Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District

Industrial Relations Commission (NSW)|2013-07-04

Director-General, NSW Ministry of Health in respect of Sydney Local Health District (Respondent) File Number(s): IRC 159 of 2013

DECISION 1In this interlocutory proceeding the applicant, Mr Tony Ibrahim, seeks, pursuant to subsection 85(3) of the Industrial Relations Act 1996, ('the Act') that the Commission accept an application under s.84 of the Act that is made out of time. 2Mr Ibrahim was dismissed from his employment by the respondent on 3 November 2011. The application before the Commission was lodged on 5 March 2013. The present application is therefore one year, three months and eleven days out of time. 3Mr Ibrahim had previously lodged an application pursuant to s.84 in respect of a threatened dismissal on 31 March 2011. He was then dismissed on 3 November 2011; the application he had already filed embraced that dismissal. Mr Ibrahim however discontinued that application on 8 December 2011. It is that dismissal on 3 November 2011 in respect of which he now again applies. I turn to consideration of the effect of the earlier s.84 application and its discontinuance below. 4There is no contest from the respondent that it is properly seen as the employer in this matter despite organisational changes that have occurred since the dismissal.

Statutory framework 5It is of value to set out once again the relevant legislative provisions. Section 85 of the Act provides as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 6It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal occurring. 7Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. 8Subsection (3), in contrast to subsection (2), provides no more than that the Commission 'may' - that is as a matter of discretion - accept an application which is made out of time but which is not required to be accepted for the reasons set out in sub-section (2). 9The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3). 10It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only those matters to which the Commission is to have particular regard. 11Each case in which subsection 85(3) is invoked is decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. 12Given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. 13The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [12].... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 14It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998). 15There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. 16The overarching principle is therefore that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, is paramount: Hurrell loc cit at [13]. 17And fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t represents the legislature's judgment that 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.' Brisbane South Regional Health Authority v Taylor loc cit at 553.

