Grant v Commissioner of Police

Industrial Relations Commission (NSW)|2024-10-17

DECISION

On 8 July 2024, the Applicant, Mr Leighton Grant, filed an Application for Relief from Victimisation pursuant to ss 210 and 213 of the Industrial Relations Act 1996 (NSW) (IR Act) against the Commissioner of Police, the Respondent.
On 7 August 2024, pursuant to leave I had granted on 25 July 2024, the Applicant filed an Amended Application.
On 22 August 2024, the Respondent filed a Notice of Motion seeking an order that the Amended Application be dismissed or otherwise set aside on the basis that, (as explained in the Respondent's Outline of Submissions filed on 6 September 2024 (RS)): "(a) in respect of a significant majority of the Amended Application, it has been filed out of time, and there is no sufficient reason for the Commission to exercise its discretion to accept it out of time; and (b) in respect of the remainder (and parts of the Amended Application that are out of time), it has no reasonable prospects of success, and ought to be dismissed on that basis."
At the time the Application and Amended Application were filed the Applicant was represented by solicitors however, just after filing the Applicant's evidence and Submissions on Notice of Motion on 1 October 2024 (AS) the solicitors filed a Notice of Ceasing to Act. When the motion was heard, on 17 October 2024, the Applicant was unrepresented.
The Respondent read, without objection, two affidavits of Emily Baxter, a partner of Kingston Reid, the solicitors for the Respondent, sworn on 22 August 2024 and 6 September 2024 respectively. Paragraph 9 of the first affidavit was not read.
The Applicant tendered, without objection a written statement made by him on 1 October 2024.

The Applicant's Claim

The Amended Application claims that the Respondent victimised the Applicant in contravention of s 210(1) of the IR Act and seeks relief pursuant to s 213. Sections 210 and 213 provide: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person - (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following - (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to - (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought.
In broad terms, to establish victimisation, an applicant must prove they have suffered a "detriment", within the meaning of s 210(2) of the IR Act, then establish the existence of a protected attribute in s 210(1) of the IR Act, and then allege that the reason why they suffered the detriment was because of the protected attribute. Once those jurisdictional facts are established, the onus passes to a respondent to establish the protected attribute was not a substantial and operative cause of the detrimental action.
The Amended Application, rather confusingly, identifies two "victimising events" and three "contraventions". The distinction between a 'victimising event' and a 'contravention' is not clear to me. Both have been pleaded (for want of a better word) in a similar fashion, however the AS refers only to the three "contraventions". For reasons that will become apparent, each 'victimising event' and each 'contravention' includes multiple alleged detriments.
The "First Victimising Event" is alleged to be the imposition of the detriment of the "WFH Suspension" (on 18 July 2023) and the "WFH Cancellation" (on 24 October 2023) said to be imposed by reason of the fact that the Applicant made the "Changing Duties Complaints" (from at least the commencement of 2023), which complaints "constituted informing a person of an alleged breach of an industrial instrument including classification provisions within the Award, within the meaning of s 210(1)(f) of the IR Act".
The "Second Victimising Event" is alleged to be the detriment of the making of "Allegations" (on 13 March 2024), said to have occurred by reason of the fact that the Applicant made: 1. the "Changing Duties Complaints"; 2. the "Award Compliance Request" (made on 24 October 2023) and the "February Duties Complaints" (made on 19 February 2024), which "constituted informing a person of an alleged breach of an industrial instrument within the meaning of s 210(1)(f) of the IR Act"; 3. the "2023 Complaints" (made during the period June 2023 to February 2024); the "First February Work Health and Safety Request" (made on 5 February 2024); the "First 19 February Email Complaints"; the "Second 19 February Email Complaints" and the "Third 19 February Email Complaints", which "constituted complaints about a (sic) workplace matters that the Applicant considered were not safe and/or a risk to health, within the meaning of s 210(j) of the IR Act".
The "First Contravention" is alleged to be the imposition of the detriment of the "WFH Refusal" (on 30 May 2024) and the substantiation of "Allegations" (on 17 June 2024), referred to in the Amended Application as the "Findings", said to be imposed by reason of: 1. the "Changing Duties Complaints"; 2. the "Award Compliance Request" and the "February Duties Complaints"; 3. the "2023 Complaints"; the "First February Work Health and Safety Request"; the" First 19 February Email Complaints"; the "Second 19 February Email Complaints" and the "Third 19 February Email Complaints"; and 4. the "Section 210 Complaint" (on 24 April 2024), which "informed the Respondent that they had failed to comply with a workplace law within the meaning of s 210(1)(f)".
The "Second Contravention" is alleged to arise from the Respondent engaging in a "a persistent and ongoing course of detrimental conduct within the meaning of s 210 of the IR Act", namely the "First Victimising Event", the "Second Victimising Event" and the "First Contravention".
The "Third Contravention" is alleged to be the imposition of the detriment of the "Proposed Reporting Line Demotion" (on or about 8 April 2024) and (also on or about 8 April 2024) failing to declare the Applicant "excess" (otherwise known as 'redundant') referred to in the Amended Application as "Failure to Declare Excess", said to be imposed by reason of: 1. the "Changing Duties Complaints"; 2. the "Award Compliance Request" and the "February Duties Complaints"; 3. the "2023 Complaints"; the "First February Work Health and Safety Request"; the "First 19 February Email Complaints"; the "Second 19 February Email Complaints" and the "Third 19 February Email Complaints"; and 4. the "Section 210 Complaint".
The "Proposed Reporting Line Demotion" and the "Failure to Declare Excess", as alleged to be "ongoing detrimental conduct for the purposes of s 210 of the IR Act and consequently it is alleged that the Third Contravention is an "ongoing breach of s210(1)(f) and s 210(1)(j) of the IR Act".
The Applicant seeks that the Commission order the Respondent: "(a) withdraw its findings of misconduct of the Applicant; (b) reinstate the Applicant's flexible working arrangement; (c) [withdrawn]; (d) pay the Applicant compensation for lost earnings income; (e) pay the Applicant an amount for his medical costs incurred as a result of the victimisation; (f) pay the Applicant for damages for pain and suffering as a result of the victimisation; (g) pay the Applicant compensation for loss of earning capacity; and (h) comply with any other orders the Commission considers appropriate."

Has the Application been filed out of time?

