Folkes v Secretary of the Department of Transport

Industrial Relations Commission (NSW)|2023-10-31

DECISION

The Applicant was employed by the Respondent as a painter, working on the Sydney Harbour Bridge and the surrounding precinct. He was dismissed from his position on 22 November 2022 for breaching the 'Transport Code of Conduct'. Specifically, he failed to report to work after being directed to do so.
On 25 August 2023, 277 days after his dismissal, the Applicant lodged a claim for unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act). Pursuant to s 85(1) of the IR Act, an application for relief for unfair dismissal must be made not later than 21 days after the dismissal. Thus, the Applicant was 256 days late in making his application.
The Respondent filed an Employer's Response to the claim on 22 September 2023 which included an objection to the Commission considering the Applicant's claim as it had been lodged out of time.
The matter was listed for conciliation before me on 26 September 2023. On that day the Respondent objected to the matter proceeding to conciliation on the basis that the Commission had no jurisdiction to conciliate the matter before it had first determined to accept the application out of time, pursuant to s 85(3) of the IR Act. In those circumstances, and mindful that the Applicant is self-represented, I confirmed that the Applicant wished to apply to have his application for relief for unfair dismissal accepted out of time and made directions for the parties to put on material in support of their position regarding that application.
The Applicant filed, on 4 October 2023, a single document in support of his applciation which he had prepared, and which may be described as a combination of evidence and submission; and, on 30 October 2023, a document in reply to the Respondent's evidence and submissions, which was also a combination of evidence and submissions. I accepted both documents into evidence on the basis that I would give limited weight to matters contained within the documents which would not be admissible pursuant to the provisions of the Evidence Act 1995 (NSW). In addition, I accepted into evidence various documents that had been annexed to the Unfair Dismissal Application.

