Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees' Union of Australia

Filing of Evidence 15At the conclusion of the conciliation proceedings on 11 September 2013, the parties were provided with a filing schedule and advised, both orally and in writing, that they were required to file and serve all written statements to be relied upon for each witness together with any relevant documentation by the due date. In the case of the Applicant, his statements were due on 2 October 2013 and his statements in reply were due on 30 October 2013. 16The Applicant emailed IRC client services on 20 September 2013 seeking that any hearing of the matter be scheduled for after 13 October 2013 "as I am still currently residing in Jindabyne NSW and have sporadic employment which will finish up on the aforementioned date". 17The Acting Registrar responded to both parties by confirming that the threshold issue was to be heard on 1 November 2013. In addition, the emailed response, dated 24 September 2013, reminded the Applicant of the details of the filing schedule by setting out the relevant dates applicable to the filing of evidence. 18The Applicant did not comply with the filing schedule in that no evidence or submission was filed on or by 2 October 2013. Ms Catherine Thomas, Legal Officer with the Respondent's Legal Services Unit, forwarded an email to the Registrar on 8 October 2013, noting that the Applicant had not served any evidence on it by the due date and querying whether he had served any evidence with the Commission. 19A verbal reply was provided to Ms Thomas on the same day. The file note states that Ms Thomas was advised as follows, "Mr Ward was contacted by phone on 8/10/13 and asked whether he intended to file in accordance with directions made. He advised as follows: 'I don't intend to file any further material. I rely on information contained in my application'."

