to be arranged. He was again advised that his position could only be held open for a limited period of time. He was further advised that "should you not contact me; an assessment of your continuing employment with Royal Prince Alfred will be made" (emphasis added) (Exhibit 5 - JM18). 49 Ms Mills deposed that she received no reply or contact from Mr Markovski to her letter of 7 September 2009. 50 On the 23 September 2008, Ms Mills wrote to Mr Markovski, referring to her earlier four letters (with copies attached) and requested that he provide to her reasons, in writing, by close of business 7 October 2009, as to why she should not recommend termination of his employment. He was also advised that he had failed to provide the clarification sought from his medical practitioner as to what "avoid stress at work" involves, clarification that was necessary to assist in the implementation of a Return to Work Programme. He was further advised that "If you do not abide by this direction by the above date I will pursue your termination of employment" (Exhibit 5 - JM 19) 51 Mr Markovski deposed that he went to his medical practitioner, showed him what was asked for, and asked him if he would write a report. The Doctor gave him a report dated 28 September 2008, which he faxed to the employer on the 2 October 2009. He received no further contact from the employer until the letter of termination of 28 October 2009. 52 Ms Mills deposed that as Mr Markovski did not comply with the letter of 23 September 2009 and provide her reasons in writing why she should not terminate his employment; she received no contact from him whatsoever; he did not co-operate with any possible return to work plan and had been absent from work since 2 October 2008, she therefore recommended to the Chief Executive of SSWAHS that his employment be terminated. 53 On 28 October 2009, the Chief Executive, SSWAHS sent a letter to Mr Markovski informing him that his employment was terminated with one weeks pay in lieu of notice. The letter indicated that he had been absent from the workplace since 2 October 2008 and that the medical certificate he last supplied stated that he remained fit for suitable duties only. Since his workers compensation had been declined with effect from 17 December 2008, he had been offered numerous opportunities to return to work via a Return to Work Plan but had not chosen to cooperate with this process. He had also not responded to the show cause letter as required by 7 October 2009 (Exhibit 5 - JM 20). 54 On 29 November 2009 Mr Michael Williamson, General Secretary, HSU wrote to Mr Markovski in reply to correspondence from him concerning his termination (Exhibit 1). The letter advised as follows: .... Ms Cowdrey confirms that you were in contact with her on 5 November 2009 and that upon checking your membership found you were unfinancial and that she would seek advice on the matter. I confirm that Mr Hayes did contact you and provided the following advice. That upon checking your membership it was found that you were purged from the membership records due to being unfinancial. I note that the last payment prior to your termination was made in January 2009. As a consequence of your financial status the Union wrote to you on several occasions during the period of March to August advising that you were unfinancial. However we did not receive a reply to said correspondence. The last letter that was written to you advising that you were unfinancial was dated 14 October 2009. The Union did not receive a reply or response to this final correspondence. Given that your membership lapsed for a period in excess of six months and the fact that despite several attempts by the Union to contact you failed, Union Council resolved to purge your membership from the HSU. I note that you rejoined the Union on 9 November and made a retrospective payment to address your lapsed membership. I appreciate your concern in this matter however, I am of the view that several attempts were made to contact you during the course of 2009 in an effort to maintain your membership but it appears you neglected to do so until such time as you required assistance. In view of the above series of events, in particular, that you were purged from the membership record due to becoming unfinancial and given that you rejoined the Union after you were terminated from your employment, I regret to advise that we cannot assist with the issue of your termination. I understand that during your conversation with Mr Hayes you required reimbursement of the fees recently paid to which Mr Hayes agreed and has now progressed. I trust that this correspondences clarifies the Union's actions in this matter 55 Mr Markovski's s.84 application was filed on the 10 February 2010, some 130 days after he was terminated by SSWAHS. The Evidence 56 Mr Markovski deposed that he had difficulty doing the Ward duties because he had never performed them previously, had never been properly trained in them and never felt comfortable carrying them out as opposed to the work he had been employed on doing the courier duties. This resulted in him being placed under significant stress and pressure. The complaints about his performance, which related to his Ward duties, added to his distress. He strenuously denied the allegations raised about him in the July 2008 meeting with Mr Beard. 57 He was not happy with the changes to his work hours and shifts proposed by Mr Beard, as this was not only a very important change in terms of his employment, but a significant reduction in his wages. 58 Mr Markovski maintained that he was asked to attend a further meeting on 7 October but was not properly told about the meeting, that communication was given to the Union who were dealing with the issues. The meeting related to his return to work on dayshift and his altered hours of work and reduced pay which he did not agree to. It made him very angry and caused great distress. He felt he was being harassed, bullied and picked on and when he left the meeting he felt distressed, physically ill and angry. He went to see his doctor and he told him he should not be returning to work and provided him with a medical certificate. He was so distressed and angry about his employer's decision that he said he could not continue working. It made him depressed and ill and he eventually ceased work. 59 Mr Markovski continued to provide Workers Compensation Certificates and maintained that when he received 2 June 2009 letter about the return to work "at this stage" his Workers Compensation Claim was disputed and remains in dispute. He maintained he did not really understand the letter and had no idea how he was expected to obtain the information from his medical practitioner or how he was expected to communicate it to his employer. He continued to in provide medical certificates which suggested he should avoid stress at work because of his poor health. He told his doctor about the request and assumed "he would attend good" and continue to provide the certificates the doctor gave him. 60 Mr Markovski maintained that he did phone Ms Mills on 14 August 2008 and phone records were tendered (Exhibit 4) showing that for the date 14 August at 10.09, Ms Mills' phone number was contacted with a duration listed of 50 seconds. He remembered ringing and trying to contact Ms Mills and every time there was this answering machine and he would leave a message. He did not have a copy of all his phone records. He didn't think 14 August was the earliest time that he tried to contact Ms Mills, he thought he would have rung before that. 61 Ms Mills maintained that she did not receive any message on her phone from Mr Markovski on 14 August and that if she had she would have returned his call. 62 In relation to the subsequent letters Mr Markovski again maintained that he had difficulty understanding what he was being asked for and had not been contacted by the employer with any clarification of what was being sought. 63 He considered the termination of his employment to be completely unfair and sought to be returned to his normal job doing courier duties throughout the hospital and was ready willing and able to carry out that work. He was aware that other people were still engaged by the Hospital in that position. 64 After he was terminated he went to the HSU and gave them details and understood they were representing him. He was subsequently told they were not representing him and he would have to attend to the matter himself and he then filed this application.

65 Mr Markovski gave evidence about his attempts to contact the HSU after he was terminated. He initially contacted Jodie Cowdrey within days of his termination. She told him she would look into the matter and get back to him but she didn't and he subsequently contacted Mr Gerard Hayes who told him he was going to be away on holidays and when he got back to Sydney he would contact him. When he did so he told him that he was because he was not a financial member they could not represent him. He did not understand how he ceased to be a financial member. His dues to the HSU usually were deducted from his pay. He had not been paid by the hospital since late 2008. He confirmed that he paid the outstanding money and spoke to Mr Hayes about getting a refund if they could not represent him. The HSU did not tell him anything about when he had to do anything and did not tell him at any time that there was a time limit to do anything about his dismissal. 66 He did not know there was a time limit in bringing a dismissal until his daughter rang the Commission and asked for an application. This had occurred after he had been to see a counsellor on 4 February 2010, and they had a discussion on that day. He told the counsellor that he had been sacked and that the Union would not represent him because he was unfinancial. She told him "why don't you make enquiries and ask through the Industrial Relations or other bodies what you can do". That was when he asked his daughter if she could ring around and find out.