Factual Background

The Applicant worked on the Sydney Harbour Bridge as a contractor before being made a full-time employee of the Respondent in April 2015.
In 2017 the Applicant was diagnosed with melanoma, and he had tumours and lymph nodes surgically removed. In 2018 he was diagnosed with prostate cancer.
In or around July 2019 the Applicant was diagnosed with Hodgkin lymphoma and he went on leave in order to undergo treatment, including chemotherapy and radiation. The Applicant returned to work in March 2021 on light duties. During the period he was off work receiving treatment he took various forms of leave including special leave, extended special sick leave, recreation leave and leave without pay. While the Applicant is critical of the Respondent for not affording him more paid leave, and considers that other employees, who had also been diagnosed with cancer, received more favourable treatment by the Respondent than he did, ultimately this is not relevant to the application before me. Undoubtedly this was a very difficult period for the Applicant, physically, emotionally and financially.
The Applicant gave the following evidence, which was uncontroverted by the Respondent: "In December 2021, I was told by management on the Sydney Harbour Bridge that I needed to have two doses of Covid-19 vaccine to remain working on the bridge. I would not agree to their demands, so I was told not to return to work on Monday."
The Respondent's evidence included reference to the Respondent's "Transport COVIDSafe Measures Policy" (Covid Policy) which apparently required, as of 7 December 2021, all Transport workers to have received a first dose of a Covid-19 vaccine and, by 7 February 2022, to be fully vaccinated (i.e. to have received two doses of the vaccine), or have an approved exemption, and to declare their vaccination status to be compliant with the Covid Policy. The Covid Policy itself was not tendered in evidence.
The Applicant was unwilling to receive the vaccine and accordingly on or around 7 December 2021 he went on leave. He drew on one-week's recreation leave and thereafter remained, at least initially, on leave without pay.
On 12 January 2022 Mr Hards wrote to the Applicant directing him to comply with the Covid Policy. The letter included the following: "Given you have not complied with the Policy, you are not willing, ready and able to work. Accordingly, you are not permitted to attend or perform work and you are not entitled to salary or wages. Until 7 February 2022, you can either: ● use accrued but unused annual or long service leave (if applicable); or ● be placed on authorised absence without pay. If you wish to take leave, please advise the writer within 48 hours of receipt of this letter. On 7 February 2022, if you remain non-compliant with the Policy, your situation will be reviewed and further discussed with you. If you have not complied with the direction as set out in this letter, a disciplinary process will commence and your employment may be terminated."
As I understand the evidence, the Applicant requested, in or around January or February 2022, that he be paid special leave due to his cancer diagnosis, as he believed this was being paid to two of his colleagues who were not working due to suffering cancer. Perhaps as a result of this request, although it is not clear from the evidence, in February 2022 the Respondent required him to undergo an independent medical assessment. He was assessed in late March 2022. According to the Applicant, and it is not disputed by the Respondent, the doctor assessed him as fit to attempt a graduated return to full duties. However, according to the Applicant: "The only hurdle stopping me from returning to work was the Department of Transport's Covid-19 vaccination policy that required me to have two doses of a Covid-19 vaccine which I was not willing to take due to my compromised health."
The Applicant tried to obtain a vaccine exemption from his general practitioner, but his general practitioner refused. The Applicant's evidence was: "I did ask my GP for a Covid-19 vaccine exemption, but he was hesitant. He said, he was not giving Covid-19 vaccination exemptions because AHPRA (Australian Health Practitioner Regulation Agency) would investigate him. Also, the exemption would only be temporary."
I infer from this evidence and from the fact that the Applicant at no time obtained a medical contraindication certificate, that he did not qualify for an exemption despite his medical condition.
Following his medical assessment in March 2022 the Applicant moved to Kyogle because, in his words "the Department of Transport's Covid-19 vaccination policy was still in place which meant I could not return to work." As he was not working the Applicant was unable to keep up with his mortgage repayments and he sold his Sydney home and moved to Kyogle, which I understand is over 700km north of Sydney.
According to the Applicant he was paid "covid-19 special leave for 6 weeks during the months of July and August 2022".
On 23 August 2022 the Respondent wrote to the Applicant to advise that as a result of a review and following "work health and safety and industrial consultation", the Covid Policy and the requirement to be fully vaccinated against Covid-19 and the need to declare one's vaccination status would no longer apply to workers and visitors form 1 September 2022 and accordingly he was directed to return to work on 1 September 2022. The letter included the following: "Compliance with continuing COVIDSafe measures There are a range of other COVIDSafe measures that will continue or may be put in place at Transport for NSW to minimise the risks associated with COVID-19. In the event or more specific measures apply to your role or workplace, you are expected and required to comply with such measures. Should you not do so, you need to be aware that non-compliance could lead to disciplinary action being taken up to and including the termination of your employment."