The Hearing 20The proceedings were set down to commence at 10 am on 1 November 2013. Just as the Commission was about to hear an application for dismissal of the matter, the Applicant made an appearance at 10.16 am. 21Mr Ward was self-represented at the hearing. He gave sworn evidence on his own behalf. 22Mr A Britt, Counsel, appeared on behalf of the Respondent. He tendered into evidence a statement from Ms Catherine Thomas who was not required for cross-examination by the Applicant. 23In his opening submissions, the Applicant stated that the question to be determined by the Commission is which is more important - justice or a 21-day deadline? The Applicant explained that the matter hinged on three things - firstly, he received a termination letter "from a big wig in the Education Department" which was "out of the blue" as the dispute resolution process did not indicate that termination may result but stipulated that referral to the Commission was the ultimate outcome of the dispute resolution process; secondly, he had to secure alternate employment and, thirdly, he had to secure alternate accommodation as he was required to vacate the staff quarters in which he had been living. 24The Applicant pointed out that much of the merits of his case may be proved by the tender of emails which traced the "arduous" and "soul destroying" journey he undertook over the two year employment period with the Respondent. 25Upon receipt of the termination letter, he decided to collect his emails so that he could demonstrate to the Commission the "toxic workplace environment" he had been working in, "negligent to the point of malicious supervision" and so on. However, he found that access to his email account had been blocked. 26The Applicant said that he contacted the Industrial Registry a day or so after the 21-day deadline and was advised that out-of-time applications may be heard by the Commission. APPLICANT: Well, ..... the decision that I made was towards the end of that three-week period, I had been prepared to let it all go and just move on. Then something twigged, and I thought, no, I'll see it through. So, again, the question is are you interested, Commissioner, in justice or dead-marks(as said)? Both are important; as a teacher I know that deadlines are important, I institute them myself..... 27The Applicant's previous experience was teaching Spanish in New York City's Department of Education. He pointed out that he had not made any claim in his resume, cover letter, application or any other documentation to having any experience in teaching English in New South Wales. Nevertheless, the Applicant stated that he was qualified and approved to teach English and Spanish in the New South Wales education system. 28He said he applied for a position with the Department of Education on 2 August 2010 and attended for an interview on 16 December 2010. He was asked set questions and his responses were written down. After the interview, as he was driving to the coast, the convenor of the interview panel rang him and advised him that he had the job. He was engaged as an English teacher. 29The Applicant said that the head teacher of English instructed him not to go out and buy any books. Nevertheless, he said he went out and bought Macbeth and Thunderfish and read them. He also studied the syllabus and attempted to make sense of it. When the school term commenced on 28 January 2011, he had, what he believed to be, a very rounded grasp of the texts that he would be teaching. Nevertheless, confusion prevailed over the syllabus. He said he turned up "brimming, ready to go, bouncing, energy that you don't see everyday as a teacher". He was handed a collection of articles on "Happiness" to teach the Year 11 class and told to "enjoy the kids" and that was the extent of the support he received in Term 1. 30The Applicant submitted that the concept of accreditation is world-wide and he knew he had to obtain it. He stated that, on 23 May 2011, during a rare meeting with the head teacher of English, she mentioned to him, for the very first time, that he would have to write a unit plan in order to obtain accreditation. He had two degrees - English Literature and Hispanic Studies and a Bachelor of Education - yet he had no experience in writing unit plans - "the one black spot in my armoury". He said the head teacher "lost the plot" when he told her that and at that point asked "Can I ask you a question? ... Have you ever taught English before?" He pointed out that the question was posed by the same person who was the Convenor of the panel that had interviewed him and supposedly perused his resume. He said that when he replied that he had not, she became upset and approached the Department to have his appointment reversed. 31Another teacher took over as Head Teacher. He was aware that there was a "documented" feud between the previous Head Teacher and the replacement Head Teacher for many years and he became "the meat in the sandwich". 32He claimed that he had no access to support and, basically, he had no Head Teacher from 23 May 2011. The Applicant contended that when support was eventually provided, it was done "with such poor grace and it was so duplicitous" that his soul was struggling. 33Finally, he stated that he received his termination letter on a Monday and very shortly after, when he attempted to access his email account, he found that it was blocked. Despite all his approaches to the Respondent, he was not provided with access to his work email account which contained key evidence for presentation to the Commission. 34The Applicant stated that he could prove all the statements he was making but pointed out that the Department was contending that nothing prior to 2011 can be checked. 35During cross-examination, the Applicant: (1)confirmed that he had personally completed the section 84 application for these proceedings. He also confirmed that, in response to question 34, he proffered reasons why his application was late and later declared that those reasons were true and correct to the best of his knowledge. (2)conceded that prior to being terminated, that is, prior to 29 July and the receipt of a letter from "the bigwig" from the Department, he was aware that his employment was at risk of being terminated. Nevertheless, he persisted with the submission that the termination was "a bolt from the blue". (3)confirmed that he had been provided with, and read, prior to 29 July 2013, an overview or progress chart prepared by the Department on the Procedures for Managing Probationary Teachers and was aware of the possibility that the Department would terminate his services if he did not satisfy the requirements of the position. (4)confirmed that he was employed as a probationary teacher and his probationary period was extended twice. (5)confirmed that the email account he had referred to as not being able to access post his termination was, in fact, the Department's email account. (6)admitted that the Department gave him 90 days' notice to vacate the teacher housing provided to him. (7)admitted that even though he stated that his s 84 application was late because he had to find alternate accommodation, he did not, in fact, find such alternate accommodation until 2 October - some six weeks after lodging his application in these proceedings. (8)admitted that even though he stated that his s 84 application was late because he had to find another job, he found alternative employment soon after his termination on 29 July 2013 - maybe a couple of days after - working 10 hours per week at $22 per hour maintaining a pool. The Applicant confirmed that he was aware of the time limit for appealing against his dismissal having been advised of that in the Respondent's letters to him. 36In his own re-examination, the Applicant stated that the Respondent was not being benevolent by allowing him the 90 days to vacate the accommodation. He said he was willing to bet that, had there been a mechanism for providing him with shorter notice to vacate the premises, the Department would have taken advantage of it. 37He pointed out that the type of employment and accommodation he ended up with were quite unsatisfactory compared to what he had with the Respondent, given his age, his experience and education. He was very grateful for the job but testing a pool for ten hours a week and sweeping and vacuuming pools was not a suitable occupation for someone with two university degrees who speaks another language and has 15 years of experience. 38The Respondent read the affidavit of Ms Thomas which was a factual account of the events that had occurred and to which were attached relevant business records of the Respondent. The Applicant pointed out that he had not, prior to the day of the hearing, seen the attachments to the affidavit of Ms Thomas. Those attachments constituted the applications for extension of his probationary period which, he pointed out, he had not made himself. Even though the Respondent had complied with the filing schedule, the Applicant had not taken the opportunity of reading the Respondent's filed evidence.