Facts 18I now turn to the facts in this matter in more detail. 19Much of the evidence was not in contest, the contest rather being the inferences to be drawn from it. Mr Ibrahim's evidence consisted of an affidavit sworn by him on 26 June 2013, with annexures, which was admitted in whole, and some oral evidence given by him in cross-examination. The Respondent's evidence consisted of an affidavit sworn by Ms Jacqueline Clark on 15 May 2013, with annexures, which was admitted in whole, and oral evidence given by Ms Clark in cross-examination. 20Mr Ibrahim was employed as a security officer by the respondent from January 2002 until his dismissal on 3 November 2011. (For convenience a reference herein to the respondent means the respondent or its predecessors). 21Mr Ibrahim complained to the respondent about bullying and harassment he said he experienced at the hands of a Mr Lahood, a co-worker. He made a formal complaint in 24 February 2005 which included complaints ranging from that Mr Lahood had sworn at him to a complaint that Mr Lahood had sent someone to his home address at 5:00 am to threaten him. In response to this first complaint the respondent found, after investigation, that Mr Lahood had used threatening, abusive and obscene language toward Mr Ibrahim and reprimanded Mr Lahood. The other elements of the complaint were found to be unsubstantiated. 22Mr Ibrahim made a further formal complaint about bullying and harassment by Mr Lahood and a Mr Lewis, a supervisor, in August 2008. That complaint was investigated by the respondent and was held to be unsubstantiated. 23In December 2008 Mr Ibrahim's union, the HSU, filed an industrial dispute in the Commission concerning Mr Ibrahim's allegations of bullying and harassment, and in particular that complained of by him in August 2008. 24That matter came before Ritchie C for conciliation. In the course of that process the respondent drew up a roster extending over 84 weeks which provided for a reduced level of contact - that is, 8 shifts in normal time over the 84 weeks - between Mr Ibrahim and Mr Lahood. 25Ritchie C recommended (IRC 2 of 2009, Recommendation, 29 January 2009) that Mr Ibrahim work to that roster as a compromise. Mr Ibrahim for his part developed a roster which provided for no contact between Mr Lahood and himself. The respondent did not accept that roster as it held the view that it unwarrantedly increased penalties payable under the award to Mr Ibrahim and impacted on the earnings of other security officers. (Clark affidavit annexure 2) 26On 20 April 2009 Mr Ibrahim submitted a workers' compensation claim. It was supported by a medical certificate from his nominated treating doctor, Dr Anwar Ibrahim, which provided, under the heading 'Management Plan', 'counselling - referral to psychiatrist'. 27A further certificate from Dr Ibrahim dated 30 April 2009 provided, again under the heading 'Management Plan', 'referral to psychiatrist'. Further certificates from Dr Ibrahim in September and October 2009 made the same recommendation as a management plan. 28The workers' compensation insurer, Employers' Mutual, arranged for Mr Ibrahim to attend two medical examinations, in May and June 2009. Mr Ibrahim declined to attend those examinations. 29In about May 2009, on Mr Ibrahim's evidence, (Affidavit, paragraph 11) the HSU ceased to represent him. However, on the evidence it appears that the HSU continued to represent him for at least a month after that date; nothing turns on this difference. 30On 19 June 2009 the respondent, in the person of Ms Clark, wrote to the HSU concerning Mr Ibrahim. In that letter the respondent advised that it would not implement the roster Mr Ibrahim proposed, for the reasons referred to above, but that it would meet Mr Ibrahim's concerns by relocating him to another worksite, and invited Mr Ibrahim to express preferences in that regard. 31Mr Ibrahim did not wish to be relocated to another site and was not relocated. 32On 18 September 2009 the respondent in the person of Mr Joseph Jewitt, Director of Corporate Services and Finance, wrote to Mr Ibrahim. In that letter the respondent said to Mr Ibrahim: 'You are reminded that you are required to provide a medical clearance certificate from a registered psychiatrist before returning to work. I am advised that a referral to a psychiatrist is on your medical certificate. Therefore this assessment needs to occur to determine your fitness for duty and what, if any, arrangements need to be put in place to ensure your safe return to work.' 33Mr Jewitt directed that Mr Ibrahim provide the clearance certificate to the respondent's rehabilitation co-ordinator, and further directed Mr Ibrahim that until a clearance from a psychiatrist had been received by the respondent and an appropriate return to work pan developed he was not to report for duty. 34Mr Ibrahim did not perform work again for the respondent after the date of that letter, 18 September 2009, although he remained an employee until 3 November 2011. 35It should be noted that Mr Ibrahim's treating doctor had not required that Mr Ibrahim attend a psychiatrist, but recommended it as a treatment plan. By this letter from Mr Jewitt, however, the employer directed that Mr Ibrahim attend a psychiatrist to obtain a clearance to return to work. 36It is Mr Ibrahim's own evidence that he did not attend a psychiatrist at that or at any other time, and that this was an active and deliberate decision on his part; he could not, he said, see why he, as the aggrieved complainant, should be the one to have to attend a psychiatrist in order to continue working. 