According to the Applicant, this letter "came six months too late" as it was, by that time "physically and financially impossible" for him to return to work.
Mr Hards sent an email to the Applicant on 1 September 2022 inquiring when the Applicant would be returning to work. The Applicant did not reply to that email, prompting Mr Hards to send a follow up email on 5 September 2022. The Respondent replied to that email on 5 September 2022 as follows: "Hi Jeremy, I won't be returning to work after 9 months of the Department for Transport's discriminatory Covid employment policy denying me the right to work. In March 2022, I completed the requested 'Medical Assessment' and was cleared to return to work but couldn't because of the Department for Tarnsport (sic) NSW Covid employment policy in place. I will not resign because the Deaprtment (sic) for Transport NSW denied me the right to work. It was the Department's policy, not mine. It's better for the Department for Transport NSW to terminate my employment so I can lodge a case with FairWork."
It seems the Applicant had a telephone conference with Mr Hards and other persons employed by the Respondent on or around 5 September 2022. The Applicant sent an email to Mr Hards on 5 September 2022 which relevantly stated: "Dear Jeremy, Firstly, I would like to apologise to you for my abusive language on the phone. It has been frustrating for me to witness government propaganda regarding Covid and also losing my employment due to unnecessary Covid mandates. I loved working on the Bridge and have great memories. … I had to sell my house because I couldn't afford my mortgage payments… it's completely unfair for the Department of Transport NSW to expect me to return to work after 9 months of discriminatory employment policy that denied me the right to work on the Sydney Harbour Bridge. During the 9 months that I wasn't able to work on the Bridge, I did not receive 1 cent form payroll in Covid special leave … … I read the 'Letter of Direction' and in the paragraph 'Compliance with continuing COVIDSafe measures', it says … so the current Department for Transport NSW policy on Covid injections could change. It's a very ambiguous statement. That clown Brad Hazzard has already indicated that he wants government workers to receive 'extra booster shots' although he's not vaxxed. The current Department for Transport NSW policy on further Covid injections will be reinstated in the future, sadly. Asking for 3 months pay is very fair considering I was unooficially (sic) termintaed (sic) by the Department of Transport 9 months ago. That wasn't my decision but the Department's. I know my body and I know what's in these injections. To expect me to take a Bill Gates / Klaus Scwab (sic) injection would mean death for a cancer patient. Regards, Nick Folkes"
On 20 October 2022 the Applicant received a letter from the Respondent which was headed "Opportunity to respond to an allegation and proposed disciplinary action-dismissal". The letter alleged that on 1 September 2022 the Applicant failed to comply with the reasonable and lawful request of Mr Jeremy Hards, Director Roads and Maintenance - Sydney Harbour Bridge Precinct, to return to work on 1 September 2022; provided particulars of the allegation; and stated that the conduct amounted to a breach of the Transport Code of Conduct, specifically: "Section 3 - Staff Responsibilities You must: ● comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so.
The letter stated that: "By engaging in this conduct, you have failed to conduct yourself appropriately and have failed to act in the best interests of TfNSW. I consider your conduct amounts to serious misconduct and warrants the taking of disciplinary action. Accordingly, it is my preliminary view that appropriate disciplinary action is dismissal."
The Applicant responded to Mr Hards' letter of 20 October 2022 by an email to Mr Hards dated 28 October 2022. The letter largely repeated the matters contained in the Applicant's email to Mr Hards of 5 September 2022. Relevantly, it included the following: "I couldn't pay my mortgage anymore because the Department of Transport NSW terminated my employment. I was already behind in repayments due to taking time off work for chemotherapy and radiation and my bank would not allow me [to] extend time without repayment on compassionate grounds so we decided to sell and move away from Sydney. I don't know what the Transport for NSW expected me to do during this period because we all have bills to pay. I've had a bad run with cancer being diagnosed with three types of cancer that are unrelated over 3 years. Vaccines and cancer do not mix well so I will not take any vaccine whether Covid -19, flu shot or something else the powers that be will unleash in the future. I am asking the Department of Transport NSW for compassion in my redundancy request seeking 3 months pay so I can move on. Regrettably, I will not be returning to work on the Sydney Harbour Bridge because it's physically and financially impossible. Your truly, Nicholas Folkes."
I pause at this point to observe that if the Respondent, by its implementation of the Covid-19 Policy, effectively or constructively dismissed the Applicant, as apparently asserted by the Applicant in his email, the Applicant's application for relief for unfair dismissal was made 606 days out of time.
As set out above, the Applicant's employment with the Respondent was terminated on 22 November 2022. If he intended to make a claim for unfair dismissal he need to do so by 13 December 2022.
The Applicant does not seek reinstatement, but rather seeks three months' pay "to help cover ongoing medical and dental costs and living expenses." He has now obtained part-time employment, although there was no evidence of the nature of his employment or how much he earns. The Applicant states that he would like to clear his "damaged name … so it makes the process easier in finding decent employment."