THE SUBMISSIONS 39In support of the application that the Commission should exercise its discretion and accept the out of time claim, the Applicant submitted that it was not only he and his career who had suffered an injustice but also the hundreds of school children he would have been able to instruct over the next 15 years at Jindabyne Central School. 40The Applicant submitted that the Respondent had done the wrong thing by him in that he had got his hopes up in the belief that the review conducted by the Respondent would be independent and so he created in excess of 100 pages response to the Principal's report and the show cause letter. The last thing he wanted to do was travel to Sydney and "front a show like this". 41He initially did not intend to challenge his dismissal. He blamed his late application on the fact that "the mind is a funny thing because it changes". He decided, ultimately, to file the unfair dismissal claim and therefore was a week late. He personally could not see the problem. 42The Applicant pointed out that he had suffered from "[T]he cumulative effect of those two years working under the, as I put, the cloud of termination". He claimed that the Head Teacher never let up over the two years. Matters steadily got worse and finally, he was informed, very shortly after 23 May 2011, that the Head Teacher had in fact recommended to the Department to have his appointment annulled. 43When his termination was effected, he was locked out of his only functional communication device, his work email account, without notice. He submitted that one would have expected that the time for appeal to the Commission against a dismissal such as his would be after one has secured alternative employment and alternate accommodation. 44The Respondent provided written submissions, supplemented by oral submissions. 45The primary submission of the Respondent was that the onus fell on the Applicant to convince the Commission that there was "sufficient reason" to accept an out of time application: Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees' Union of Australia (NSW branch) on behalf of Vian (1993) 51 IR 186. 46It was pointed out that the Applicant had not met the onus given that he had not filed any evidence providing a sufficient reason, or any reason, why the Commission ought to grant an extension of time and therefore the application should be dismissed. 47In the event that the Commission rejected that primary submission, then an alternative submission was made that the application should be dismissed because the claim was weak both on its merits and from a jurisdictional basis. 48The Respondent considered the authorities relating to the exercise of the Commission's discretion and summarised the general principles which apply in out of time matters as cited in several decisions:

• The Commission's power to accept out of time applications is discretionary: (s 85 (3) of the Industrial Relations Act 1996 (the IR Act);
• The onus rests on the applicant to establish that a "sufficient reason" exists to convince the Commission to exercise its discretion to accept the out of time claim: Brady v Kennedy trading as "Sardines" (1999) 91 IR 258; Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 51 IR 186;.
• "Sufficient reason" is not defined in the Act. It is inappropriate to establish a rigid definition of that term. Guidance is provided in subclause 85.3 (a)-(c) as to the matters to be taken into account in deciding each case on its own facts and circumstances;
• The Commission's discretion is a "broad one" in that it allows the Commission to depart from the strict time requirements of the Act if fairness so demanded: Markovski v Sydney South West Area Health Service [2010] NSWIRComm 1043;
• the discretion must be exercised judicially having regard to the matters set out in s 85 (3) albeit only one or two or all three of the matters set out in (a) - (c) might be found to constitute a sufficient reason(s) for the exercise of the Commission's discretion: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283;
• There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit just as there is a definite purpose in the legislature establishing time limitations for filing;
• There is a public interest in the prompt institution and prosecution of litigation before the Commission;
• The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties;
• The parties are required to address and provide an explanation for each of the subclauses in Clause 85.3 of the IR Act;
• Ignorantia legis neminem excusat (ignorance of the law is no excuse): Hurrell v Queensland Cotton Corporation Limited [2003] 125 IR 145. 49The Respondent reminded the Commission of the Applicant's own evidence during cross-examination when he admitted that he was aware of the 21-day time limit having been advised of that by the Department in its relevant letters attached to Ms Thomas' affidavit.