37On 18 January 2010 Mr Ibrahim's then treating doctor, Dr Kafiris, advised the respondent that he had removed from the workcover certificates the recommendation that Mr Ibrahim attend a psychiatrist 'as Tony felt it would adversely affect his return to work', although, said Dr Kafiris, 'I still recommend to Tony that he be reviewed by a psychiatrist, or at very least a psychologist'. 38On 5 May 2010, however, Dr Kafiris further advised the respondent in relation to Mr Ibrahim: 'in conclusion, my recommendation is that he needs to be medically assessed, preferably by a psychiatrist for the complex nature of the problem and his medical co-morbidities which may be contributing to his mental state.' 39On 7 May 2010 the respondent in the person of Ms Clark wrote to Mr Ibrahim by email. In that correspondence the respondent said: 'The psychiatrist assessment that you are being asked to undertake is not a workers' compensation issue. The reason your employer requires you to attend this assessment is because we have concerns about your fitness to be at work and perform the inherent responsibilities of your position. Under OH&S and at common law we have the authority to lawfully direct (sic) that you attend such an assessment. You have been asked on numerous occasions to provide the AHS with a medical report from a psychiatrist but you have to date refused to comply. I must again assert that should you continue to refuse to supply such a report or attend an appointment arranged by the AHS you may place your continued employment at risk.' 40The email went on to inform Mr Ibrahim of an appointment made for him to attend a psychiatrist. Mr Ibrahim did not, as noted, attend that or any such appointment. 41I interpose at this point that in my view it was, if not before, from this point on abundantly clear to Mr Ibrahim both that his employer required him to attend a psychiatrist's appointment and why it so required. Further, from that point on, if not before, he was squarely on notice that a continued refusal to attend such appointments had the potential to put his employment at risk. 42Independently of the employer's direction that he attend a psychiatrist's appointment, the insurer made further appointments for Mr Ibrahim to attend a psychiatrist in the context of his workers' compensation claim. He did not attend them. 43On 10 September 2010 the respondent in the person of Ms Clark wrote to Mr Ibrahim directing him to contact the respondent 'so as to arrange your independent medical assessment and progress your return to work'. A direct number was given and instructions about leaving a message were provided. 44The letter went on to say that if Mr Ibrahim did not contact the respondent as directed, 'an assessment of your continuing employment ...will be made'. 45Mr Ibrahim did not participate in any arrangement of a medical appointment as required by the respondent nor did he attend any appointment. 46In the mean time, however, Mr Ibrahim had made applications to the Australian Human Rights Commission on 23 June 2010; had on 28 June 2010 made an application to the then-Fair Work Australia alleging a general protections dispute, and on the same day, 28 June 2010, had filed a complaint of discrimination with the Anti-discrimination Board of NSW. 47The workers' compensation insurer declined liability for Mr Ibrahim's claim, citing Mr Ibrahim's failure to attend scheduled medical appointments. 48On 11 January 2011 Mr Ibrahim lodged an application to resolve a workplace injury management dispute. 49On 19 April 2011 the Workers' Compensation Commission issued a Determination. That Determination provided in terms as follows: 'That ... the respondent obtains a psychiatric clearance before allowing Mr Ibrahim to return to work. That ...the appellant attends a psychiatric examination with an independent psychiatric specialist to be scheduled by the respondent for the purposes of a clearance to return to work.' 50Mr Ibrahim appealed that Determination. In proceedings before this Commission, at least, he said that the Determination was 'based on fabricated evidence by the arbitrator'. 51The respondent engaged solicitors for the appeal hearings before the Workers' Compensation Commission. 52On 12 August 2011 the Workers Compensation Commission dismissed Mr Ibrahim's appeal, confirmed the Arbitrator's decision, and went on to 'strongly urge' Mr Ibrahim to seek legal advice before filing any further claim. 53In the mean time, in May 2011 Mr Ibrahim had commenced proceedings in the Federal Court of Australia, filed a Notice of Appeal, Public Sector Discipline, and filed an application under s.84 of the Act in this Commission alleging a threatened dismissal. 54Conciliation proceedings in this Commission were conducted at some length by Tabbaa C. In proceedings on 6 September 2011 the Commissioner told Mr Ibrahim that the quickest way to obtain a return to work was 'to go and attend a psychiatric assessment'. 