Applicable Principles

Section 85(3) of the IR Act provides: (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to-- (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.
Subsection 85(1) makes it mandatory that applications pursuant to s 84 be made within 21 days after the dismissal of the employee. The prima facie position is that an application made out of time is excluded by the subsection. An application must or can only be accepted by the Commission subject to ss 85(2) and (3).
Subsection 85(2) identifies particular circumstances where the Commission is required to accept an application that is made out of time. There is no evidence before the Commission that the Applicant made an application to the Fair Work Commission in relation to the cessation of his employment with the Respondent. As a result, the subsection has no application in the present case.
Subsection 85(3) confers on the Commission the discretion to accept an application under s 84 which is made out of time. This discretion is not unfettered. The Commission may only accept an application that is made out of time if it considers that there is "a sufficient reason" to do so. In considering whether such a sufficient reason exists the Commission is required to have regard "in particular", but not exclusively, to the matters set out in s 85(3)(a), (b) and (c): Anthony Ian Fox v NSW Department of Industry [2018] NSWIRComm 1047 at [7].
The IR Act does not provide a definition as to what constitutes a "sufficient reason". It is not appropriate to attempt to formulate any such definition: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. However, it is clear that in determining whether there is a "sufficient reason" to allow an extension of time for the making of an application, the Commission must conclude that the justice of the case requires the Commission to exercise its discretion in favour of the applicant, and it is the applicant that bears the burden of demonstrating that this is the case: Lucic v Nolan (1982) 45 ALR 411 at 416. Each case in which the Commission is asked to exercise its discretion under s 85(3) must be decided on its own facts and circumstances.
As already observed, the default position is that an application must be made within the time stipulated and the exercise of the discretion to allow an application to be made after that time is exceptional. As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." (footnote omitted)
The law as to the approach to take to the discretion under s 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]. In short, 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, so as to determine the requirements of justice in the particular case: see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, and Brady v Kennedy (t/as Sardines) (1999) 91 IR 258.
It is important to note that mere ignorance of the relevant time limit will not constitute a sufficient reason for the Commission to accept an application out of time. As Commissioner Stanton explained in A v B [2021] NSWIRComm 1058 at [130] - [131]: 130. Mere ignorance of the statutory time limit is not a circumstance that gives rise to "sufficient reason". 131. Parliament has chosen to condition the discretion to extend the time for making an application. A "sufficient reason" has been mandated. That said, it must follow that Parliament has legislated on the basis that an employee who is aggrieved at being dismissed is expected to seek out information on any available remedy in a timely fashion such that any delay on account of ignorance of the statutory time limit is not, of itself, a "sufficient reason".
Those remarks were approved by Commissioner Webster in Wang v Health Secretary in respect of Sydney Local Health District [2022] NSWIRComm 1072 at [40]. That is not to say that ignorance of the time limit cannot ever be a relevant factor, however the Applicant bears a positive burden to demonstrate why their ignorance was justifiable in the circumstances, and resulted, wholly or in part, to the application being filed out of time.
As Commissioner Sloan remarked in Fox at [26], citing Commissioner Newall in Clark v Family and Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [22], the reason for the delay is 'the central issue' when considering whether to extend time, but this is all the more so when the delay in a long one, relative to the short, 21 day time limit.
Further, while as Commissioner Newall noted in Clark at [21], there is no fixed rule as to what length of delay might be acceptable, the remarks of the Full Bench in Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 at [26] need to be borne in mind: In considering the reason for delay, hardship to both applicant and respondent and the conduct of the employer, there may come a point when the length of delay outweighs in a substantial way other considerations.
In Fox, Commissioner Sloan rejected an application for a s 84 application to be accepted out of time in circumstances where the application was filed a year and two weeks out of time and the reasons given by the applicant for the late application included poor mental health, delay by the respondent in responding to his correspondence and the fact that he was pursuing over avenues of redress. Commissioner Sloan regarded the delay as 'substantial' and the applicant's reasons for the delay as insufficient. Relevantly for present purposes, he considered a medical certificate provided by the applicant's treating doctor a month after proceedings were commenced, which confirmed that he was and had been, treating the applicant "for mental health problems due to work related issues", did not provide a sufficient basis on which it could safely be concluded that the applicant's condition rendered him unable to lodge an application under s 84 with the time limit and it otherwise did not explain the delay of over a year. By contrast another certificate issued by the same doctor around three months after the applicant's dismissal stated that the applicant had no limitations to do any kind of work and was fit for normal duties. On the available medical evidence, Commissioner Sloan questioned the applicant's evidence that he was "relapsing into severe mental anguish until approximately October 2018" and this explained his delay in commencing proceedings.
Commissioner Sloan also did not accept that the delay in the respondent replying to the applicant's correspondence, that is, the respondent's conduct, had any bearing on the matter in that case.
The "conduct of the employer relating to the dismissal" within the meaning of s 85(3)(c) was considered by Commissioner Newall in In Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 at [13] - 15]: "13. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. … 14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others. 15. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13].
Commissioner Newall's remarks in Isaac are particularly apt in the present case. The Applicant's evidence and submissions were especially focused upon the underlying merits of his claim for unfair dismissal. While the merit of the Applicant's claim is relevant when assessing any hardship that may be caused to him if he is not permitted to proceed with his claim, he did not point to anything the Respondent had done which resulted in him filing his application for unfair dismissal after the deadline.