Pursuant to s 213(3) an application for an order under s 213 must be made "within 21 days after the contravention concerned".
The Respondent submitted, at RS [13]: "In terms of ascertaining whether the Application was filed in time, the Commission must first establish the date on which each of the asserted contraventions occurred, then determine whether the Application was brought within 21 days after that date. Plainly, any contravention of ss 210 and 213 of the IR Act must occur on the date the asserted detriment is said to have been imposed. In other words, once an alleged detriment is imposed (for what is asserted to be a proscribed reason), the contravention crystallises and the 21-day period begins to run."
The Applicant submitted, at AS [15], that: "(a) when pleading a contravention of s.210 which is composed of multiple acts of victimisation, only the last act of victimisation needs to have occurred within the time limit specified in s.213(3). (b) The other acts of victimisation which, ostensibly, may have transpired earlier, are permitted to be pressed when the applicant is contending that, cumulatively, the acts amount to a "course of conduct"."
According to the Respondent, as each alleged detriment imposed for what is asserted to be a proscribed reason, with the exception of the "Findings", occurred earlier than 21 days before the filing of the Application on 8 July 2024, the Amended Application, in so far as it seeks relief in respect of those alleged detriments, is out of time.
According to the Applicant, as each of the three alleged "contraventions" are composed of multiple acts of victimisation, only the last act needs to have occurred within time. This being the case, according to the Applicant, the First Contravention and Second Contravention are within time as the last act of victimisation comprising each contravention was the "Findings". The Applicant concedes that the Third Contravention (which was only pleaded in the Amended Application which was filed on 7 August 2024) is out of time as both detriments pleaded as comprising the contravention occurred on 8 April 2024.
The Respondent is correct in its approach to the calculation of time for the purposes of s 213(3) and the approach contended for by the Applicant must be rejected. Contrary to the Applicant's submission, it is not supported by any authority and if applied, would result in perverse outcomes.
The principled approach to the calculation of time for the purposes of s 213(3) was succinctly and accurately stated and applied by Commissioner Constant (as the Senior Commissioner then was) in Richard Kinninmont v Ku-ring-gai Council [2019] NSWIRComm 1029 at [10] - [14]. 10. The applicant had 21 days from "after the contravention concerned" to file the Victimisation Application pursuant to s 213 of the Act. The date of the contravention is taken to be the date the applicant suffered detriment (Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 at [16]). 11. The applicant concedes that the amendments are sought more than 21 days after the alleged detriment but asserts that the circumstances in this matter disclose ongoing detriment to the applicant which continued until the date of termination of employment, 13 September 2019. 12. The respondent submits that the authorities make it clear that the Act, in terms of the time limitations under s 213, necessarily addresses the act of victimisation at the time it occurred, not its ongoing effects, so that time runs from the time of the act of the victimisation which is complained of (see Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky") at 6] and Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 ("Janssen") at [17]). 13. I accept that the respondent's submission reflects the Commission's approach in Janssen, Morawsky and Prehn v Department of Environment and Conservation [2006] NSWIRComm 222. 14. Nevertheless, as set out in Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202, the ongoing detrimental conduct asserted by the applicant which is alleged to constitute victimisation is a matter relevant to my consideration as to whether to grant leave.
While the Applicant did refer to the ongoing effects of the detrimental actions imposed upon him in the context of whether the Commission should accept his application out of time which is dealt with further below, he did not submit that this was the reason why his claims were made within time. Rather, his submission was that the Respondent had engaged in a "course of conduct" such that the 21-day time limit only commenced to run following the final act of victimisation constituting that course of conduct. He submitted that this approach was supported by the Full Bench's decision in Davis v Amalgamated Television Pty Limited [1998] IR 364 (Cahill VP, Hill and Maidment JJ, Redman C) and Commissioner Murphy's decision in Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019. I disagree.
Davis was an appeal against a decision of Marks J dismissing an application by Mr Davis pursuant to ss 210 and 213 of the IR Act, against Amalgamated Television Services Pty Limited. Critically, no complaint was raised at first instance or on appeal, that the application or any part of it had been filed out of time. Mr Davies alleged in his application that he was subjected to a number of forms of victimisation, with the final act of alleged victimisation being his summary dismissal on 28 April 1997. Mr Davis asserted that these acts of victimisation were the result of his having commenced proceedings against Amalgamated Television Services under ss 106 and 107 of the IR Act, which he asserted, was victimisation for one or both of the reasons set out in s 210(e) and (g). [2] Mr Davis' application for relief was filed on 16 May 1997, which was within 21 days of his dismissal, but the earlier alleged acts of victimisation had occurred outside of the 21 day time period. Despite this, as already stated, no question arose, at first instance or on appeal, as to whether the application had been made within time.
Mr Davis' appeal and hence the decision of the Full Bench, was not in any way concerned with the question of when time begins to run for the purposes of s 213(3). Davis is not therefore, authority for the proposition that where a contravention of s 210 is said to be composed of multiple acts of victimisation constituting a 'course of conduct', only the last act of victimisation needs to have occurred within the time limit specified in s.213(3).
The reason why the Applicant says that Davis supports his case is because of remarks made by the Full Bench when determining what the word "victimise" in s 210 means and when determining whether Marks J had erred in failing to draw reasonable inferences from the material before him that Amalgamated Television Services had probably victimised Mr Davis for one or more of the reasons set out in s 210, such that Marks J had erred in finding that Amalgamated Television Services had "no case to answer".
To understand the decision in Davis it is important to understand that at the time of the decision, s 210(2) of the IR Act did not exist. That is, the so-called "reverse onus" or rebuttable presumption established by s 210(2), to the effect that it is presumed that an employee or prospective employee who suffers any detriment as a result of action by an employer was victimised because of a matter referred to in s 210(1) that is alleged by the employee to be the cause of the detrimental action, was not available to an applicant. Thus, in Davis, following the filing of evidence by the applicant, but before the filing of evidence by the respondent and before the trial commenced and before any evidence was actually tendered, the respondent moved, by notice of motion before Marks J, to have the proceedings dismissed on the basis that there was "no case to answer". Marks J considered the material filed by Mr Davis and concluded that the respondent had not "victimised the applicant under s 210 of the Act either because the applicant claimed to be entitled to the benefit of the order or orders in his favour under s 106 of the Act [s 210(e)] or because the applicant had instituted proceedings under s 106 of the Act [s 210(g)]". Rather, his Honour found that the respondent dismissed Mr Davis for what it saw as a failure by him to comply with the provisions of his contract and not because he instituted the s 106 proceedings.
On appeal Mr Davis primarily contended that Marks J was wrong to permit the respondent to make a "no case to answer" application prior to trial and before Mr Davis had closed his evidentiary case and without requiring the respondent to elect not to call evidence if the application did not succeed. The Full Bench agreed with Mr Davis and upheld the appeal. Mr Davis also contended that, in any event, Marks J had erred in finding that there was no case to answer because he failed to infer, from the material before him and in the absence of any answers or explanations by the respondent, that it was probable, assuming the respondent had victimised Mr Davis, that it had done so because he had instituted the s 106 proceeding; in other words, Marks J had erred in failing to find that Mr Davis had established a prima facie case of victimisation by the respondent for a reason proscribed by s 210. This was referred to in the appeal as "The Merits" issue.
A further issue was also ventilated on appeal. At first instance the respondent had submitted that the Commission did not have jurisdiction to hear Mr Davis' application. The respondent submitted that the institution of s 106 proceedings could not be regarded as a claim to "a benefit to which the person (Mr Davis) was entitled under the industrial relations legislation or an industrial instrument" within the meaning of s 210(e); neither could it be said that, by instituting those proceedings, Mr Davis was participating in, or proposing to participate in, proceedings relating to an industrial matter, within the meaning of s 210(g). Marks J did not expressly deal with this jurisdictional argument and while no party appealed or filed a notice of contention with respect to the jurisdictional issue, the Full Bench "in the interests of economy and finality" [3] and in circumstances where the issue had been full argued before Marks J and on appeal, determined to "decide the question of whether or not, if the respondent victimised the appellant because he instituted the s 106 proceeding, that in "law" is a victimisation for one or both of the reasons set out in s 210(e) and (g)." [4] This question was referred to in the appeal as "Jurisdictional or legal issues".
The Full Bench addressed the "Jurisdictional or legal issues" in two parts. It first addressed what the word "victimised" means and in doing so delivered what has become one of the seminal decisions on the meaning of the term for the purposes of s 210. It is not necessary for present purposes for me to set out that oft-quoted part of the decision here. After discussing the meaning of the term in the abstract, the Full Bench returned (at 381) to the facts of Mr Davis' case, stating: "Mr Davis alleges in his application that he was subjected to a number of forms of victimisation, the particulars of which have been set out earlier. The final act of victimisation alleged is dismissal. In our opinion the actions and/or omissions attributed to the respondent which are contained in par 6 of the particulars of claim, or any one of them with the possible exception of (h), are, particularly in the context of immediately preceding threats, quite capable, in law, of constituting victimisation within the meaning of the word "victimise" as we have earlier construed it; and those threats themselves, as we subsequently discuss, are themselves capable of constituting victimisation within the meaning of s 210. Indeed, even if its meaning was confined, as was argued by Mr Rothman, to that contained in the 1991 Act, the various acts and omissions in question are capable of constituting victimisation as defined in s 481(2)(a), (b) and (c) thereof."
Plainly there is nothing in this part of the decision which supports the Applicant's position. The Full Bench merely confirmed that the earlier acts and/or omissions were capable in law of constituting victimisation. The observation that Mr Davis' dismissal constituted the "final act of victimisation alleged" was no more and no less than a statement of fact; it certainly is not a statement to the effect that only the final act in a series of acts is relevant for the purposes for calculating time pursuant to s 213(3).
The Full Bench's remarks make sense when one understands, as explained by the Full Bench at 379, that "[t]here was a substantial concentration by the respondent during the proceedings, and almost sole concentration by his Honour in the judgment, on the question of a victimisation consisting of the dismissal of Mr Davis." The Full Bench clarified that all of the actions and/or omissions particularised in the application in paragraph 6 (with the possible exception of 6(h)), were "quite capable, in law, of constituting victimisation".