67 Mr Markovski acknowledged that he applied for the position of Ward Assistant and had been paid as Award Assistant all the time. He could not remember what was in the position description, he just knew what he was doing. 68 Mr Markovski gave evidence about the duties that he was asked to perform when he returned to work in 2008 on the days he was doing duties in one ward as a Ward Assistant. He never refused to do any duties. He did whatever they asked him. 69 There was evidence given about the making of beds and duties associated with pan rooms etc. He was only given one day's training on making beds. He didn't know what further training he needed because he didn't know what the Ward Assistant duties were because he had never done them before. 70 Mr Markovski accepted that he was being placed on day shift and having his hours changed so that he could get greater supervision, but did not know how that was going to help him. He did not accept that there would be more staff available to supervise him on day shift.

71 The changes meant that he would be losing about $400 plus, a fortnight. In the meeting with Mr Beard there was never anything discussed about salary maintenance, he was just told he had to do that shift. Mr Beard did not tell him anything about money, but he knew he would be losing his penalties because the Union told him. 72 Mr Markovski gave some detail about some specific issues concerning incidents on the Ward as to why he thought he was being asked to change his hours and shifts. He agreed that he felt as though he was being harassed and bullied and picked on as a result of the proposed changes to his hours. 73 Mr Markovski indicated that the handyman duties he was performing was basic fixing things, basic painting and a bit of carpentry. He received a paid income for those duties and continue to perform those duties whilst he was on workers compensation. 74 When he faxed a medical certificate through to Ms Mills that had Markovski Pty Ltd on it that was his son's company, he was a plumber and had that on his fax. It was nothing to do with him, and he did not work for Markovski Pty Ltd. He was "some sort of sole trader" and just had an ABN number. If the work was there he worked, if there was no work he didn't work. 75 He said Trans Dominion Holdings Pty Ltd had a number of properties that needed some sort of maintenance, basic maintenance and he just did contract type work for them. It was not on either a full-time or part-time basis. 76 Mr Markovski was taken to the letters from Ms Mills and said that he considered that they were really more letters addressed to the Doctor to answer questions. That was how he understood them so he gave a copy to the Doctor and just waited for him to write something. Every time he had a letter he gave the Doctor a copy. 77 He also maintained that there were a number of calls that he tried to make to Jackie Mills, including making a call through the switch. He identified one call made on 1 October on Exhibit 4, which was to the Hospital's switch number. He said the phone records only showed the mobile phone calls, it wouldn't show if he made a call from his home phone number. 78 The doctor told him he would prepare something and that was going to take some time because he needed to look at the records and that was not simple, he then needed to sit down and prepare the letter. Mr Markovski said he couldn't ask more than that. 79 He could not recall if he rang the Union at the time because he was waiting for the doctor to write something down so that they could go and organise something with Jackie Mills. He said he must have rung Jodie Cowdrey many times. He also tried to ring Margaret Pike, the Union Delegate but she refused to talk to him. 80 Mr Markovski maintained that the authorisation (Exhibit 3) he gave to Mr Beard to contact his doctor was given in 2007 and related to his workers compensation claim. He went off on workers compensation for stress in 2007 and it was all related to the changes that were carrying on from the time he returned from long service leave in 2006. He had given permission for them to communicate with the doctor. He maintained that the problem had started in early 2007. 81 No one had asked him to do anything from the time he went off work in October 2008 until he started receiving the letters in July/August/September 2009. As far as he knew, or remembered, he had already given them authorisation. The doctor never mentioned anything about anyone making enquiries or asking him to write anything. 82 He did not agree that he had chosen not to respond, he wished he could but without the letter from the doctor he couldn't do anything. He accepted that he went to see the doctor after receiving 23 September letter and when he got the report from the doctor, he faxed a copy to NARMU and also to Jackie Mills. 83 In answer to a question from the Commission as to whether, after he got that letter (23 September letter) he was going to write something himself, he responded "if I had the time, yes, I was asking my daughter, can we organise - we go there. Actually, I wanted to go and talk to Jackie Mills in person and having the letter as well". 84 He did not agree that he had the opportunity to respond to Ms Mills if he thought the doctor not providing information for him and chose not to. That was not correct He tried to ring Jackie Mills, and he tried to ring Margaret Pike to organise a meeting with her and Jackie Mills. 85 He accepted that he had a month between the letter of 23 September and the termination letter of 28 October to provide reasons why his employment should not terminated. His expectation was that once he sent the doctor's letter that he would receive something saying they had the letter and can they organise a meeting or something to discuss his future work with the RPA. If he had to write something he had to ask someone to give him a hand to write whatever was needed that was his problem. He needed the Union's support or someone's support.

86 He acknowledged that he did not ask the Hospital to reconsider their decision to terminate him after 28 October.

87 Mr Markovski gave further evidence about his attempts to contact the HSU and the phone calls he had made to Jodie Cowdrey and Mr Hayes. He was thinking the Union was going to represent him and do something, basically talk to RPA. He agreed that he had known from at least November 2009 that the Union was not going to represent him. He didn't know what to do, he didn't do anything and he couldn't do anything by himself. 88 He did not consider instructing his solicitor to act on his behalf. He acknowledged that the solicitor had been involved with the secondary employment claim, that was because he was involved with his workers compensation at the time and he was still involved in the workers compensation claim. Mr Markovski had felt that this related to his work and his workers compensation so he asked him to write the letter. The solicitor said it was a simple letter and they could draft something. He paid for it at the time. He didn't contact consider contacting the solicitor about the termination of his employment because he didn't have the money, he relied on the Union. 89 However he also said that he didn't contact him because he told him he couldn't help him, he didn't want to get involved after that with anything to do with the RPA "because it's the money issue". 90 He continued working his handyman duties during this time but did not ever consider seeking other advice, he had been talking to his family and his children. It wasn't until he went to see his Psychologist and she told him that he had to do something, that was when he asked his daughter to ring around. 91 He had no idea about the 21 day time limit. He didn't consider seeking advice from anyone else other than the Union because if the Union couldn't give him advice and couldn't help him then where would he go?. He didn't know what to do.