Consideration

Each party addressed in their written and oral submissions the requirements of s 85(3). I will address each matter or factor in turn.

Length and reason for the delay

The Applicant submitted that: 1. he did not realise that he had to lodge an application for unfair dismissal within 21 days and had he known this, he would have lodged the application within time; 2. he thought he had 12 months to lodge a claim; 3. he did not know the process, the time limitations or the agency to lodge a claim; and 4. his cancer diagnosis had affected his health, financial wellbeing and mental health.
In his statement/submission in reply the Applicant asserted, for the first time that: "… I was dealing with a CFMEU delegate regarding my dismissal, and he never told me that a 21-day time limitation exists. And neither did anyone at work inform me of the time limitation."
The Respondent submitted that: 1. the Applicant was aware of his ability to try and seek legal redress given the reference in his email of 5 September 2022 to Mr Hards in which he stated that he did not want to resign, but wanted the Respondent to terminate his employment so that he could "lodge a case with FairWork"; 2. the foreshadowing of such a claim indicated that he was "clearly mentally and physically able to take steps to deal with the matter, and that he therefore also had the capacity to establish his legal rights under the IR Act and the applicable timeframes in which the Application should be filed"; 3. the timeframes for commencing an unfair dismissal claim in the Fair Work Commission and the Industrial Relations Commission of New South Wales are the same; 4. the Applicant was aware he could make an application for unfair dismissal (which he expressly accepted was the case), and in those circumstances he should have made inquiries as to the timeframe and process to bring such a claim; 5. there has been no explanation by the Applicant (beyond the fact that he is suffering from medical conditions) as to his failure for some 256 days, to take any steps to commence proceedings; 6. the Applicant has not provided any specificity as to his actual medical condition and how that prevented him from making the application for such a significant period, and has provided no independent medical evidence to verify that his condition was such as to impair his ability to make his application within time; and 7. the length of the delay, to use of the words of Commissioner Sloan in Fox at [25], was 'substantial' and outweighs in a material way any other consideration in the matter.
I accept the Respondent's submissions and consider that the length and reason for the delay point unequivocally to me exercising my discretion not to accept the application out of time.
While the delay is not quite as long as in Fox, it is nevertheless substantial. While I do not consider that a delay of 256 days would in every case outweigh every other consideration (noting that in Smith and New South Wales Police Service (No 2) the delay was almost ten years), it does mean that the cause of the delay must be properly explained, and the other relevant factors will need to be strongly in the Applicant's favour.
I accept the Applicant has, from 2017 and in particular, from July 2019, suffered from cancer and that at times since then he suffered both symptoms of the disease and moreover side effects of the treatments, which included fatigue and 'brain fog'. However, I do not accept that this sufficiently explains the delay in commencing the proceeding in circumstances where: 1. the Applicant was certified as fit to return to work in March 2022 and according to the Applicant himself, the only reason he did not return to work was due to the Covid Policy; 2. the absence of any independent medical evidence to confirm and moreover to explain, that the Applicant was suffering symptoms during the period November 2022 to August 2023, which would have impaired his ability to make an application; and 3. the Applicant was well enough to have engaged in coherent and quite articulate correspondence with the Respondent during September and October 2022, in which he expressly referred to the possibility of making a claim for unfair dismissal.
While I accept that the Applicant may have genuinely thought he had 12 months to make a claim, as Commissioner Stanton explained in A v B, an employee who is aggrieved at being dismissed is expected to seek out information on any available remedy in a timely fashion such that any delay on account of ignorance of the statutory time limit is not, of itself, a "sufficient reason". This is not a case where the Applicant only learnt that he had a right to try and seek redress after the time limit had expired. In this case the Applicant was clearly aware that he could potentially bring a claim for unfair dismissal before he was dismissed, and even urged his employer to dismiss him so he could do precisely that. It is inexplicable therefore, particularly given his claimed financial difficulties, why he did not act immediately he received notice of his dismissal. While it may have been the case that the Applicant was not specifically advised of the deadline for bringing an unfair dismissal claim by CFMEU officials, the Applicant has not explained exactly what he spoke about with and when he spoke to, those unnamed officials. There was no evidence that he was misled by any person as to the length of the deadline and he did not explain why he thought the deadline was 12 months.
I do not consider that the Applicant has provided a sufficient explanation for the extraordinarily long delay so as to override the rule that the welfare of society is best served in having causes of action litigated within the limitation period.