The primary part of the Full Bench's decision relied upon by the Applicant in this case, is contained in that part of the decision dealing with "The Merits". To cut to the chase, the Full Bench considered that Marks J had erred in failing to draw reasonable inferences from (what were then) undisputed facts established on the evidence before him. In reaching this conclusion, as I will explain in more detail, the Full Bench had regard to the fact that the evidence showed "a course of conduct" engaged in by the respondent, which was detrimental to Mr Davis, the final act of which was his dismissal, following Mr Davis' commencement of the s 106 proceedings which supported an inference being drawn that he had been victimised by reason of having commenced those proceedings.
The Full Bench commenced this part of the decision by outlining the established facts. In the course of doing so it said, at 390: "Thereafter there was adopted by the respondent a course of conduct, involving acts and omissions, in respect of the appellant which are set out in detail in his affidavits. That treatment, in summary, consisted of the following: (i) requiring the appellant to provide a detailed list of the hours worked by him and of any time off; (ii) imposing time limits on the appellant for the performance of work which involved unreasonable workloads; (iii) requiring the appellant to provide information on matters not within his knowledge and control; (iv) falsely accusing the appellant of failing to provide proper information, failing to obey instructions and failing to act in a reasonable and acceptable manner; (v) making threats of disciplinary action against him; and (vi) failing to provide him with assignments or work for lengthy periods and to properly feature him in promotions of the programme. Summary dismissal was the final relevant act in the course of conduct by the respondent towards the appellant."
Again, this is merely a statement of what occurred. It does not support the Applicant's case as to how time is calculated pursuant to s 213(3).
After setting out the relevant facts the Full Bench turned to the question of whether or not there was sufficient material before Marks J from which the inference might reasonably be drawn that it was more probable than not that the respondent had victimised Mr Davis for one of the proscribed reasons, in particular, that contained in s 210(g). The relevant sections of this part of the Full Bench's decision are found at 395 - 396 and relevantly reads as follows: "In our view, the facts alleged by Mr Davis in his affidavits make it quite clear that, following the respondent's receipt of the advice of 28 January 1997 that Mr Davis proposed to institute proceedings against it under s 106 and the actual institution of the proceedings on 31 January 1997, it commenced a course of conduct towards him involving threats and the various acts and omissions set out earlier, any one of which was, prima facie, sufficient to constitute victimisation within the meaning of the word "victimise" where used in s 210. We now analyse that course of conduct. … … Very shortly thereafter the respondent commenced the course of conduct referred to earlier which climaxed in dismissal as threatened. In the absence of any answer by the respondent, the "evidence" of the appellant is clearly capable of giving rise to the inference that it is more probable than not that the respondent victimised him in the statutory sense because he instituted the s 106 proceedings. The conduct is proximate to and consistent with the threats. In the context of the threats and the absence of any answer or explanation by the respondent, the further inference could well be drawn, that those acts and omissions were ones designed to harass and set up Mr Davis for summary dismissal. … In our opinion and in the absence of any denials, answers or explanations by the respondent, the threats by Mr Rice and Mr McClellan on 30 January 1996 and 31 January 1996 respectively, and the nature and content thereof, coming as they did almost contemporaneously with the notice by Mr Davis that he intended to commence, and his subsequent commencement of, the s 106 proceedings, and the respondent's ensuing various acts and omissions prejudicing Mr Davis in his employment, ending with dismissal as threatened, are quite capable of giving rise to an inference that it was more likely than not that those acts and omissions were motivated by the fact that the appellant had instituted (was a participant in) the s 106 proceedings. His Honour was in error first in failing to consider the matter in the context of all acts and omissions capable of constituting victimisation in the statutory sense and secondly, in the positive findings which he made, in the absence of any evidence by the respondent, that the respondent dismissed the appellant for what it saw as a failure to comply with the provisions of his contract and not because he instituted the s 106 proceedings."
It is abundantly clear that the Full Bench's finding that the respondent had engaged in a "course of conduct" which culminated in Mr Davis' dismissal was relevant only to the question it was determining, that is, should the primary judge have inferred from the material before him that it was more probable than not that the respondent had victimised Mr Davis for one of the proscribed reasons. The fact that a course of detrimental conduct had been engaged in by the respondent was highly relevant contextual information which the primary judge had failed to consider.
The Applicant submitted that Davis "stands for" the propositions set out at [58] above. It plainly does not stand for those propositions. Davis did not consider s 213(3) at all and says nothing about the ability to press earlier acts of victimisation for the purposes of obtaining relief in respect of those acts, if those acts occurred outside of the 21-day time limit imposed by s 213(3). What Davis does stand for is that acts of a certain kind may constitute victimisation and that earlier acts of victimisation, particularly where they may, collectively, be regarded as constituting a "course of conduct", may inform whether a particular later act was victimisation within the meaning of s 210. Thus, even if relief is not available in respect of out of time acts of victimisation, the fact that the earlier acts occurred may be relevant evidence in a particular case to establish that the particular act or omission for which relief is sought, in fact constituted victimisation.
At the risk of repetition, the Full Bench in Davis found that each of the acts or omissions said to comprise a 'course of conduct' (with the possible exception of the matters particularised in paragraph 6(h) of the application) were capable of constituting victimisation. It did not find that the 'course of conduct' was itself victimisation, such that it could be said that the victimisation only crystalised upon the final act or omission in that course of conduct.
The Applicant submitted that his reading of Davis was confirmed in Buchanan v Fire and Rescue NSW [2020] NSWIRComm 1019. He submitted, at AS [17], that: "... In those proceedings, the Commission acknowledged that victimisation for the purposes of s.210 could be composed of an "act or acts or course of conduct" and that when determining the applicable timeframe, regard is to be had to the final relevant act in the course of conduct. In Buchanan, ultimately the applicant did not succeed because the last act of victimisation which was pleaded occurred outside of the 21-day time period."
In fact, what Commissioner Murphy said in Buchanan was: "40. There is nothing in the passages from Davis cited above, which are relied upon by the applicant in these proceedings, or elsewhere in the Full Bench decision, that supports the proposition that victimisation continues beyond the act or acts or course of conduct of the respondent ad infinitum because the victim continues to suffer the detriment caused by respondent's victimisation. 41. … 42. The summary dismissal of Mr Davis, which the Full Bench referred to as "the final relevant act in the course of conduct by the respondent towards the appellant", occurred on 28 April 1997. The victimisation application was filed on 16 May 1997, well within the 21-day time limit specified in ss 213(3) of the Act. 43. Presumably, on the applicant's hypothesis, if Mr Davis had not filed his victimisation application at that time and could now demonstrate that he was still suffering the detriments of losing his job with Amalgamated Television Services 24 years ago, he would be entitled to make a victimisation claim today because the victimisation was continuing and the 21-day time limit had not yet begun to run. 44. Without expressing any final view as to whether or not any conduct of the respondent towards the applicant constituted victimisation of him as contemplated by s 210 of the Act, I am prepared to accept 10 October 2018, the date on which the FBEU and FRNSW executed the Deed of Agreement in settlement of the 2018 Dispute, which confirmed the transfer of the applicant to Parramatta, as the date of "the final relevant act in the course of conduct by the respondent towards the appellant" (Davis at 390). On this basis, the victimisation application should have been filed by 31 October 2018. It was not filed until 20 June 2019, 232 days out of time."
Two points need to be made regarding the above remarks. First, the argument which Commissioner Murphy was considering and determining was whether the fact that the applicant was continuing to suffer the detriment caused by the respondent's victimisation meant that the 21-day time limit had not yet begun to run. That argument, as already noted, is not the argument run by the Applicant in this case. Commissioner Murphy rightly rejected that argument, consistent with Kinninmont and Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 and Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076.
Second, what Commissioner Murphy was doing in paragraph [44] was demonstrating, by taking the applicant's case at its highest, that is, by identifying the very latest event that could possibly constitute victimisation, that the applicant's claim was well out of time. The question of whether time for the purposes of s 213(3) should be calculated only from the final act in a course of conduct, such that relief could be granted in respect of all acts constituting the course of conduct was not considered by Commissioner Murphy and I do not consider his remarks at [44] to be authority for that proposition.
The Applicant otherwise pointed to no authority to support the proposition that an alleged course of victimising conduct can all be brought within time under s 213(3) of the IR Act if the last act occurred within 21 days of filing the originating application.
It is clear from Kinninmont and the cases cited in that decision and from the wording of s 213(3), that the 21-day timeframe begins to run as the date of each asserted detriment suffered by an employee.
I also agree entirely with the Respondent's submission, made in her Reply Submissions (RRS) at [12], that to conclude otherwise would largely render s 213(4) of the IR Act meaningless. It would also result in perverse outcomes. It would permit a person who has been subject to detriment within the past 21 days to contend that such a detriment is the last act in a 'course of conduct', thereby requiring the Commission to consider whether relief should be granted in respect of acts and/omissions said to constitute that 'course of conduct', which could feasibly go back in time many years, or even decades. That construction flies in the face of the words used in s 213(3). It could result, as Mr Watts, counsel for the Respondent submitted orally, by reference to the somewhat contrived pleading of the three "contraventions" allegedly committed by the Respondent in the present matter, in parties structuring their claim so as to ensure that a course of conduct was alleged with the last act of that course of conduct falling within the 21-day time limit.
In the present matter, the Amended Application claimed that the Applicant had been subjected to seven detriments. The below table, which was set out in the RS at [15], shows that the "Findings" is the only alleged detriment which occurred within 21 days prior to the Application or Amended Application (in the case of the "Proposed Reporting Line Demotion" and "Failure to Declare Excess") being filed: Alleged Detriment Date of detriment 21-day period ends Days out of time WFH Suspension 18 July 2023 9 August 2023 334 WFH Cancellation 24 October 2023 15 November 2023 236 Allegations 13 March 2024 4 April 2024 95 Proposed Reporting Line Demotion 8 April 2024 30 April 2024 99 Failure to Declare Excess 8 April 2024 30 April 2024 99 WFH Refusal 30 May 2024 21 June 2024 17 Findings 17 June 2024 9 July 2024 Filed in time