92 His daughter had filled in his s.84 application. He could write but his spelling was bad so he'd rather have someone do it for him. He could tell them what he wanted but he admitted that he had problems. When he had to write the letter (Exhibit 3) he thought that Jackie Mills, Jodie Cowdrey and David Beard were there and he was told what to write. He also had difficulty reading English. 93 There was extensive and detailed cross-examination of Ms Mills. 94 Ms Mills indicated that her knowledge of Mr Markovski's employment history came from her perusal of his personnel file which was kept in the HR Department. She became directly involved in mid-2008. The complaints Mr Beard made to her relating to Mr Markovski came from both her memory of the conversation with Mr Beard and also from documents on the file because Mr Beard was a good record keeper and would have responded to Mr Markovski and made the file notes. All those documents came back to the HR Department. 95 Ms Mills acknowledged that Mr Markovski had been employed on the same permanent part-time shift doing the same duties for some 10 years but maintained that SSWAHS were within their rights to change him to a day shift as long as the required amount of notice was given. They may have been able to increase his hours and they may have been able to salary maintain him which is done quite successfully in Health. Mr Beard would not have been able to make that offer in the meeting he held. He would have had to ask permission. If the issue of salary maintenance had been raised she would be part of the process but realistically the Executive Director would have to seek permission to approve salary maintenance. 96 Ms Mills' understanding was that he was being moved from the evening shift to the day shift to provide him with an opportunity to show an improvement in his performance and also for him to receive additional training. It was her understanding that the move was not to be permanent, if his performance met the targets of his performance management plan. That plan would have been drawn up with Mr Markovski, Mr Beard and Mr Markovski's support person. She had not seen such an employees performance development plan, they were kept with the Manager and she did not have access to the Manager's records. 97 She agreed that it would concern her if Mr Markovski started on the plan and a plan was not in place but her understanding was that he did not consent to return and undergo the plan. She did not know whether there was a plan she had not seen it. She was aware that the Senior Nurse Manager in NARMU had personally assisted Mr Markovski with bed making procedures. 98 He was supervised on his evening shift but that was by a supervisor who sat in the office in NARMU. After hours the Ward Assistants reported to that office. On day shift the Ward Assistants were split between Wards so the NUMs would know where they were. There would be more supervision. He was moved to the day shift because of the performance issues identified and this was one way of his performance management being instigated. 99 Ms Mills was not aware whether Mr Markovski could write or had any confidence in writing English. She had received communications in the file which were signed by Mr Markovski. 100 Ms Mills also indicated that they did have employees in the Area Health Service who were unable to read or write and most employees were offered assistance. The employees had informed them of this. It was not uncommon for them to say that they could not read or write. If she was having difficulty communicating with an employee she would ask them. 101 In response to questions from the Commission, Ms Mills agreed that there were different levels of employment within the Health Service that required different expectations in putting pen to paper. She indicated that Mr Markovski carried a pager so he would have to be able to read it and then write down what his duties were. She guessed that there was an expectation that he did read and write. There were fewer and fewer avenues for people in those jobs to not be able to read or write. Everything was done now in a more sophisticated way so it was more and more difficult for people to hide the fact that they couldn't read or write. 102 Ms Mills was not aware whether, in October 2008 when Mr Markovski did not turn up to work, anyone would have rung him from the Hospital. A person was not always rung when they did not front for duty on the first or second day. She could not speculate about what had happened as she was not the manager for the area. 103 Ms Mills was asked a number of questions about the issue of secondary employment in relation to Mr Markovski. It was Mr Beard's responsibility to enquire about that matter. As to the issue of the fax with Markovski Pty Ltd it wasn't up to her to ask about these matters it was Mr Beard's responsibility. She acknowledged that there was nothing on the file to indicate what contact had been made with Mr Markovski apart from the documents attached to her witness statement. 104 There was no problem in faxing medical certificates, the issue was that they needed to be telephoned as soon as practicable if someone was going to be absent. Medical certificates could be sent after the employee should have been there and could be post-dated. The policy stated that they like to hear whether or not they were coming as close as practicable to the commencement time. 105 In relation to the refusal to grant the application for secondary employment Ms Mills indicated that Mr Markovski was saying he wasn't well enough to come to work. If he was not well enough to come to work then how could he be well enough to undertake secondary employment? That was the basis upon which she recommended that his application not be approved. 106 She went on to say that it was not normal practice to give reasons for any such refusal. She dealt with four or five a week, and in her experience probably a third of those were refused. The solicitor enquiring as to reasons for the refusal was charged the standard fee of $66. It was a standard fee for any request for information concerning an employee. It would not have been charged if Mr Markovski had asked for information himself. 107 Ms Mills confirmed that there was no obligation on Mr Markovski to advise her that his workers compensation claim had been declined. She only became involved in the direct management of issues concerning Mr Markovski after she was advised that the workers compensation claim had been declined. A workers compensation claim was still with through the workers compensation team which included Return to Work Coordinators. As it was a non-work-related or declined claim the matter was referred to HR. 108 She had no knowledge of how matters were dealt with by the Workers Compensation Coordinator in relation to the treating medical practitioner. 109 Ms Mills agreed that no return to work plan had been developed for Mr Markovski as the starting point for such a plan was his doctor. There was difficulty with the doctor's information but she did not get in touch with the doctor as she did not have Mr Markovski's permission to do so. He could have given that permission either in writing or verbally. She was unaware whether he had given permission to anyone else to contact his doctor. She had not discussed it with Mr Beard. 110 When she wrote to Mr Markovski, she required that he have his treating medical practitioner clarify exactly what "avoid stress at work" involved because they needed to understand what "stressors" would affect Mr Markovski in the employment. She expected him to take the letter back to his doctor and have the doctor explain what may or may not constitute stress for Mr Markovski. 111 She went on to say that if he did that and the doctor didn't do it then she would have written to Mr Markovski saying "where is it, what's happened? Or Mr Markovski could have contacted her and said, "I tried, he won't do it". She agreed that she did not ring Mr Markovski, she contacted him in a follow-up letter. 112 Ms Mills confirmed that Mr Markovski did not respond to her letters and he did not telephone her at all. He did not call her on her direct line and she was not aware of him ever calling first through the switch. She could not recall ever getting a recorded message.

113 Ms Mills' attention was drawn to Mr Markovski's phone records which indicated that one of the calls on the list was to the switch number. She agreed that it was the switch number but said that if he had rung the switch they would have put him through to her. She could not recall ever getting a recorded message. She was surprised that his phone records showed a call made directly to her line. She had not received a message from him. She had voicemail and played her messages back and had not received a voicemail message from Mr Markovski. She received anything from 10 to 30 voicemail messages on any given day. The number would depend on the day. The previous day she recalled that she had received only about 12. She then went on to nominate the callers. She ultimately recalled some 8 calls and indicated there were a few hang-ups and in doing so agreed that she had some difficulty in recalling. 114 Ms Mills indicated it was not possible that when she had written her witness statement she had forgotten a call on her answering machine on 14 August 2008 because she was asking Mr Markovski to respond to her on that number. It was a discussion she wanted to have and she was asking him to make contact. She would have at least written a file note about it and put it on his HR file. There was no message there. 115 Her normal practice was that when she answered her voice mails she had a section of paper beside her and wrote down who they were, what the number was, and then she would start to return the calls. She would write it down and put it on a personnel file if it was someone she was writing to request that they contact her because it was an urgent matter, or there was a disciplinary matter, or she required something from them. If a message was left for her she would ring them back. 116 Ms Mills also indicated that she usually communicated in writing so that there were no misunderstandings and so that there was a record. She would usually attach the previous correspondence to the latest correspondence so that if they didn't get the first one she could say she referred to this and then send the earlier one. 117 She wrote three letters because she was seeking further clarification about his condition. She could not ask the Return to Work Coordinator to pull together a return to work plan unless they thought they fully understood what the restrictions were. The Return to Work Coordinator had handed the matter over to her and would become involved again once they could offer a return to work plan. 118 Mr Markovski was the one producing the certificates and he was the one she was asking for the information. She chose to communicate in writing. She wasn't asking Mr Markovski to clarify, she was asking him to take with it to his doctor and have the doctor clarify. It was not her practice to have the Return to Work Coordinator go straight to the doctor, it was her practice to do her business in writing. 119 Ms Mills indicated that the report was not faxed to her on 2 October, she did not know who it was faxed to. It did not come directly to her. However she did not believe that the report answered her request. She had only had a brief look at it and it talked about what stress was, almost like a dictionary version of stress. What she was asking for was what does "avoid stress at work" mean for Mr Markovski. Without clarification of what "avoid stress" means "it was very, very difficult to pull together a return to work plan.