Hardship to be caused to the applicant or the employer

The Applicant submitted that: 1. losing the case would "financially and morally" affect him; 2. he has recently had to pay for expensive dental work and suffers from neuropathy, arthritis, poor eyesight, dental issues and fatigue, arising from his cancer and the treatments he has received; 3. he was not employed and did not receive welfare assistance for a period of time after being dismissed (although he has now obtained part-time employment); 4. he wants to clear his name so that it his prospects of obtaining full time employment are improved; and 5. the payment of 3-months "severance pay" given his 12 years of employment (although he was a contractor for 5 of those years), would not cause financial hardship for the Respondent "a multibillion-dollar government corporation."
The Applicant did not produce any documentary or other evidence to support his claims of financial and health-related difficulties.
The Respondent submitted that it would suffer prejudice if the application to extend time were allowed as: 1. given the significant delays, the memories of witnesses will be adversely affected and some staff members have moved on, which could affect the fairness of the trial in the event there is a contest in respect of factual matters; and 2. the Respondent was entitled to replace the Applicant with another employee following his dismissal to ensure that the important functions would continue to be carried out.
The Respondent did not produce any evidence in support of these submissions.
I accept that if his application is rejected the Applicant will suffer the hardship of not being able to pursue his unfair dismissal claim, in which he seeks the equivalent of three months' pay, however as Commissioner Sloan observed in Fox at [44], "that is a hardship suffered by any applicant whose out of time application is rejected." Indeed arguably the hardship is less than most unfair dismissal applicants who typically seek reinstatement of their employment, which in monetary terms would exceed the claim made by the Applicant in this proceeding.
Hardship factors which might point in favour of exercising the discretion in favour of an applicant could be the serious impact an unfair finding of misconduct was having on the applicant's ability to obtain work or on some other important aspect of their life; or that the applicant had limited prospect of obtaining employment other than with the respondent. In the present matter there was no evidence of any matter that indicated the Applicant would suffer more than any applicant whose out of time application is rejected. The Applicant did state that he wished to clear his name so that his prospects of obtaining full employment were "better", but he led no evidence to the effect that he had been denied full employment due to his being dismissed by the Respondent for failing to follow the direction to return to work.
Which brings to me to a consideration of the prospects of the Applicant's case. As noted in Isaacs at [14] and [31], it is appropriate to consider the prospects of the Applicant's substantive claim in the context of consideration of the hardship to the Applicant. See also Hurrell at [21] - [22], cited with approval by the Full Bench in Hausmeister v Willoughby Council (No 2) [2023] NSWIRComm 1022. If the prosect of succeeding in the claim is fair to good, while not, on its own, a reason to grant the application, that fact will operate to support an exercise of the discretion in the applicant's favour. Conversely, if the prospect of success is low, that will operate against exercising the discretion in the applicant's favour.
In considering the prospects of success, it is not, of course, appropriate to form a final view about the matter. I do not have all the facts of the matter and they have not been tested in evidence before the Commission. However, my assessment of the claim, based upon what I know of the matter, is that it will likely face considerable challenges.
The Applicant was dismissed for not following a direction to report to work. It is difficult to conceive of a more fundamental requirement of an employee. The Applicant does not dispute that he did not return to work and at the time the direction was given there was no longer a requirement for the Applicant to be vaccinated. Further, the Applicant was not immediately dismissed after not reporting to duty on 1 September 2022 but was given the opportunity to discuss his return to work (and his failure to follow Mr Hards' direction) on a number of occasions before his ultimate dismissal on 22 November 2022. Prima facie, the Respondent had a valid reason to dismiss the Applicant.
The Applicant's case, as I understand it, is that he could not 'physically and financially' return to work because he had moved to Kyogle, and that he had had to do this because of the unfair and discriminatory actions of the Respondent in its implementation of the Covid Policy. According to the Applicant, the Respondent denied him the right to work and the Respondent discriminated against him because he would not take the vaccine, which he says, was a human rights violation.
The Respondent has not directly grappled with this aspect of the Applicant's case in its Employer's Response or in its evidence or submissions on this application. In those circumstances all I will say is I consider that there are likely to be a number of hurdles facing the Applicant in the prosecution of his claim, particularly in circumstances where, to the best of my knowledge there has not been any decision of this Commission which has found the implementation of a requirement for employees to be vaccinated against Covid-19 to have been unfair or discriminatory. While each case will turn on its own facts and it is certainly conceivable that a particular vaccination policy could be found to be unreasonable or even unlawful, NSW Government employers have been successful to date in demonstrating that the implementation of a requirement that employees be vaccinated, or that they provide a medical contraindication certificate, during the same period that the Respondent's Covid Policy was in place, was lawful and reasonable, in order to maintain workplace health and safety.
There is a further observation to be made regarding the Applicant's case. A general theme in the Applicant's submissions was that he did not receive "a fair, just and reasonable severance pay settlement." The Applicant submitted: "I don't see why my request for 10 weeks' severance pay at the time of negotiations was fought so bitterly by [the] human resources department of Department of Transport. … If I was in Human Resources, and came across a similar case, I would be more than happy to facilitate a request for reasonable severance pay settlement so both parties could move on. … It all about the vibe and the redundancy that I was received was not genuine, it was meagre and cold hearted. The severance pay I received was not fair in anyone's language."
A claim for unfair dismissal does not examine, per se, the 'fairness' of any sum paid to an applicant on termination. If the Commission were to find that the dismissal was harsh, unjust or unreasonable, it may consider the quantum of the sum paid when considering an appropriate remedy, but the proceeding itself is not an inquiry into the fairness of any amount paid on termination. If a dismissed employee considers that they were not paid on termination money to which they are entitled, they may commence proceedings for the recovery of the money in the Supreme Court or the Local Court constituted by an Industrial Magistrate: see Chapter 7, Part 2 of the IR Act.
In relation to the hardship to be suffered by the Respondent, as I have observed there was no evidence that the Respondent would be prejudiced, although I accept that the more time that passes from the events the subject of the proceeding, the more likely the integrity of the proceeding will be impaired in terms of the gathering and presenting of evidence. That said, there is some force in the Applicant's submission that the evidence would primarily be documentary and my own assessment is that there is little in the way of factual contest.
However, it is also important to note that as a general proposition, where a time limitation exists within which to bring a claim, a party who might be a respondent to that claim is entitled to regard themselves as free from suit once the time limit has passed: Katsantonis v Inner West Council [2017] NSWIRComm 1015 at 34.
Having considered both parties' submissions with respect to hardship, I consider this to be a neutral factor in my determination. Neither party presented a compelling case with respect to hardship.