I accept that the Amended Application, in so far as it seeks relief in respect of any alleged detriment other than the "Findings", is out of time. The question then is, should the Commission accept the application in respect of those out of time detriments, pursuant to s 213(4)?

Should the Commission accept the application in respect of the out of time matters?

Section 213(4) of the IR Act confers on the Commission the discretion to accept an application that is made out of time if there is "sufficient reason to do so" having regard in particular to: 1. the reason for, and the length of, the delay in making the application; and 2. any hardship that may be caused to the applicant or other party if the application is or is not rejected; and 3. the conduct in relation to which the order is sought.
As Commissioner Newall explained in Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 at [6]: "..the Commission is obliged to address the question of an application being out of time. It cannot be overlooked. It must be addressed because the prima facie position is, under the Act, pursuant to subs 213(3), that the application is excluded for being out of time. There is, prima facie, no valid application before the Commission."
Thus, even though the Applicant made no formal application for an extension of time in which to file his application, either in his Application, Amended Application or by Notice of Motion, I am obliged to consider whether the application, in all respects, should be accepted.
The Applicant submitted that the Commission should exercise its discretion to accept the application in relation to the "Third Contravention", which he accepted was out of time and that if the Commission finds that the First and Second Contraventions are out of time, it should similarly exercise its discretion to accept the application in respect of those contraventions.
I have earlier alluded to the fact that I consider the manner in which the Applicant has articulated his case in the Amended Application to be at best, confusing and at worst, contrived. Either way, I consider that the correct and fairest approach is to consider each alleged detrimental act and omission alleged in the Amended Application as a separate claim of victimisation for which relief is sought.
Commissioner Sloan succinctly set out the legal principles applicable when considering whether to accept an out of time victimisation application in Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053, cited by the Respondent: "43. The discretion to accept an application out of time involves balancing a range of considerations, including whether an applicant has an arguable case and the applicant's prospects of success. The exercise of the Commission's discretion is governed by the requirements of justice in a particular case: Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145; [2003] NSWIRComm 139 at [12]. 44. The principles to apply in considering whether to exercise a discretion such as that in s 213(4) were, with respect, well articulated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 8-10 as follows: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. … … …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. 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. …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." (Footnotes omitted] 45. The prima facie position is that an application brought out of time is excluded and if an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail: Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky") at [13]."
Further, as Newall C noted in Morawsky at [14], the three matters identified within s 213(4) to which the Commission is to have regard, are "all within the rubric of whether there is sufficient reason" to accept the application out of time.