Reason for, and the length of the Delay 50The dismissal of the Applicant occurred by letter dated 26 July 2013 effective from the date of the receipt of that correspondence, being 29 July 2013. The Applicant lodged his s 84 application on 26 August 2013, 7 days out of time. 51The Applicant submitted that the reason the application was late was because he was frozen out of his work email account which contained vital information he required to prove the merits of his case; he had to secure alternate employment and alternate accommodation and was suffering from utter exhaustion. 52The Respondent addressed the five reasons put forward by the Applicant for his late application. Firstly, the Applicant stated that he discovered that he was frozen out of his work email account soon after his termination, if not the day after. It was pointed out that the situation did not alter in that the Applicant was never given access to his email account following his dismissal and therefore it did not ultimately prevent him from filing his s 84 claim. It therefore cannot provide a basis for his application being filed out of time. 53Secondly, the Applicant stated that he needed to find a job. However, he gave evidence in cross-examination that he found a job very soon after his termination, albeit not an entirely satisfactory job. It was pointed out that the Applicant had not provided any evidence that he was searching for a job each and every day between the date of termination and 26 August such as to physically prevent him from filing his application in the intervening period. 54Thirdly, the Applicant stated that he needed to find alternative accommodation. Once again, during cross-examination, the Applicant confirmed that the Respondent gave him 90 days' notice to vacate their accommodation and that he did not move out of those premises until six weeks after he filed his application. Once again, there was no evidence that the Applicant was searching for accommodation each and every day between the date of termination and 26 August such as to physically prevent him from filing his application in the intervening period. 55Fourthly, the Applicant stated that, as set out in his application, the whole process had been "soul destroying" and "arduous". It was pointed out that those words did not appear in the application and that reason was not proffered at the time he commenced his s 84 claim. Nevertheless, there was simply no evidence that the Applicant's soul was destroyed between the date of termination and a recovery on 26 August such as to prevent him from filing his application in the intervening period. 56Finally, the Applicant had submitted that a great injustice had been done to him. The Respondent pointed out that "justice" and "injustice" were often in the eye of the beholder. There was no evidence of any claim of injustice in the s 84 application. It was pointed out that, during cross-examination, the Applicant conceded that he was on probation and that the probationary period was extended twice. 57In reply, the Applicant agreed that he did not spend all day every day searching for employment and accommodation. However, his dismissal played on his mind which was in such a state of disrepair during the first 21 days that he did not care about anything: I didn't mean to put forth that I was spending all day every day searching for employment and accommodation and able counsel has ably pointed to that fact. However, it played on my mind, Commissioner and we all have minds and my mind was in such a state of disrepair during those 21 days that again I'll state, I didn't care at the time. As I put in para 2 of p 5 question 34, the process that I've been through which has culminated in the virtual erasure of my career has been so exhausting and soul destroying. Sorry, I used the word "exhausting". I'm sure you can see the parallel between arduous and exhausting, that I was prepared to walk away. Again, if there is an avenue for hearing late applications which there obviously is, then I guess justice - I think you're confusing it with beauty. Justice isn't so much in the eye of the beholder as it is the will of the stronger of two parties, okay? Obviously the Department is a lot stronger than I am and you know, they have lawyers and stuff. Soul destroying, yeah, that's about it, Commissioner, please hear the case, thanks.

Hardship to either of the parties 58The Applicant urged the Commission to find in his favour and decide to hear the merits of the case pointing out that he had lost his job, his income, his partner and his career. 59The Applicant submitted that it was not only he and his career who had suffered an injustice but also the hundreds of school children he would have been able to instruct over the next 15 years at Jindabyne Central School. 60The Respondent argued that the Applicant's claim was weak both in relation to its merits and from a jurisdictional basis and therefore the interests of justice do not favour the exercise of any discretion. On that basis, it was concluded that no hardship would be suffered by the Applicant as a result of a rejection of the out of time application. 61The Applicant did not provide any evidence of the hardship he said would be caused to him if his application was rejected.

Conduct of the Employer relating to the Dismissal 62The Applicant submitted that when his termination was effected, he was locked out of his only functional communication device, his work email account, without notice. He submitted that one would have expected that the time for appeal to the Commission against a dismissal such as his would be after one has secured alternative employment and alternate accommodation.

Merits 63The Respondent reminded the Commission of its obligation, pursuant to s 5A of the Teaching Service Act 1980) to ensure the protection of children: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32) including protection of children from teachers: NSW Department of Education and Training v Cassis [2007] NSWIRComm 158. 64The Respondent submitted that:

• Students have a right to be taught by competent teachers; and
• Teachers are responsible for performing their duties efficiently and competently. The evidence, it was submitted, demonstrated that the Applicant's dismissal was justified as he had failed to perform his duties efficiently and competently.

Jurisdiction 65The Respondent submitted that the Commission lacked jurisdiction to hear the Applicant's claim. A comparison was made between the provisions of the TS Act and the Police Act 1990 in support of its reliance on the decision of the High Court in Commissioner of Police v Eaton [2013] HCA 2. 66The Respondent pointed out that s 48 (5) of the TS Act provides that a person who, by reason of the annulment of an appointment, ceases to be a member of the Teaching Service is not entitled to appeal to the Commission against such annulment. It was submitted that this section specifically excludes probationary teachers from seeking a merit review of the decision to dismiss them from employment by this Commission.

RELEVANT STATUTORY PROVISIONS 67Section 5A of the Teaching Services Act 1980 provides that: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 68The objects of Part 4A of the Teaching Services Act are: 93A Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service. (b) to protect and enhance the integrity and reputation of the Teaching Service. (c) to ensure that the public interest is protected. 69Section 85 of the Industrial Relations Act 1996 relevantly requires that: SECTION 85 TIME FOR MAKING APPLICATIONS 85 (1) [No later than 21 days after dismissal] An application under this Part must be made not later than 21 days after the dismissal of the employee. 85 (2) ..... 85 (3) [Commission may accept application lodged out of time] 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.