55In that conciliation proceeding the respondent indicated that it would refrain from taking action against Mr Ibrahim while he obtained that assessment, if he chose to do so. 56As noted above, Mr Ibrahim declined to attend any such appointment. 57On 27 September 2011 the respondent in the person of Mr Jewitt wrote again to Mr Ibrahim directing him to advise whether or not he would attend a psychiatric appointment and, if he were to indicate that he intended to refuse to attend, to give reasons why his employment should not be terminated. 58Mr Ibrahim did not reply to this letter. 59On 3 November the Chief Executive of the respondent wrote to Mr Ibrahim advising that as a consequence his employment had been terminated on notice. 60The s.84 application filed by Mr Ibrahim in May 2011 then came before the Commission in the person of Bishop C on 6 December 2011. 61it is to be noted that Mr Ibrahim at that point had an application pursuant to s.84 in respect of the dismissal in respect of which he now applies before the Commission. That application was made within time. The matter was set down for hearing on 12 and 13 December 2011. 62Mr Ibrahim however then discontinued that application on 8 December 2011. Bishop C granted leave to discontinue pursuant to part 12.1 of the Uniform Civil Procedure Rules and vacated the hearing dates. 63At that time Mr Ibrahim had proceedings on foot in the then-Federal Magistrates Court, the proceedings in that court having been transferred from the Federal Court. 64.On 18 May 2013 Smith FM made orders in the Federal Magistrates Court which required Mr Ibrahim's compliance. Smith FM ruled that if those orders were not complied with the proceedings would be dismissed. 65On 20 June 2013 the Federal Magistrates Court proceedings were dismissed by Smith FM. Smith FM had earlier given a number of extensions of time to Mr Ibrahim and those representing him. Smith FM's decision of 18 May 2012, the last occasion on which that Court allowed a further extension of time, is instructive. In part it reads as follows: The matter was transferred to this Court by order of Flick J on 3 June 2011. It was then listed before me for directions on 1 July 2011. I referred Mr Ibrahim to the NSW District Registrar for a referral to a lawyer on the pro bono panel, and directed a full timetable requiring his case to be pleaded and supported by affidavits before 12 August 2011. This direction allowed a period of time which was generous in the circumstances. A referral was made by the Registrar, and a young barrister accepted the referral and conferred with Mr Ibrahim. Unfortunately, he was unable to retain Mr Ibrahim's confidence, and counsel withdrew when he and Mr Ibrahim appeared before me at a directions listing on 23 September 2011. Mr Ibrahim was in default under my previous order, since no documents had been filed to elucidate Mr Ibrahim's case prior to that date. I extended time for him to present his case until 28 October 2011. This direction was also not complied with by Mr Ibrahim. At the next listing on 9 December 2011, order 3 again directed Mr Ibrahim to present his case to the Court in points of claim and affidavits no later than 3 February 2012. Order 4 gave the respondents liberty to apply for default orders under r.13.03B of the Federal Magistrates Court Rules 2001 (Cth). The matter was adjourned to 11 May 2012 for the purpose of fixing a hearing date. On 20 December 2011, a solicitor filed a notice of address for service, indicating that he had accepted instructions to represent Mr Ibrahim. However, that solicitor did not comply with the directed time-table and he also withdrew, filing a notice of withdrawal on 5 March 2012. Meanwhile, the respondents held their hand in relation to moving for default orders. On 6 March 2012, a Registrar held a mediation session attended by Mr Ibrahim and representatives of the respondents. The listing report suggests that the parties discussed how to progress the litigation, as well as its resolution. In view of Mr Ibrahim's continuing failure to file points of claim and his evidence in support, the matter was then re-listed before me on 30 March 2012. On this occasion, Mr Ibrahim sought more time to obtain further legal assistance to prepare his case. I allowed further time, but made abundantly clear to Mr Ibrahim that the Court regarded him as having been given more than enough time to present his case in a sufficient fashion, even unaided by lawyers, so that the Court could identify and address the real issues in the case, insofar as they related to the discrimination legislation which he was invoking. I ordered Mr Ibrahim again to file documents explaining his case "no later than 11 May 2012", and directed a further time-table. I fixed the matter for final hearing on 23 August 2012, and indicated to Mr Ibrahim that I expected the matter to be prepared and ready for those hearing dates. However, Mr Ibrahim did not comply with that order. 66Mr Ibrahim first obtained advice from his present solicitors, Beazley Singleton Lawyers, in the course of the Federal Magistrates Court proceedings; as I apprehended it, toward the end of those proceedings. 67The respondent underwent the cost of engaging solicitors for those proceedings. 68Those proceedings having been dismissed on, as noted above, 20 June 2012, Mr Ibrahim then made the present application on 5 March 2013.