Reason for, and length of, delay - s 213(4)(a)

The Applicant gave no evidence as to the reason why his claim was filed well after 21 days had elapsed from each alleged act of victimisation, with the exception of the "Findings". At the time of filing his evidence and submissions on the motion the Applicant was represented by solicitors. During oral closing submissions the Applicant, who was no longer represented by solicitors, explained from the bar table that: 1. he "did a lot of work to try and resolve these matters by not having to come to a court or a Commissioner. So I've done the dispute processes under the awards; I've put everything in writing; I've escalated; I've escalated to the Premier's Department; I've escalated to LECC; I've done escalation, escalation, escalation under what I thought I was supposed to be doing under the award, and we've got nowhere; it just seems to continue, and that is why we've ended up here" [5] ; 2. the "WFH Suspension" was to be reviewed (after which I gather, he hoped the issue would be resolved in his favour); [6] 3. he took a period of leave; [7] 4. he had to move his mother into his house; [8] 5. while he got legal advice, it is/was an expensive exercise, and this is a no costs jurisdiction, so he tried to exhaust every possible avenue before going further. [9]
While it is the case that the evidence before me established that the events described above occurred, it was not put in evidence that these events were the reasons why the Applicant did not commence his claims within the stipulated time period and consequently the Respondent did not have the opportunity to cross examine the Applicant as to his asserted reasons for the delay.
In any event, I do not accept, that any of these things adequately explains the delay, which the table at [88] shows was very considerable in respect of the majority of the alleged acts of victimisation. While it is understandable that a person would want to avoid litigation, and all that it entails, that desire, even combined with legitimate efforts to avoid it, is not a basis to be excused from the requirement to commence proceedings within the time stipulated by the legislature. There is no reason why appropriate extra curial efforts cannot be pursued at the same time as prosecuting proceedings. The fact that the Applicant was on leave for some of the time during which the alleged victimisation occurred provides no explanation, without more, for the delay. As Mr Watts submitted in closing oral submission in reply, the fact that the Applicant was on leave could have meant that he had more time, rather than less, to attend to the preparation of the filing of the application.
I note that there was no medical evidence before me to suggest that the Applicant was medically impeded from taking steps to enable proceedings to be brought.
The fact that the Applicant did obtain legal advice, from at least April 2024, and very possibly much earlier, and that that advice included advice about his rights under s 210, required the Applicant to provide a good explanation as to why his application was not then filed until July 2024. No such explanation was given, beyond what I have set out and discussed above. Indeed, the evidence suggests that the Applicant was well aware that the Respondent's conduct toward him could be contrary to law from at least July 2023. It cannot be said, and in fairness it was not, that the delay was caused because the Applicant was unaware of his rights or the limitation period.
As I have explained, at the time of filing his evidence and the AS, the Applicant was represented by solicitors and I infer that the AS was prepared by those solicitors. Two submissions regarding the reason and length of the delay are made in the AS which differ somewhat from the submissions the Applicant made orally.

Ongoing Victimisation

First, at AS [23], reliance is placed on the decision of Sams DP in Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202. At [181] Sams DP said: "Like a late unfair dismissal application, in a late victimisation application, the onus is on the applicant to satisfy the Commission that there is a sufficient reason or reasons for an application to be accepted out of time. As will be seen from my later findings, the respondent engaged in detrimental conduct such as to victimise the applicant from early September 2004 to her dismissal on 4 March 2005. In my opinion, the fact that the complaint concerning a reduction in hours and the 3 September memo fell outside the 21 day time limit imposed by s213(3) the Act is of little consequence. This is because the victimisation was ongoing. Indeed, it continued after the application was filed. This ongoing detrimental conduct would, in my judgement, be a sufficient reason to accept the application out of time. I formally do so."
At AS [24] the Applicant noted that the approach in Kumar was endorsed by Constant C in Kinninmont at [14]: "…as set out in Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202, the ongoing detrimental conduct asserted by the applicant which is alleged to constitute victimisation is a matter relevant to my consideration as to whether to grant leave."
The Applicant submitted that all of the pleaded acts of victimisation are ongoing, in that "their respective effects continued to the time of commencing these proceedings (and thereafter)" [10] and that: "…the Commission ought to place significant weight on the fact that all of the acts of victimisation (which would otherwise, ostensibly, be out of time) have been ongoing. To that end, this is not a case whereby defined, fixed and historic acts of victimisation are sought to be agitated by an applicant. Rather the Applicant cites acts which continue in effect." [11]
It appears to me that the Applicant (or more accurately, his erstwhile solicitors) have misapprehended why Sams DP determined to accept the applicant's application out of time. It was not because the effects of the victimisation were ongoing, but rather, following the first act of victimisation the subject of the claim (which occurred on or about 3 September 2004 and so was approximately 13 days out of time, the proceedings having been filed on 7 October 2004), the respondent engaged in further discrete acts of victimisation, some of which occurred within 21 days prior to the proceedings being commenced (and so were within time) and some of which occurred after the proceedings were commenced. Indeed, her dismissal, which Sams DP found was a further act of victimisation, occurred on Friday, 4 March 2005, one working day before the applicant was to commence her evidence in the Commission in her victimisation proceeding. This "ongoing detrimental conduct", provided a sufficient reason for Sams DP to accept the application which had otherwise been filed 'only' 13 days out of time.
Notably, Commissioner Constant in Kinninmont did not allow 'out of time' alleged acts of victimisation to be included in the applicant's claim by way of amendment to the application, simply because they demonstrated that the respondent had engaged in "ongoing detrimental conduct" in the Kumar sense. Rather, she allowed certain additional acts of alleged victimisation to be included in the applicant's claim in part because the applicant had only become aware of the conduct after the proceedings had commenced when he was provided with certain material from the respondent, in circumstances where he had requested the material for some time prior to its receipt. In that case the additional acts of victimisation sought to be included in the claim were very considerably out of time, in the order of 231 - 252 days in respect of one claimed act, and 146 - 167 days in respect of the other claimed act. While Commissioner Constant considered (at [72]) that the applicant had given a "less than compelling" reason for the considerable delay (over two months) from the time he became aware of the additional information and the fact that the respondent would not consent to him amending his claim, to the filing of his motion seeking leave to amend his claim, she gave weight to the fact that the respondent had contributed to the delay in the bringing of the claims by not providing the material requested earlier, as well as other factors that, on balance pointed in favour of the applicant being given leave to amend his claim to include certain further alleged, out-of-time, acts of victimisation.
Having carefully considered both Kumar and Kinninmont, I do not consider that either decision provides a sound foundation for excusing the lengthy (for most of the alleged acts, very lengthy) delays in this case, which have not been adequately explained. It seems to me that both decisions ultimately turned upon the nature of conduct engaged in by the respondent, being an element that is not established in this case and, in the case of Kumar, the relevant delay being relatively short.
In Kumar the respondent engaged in what Sams DP described (at [194]) as a "deliberate, disgraceful and relentless campaign to force the applicant's resignation after she had written to the respondent on 31 August 2004 advising that she had contacted the Department of Industrial Relations to complain about late payment of wages." Such campaign, comprising multiple acts of victimisation, ensued over a period of six months, but importantly, the applicant commenced her victimisation claim a little over a month from the first act of victimisation. In the present matter the first act of alleged victimisation occurred some 355 days before these proceedings were commenced. Plainly, this case is not comparable with Kumar in terms of the length of the delay.
While it is the case that "WFH Refusal" occurred 'only' 38 days prior to the commencement of proceedings (and hence is 'only' 17 days late), I do not consider that the fact the Respondent allegedly engaged in further victimisation by making the "Findings" (this being in essence how the "First Contravention" has been pleaded) without more, to be a reason to allow a claim based on the "WFH Refusal" to be brought out of time. This is because I do not consider that one further alleged act of victimisation is capable of constituting "ongoing detrimental conduct" in the Kumar sense, particularly where the two alleged acts were engaged in by different people (Mr Drexler and Mr Newton respectively), for ostensibly entirely different reasons.
While I can make no firm findings at this interlocutory stage of the proceedings, as to the egregiousness or otherwise of the Respondent's alleged conduct, prima facie, taking the Applicant's case at its highest, it is not on the scale the applicant in Kumar experienced. It may well be that the effect of the conduct on the Applicant has been severe, but that it is an objective assessment of the Respondent's conduct that is relevant for the purposes of determining whether the conduct is such as to provide a sufficient reason to accept an application out of time. Objectively the Respondent's conduct, appears to be less egregious than that engaged in by Ms Kumar's employers.
In Kinninmont, as already explained, Commissioner Constant was prepared to allow the applicant to include out of time acts of victimisation in part because the respondent had failed to provide certain information to the applicant in a timely fashion. There is no suggestion in this case that the Respondent had engaged in any conduct which contributed to the delay in the commencement of proceedings.