120 Ms Mills said that by the time Mr Markovski had sent the report they had "moved on from there". She was now saying "show me new valid reasons why they should recommend termination of employment." If the report had provided new valid reasons, which was what she had asked for in her last letter, then they would not have recommended termination of employment. 121 Ms Mills maintained that Mr Markovski must have understood the letters if he went and got the report. 122 Ms Mills acknowledged that Mr Markovski eventually provided a report, but they were now at the point where they had moved on. Mr Markovski was not being cooperative in the past, or appeared not to be cooperative. There was no correspondence back from Mr Markovski either way. Providing WorkCover certificates was not providing the information that they required. 123 Ms Mills agreed that if the report had been forwarded and received it should have been given to her. If it had been brought to her attention on 2 October then she would have looked at it, read it, discussed it with a Return to Work Coordinator and said "does this provide enough clarification, can we pull a plan together". If the Return to Work Coordinator had said that it would be good enough, then they would have been in contact with Mr Markovski and invited him to come in and meet with them as they had done in previous letters. That invitation would have been in writing.

124 Ms Mills also indicated that in the letters she sent she was asking for him to contact her so that they could organise a meeting. He did not do that. In the letter of 23 September she was asking him to provide her in writing new valid reasons why she should not make a recommendation to have his employment terminated and he did not do that.

125 In response to questions from the Commission, Ms Mills indicated that it was standard practice, especially from the HR Department, that they put everything in writing so that they had records, they had a paper trail and then they could refer people back to what had been written. If they were asked a question then they had it there and they could talk through the document. There were certain occasions when emails could be sent and letters could be sent attached to an email. Within the Area Health Service, HR and the facilities' HRs they did communicate via email and sometimes communicated with the Union via email.

126 Ms Mills said that Ms Cowdrey had contacted her back when the initial issue of the change of shifts was raised but once the letters started being sent she did not hear from Ms Cowdrey nor was she contacted by the HSU delegate at the facility. 127 Ms Jodie Cowdrey from the HSU, confirmed in evidence that she had received a telephone call from Mr Markovski on 5 November 2009 saying that he'd received a termination letter from SSWAHS. She informed him that she would have to check his membership and he would have to faxed information through, which he did. She subsequently checked his membership, found he was an unfinancial member and forwarded that information and the fax received to their head office on 6 November. She was in contact with Mr Markovski on the 6 November saying he was unfinancial and that as an unfinancial member they could not represent him and she would seek clarification from head office about what to do.

128 Ms Cowdrey said she had not heard from Mr Markovski at all prior to that date. The last time she had any dealings with Mr Markovski was in October 2008. She then indicated what that contact was in relation to as follows: A. To another matter in which he was being - there was an issue at RPA in relation to he was originally employed as a courier and RPA had decided to not have a courier service, because they introduced a tube system where the items go in and there was also some performance issues around his work as a ward assistant. 129 That was the issue as she understood it. She had a number of meetings with Mr Beard, to whom the Ward Assistants answered, and HR, in relation to that. They had a sub-branch representative who had gone and represented Mr Markovski in relation to that and there was a letter written by one of the HSU representatives to support him about changing from an afternoon to a day shift due to his family obligations. That was the last involvement she had with Mr Markovski until the phone call of 5 November 2009 when he rang to tell her he had been terminated. 130 Mr Gerard Hayes from the HSU gave evidence that he had recalled having two phone conversations with Mr Markovski in November of 2009. He could not recall the exact date, however he was the officer who had drafted the 26 November letter to Mr Markovski (Exhibit 1) that was signed by Mr Williamson, the General Secretary. At that time he had been Acting Assistant Secretary of the HSU. He recalled Mr Markovski seeking assistance from the Union and the Union's position was that because he was unfinancial, assistance would not be forthcoming and that was what he was told. 131 Mr Hayes went on to explain the HSU's rules, and in particular Rule 8, which outlined the financial status and what occurs and the processes associated with that, and what assistance unfinancial members could receive. It also provided for members being purged from the membership if they had in excess of six months unfinancial membership

132 Mr Markovski had had his Union fees deducted by SSWAHS through the payroll and remitted to the HSU. When Mr Markovski went on unpaid leave his Union dues would not have been paid and he would have, over time, become unfinancial.

133 Mr Hayes then explained the processes involved if someone became unfinancial. After eight weeks they receive a letter notifying of that fact. Three months after that they get another letter advising them that they are a "statement payer", that they are unfinancial and that they need to address it. And then three months later, they are sent a third letter. Mr Hayes believed that that third letter went out on the 14 September to Mr Markovski indicating that he would be "purged" within a month if he didn't address the dues.

134 Mr Hayes also indicated that he had had dealings with Mr Markovski in the past. Probably 12 to 18 months or more ago he had responsibility as the lead organiser for SSWAHS and a range of other Area Health Services. He was able to communicate with Mr Markovski. The only indication he had in relation to his reading, writing and comprehension skills would have been the recent correspondence that had been available. He did not discuss that correspondence with him on the phone. He was unable to form any view as to his understanding of that correspondence. 135 Mr Hayes said that Mr Markovski did not indicate what type of assistance he was seeking. He was seeking assistance from the Union and at that time Mr Hayes's role was to ensure that people getting assistance, were in fact members of the Union and so forth, and address the rules. Submissions on Behalf of the Applicant 136 Mr Reitano made oral submissions in addition to the written submissions filed (Exhibit 6), and in so doing summarised the relevant evidence and sought that the Commission to accept Mr Markovski's application out of time in accordance with Section 85 (3) of the Act.

137 It was submitted that as Mr Markovski's employment was terminated on 28 October 2009 with one week's pay in lieu of notice, the effective date of the termination was 4 November 2009. His application was filed on the 10 February 2010.

138 It was submitted that the amount of time the application was outside the 21 day limitation was largely irrelevant because there were cases where applicants had been refused leave for 50 days and cases where they had been allowed leave for 150. The relevant issue was whether or not Mr Markovski had shown sufficient reason why the Commission should grant leave to allow him to proceed out of time. This had been well established in decisions of the Commission as set out in Director-General of Education and Training and Bond [2009] NSWIRComm 40. 139 Mr Reitano submitted that the respondent had brought no evidence at all to suggest that there was any prejudice to it of Mr Markovski proceeding out of time. For example of there was no evidence to say that because the application was not filed within the 21 day limit they had proceeded to employ someone else in the position. That might be an answer to reinstatement, but he could still seek compensation. 140 Mr Reitano went on to submit that there were a number of matters which demonstrated sufficient reason and that probably all of them were matters that strongly pointed to why the Commission should grant leave. They were summarised as follows: 1. Mr Markovski had been employed by SSWAHS for more than 12 years and in his dealings with his employer and any disputes throughout that period he had been assisted by the HSU. 2. Immediately following the termination of his employment, he sought the assistance of the Union by contacting "Jodie" who indicated that she would get back to him and never did. 3. He was eventually told by the Union that he was no longer a member as his Union fees had not been paid. The fact that he had not been receiving any wage from SSWAHS meant that the Union fees which were normally deducted from his wages and paid direct were no longer being paid. 4. He corrected this by bringing his Union fees up to date but was still refused any assistance by the Union who refunded the fees. At no time was Mr Markovski aware that there was any time limit within which he needed to apply for relief in respect of his dismissal. 5. Further he was not aware that he could seek relief in respect of his dismissal without assistance from the Union until he was advised by his psychologist on 4 February 2010. 6. Having been so advised he acted promptly to arrange, with the assistance of his daughter for his s.84 application to be filed. It was only at that time that he became aware of the 21 days time limit. 7. Finally Mr Markovski gave evidence as to his difficulty with the written words in various pieces of correspondence. He had limited comprehension and therefore a limited ability to find out for himself about unfair dismissal applications. 141 Mr Reitano submitted that in all these circumstances there was clearly "sufficient reason" to accept the application out of time particularly having regard to the fact that Mr Markovski was denied representation by his Union (with whom he had always dealt) and was unaware of any time limitation that applied.