Consideration 69I have set out above the statutory provisions and the fundamental principles to apply to an application pursuant to s.84 that is brought late. 70The Commission, in exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, must, in considering whether there is 'sufficient reason to do so', consider the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act.

Length of and reason for the delay 71First, the Commission must have regard to the length of and reason for the delay. 72Despite Mr Ibrahim's submission, this application cannot be seen as a continuation of the earlier s.84 application. Mr Ibrahim discontinued that earlier application and this application is necessarily a 'fresh' application: Uniform Civil Procedure Rules, rule 12.3(1). 73That is not to say that the earlier proceedings are a bar to fresh proceedings being instituted - the rule cited above makes it clear that that is not the case - but they form, in circumstances where a time limit has been set in the statute, a matter weighing against the exercise of the discretion in the applicant's favour. The respondent had prepared itself for a hearing in December 2011, including the cost of that hearing. That the employer would be obliged to do that again is a proper matter for consideration under subsection 85(3), and it goes against the exercise of discretion to admit the application. 74This application is, for the reasons set out above, a fresh application. It is brought over a year and three months out of time, in circumstances where the legislature has chosen to set a relatively short time period of 21 days. In that context the delay is very considerable. 75The reason for the delay is, on the applicant's submissions, that Mr Ibrahim was largely unrepresented and simply did not know where to turn. 76Additionally, it was submitted by Mr Beazley that, as Mr Ibrahim had been diagnosed as suffering depression and anxiety, the Commission could take judicial notice of the fact that this condition made difficult clear decisionmaking and the taking of positive steps, even in one's own interest. In the particular circumstances of this case, and on the evidence in this case, I accept that submission. I return to consider its effect below. 77As to the submission that Mr Ibrahim was unrepresented, I am certainly prepared to accept that it may be appropriate to grant some indulgence in procedural matters to unrepresented persons. I do however note that Mr Ibrahim sought advice from a range of lawyers in 2010, 2011 and 2012. On Mr Ibrahim's own evidence he obtained written advice from Owen Hodge Lawyers in February 2010, from Kingsford Legal Centre in May 2010, from the Salvation Army legal service in February 2011, from Slater & Gordon (declining to assist) in November 2011, from Marrickville Legal Centre in March 2012, from McArdle Legal in June 2012, from Szekely & Associates in June 2012, and then was assisted by Beazley Singleton Lawyers from, on the evidence, a date in or before June 2012, and certainly by December 2012. 78True it is, as Mr Beazley urged in his submissions, that none of the advice he obtained from lawyers before Beazley Singleton's involvement expressed itself to be squarely about proceedings before this Commission. It was however about Mr Ibrahim's employment and the various steps in different tribunals which he took in relation to his employment. It was always open to Mr Ibrahim to have asked one of the many lawyers whom he consulted, and who provided advice, about proceedings in this Commission. 79In considering the reason for the delay it is proper to have regard to the fact that Mr Ibrahim was not consistently represented, and I do, as I say above, regard that as a matter to be considered in the assessment of the reasons for the delay. However, I cannot see that Mr Ibrahim was in a situation where he could not, throughout the whole fifteen months before this application was made, ask at least one of the many solicitors he consulted about proceedings in this Commission. Had he done so the delay may have been, at very least, a great deal less. 80And while I have accepted the submission that Mr Ibrahim, having been diagnosed as suffering from depression and anxiety, can be understood to have suffered some difficulty in taking action, it must be observed that this did not prevent him consulting a number of solicitors and initiating and maintaining a number of proceedings in the period of a year and three months before making the present application. 81Finally, it must be pointed out that in considering the reason for the delay, no evidence was advanced to explain the delay between the time when Beazley Singleton Lawyers began to give advice to Mr Ibrahim in at the latest June 2012 and the bringing of this application in March 2013, in which they represent him. Where no reason is advanced for a delay or a portion of it, it is difficult to attract the beneficial exercise of a discretion that is guided by statute specifically to have regard to the reasons for delay.