Attempts to Resolve the Matter

The second submission regarding the reason and length of the delay made in the AS mirrors the oral submissions made by the Applicant himself regarding his attempts to address his concerns through dialogue with his employer, albeit slightly more eloquently expressed. The Applicant submitted at AS [26] - [27]: Secondly, as noted in the Statement, since the time each act of victimisation first transpired and up until the commencement of these proceedings, the Applicant has sought to address the issue through dialogue with his employer. In circumstances whereby these proceedings do not deal with dismissal (and the employment relationship is still on foot), the Applicant submits that his endeavours in trying to resolve this matter directly with his employer have been reasonable and appropriate, and provide a sufficient justification for his delay in commencing formal proceedings. To this end, the Applicant's conduct in continuing to liaise with his employer about these matters has been consistent with an express object of the Act, being the promotion of participation in industrial relations by employees and employers "at an enterprise or workplace level". His conduct has also been consistent with the express "Statement of Intent" noted in his applicable award which encourages "consultative processes" between the parties. The Applicant has not merely sat idle during the intervening period, but rather, in good faith, has attempted to resolve his issues with his employer. The Commission ought to give significant weight to this reason.
In response to these submissions, I repeat what I said above at [99] and [101].
The apparent reasons for the delay in making the application in so far as it seeks relief in respect of acts of victimisation that occurred more than 21 days prior to 8 July 2024 falls well short of providing a sufficient reason for the Commission to accept the application for those claims out of time, particularly given the length of the delay.

Hardship to the parties - s 213(4)(b)

The Applicant gave evidence as to how: 1. the "WFH Suspension", "WFH Cancellation" and the "WFH Refusal" have impacted his capacity to discharge his obligations as the primary care giver of his mother and caused him other forms of damage; 2. the "Allegations" and "Findings" have been significant sources of humiliation and anxiety and have impacted his job security; 3. that the "Proposed Reporting Line Demotion" would tangibly impact his standing with the Respondent; and 4. the "Failure to Declare Excess" has resulted in him performing duties outside the scope of his substantive role for which he is not being paid and he has been denied a redundancy payment.
The Applicant submitted that if the extension of time is not granted and significant parts of the Amended Application are declined, the Applicant will lose the capacity to seek legal recourse for these hardships.
The Respondent made the following submissions at RS [30]: "The Applicant has not suffered, nor will he suffer, any financial consequences because of any of the alleged detrimental treatment. The Applicant remains employed and none of the asserted detriments have deprived him of any of the benefits of that employment. At its highest, he has not been permitted to work from home, and has been part of a restructure that did not result in his position becoming redundant. It follows that, if there is no extension of time granted, the Applicant will not suffer any obvious hardship.
I agree that any financial consequences resulting from the alleged detrimental treatment is likely to be relatively minimal. The evidence available at this stage indicates that the primary financial loss has arisen due to the Applicant taking unpaid leave to due to the stress occasioned by the alleged victimisation. I do not accept however that "none of the asserted detriments have deprived [the Applicant] of any benefits of his employment".
If established, the "WFH Suspension", "WFH Cancellation" and "WFH Refusal" have resulted in injury, hardship or loss to the Applicant, given that he had earlier enjoyed this privilege. However, I am not persuaded that the loss of this privilege and moreover the loss of the ability to seek legal recourse for the loss of the privilege, is of a magnitude that might otherwise overcome the very lengthy and unjustified delay in bringing proceedings in respect of these alleged acts of victimisation.
I also consider it to be very likely, despite the Respondent's submissions to the contrary, that the making of the "Allegations" and the "Findings" constitute a relevant detriment for the purposes of s 210(2). However, in circumstances where the claim with respect to the "Findings" has been made within time, and subject to the Respondent's summary dismissal application which I deal with below, is able to be prosecuted, I consider the hardship likely to be suffered by the Applicant losing the ability to separately prosecute a claim in respect of the "Allegations" per se, to be negligible.
Any hardship caused to the Applicant if his claim in respect of the "Proposed Reporting Line Demotion" and the "Failure to Declare Excess" is not accepted also does not provide the Commission with a sufficient reason to accept the application in respect of those matters.
In relation to the "Proposed Reporting Line Demotion", the Respondent contests the factual premise upon which it based. It says the organisation chart sent to the Applicant in April 2024 shows the Applicant reporting to a "SEO2 (Senior Executive Officer) Position, as did an earlier 2018 organisational chart. The Applicant will not be reporting to as "CSO Level 6 position" as he contends. Accordingly, the Respondent says there is in fact, not "demotion" at all. Based on the material before me the Respondent appears to be correct, but in any event, in circumstances where the Applicant is to maintain his classification and grade, any detriment caused by a changed reporting structure which still stipulates that the Applicant is to report to someone higher in the hierarchy, is relatively minor, if evident at all. It is also worth noting, as the Respondent did at RS [52],that the Amended Application does not appear to seek any relief in relation to the "Proposed Reporting Line Demotion". That being the case, the Applicant will suffer no hardship if he is not able to prosecute that claim.
In relation to the "Failure to Declare Excess" I agree with the Respondent that on first blush it appears anomalous and irrational that in not dismissing an employee an employer can be said to have victimised an employee. Certainly, it is far more common for an employee to assert that they have been victimised by having their employment terminated, than it is to assert that they have been victimised by having their employment maintained. However, ultimately what constitutes a detriment is a question of fact. It seems to me conceptually possible that a failure to declare a person excess, in circumstances where a principled application of the rules governing the management of excess employees would indicate that the employee should be declared excess, could constitute a detriment for the purposes of s 210.
I also accept that the financial and other harms the employee may suffer as result of such conduct could be considerable, however there is no evidence before me of the value or extent of the harm the Applicant asserts he has suffered as a result the alleged failure by the Respondent to declare him excess. His only evidence of loss arising from this alleged act of victimisation was as follows: "a. First, I have been forced to perform duties that are outside the scope of the Substantive Role. The effect of this, is that I am working at a higher level, than what I am being paid for; b. Second, the duties I am being asked to perform, are being undervalued which has made me feel humiliated and side lined within the workplace."
Moreover, if the Applicant is correct, and the Respondent has failed to declare him excess in accordance with applicable legislative and/or contractual obligations and/or if the Respondent is requiring the Applicant to perform work for which he is not be appropriately paid, the Applicant may seek relief via other proceedings, such as pursuant to ss 154 or 365 of the IR Act.
Overall, I agree with the submission made at RRS [19] that: "Any hardship the Applicant may suffer as a consequence of the Commission not accepting the Amended Application out of time is entirely due to his own unexplained failure to file the Application on time."
I also consider that the hardship the Respondent will faced if required to defend the Amended Application in its totality is likely to be significant. As the Respondent submitted at RS [31], given the statutory time limit, the Respondent is entitled to arrange its affairs on the basis that claims cannot be made once time has elapsed. This particularly impacts public authorities such as the Respondent, which are taxpayer funded.
Further, as the Respondent submitted, the hardship will likely be exacerbated given the significant delays involved. The Respondent may be placed in a difficult position due to the need to defend the Amended Application, which relates to events that occurred, in some cases, over a year ago. The 21-day time limit exists to ensure that claims are heard at a time proximate to the relevant events. Any extended lapse in time not only impairs the recollections of witnesses, but also compromises the overall integrity of the evidence. This is especially burdensome in victimisation proceedings, where the Respondent may be required to overcome the reverse onus imposed by s 210(2) of the IR Act.
Taken as a whole, the question of hardship is balanced relatively evenly between the parties. However, the onus is upon the Applicant to establish a sufficient reason to be permitted to prosecute his claims out of time. Given the very significant delays I do not consider that the hardship that he will suffer if he is not permitted to prosecute the out of time claims is sufficient to justify the acceptance of the application in respect of those out of time claims.