142 It was submitted that a further issue that should not be put to one side, was the condition under which Mr Markovski was suffering throughout 2009. On the evidence of the medical certificates annexed to Mr Markovski's witness statement, it was obvious that he was suffering from not just depression, but major depression. He was on medication and being treated for a condition which he said was a consequence of ongoing harassment in the workplace. That must be a factor that must count in the balance in terms of his capacity to file and pursue an unfair dismissal application on his own. It was a condition which Mr Markovski was suffering throughout 2009, as evident from those medical certificates. 143 Mr Reitano also reminded the Commission that on 23 September, Mr Markovski was asked to show cause as to why his employment should not be terminated because he had failed to provide a report from his medical practitioner that explained certain words. Mr Markovski said he went to the doctor and understood the doctor was dealing with that and was going to communicate with the Health Service. A report was faxed on 2 October 2009 and dealt with exactly the issue about which the Area Health Service sought clarification. In those circumstances when they had precisely what they had been requesting, why did they then need to terminate his employment. 144 Further Mr Markovski had given to the same employer on the 6 December 2007 permission to discuss his return to work owing to his medical condition. They didn't need to continue to write to Mr Markovski, they had it and could have got on the phone and spoken to Dr Ristevski and he would have told them what the answer was. Mr Reitano understood from the evidence that Ms Mills had difficulty using the phone because she couldn't telephone him about these matters, she had to write to him and request him to call her 145 In conclusion Mr Reitano submitted that Mr Markovski's case was not only arguable, but compelling, and he had excellent prospects of success. For the reasons outlined there was a fairly strong case for granting an extension of time. Further the requirements of justice in this case were such that the discretion to extend the time in respect of the application should be exercised in his favour.

146 Mr Rudd, on behalf of SSWAHS, also made extensive oral submissions supplementing the written submissions filed (Exhibit 8). In so doing took the Commission to the relevant provisions of the Act.

147 Mr Rudd outlined the relevant chronology of events (which has been dealt with above). He also dealt, in some detail, with the relevant evidence of that chronology in support of the respondent's submission that the Commission should not exercise its discretion and accept the out of time application of Mr Markovski.

148 It was submitted that Mr Markovski had stated in the reasons for his application that he was told in November 2009 that the HSU would not be supporting or representing him as he was not a financial member. Therefore he had known this since November 2009 and he took no further action until the filing of his application on 10 February 2010. 149 It was also submitted that on the evidence of Mr Hayes as to the automatic process of the sending of letters when fees were not being deducted or they were not financial, that Mr Markovski had known from that time that his Union dues were not being deducted and that he was not a financial member anymore.

150 It was submitted that Mr Markovski's understanding that the HSU would assist him in terms of an unfair dismissal application was not a reasonable ground to rely upon for his late application. It was clear from the evidence that he had one worker's compensation claim run previously and another apparently still on foot. It was also clear from the evidence that he didn't need the HSU to run that matter, he had gone and sought private assistance from a law firm. It was not therefore a reasonable ground to suggest that he required or expected that he needed the HSU to run an unfair dismissal or any type of application on his behalf. 151 It was submitted in considering the evidence of Mr Hayes it was entirely consistent with the SSW a hate chess view that there had been no representative error on the part of the HSU that had delayed Mr Markovski in lodging his application. The conversations with Mr Markovski took place within the 21 day limit and he was told he was not a financial member in the hate chess you were not going to representing. 152 Mr Rudd also rejected the suggestion that it appeared as though at the prompting of his counsellor on the 4 February 2010 that he was then told he didn't need the assistance of the union to bring any unfair dismissal. It was submitted that the evidence did not go that far in terms of that conversation. 153 It was also pointed out that, with respect to the rejection of his application for secondary employment, within 48 hours of receiving that letter his lawyer had written a letter requesting to know the basis for that rejection. If he had wanted to know the basis of that decision he could have found that out himself but he sought to have his lawyer to act on his behalf. 154 Further when it was put to Mr Markovski that it would be more appropriate or reasonable to obtain assistance through the lawyer involved in his worker's compensation claim and who had acted in his secondary employment matter, he responded, no, because his lawyer said he didn't want to get involved in another matter with the RPA. That also went to the credibility and reliability of his evidence because that was not consistent with the fact that that lawyer was still apparently representing him in his worker's compensation case which clearly involved the RPA. It was not accepted that he did not have the ability to do that. 155 Mr Markovski had not provided any reason, let alone a sufficient reason, for the late lodgement of the application. 156 Mr Markovski lodged his application on 10 February 2010 being 81 days over the 21 day limit as prescribed by the Act and that was a substantial delay by him in the filing of the application. 157 There were diminished hardship effects on Mr Markovski if his application was rejected as he has secondary employment.