CONSIDERATION 70I accept that there is an imperative on the Commission to ensure the protection of children. The Commission is required to consider the provisions of the TS Act in addition to the IR Act and, in particular s 5A of the TS Act (relating to protection of children) which stipulates that that section has effect despite anything in the IR Act or any other Act or law: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32. 71I am satisfied that probationary employments may be extended or annulled either during or at the end of the probationary period and therefore the actions of the Respondent did not breach s 48 of the TS Act. 72I am also satisfied that the performance review conducted and the performance improvement programs implemented were in accordance with s 93G and s 93H of the TS Act respectively. 73It is noted that s 93J of the TS Act provides that the Director-General may do either or both of the following - (a)take remedial action with respect to the officer; or (b)take disciplinary action (which is defined in s 93B as including dismissal) with respect to the officer if the officer's performance is still unsatisfactory following completion of the TIP. 74I am satisfied that Ms Jane Thorpe, Director- Employee Performance and Conduct Directorate, had the delegated authority pursuant to section 8 of the TS Act to exercise all powers under Part 4A of that Act, the objects of which are set out above. 75There was no dispute between the parties that the Applicant had been employed as a probationary employee. The Applicant gave evidence that he was put through what he described to be "an arduous and soul destroying journey" working in a "toxic environment" over the two years of his employment with the Respondent. His probationary period was extended on two occasions - to 21 December 2012 and to 20 December 2013 respectively. On both occasions, the extension was made in response to concerns about his performance as a school teacher. 76The Applicant would have been aware that the progression from an informal support program to a formal TIP was a warning in itself of unsatisfactory standards of performance. It is also clear that a failure to meet the satisfactory standard following a TIP procedure may lead to dismissal. 77In addition, the Applicant received correspondence from Mr Schipp, dated 19 June 2013, asking him to show cause why his probationary appointment should not be annulled. He did not provide a response until 16 July 2013. One would have thought that the Applicant would have used his email evidence to support his reply to the show cause letter if the contents of those emails contained evidence supportive of his position. 78Also in addition, the Applicant conceded in cross-examination that he was aware, prior to 29 July 2013 that his employment was at risk and that there was a possibility that his services would be terminated if he did not satisfy the requirements of the position. 79Yet the Applicant insisted that his termination was "a bolt out of the blue". I do not accept that submission. The Applicant had ample opportunity to collect his evidence prior to his dismissal. There is no reason why any employer would allow access to its computer records to an employee who has left its services. 80During cross-examination, the Applicant, when asked whether or not he was aware of the 21-day time limit on filing his claim, confirmed that he was made aware of it by the Respondent, had considered it and decided not to bother with it: Britt: Q. So do I take it then sir that you were actually aware that there was a 21 day time limit? Ward: A. Absolutely, I read it, I got a letter saying there's a 21 day - I mean, I knew what, you know I knew there was a - at that time I decided not to bother with it, you know. He also gave evidence that it was at the last minute that he decided to lodge the application. 81Having considered all of the evidence before the Commission, both oral and written, and considered the submissions of the parties, I find that the Applicant has failed to satisfy the Commission of a "sufficient reason" to accept his out-of-time claim. 82Although I accept that the period of time is not great, the legislature is quite clear in that it has established a 21-day time limit for filing. The Applicant has not provided the Commission with a sufficient reason for the delay, he has not demonstrated hardship beyond what every other dismissed employee experiences and has failed to demonstrate how the Respondent's conduct impacted on the late filing of his claim. 83The duty of care in relation to the protection of children is paramount, regardless of whether or not it is enshrined in legislation. The Applicant was, in my opinion, very fortunate to have been allowed the extensions of time and support that he received. I note from the evidence of Ms Thomas that he was supplied with a great deal of support during his period of probation at that School. I adopt and endorse the comments of the Full Bench in Cassis where it was stated: There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is necessary to take all other factors into account. [88] 84I note the jurisdictional matters raised by the Respondent in relation to the dismissal of probationary employees. In the circumstances, there is no need to comment on that. 85I accept that the Applicant's case is weak both in relation to merits and from a jurisdictional basis and decline the application to exercise my discretion in favour of the Applicant.

ORDERS 86The Commission declines the Application by Mr Hilton Erland Ward to exercise its discretion to allow an out-of-time application in Matter No IRC 708 of 2013. 87Matter No IRC 708 of 2013 is hereby dismissed. 88The Respondent's rights in respect of costs is reserved

COMMISSIONER 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: 07 January 2014