Conduct in relation to which the order is sought - s 213(4)(c)

The Respondent submitted (at RS [36]) that: "… the conduct alleged to be detriments by the Amended Application is, in effect, the exercise of managerial prerogative. It is not a case involving grave consequences, such as actual or threatened dismissal, failure to offer employment, or detrimental action causing financial loss."
Whether the conduct in relation to which the Applicant seeks orders was the appropriate exercise of managerial prerogative or in fact constituted victimisation is the very question at the heart of the proceeding. While the Respondent submitted that each of the Applicant's claims of victimisation had no reasonable prospects of success, for present purposes I am prepared to assume that the conduct complained of is capable of constituting victimisation.
As I have already stated at [110], while I can make no firm findings at this interlocutory stage of the proceedings, as to the egregiousness, or level of seriousness of the Respondent's alleged conduct, prima facie, taking the Applicant's case at its highest, I agree it is not on the scale the applicant in Kumar experienced. The Applicant remains employed and his return to a flexible work arrangement possible if the question of his duties can be resolved. Prima facie that is not unreasonable, given that the Applicant will be unsupervised while working from home. As I noted at the outset, these proceedings will not resolve that question.
For completeness, to the extent that "conduct in relation to which the order is sought" encompasses an enquiry as to whether the conduct of the respondent caused or contributed to an applicant's delay in commencing proceedings (see Kininmont at [46]), it suffices to say that there was no evidence that the Respondent engaged in such conduct.

Prospects of Success

The Respondent correctly submitted (at RS [37]) that the prospects of success are also a relevant factor when determining whether to accept an out of time application. The Respondent submitted that if the Applicant's case is weak or will face apparent difficulties, that is a factor against time being extended. Further, if the Applicant's case has no reasonable prospects of success at all, such that it would be susceptible to summary dismissal even if accepted, then there is no utility in extending, and the issue of prospects becomes determinative of the question of whether there is a sufficient reason to accept the application out of time. The Respondent submitted numerous reasons why she contends each of the out of time alleged acts of victimisation have no reasonable prospects of success.
Conversely, the Applicant submitted that he had strong prospects of prosecuting his claims.
As McHugh J made clear in Brisbane South Regional Health Authority v Taylor 186 CLR 541; [1996] HCA 25 (referred to at [95] above), limitation periods are set by the legislature "notwithstanding that the enactment of that period may often result in a good cause of action being defeated". Consequently, even an extremely strong case will not on its own, be sufficient to provide "a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question."
In the present matter the Applicant has not established a sufficient reason for the Commission to accept his application in so far as it seeks to rely on acts of victimisation that occurred more than 21 days before he filed his application. Consequently, it is unnecessary for me to consider whether those parts of his claim have no prospects of success, as alleged by the Respondent.

Should the balance of the Applicant's Claim be Summarily Dismissed?