158 Mr Rudd also rejected the submission that the Commission ought to take into consideration that Mr Markovski was suffering from major depression and was on medication, which may have delayed him in filing his application. It was submitted that quite clearly there was no evidence of that suggested through Mr Markovski and he had the opportunity to put that. 159 With respect to the other factor that was raised, his particular personal circumstances, that was a factor that would be relevant in terms of an argument on the merits of the matter. It was not a factor that should be considered for these proceedings concerning the threshold issue of the out-of-time nature of the application. 160 It was submitted that with respect to the merits of the case, whilst the main focus should not be on the merits, it was accepted, applying Hurrell v Queensland Cotton Corporation Limited [2002] NSWIRComm 139, that the Commission ought to look at the prospects of success and whether there was an arguable case. 161 Mr Rudd rejected the submission made on behalf of Mr Markovski that there were two relevant grounds as to merit, one being the 23 September letter asking him to provide new valid reasons as to why his employment should not be terminated when he had provided what was provided through the fax on the 2 October. This was not correct because he was not only asked to provide a report from the Doctor, he was also asked to contact Ms Mills so that they could have a return to work plan meeting. 162 It was submitted that it should not be forgotten that Mr Markovski had not been sighted at RPA since October 2008. He had gone off and was faxing through medical certificates saying he was fit for suitable duties, but made no attempt whatsoever to come back to the Hospital. This only occurred at the instigation of Ms Mills starting from the 2 June 2009 when she became aware that there was a declined worker's compensation claim. 163 It was submitted that SSWAHS did not believe there were any prospects of success in the application. Mr Markovski was dismissed after repeated attempts by SSWAHS to contact him and also obtain information to enable a return to work plan meeting. 164 It was submitted that there were no grounds to suggest that Mr Markovski was unclear on what was required of him. Further, Ms Mills provided her direct contact number in each piece of correspondence if he wanted to discuss the matter with her, but he never made any such contact. 165 Mr Rudd rejected the submission that Mr Markovski had limited ability with respect to the written word. The evidence did not go to that extent, and indeed, went to the contrary. If there were significant deficiencies in the ability of Mr Markovski to write then he could have brought material to that effect or further evidence to that effect and that didn't happen. Ms Mills gave the example of the pager and that the Ward Assistants when they were paged as part of their position actually had to write things down as part of their duties. If he had been working consistently over a period of time it had not been raised that he had any difficulty with the written word as was described. 166 Mr Rudd also rejected the submission that Ms Mills had the ability to phone Mr Markovski indicating that it was standard practice, and indeed an appropriate practice, not only in the HR Department but in many organisations that with matters of a sensitive nature such as this, to give it the degree of seriousness or formality required by communicating in writing. It was not an uncommon practice and the Commission would be aware that it was standard practice, not just in the Area Health Service, but in many companies, to have a "paper trail" where they could actually show what had been done on X day or Y day. 167 It was submitted generally that the evidence of Mr Markovski was not reliable and not credible with the example given of the issue raised in by him as to whether or not he was employed as a courier (with the evidence then detailed). However the fundamental issue that was relevant to this matter was the change of hours. 168 Mr Rudd also pointed out that Mr Markovski gave the same story in relation to each of the three letters and that was that it was everyone else's fault and not his, in terms of not responding. With respect to the 2 June letter, his evidence was that he went to the doctor 24 days later on 26 June. That was not the reasonable action of someone who had not been at work since October 2008, in the circumstances. 169 There was no contest that he did not receive the letters, or receive them in a timely fashion. There was no evidence to suggest that he had contacted Ms Mills at any stage after 2 June letter. 170 Mr Rudd referred to Mr Markovski's evidence about making the phone contact on the 14 August and the tender of this phone call log and submitted that no weight should be attached to those two lists as they were incomplete documents; it was not known what else was contained in them, and they had no year specified on them. However, even if the lists were to be accepted as part of some physical evidence, he had made only one call. It was not reasonable to think that someone in those circumstances would not seek to make a further call if that call had not been returned. The onus was on Mr Markovski. 171 It was submitted that in contrast, the evidence of Ms Mills was consistent, not confusing and very reliable. Whilst she was aware of previous performance incidents she was not directly involved in the matter until the secondary employment issue in December 2008 and then became involved from June 2009 onwards. She was an experienced HR professional and it was beyond any logic that she had intentionally not returned his calls. That was not a credible argument. 172 SSWAHS, through Ms Mills, wrote to Mr Markovski on 23 September 2009 and directed that he provide valid reasons why she should not recommend the termination of his employment with which he did not comply. He was then terminated by the Chief Executive of the Respondent on 28 October 2009. 173 The 23 September letter was arguably his "last link" to his employment. It was a serious matter. He could have gone to the Hospital or he could have got anyone to advance the matter to the RPA, instead he went to the doctor and asked him belatedly to send a report through and seem to suggest because that was faxed through everything was okay and he complied with what he was asked to do. It was submitted that that was not satisfactory in the circumstances. 174 He had not complied with what he was asked to do, and that was to provide reasons as to why his employment should not be terminated. He did not follow that direction. 175 Mr Markovski was given a month between 23 September and 28 October in which to act. He was afforded procedural fairness in those circumstances and even if it was accepted that he faxed that report through on the 2 October it would have been reasonable for him to follow that up in the circumstances, but he didn't. 176 It was submitted that in terms of the hardship provision of s.85 (3), it was accepted that in all cases where an unfair dismissal was not advanced that there would be some element of hardship. However this needed to be tempered with the fact that Mr Markovski occupied a part-time position and also had another business. In that context any hardship was diminished. 177 The following authorities were relied on in addition to Hurrell - Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Syed Rizvi and South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084; Green & Yum! Restaurant [2004] NSWIRComm 1109 and Director-General of Education and Training v Bond [2009] NSWIRcomm 40. 178 In conclusion it was submitted that Mr Markovki's application for relief in relation to unfair dismissal should be dismissed.

179 In reply Mr Reitano submitted that the respondent did not want the Commission to explore the real merits of the matter.

180 The reason Mr Markovski was dismissed was solely because of what he was asked to show cause about in the letter of the 23 September 2009. He was not asked to show cause as to why his employment should be terminated because he had a dispute with his supervisor, or he would not work the shifts he was being told to work, or he had a history of poor performance, if he had been sacked for any of those other reasons, it was procedurally unfair. 181 The termination letter indicated that they knew he was fit to perform suitable duties, that being the usual duties and usual hours and days of the week. Exactly what he was doing before. There was no regard to the terms of the medical certificates. They did not want to get to that issue and did not want to confront it. 182 It was also pointed out that Ms Mills had the capacity of calling him, she had his phone number but chose to write instead. It was wrong to say that this was standard or common or good human resources practice. It might be all those things, but it defied common sense. 183 Mr Reitano also rejected the submissions made as to Mr Markovski's credibility. The respondent could have subpoenaed his doctor. There was no evidence to contradict Mr Markovski's evidence that he had asked the doctor on several occasions to write the report and he had not done this. It was not a case of blaming everyone else. It was a case of common sense. 184 It was submitted that what was remarkable and unbelievable was, that having not received a response to several letters, someone did not get on the phone and ring him up, especially when they had his phone number. 185 In relation to the HSU's involvement, it was submitted that there was no representative error here. His representatives had told him they could not act for him, but did not go on to say that his dismissal could be challenged in the Industrial Relations Commission and he only had 21 days to file an application. It was regrettable that neither of the two experienced officials told him that. Those were not matters to be sheeted home to him. 186 It was submitted that there was no prejudice to the respondent by granting leave to proceed out of time. That was clear from the evidence. There was not the faintest suggestion of any additional prejudice emerging because the application was pursued out of time. 187 The hardship that resulted for Mr Markovski was the hardship that is inherent in the fact that he was a 53 yearold man who, if he was unsuccessful, would need to find another part-time job which would be difficult given his age and length of service with SSWAHS. 188 It was also submitted that, contrary to what was suggested by the respondent, there were no references in his witness statement to the fact that he did not understand what he was being asked. 189 In conclusion it was submitted that whilst there were competing interests in this matter, the fact that there was no prejudice to the employer and the fact that there was likely hardship to the employee who did not know about the time limit at the time, put the balance in his favour as to the granting of an extension of time that so that he could pursue his unfair dismissal application. Consideration 190 I have carefully considered the evidence and submissions of the parties in this matter and the relevant authorities. 191 Mr Markovski filed his s.84 application on the 10 February 2009, some 105 days after he was terminated and 84 days after the 21 day filing limit. This represents a reasonably significant period in excess of the prescribed filing limit permitted by the Act. 192 SSWAHS seeks that the Commission not exercise its discretion to accept Mr Markovski's application outside the 21 day limitation set by s.85(1) and that his application be dismissed. 193 S.85(3) gives the Commission a broad discretion to allow an applicant to depart from the strict requirements of legal form and accept an application out of time, if fairness so demands. However in exercising its discretion the Commission must be satisfied that a "sufficient reason" has been made out to accept such an application having particular regard to: a. the reason for, and the length of, the delay in making the application, and b. any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and c. the conduct of the employer relating to the dismissal. 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). 195 In Director-General of Education and Training v Bond [2009] NSWIRComm 40, the Full Bench observed at para. 14 that, ..."The law applicable to applications such as the present is well settled", citing with approval Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR at [12] - [15] as follows: [12]... a lack of knowledge of the 21 days time limitation specified in s.85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 ( NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view."