Hardship to the applicant 82The Commission is also required to have regard, pursuant to subsection 85(3)(b), to any hardship that may be caused to the applicant or the employer if the application is or is not rejected. 83The hardship to the applicant if the application is rejected is that he will not be able to pursue his unfair dismissal claim before, as Mr Beazley put it, the one tribunal that actually has the power to do something about it. That is a hardship. It is a hardship, of course, which every out of time applicant suffers if his application is rejected. I view it in this case in the context of Mr Ibrahim having already had proceedings before this Tribunal about precisely that dismissal, and having discontinued them. 84It is said by the applicant that he discontinued those proceedings because Bishop C told him that he had better prosects in another court. I was taken to transcript of proceedings before Bishop C in support of that submission. 85In my view, on any reading of the transcript, and even allowing for the fact that Mr Ibrahim was unrepresented on that day, such a conclusion could not be drawn. 86First, what Bishop C did must be seen in context. Mr Ibrahim's s.84 allegation had been set down for hearing in December 2011. On 17 November 2011, the respondent wrote to Mr Ibrahim pointing out that, as he had at least one other proceeding on foot in which he sought remedies for his dismissal, he was obliged to make a s.90 election. The respondent enclosed the relevant form and asked Mr Ibrahim to complete it. 87Mr Ibrahim did not. Ultimately the respondent moved to have the s.84 proceedings dismissed or stayed until a s.90 undertaking was provided. That motion came before Bishop C on 6 December 2011. 88The Commissioner gave Mr Ibrahim an extended hearing and at generous length gave him the benefit of her advice and experience. In the course of that there was discussion of the proceedings before the Federal Magistrates Court. I was taken particularly to p 11 of the transcript of that day (IRC 11/790, transcript of proceedings 6 December 2011). The Commissioner there expressly tells Mr Ibrahim 'I have no idea what you can do before the Federal Magistrates Court, never ever had to be involved in that...' I note too that the discussion continues for some 40 pages of transcript after that point. 89In my view, any submission that Mr Ibrahim was told, or reasonably understood that he was told, that he should discontinue his proceedings before this Commission by the Commissioner simply cannot be sustained. 90It is in the context of this sub-section that it is proper to consider the strength of Mr Ibrahim's case, as it is a measure of the disadvantage he may suffer is his application is not accepted. I say that noting what was said by the High Court in Brisbane South Regional Health Authority v Taylor loc cit at 553 that the enactment of a limitation period 'may often result in a good cause of action being defeated.' 91In my view Mr Ibrahim does not have a good cause of action in this Commission. I come to that view for the following reason. 92He was given an express written direction by his employer to obtain a medical clearance before returning to work. The fact that it was a psychiatric clearance is not to the point; an employer is entitled to require an employee whose health it believes may be at risk from returning to work to obtain a medical clearance. That is the more so when the employee's treating doctor recommends that as part of a treatment plan, and the more so still when the Workers' Compensation Commission directs that the employer obtain such a clearance before permitting the employee to return to work. Indeed, faced with that latter circumstance, it would be an unwise employer which did not insist on such a clearance. 93In my view the employer's direction was a lawful and reasonable direction, given a number of times, and Mr Ibrahim refused it on each occasion. The employer allowed him to remain an employee for over two years in that circumstance, it appears out of respect for the several tribunals before which Mr Ibrahim took the employer. But in this Commission, the repeated refusal of a lawful and reasonable direction would generally be accepted as a basis for a dismissal that would not attract the opprobrium 'harsh, unreasonable or unjust', Salat v NSW Police Force [2011] NSWIRComm 1040, given the employee's undoubted duty to obey reasonable and lawful instructions: Adami v Maison de Luxe Ltd (1924) 35 CLR 143. In sum, Mr Ibrahim has at best a very poor case.