The Applicant's claim of victimisation arising from the "Findings" has been brought within time. However, the Respondent submits that it should be summarily dismissed pursuant to r 13.4(b) of the Uniform Civil Procedure Rules (UCPR), on the basis that it no reasonable cause of action is disclosed.
The principles relevant to the circumstances in which proceedings may be dismissed pursuant to r 13.4 are well-known. The test to be applied to determine whether no reasonable cause of action is disclosed is derived from the principles set out by Barwick CJ in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-130. The Court (or this case, Commission) is to consider, potentially following extensive argument, whether 'the case of the plaintiff is so clearly untenable that it cannot possibly succeed'.
Schmidt AJ set out a succinct summation of the test in Saridas v Papuan Oil Search Ltd [2022] NSWSC 825 at [16] - [18]: 16. Summary dismissal of a claim without a hearing on the merits is not lightly granted: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at [129]-[130]. What is required is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [44]-[46]; Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24]. 17. While proceedings should not generally be dismissed if there is "a real question to be tried", where "upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course": Bott v Carter [2012] NSWCA 89 at [13]. 18. What lies in issue now also has to be considered in the context of the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings.
White JA, in Ugur v Attorney General for New South Wales [2019] NSWCA 86 explained, at [70], that: "One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications."
The Respondent submitted that the Applicant's claim based upon the "Findings" cannot succeed for two reasons. First, she contends that the alleged protected attributes cannot be established. Second, she contends that "in making the Findings, there was no adverse consequences for the Applicant whatsoever" such that it is not a detriment within the meaning of s 210 of the IR Act. For reasons I will now explain, I do not accept these submissions and do not consider that the Applicant's claim, in so far as it is based upon the "Findings" should be summarily dismissed.
According to the Respondent, the matters said to establish a protected attribute within the meaning of s 210(1)(f) and s 210(1)(j), cannot be established. Her submission was along the following lines: "38 …the Changing Duties Complaints, [is] said to enliven s 210(1)(f) of the IR Act. Even if .. it is accepted the Applicant made complaints about the fact it was proposed that his duties would be altered without consultation or a change to classification, it is difficult to see how such complaints, about potential and hypothetical events, could amount to informing a person of an alleged breach of industrial relations legislation or an industrial instrument. In the Respondent's submission, the Changing Duties Complaints does not enliven s 210(1)(f) of the IR Act, … … 42 … the Award Compliance Request and February Duties Complaints [is said to enliven] s 210(1)(f) of the IR Act. As to the Award Compliance Request, the difficulty is illuminated by the definition the Applicant's pleading adopts - this was a request, not a complaint. 43. In particular, the Applicant says he gave Mr Drexler a copy of the Award and asked that it be complied with. So it may be. However, that cannot, on any objective view, amount to the informing of a person of an alleged breach of industrial relations legislation or an industrial instrument. 44. Likewise, the February Duties Complaints are said to amount to complaints about directions to perform work being inconsistent with the Applicant's classification and role description. Clearly, a role description is not legislated or an industrial instrument. While the Award contains classifications, it does not prescribe any duties associated with each classification. Accordingly, that does not enliven s 210(1)(f) either. 45. … as to the 2023 Complaints, the particulars are vague and amorphous. Even at their highest, they do not appear to amount to complaints about workplace matters that are not safe or a risk to health, but rather, were generalised complaints by the Applicant about his employment, which the Applicant contends led to him suffering injury or illness. That is not a complaint that falls within s 210(1)(j). 46. … as to each of the First, Second and Third 19 February Email Complaints, and the First February Work Health and Safety Complaint, to the extent they contain mere assertions that the Applicant had been bullied, targeted and victimised, it is far from apparent that such contentions amount to a complaint about safety or a risk to health."
The Applicant's submissions in response to the above submissions, found at AS [34], were as follows: Firstly, the complaints raised by the Applicant squarely fall within the purview of s.210(1)(f) and/or s.210(1)(j). These two provisions are broadly drafted and refer to the act by an employee of informing any person of an alleged breach of an instrument and making a complaint about a workplace matter that the employee considers is not safe or a risk to health. Here the Applicant submits as follows: a. in relation to the "Changing Duties Complaints", the Award clearly sets out the process that the Respondent was to follow when seeking to impose such changes (including consultation). The Applicant duly informed the Respondent that its approach contravened the Award; b. in relation to the "Award Compliance Request", the Award clearly sets out the prerogatives for an employee to take leave. The Applicant duly informed the Respondent that its approach contravened the Award; c. in relation to the "February Duties Complaints", the Award sets the minimum rates of pay for the applicable classifications and grades. The Applicant duly informed the Respondent that its construction and expectation of his role was undervalued and therefore contravened the Award; and d. in relation to the "2023 Complaints", "First February Work Health and Safety Complaint", "First 19 February Email Complaints", "Second 19 February Email Complaints" and "Third 19 February Email Complaints" these variously canvassed complaints that were sufficiently tethered to the Applicant's concerns about safety. Such complaints related to directions for the Applicant to discharge work which was outside his ordinary scope; directions which were adversely impacting the Applicant's health; and conduct which constituted bullying. All such complaints were aligned to "workplace matters" (and not mere personal grievances) and predicated on the Applicant's concern about safety and/or a risk to health."
Notably the Award was not tendered in evidence and no party referred to any particular provision of the Award. Nevertheless, I consider, based on the material before me, that the Applicant's submissions on this point are more persuasive than those of the Respondent, which adopt a technical approach, divorced from the nuanced and often complex realties of human communications. It seems to me that only after hearing a full account from the parties and those accounts being tested in cross examination, will it be possible to determine whether the Applicant had engaged in conduct that is protected under s 210 - and thereafter whether the Respondent has engaged in conduct constituting victimisation.
I am not persuaded that the Applicant cannot establish, with the benefit of further evidence and full argument, that the matters alleged to be the reason for the "Findings" being made are protected attributes within the meaning of s 210. Indeed, I consider it to more than arguable that each of the stated reasons amount to the asserted protected attribute.
I also reject the Respondent's submission that "in making the Findings, there was no adverse consequences for the Applicant whatsoever." The Respondent's submissions on this point, at RS [70]- [71] were as follows: "There are two points to be made about the Findings. First, the Applicant expressly differentiates (in the Amended Application at [22]) between the substantiation of the Allegations and a finding of misconduct being made and recorded. He contends that only the former, and not the latter, is the detriment. Second, the Findings must be considered in the relevant legislative context. s 69(4) of the GSE Act sets out the action an employer may action. It suffices to observe that the mere recording of a sustained finding of misconduct is not a disciplinary sanction found in that provision. Indeed, the fact that no sanction was imposed is made obvious by the fact that, if there was to be any such sanction, the Applicant would first need to have been notified of the proposed sanction and given an opportunity to respond to it. In making the Findings, there was no adverse consequence for the Applicant whatsoever. In the circumstances, the Findings do not give rise to injury, hardship or loss, or otherwise involve the employee being treated harshly, unfairly or to their disadvantage. It is not a detriment within the meaning of s 210 of the IR Act. It follows that this aspect of the Amended Application cannot succeed, and is susceptible to summary dismissal."
Let me first say that I consider the Respondent's argument regarding the apparent differentiation made in the Amended Application between the substantiation of the Allegations and a finding of misconduct being made and recorded, to be largely without merit. The letter the Applicant received from Mr Newton dated 13 March 2024 is headed: "Notification of Misconduct Matter - Details of allegation, Action that may be taken and Opportunity to make a statement". The opening paragraphs of the letter read: "The Administrative Officer Conduct Unit is managing an administrative employee misconduct matter as an allegation has been made that you have engaged in misconduct. It has been decided to proceed with this misconduct matter… and you are now advised of the details of the allegation as follows: Allegation It is alleged that you have behaved unreasonably and unprofessionally towards your Director, Mr Paul Drexler. Allegation Details …
In my view the "Allegations" as defined in the Amended Application incorporated both an allegation that the Applicant behaved unreasonably and unprofessionally towards Mr Drexler and an allegation that that conduct amounted to misconduct. The "Findings" as defined, is that the "Allegations" had been sustained.
It is the case however, that the definition does not include that the finding of misconduct had been recorded on his file or that the LECC had been notified. However, it must be observed that those are matters, which the Respondent herself submitted, naturally flow from a finding of misconduct, due to legislative requirements. Those outcomes may themselves be a detriment flowing from the "Findings". In any event, the Applicant does not solely rely on the recording of the misconduct on his file or its reporting to the LECC to establish detriment arising from the "Findings". The Applicant gave the following evidence with respect the impact the making of the "Findings" had had on him: 34. I understand that in these proceedings my employer is arguing that making misconduct findings against me, is not detrimental. This is not the case. The making of the misconduct findings against me, has a significant impact on my health and wellbeing, and confidence in the workplace. 35. During the meeting on I was simply trying to raise my concerns about the failure of my employer to adhere to the laws in respect of my duties. 36. The imposition of the findings of misconduct has made me feel like I cannot raise any further complaints about the way I am being treated I the workplace or I might lose my job. This is really stressful and demoralising for me and has made me feel like there is no hope of ever being treated fairly in the workplace again. 37. I have experienced waking up in the night, as a result of extreme feelings of stress and worry as a result of the way I have been treated. 38. I also feel constantly scared that if there are any other confrontations in the workplace, I will not be able to defend myself without being accused of misconduct. 39. As a result of the making of the findings of misconduct against me, my professional reputation has been damaged. The findings letter expressly stated that "NSW Law Enforcement Conduct Commission, the NSW Government agency with the responsibility to oversee the investigation and handling of NSW Police Force misconduct matters" and "This matter is recorded on the NSW Police Force Misconduct Matters Information System (IAPro), reference AOM2024/0035". 40. This means that there will always be a record of the fact that misconduct findings have been made, which will impact my career and future opportunities. If I apply for another job, and am asked whether misconduct findings have been made against me, I will have to answer by saying 'yes". 41. I have had a very long and successful career with the NSW Police Force. It is simply devastating to have had a finding of misconduct made against me, particularly in these circumstances. I have never had a finding of misconduct made against me in the past."
It seems to me that these matters are quite capable of constituting the necessary detriment to establish victimisation in respect of the "Findings".
In the circumstances I am not satisfied that the application in respect of the "Findings" should be summarily dismissed.

Orders

I make the following orders: 1. The Amended Application is struck out on the basis that save for one allegation of victimisation, the application is out of time. 2. The Applicant has leave to file a Further Amended Application seeking relief only in respect of the alleged act of victimisation constituted by the substantiation, on 17 June 2024, of the allegations made in the letter from SJ Newton to the Applicant dated 13 March 2024. 3. The Applicant is file and serve his Further Amended Application by 4:00pm on 31 January 2025. 4. The Respondent's Notice of Motion is otherwise dismissed. 5. The matter is listed for directions on 6 February 2025 at 10.00am. Janet McDonald Commissioner

Endnotes

Tcpt, 17 October 2024, p 32(48)-(50).
At the time of the decision in Davis s 210(2) had not been enacted.
Davis v Amalgamated Television Pty Limited [1998] IR 364 at 379.
Ibid.
Tcpt, 17 October 2024, p 34 (1) - (8).
Tcpt, 17 October 2024, p 24 (11) - (12).
Tcpt, 17 October 2024, p 34 (12) - (14).
Tcpt, 17 October 2024, p 34 (12) - (13).
Tcpt, 17 October 2024, p 34 (29) - (34).
AS [22].
AS [25]. 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: 10 January 2025

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