[13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

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

196 In this matter Mr Markovski has said that he was not only ignorant of the 21 day limitation but also just what he could do in relation to his dismissal. 197 As I observed in Rizvi at para.67: 67. The 21 day time limit is there for a reason. To ensure that applications are dealt with expeditiously and an outcome, one way or another, determined. This is in both the interests of applicants and employers (and it should be said the public interest) and will not be lightly departed from, as has been enunciated in decision after decision of this Commission.

68. An application should be filed promptly and then discussions and negotiations can be pursued with an employer. The industrial unions that participate in the New South Wales industrial relations system fully understand and accept that position and operate accordingly.

69. Indeed, it is clearly mandated by Part 6 that the Commission plays a significant and integral role in that process pursuant to s. 86 : 86. The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation.

70. Further, an application cannot proceed to arbitration, (pursuant to s.87), unless "in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation had been made but have been unsuccessful".

71. It is not unusual for unions to take up matters concerning the possible dismissal or known dismissal of their members by way of a s.130 dispute notification, prior to either a decision being made to dismiss, or the dismissal being effected. The Commission can clearly go on to arbitrate such a matter pursuant to s.137(1)(b) and (c). ....................................................................................... 198 In Mr Markovski's case, although he sought the assistance of the HSU when he was advised by Mr Beard that he was to be temporarily moved to day shift so he could be more closely supervised due to the performance issues raised, at no time during the period from the first letter from Ms Mills of the 2 June to the show cause letter of 23 September did he seek the assistance of the HSU, who could have, in turn, if necessary, sought the assistance of the Commission. 199 Of course that assistance may not have been forthcoming given that he was unfinancial. However his unfinancial status had been drawn to his attention by way of three form letters from the HSU. Letters which he apparently ignored in a similar way that he ignored in substantial part the letters from Ms Mills and Mr Beard. 200 The background to this matter commences at the beginning of 2008 when he was placed on a return to work plan, arising from his 2007 workers compensation claim (a claim which was accepted) and that evidently comprised some changed duties from only doing courier work on the Ward. There was no change to the shifts and days worked however. 201 It was when performance issues were identified and brought to Mr Beard's attention in the first half of 2008, and in particular not commencing (or being seen to commence) at the nominated time of 4 pm and being difficult to locate or unable to be to located during his shift, that Mr Beard wrote to him advising of these concerns and requiring him to attend a formal meeting on 1 July 2008. Mr Markovski had the benefit of a HSU representative with him at that meeting. 202 Mr Beard had decided to transfer Mr Markovski to day shift to enable him to be more closely supervised and have his work performance monitored. This performance management was entirely within the purview of SSWAHS' managerial prerogative. There is also no doubt on the evidence that there would have been the ability to provide such additional supervision and monitoring on day shift. 203 The principle issue of concern (and a quite legitimate issue) that appears to have been taken up by the HSU was the financial consequences of such a transfer, namely the loss of the shift allowances. This resulted in the subsequent discussions (and the meeting of 7 October 2008) and e-mail exchanges between Ms Cowdrey and SSWAHS. The HSU's intervention did achieve in reducing, what appears from Mr Beard''s original 3 July letter to have been, an indefinite transfer (reviewed every 3 months) to one of 6 months duration as advised to Ms Cowdrey by e-mail on 8 October 2008. 204 What should not be forgotten is that not long after the meeting of 1 July 2008 (14 July) Mr Markovski proceeded on approved annual leave of some 10 weeks. He was due to return to work in the new day shift position on the 2 October. He never returned to take up the position but instead submitted a series of medical certificates indicating his inability to attend for work and raised allegations of bullying and harassment causing stress that resulted in a worker's compensation claim (subsequently denied). Indeed the only occasion when he returned to the workplace after 14 July 2008 was for the purpose of attending a subsequent meeting on the 7 October 2008 with Mr Beard and Ms Cowdrey to discuss the issue of his transfer. That meeting did not result in that decision being reversed (only a specified duration for the transfer agreed). His own evidence was that following that meeting, he was so distressed and angry about his employer's decision that he said he could not continue working. It made him depressed and ill and he eventually ceased work (in fact he ceased work immediately). 205 I consider it entirely understandable that, when subsequently presented with medical certificates saying that he was fit for suitable duties and a report that stated that he should "avoid stress at work", in circumstances where he had never even commenced the new proposed shifts or duties, SSWAHS would have required further clarification about just what "avoid stress at work" actually meant in relation to Mr Markovski's particular work. I suggest that in those circumstances any employer would have sought, and needed, the same clarification. 206 I also note that right from the start Mr Markovski did not follow the directions of his supervisor. Mr Beard had directed him, through the HSU and by subsequent specific correspondence, that for any absences such as sick leave he needed to contact NARMU by telephone and advise one of the Nurse Managers of his absence. That was never done by Mr Markovski. Instead he simply faxed medical certificates which simply stated "medical condition" and the duration of the absence. 207 Mr Markovski also did not respond to Mr Beard by the 1 August as he was directed to do in the 3 July letter nor did he respond at all to Mr Beard's subsequent letter of 11 August (as detailed in the email to Jodie Cowdrey - Exhibit 5 - JM5). 208 The three letters sent by Ms Mills to Mr Markovski did not just require further medical clarification of what "avoid stress at work' meant. The second and third letters also required that Mr Markovski contact Ms Mills (by a nominated date) so as to enable a meeting to be arranged to facilitate his return to work. 209 It seems to me that this was what Mr Markovski was really avoiding, that is, anything to do with actually returning to the proposed position on day shift, even though it is clear that this was not a permanent transfer and that if his performance had been satisfactory he would have been able to return to the afternoon shift (but not necessarily on purely courier duties). SSWAHS as the employer had the right to determine the duties to be carried out by Mr Markovski as a Ward Assistant, subject to the usual strictures in relation to the provision of training if necessary and the work being that usually performed by Ward Assistants, etc. I accept that Mr Markovski disputes the level of training that had been given to him in relation to bed making. 210 On Mr Markovski's evidence he only made one phone call to Ms Mills' direct line and that on the last date nominated for such a call in the last of the three letters she sent to him. There were a couple of calls to the switch. Even if this evidence is accepted it hardly represents a concerted effort to get in touch with an employer who has sent three specific letters, two of which request such contact. All three letters stress that the position cannot be held open indefinitely. 211 I also do not except that Ms Mills, had she received a phone message on 14 August, given that that was the date she had instructed such contact was to be made by, would not have returned that call if a message had in fact been left by Mr Markovski. 212 The relevance of Mr Markovski's ability to have his solicitor write a letter and speedily respond to an issue of concern (the rejection of his secondary employment application) is that if responding to any of the three letters from Ms Mills or indeed, and in particular, the show cause letter, was of such concern to Mr Markovski, then notwithstanding his solicitor's alleged reluctance to become involved in a matter to do with RPA, again the solicitor would have been obliged to have acted on Mr Markovski's instructions in any such matter. 213 Indeed the only letter Mr Markovski has responded to in its entirety and with promptness was the letter from Mr Beard of 27 October 2008 concerning the issue of his secondary employment. 214 Even if I accept that Mr Markovski complied Ms Mills' requests for the further medical report forwarded by him on the 2 October that still leaves the fact that he totally ignored responding to the specific request detailed in the 23 September letter from Ms Mills to provide any reason whatsoever as to why he should not be terminated. As Ms Mills pointed out, the matter had "moved on" from the need for further medical clarification. His ongoing failure to contact her together with his failure to respond to the show cause letter in any way really left Ms Mills with little option but to recommend his termination. 