The Conduct of the Employer relating to the Dismissal

The Commission is required, pursuant to s 85(3)(c) of the IR Act, to have regard to the conduct of the employer relating to the Applicant's dismissal. As I have already observed at [43], the employer's conduct is to be viewed only in so far as it has any bearing on the lateness of the application.
The Applicant made no submission to the effect that the Respondent's conduct had contributed to the lateness of his application and the evidence did not suggest that it had any bearing on the claim being made 256 days out of time.

Other Consideration

Section 85(3) does not exhaustively list the matters to which this Commission can have regard in determining whether or not to exercise its discretion. For the sake of completeness I make the observation that I do not consider that the evidence and submissions disclose any other basis on which the Commission can conclude that there is a sufficient reason to accept the application out of time.

Conclusion

For the reasons set out above I am not satisfied that that the Applicant has discharged his onus to persuade the Commission to accept his application. The delay is substantial, it has not been satisfactorily explained and there are no other factors that would warrant the exercise of the Commission's discretion pursuant to s 85(3) in the Applicant's favour.
I do not propose to accept the s 84 application out of time.

Orders

I make the following orders: 1. The application made by the Applicant pursuant to s 85 of the Industrial Relations Act 1996 (NSW) that the Commission accept his application brought pursuant to s 84 of the Act out of time, is refused. 2. The application brought by the Applicant pursuant to s 84 is dismissed for the reason it is not brought within time. Janet McDonald Commissioner

Amendments 06 November 2023 - 1. At paragraph [61], second sentence amended so it reads: "… my assessment of" instead of "on". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2023

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (18)