Hardship to the employer 94That has a relevance to hardship to the employer, a matter which I am also obliged under the statute to address. The respondent has already engaged lawyers, with the associated costs thereof, in at least three different tribunals. It has already faced Mr Ibrahim's s.84 application in this Commission once, and seen it discontinued more than a year ago. To have to face the application once again would in my view be a significant disadvantage to the respondent. 95A party is entitled to believe that, and proceed on the basis that, a concluded application brings the matter to an end, much the more so over a year after that conclusion. Witnesses should not be required again to prepare themselves for proceedings. Memories will have faded. And the respondent ought not once again have to sustain the cost, already sustained once, and inconvenience of preparing for s.84 proceeding in relation to this dismissal. Further, as was observed by the High Court in Brisbane South Regional Health Authority v Taylor loc cit at 553, public institutions have a significant interest in knowing they have no liabilities beyond a definite period. 96In my view the employer would suffer significant hardship if the application were accepted, for the reasons set out above. 97Thirdly, I have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed insofar as it has any bearing on the lateness of the application. 98I cannot see that the employer's conduct had any bearing on the lateness of the application. I observe that before this Commission and before the Federal Magistrates Court the employer forbore from moving to guillotine Mr Ibrahim's application for reason of his repeated delays, as it might well have done. 99As I set out above, the Commission is not confined in the exercise of its discretion only to the matters to which it is 'particularly' to have regard under subsections 85(3) (a), (b) and (c), although it must have regard to those matters. The Commission is able, for example, in exercising the discretion pursuant to subs.85(3), to have regard to the post-termination conduct of the applicant: Rainey v Retirement Solutions Pty Ltd (unreported, Cambridge C, 2494 of 1997, 24 October 1997). 100In considering the exercise of the discretion in this case I have also had regard to the conduct of the applicant in other proceedings concerning his employment and to which the respondent was a party. In particular, I refer to the proceedings before the Federal Magistrates Court, in which, as is apparent from the judgment of Smith FM quoted at some length above, the applicant repeatedly failed to obey directions and defaulted on his obligations to the court, notwithstanding that the time limits imposed on him were in Smith FM's view 'generous'. In so doing Mr Ibrahim rejected the assistance of a barrister who was prepared to appear for him pro bono. 101Not only did the respondent suffer a costs impost from the need repeatedly to attend the court because of Mr Ibrahim's defaults, but these defaults also, being exemplary of his approach to litigation, work against his being permitted to conduct further litigation in this Commission, which has limited resources and expects parties to attend to its directions scrupulously. 102On the basis of the whole of the above consideration, Mr Ibrahim has not discharged his onus to persuade the Commission to admit his application, and the Commission's guided discretion must in this case must be exercised to decline to disturb the prima facie position. To do justice in this particular case, which is the overarching test, requires that outcome. The application brought over a year out of time will not be accepted. 103I address one further matter. It fell out in the hearing that Mr Beazley, solicitor, represented the applicant on a pro bono basis. If I may be permitted the observation, he carried out that role in accordance with the best traditions of the profession. A good deal of preparatory work clearly had been done; he was master of his material and the principles involved, and he urged his client's case fearlessly. It is not any fault of Mr Beazley's advocacy that the application has not succeeded.

Orders 104The application made by Mr Tony Ibrahim pursuant to s.84 of the Act is dismissed for reason that it is not brought within time.

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: 16 July 2013

Industrial Relations Act 1991(NSW)

Federal Magistrates Court Rules 2001(Cth)

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Cited By (14)