215 If Mr Markovski had approached the HSU at any time between June and October 2009 then their assistance could also have been sought. 216 I also note that on the evidence Mr Markovski's son is a plumber with his own business (but apparently resides with Mr Markovski as his phone number is that of Mr Markovski's residence) and thus it would not have been beyond Mr Markovski to have sought assistance from his son (who must have appropriate TAFE qualifications in order to be a plumber). 217 Mr Markovski also sought the assistance of his daughter in completing his s.84 application and it was she who apparently made the enquiries of the Commission that resulted in the application. Enquiries which could have been undertaken as soon as Mr Markovski was advised by the HSU that they were not prepared to assist him because he was unfinancial. I should also note that Mr Markovski did not indicate to the HSU just what assistance he sought. 218 I appreciate that sometimes a parent may reluctant to seek the assistance of adult children in circumstances where they feel they are the head of the family and have responsibility for the family, but these were serious issues that Mr Markovski could not just ignore and hope would go away and he could just go back to his old job. That was just never going to happen until the performance issues were addressed to the satisfaction of the employer as was their right to do (with the assistance of the HSU if necessary). 219 It was suggested that the letter of authority to contact Dr Ristevski provided by Mr Markovski in December 2007 could still have been relied upon in mid-2009. I fail to see how that can possibly be the case, particularly when that letter was provided specifically in relation to an accepted worker's compensation claim which was to be the subject of a return to work plan organised through the SSWAHS Workers Compensation Coordinator. His medical condition in 2009, once workers compensation was declined, became personal ill-health covered by the sick leave provisions applicable under the relevant awards and SSWAHS policy. 220 I also note that in any event Mr Markovski contacted the HSU after his termination within the 21 day period and if either he or his daughter had made at that time the sort of enquiries that were made after he had spoken to his psychologist on the 4 February (and I agree with Mr Rudd that the evidence of this conversation did not go as far as suggested in submissions on Mr Markovski's behalf) then an application could have been lodged in a timely fashion. 221 There is no evidence that Mr Markovski made any enquiries at all, not even of his solicitor. He could have at least sought information from his solicitor as to any action that could be undertaken and made his own application. 222 There is no doubt, as observed by Sams DP in Uwatec, that hardship is visited upon Mr Markovski if leave is not extended to allow him to have his s.84 application heard, as is always the case in such matters. However there has not been a great deal of evidence about any particular hardship actually visited upon Mr Markovski over and above that normally encountered by an dismissed employee (such as damage to professional reputation, findings of misconduct not addressed etc). 223 On the evidence, Mr Markovski has three adult children aged between 18 and 27, one of whom has his own business. He has his own handyman business. There was no evidence as to income generated by this business or any attempts by Mr Markovski to seek alternate work. I accept that such detailed evidence may not be necessary at this stage of s.84 application. However if particular hardship is to be taken into account in relation to a refusal to allow an out of time application to proceed then it seems to me that there would need to be some evidence to support that there is some particular additional hardship that would ensue should the application be refused. 224 I accept that there is evidence as to Mr Markovski's medical condition, and suffering "major depression" is specifically mentioned. This appears in the WorkCover Certificates signed by Dr Ristevski covering periods in 2009 and although his workers compensation claim was denied, they are still evidence as to his medical condition. However having said that, there has been no evidence put forward by Mr Markovski that his medical condition per se was a factor in, or contributed to, causing the delay in filing his application. 225 I am also not satisfied on the evidence that Mr Markovski had such a problem with reading and writing and therefore understanding and responding to the letters he received leading up to his termination. It is clear on the evidence above that there is a pattern to Mr Markovski ignoring, either in whole, or in part, letters that were sent to him (both by persons at SSWAHS and the HSU). He understood the letter from Mr beard in October 2008 about secondary employment sufficiently to act very speedily and was able to fill out the requisite application form (albeit with somewhat brief reasons). He was also able to understand the letter from Ms Mills rejecting his application and take swift action to have his solicitor respond on his behalf. 226 As I have already noted above he had at least two adult children who were in a position to assist him. I also do not believe he could have possibly worked at RPA since 1997 and it have escaped his supervisors' attention that he was so deficient in his understanding and writing of English that it affected his ability to appropriately interact when required. 227 I consider that there is a great deal of difficulty in the possibility of Mr Markovski being successful on the merits in an application for relief arising from his dismissal. Indeed on the evidence before me I consider he has a limited prospect of success. 228 There is a fundamental problem that has not been squarely faced up to by Mr Markovski and that is that the position from which he was terminated, was in fact the day shift Ward Assistant position. That is the only position to which he could be reinstated, even if a member of the Commission was so minded to do. He seeks reinstatement to his former position. There is no doubt in my mind, particularly when you look at the medical certificates provided, that what he seeks is to go back to his old afternoon shift position doing courier work. That entirely ignores the fact of the reason for his transfer to the day shift position, that being to provide a greater level of supervision because of performance issues. 229 However he was not terminated for those performance issues and should he be reinstated, SSWAHS would have the right to continue to manage those performance issues as it deemed appropriate. That is not a matter that the Commission could interfere with in the context of the s.84 application that has been made by Mr Markovski. Mr Markovski has clearly demonstrated a total unpreparedness to take up that position. 230 Mr Markovski was terminated because he failed to provide reasons, as requested, as to why he should not be terminated following his extensive and ongoing absence from the workplace and his clear unwillingness to participate in any process designed to assist his return to the workplace. His failure to respond appropriately to reasonable requests by his employer resulted in his termination. I consider the process that was followed was fair and reasonable in the circumstances. 231 There is no evidence of any conduct of the employer either prior to or after Mr Markovski's termination that could in any way have contributed to his delay in filing his application. 232 I consider that there has been no representative error on the part of the HSU that can be relied on by Mr Markovski. That has been acknowledged by Mr Reitano. 233 Mr Markovski became an unfinancial member when his Union fees ceased to be deducted from his pay at the beginning of 2009 when he effectively was on leave without pay during his absence from the workplace (having apparently exhausted all leave entitlements). He was sent three letters by the HSU advising him of his unfinancial status and that that position needed to be attended to. Mr Markovski ignored those letters. 234 He did not seek the assistance of the HSU at any time during the period from June 2009 to October 2009 in relation to the letters that were being sent to him by Ms Mills. He only contacted the HSU after he was terminated and was then advised, notwithstanding his attempts to pay his outstanding fees, that he was unfinancial, no assistance could be provided and the payment he made was returned. 235 I would suggest however to the HSU that it perhaps needs to give consideration as to whether, in the future, in such circumstances, or indeed where it declines to act on behalf of a financial member in relation to a termination, the person concerned should be advised that they can make their own individual application to the Industrial Relations Commission but that that must be done within a 21 day period. I am aware that the HSU, as do many other unions, have a practice of referring financial members for whom they have declined to act, to the HSU's Solicitors for an initial consultation, it then being up to the member as to whether they wish to engage the services of that firm. 236 Having carefully considered all the evidence set out above and the relevant authorities in this matter, and for the reasons traversed above, I do not consider that Mr Markovski has provided the Commission with sufficient reasons to account for his out of time application. 237 I therefore decline to exercise my discretion pursuant to s.85(3) and accordingly Mr Markovski's application is dismissed.

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