Jannell Storr v Industrial Relations Secretary on behalf of the Secretary, Department of Justice

Facts

1. Ms Storr has been employed by CSNSW since 1986. She is currently employed in the classification of Correctional Officer.
2. On 18 May 2016 Ms Storr was at work at the Maitland Court Cells. At that time she was a Senior Correctional Officer ("SCO"). On that day a family emergency came up requiring Ms Storr to leave work early. There is a dispute between the parties, which is ultimately at the heart of the broader issues between them, as to the circumstances of her doing so. The nature of this dispute will become apparent below.
3. On 12 September 2016 Mark Wilson, the Assistant Commissioner, Security & Intelligence at CSNSW ("Assistant Commissioner Wilson") wrote to Ms Storr informing her of allegations of misconduct that had been made against her, which were to be dealt with under s 69 of the Government Sector Employment Act 2013 (NSW) ("the GSE Act"). In summary, the allegations were that by leaving work early on 18 May 2016 Ms Storr had failed to devote the whole of her attention to the performance of her duties; that she had ceased work without approval; and, that she had failed to follow an instruction given to her by SCO Darren Jones ("SCO Jones") to contact Assistant Superintendent Craig Roberts to obtain approval to leave work early ("the First Allegations").
4. Ms Storr responded in writing to the First Allegations on 17 September 2016. Ms Storr asserted that SCO Jones had in fact approved of her leaving work to care for her daughter.
5. On 22 September 2016 Assistant Commissioner Wilson wrote again to Ms Storr informing her of further allegations of misconduct that had been made against her, which were to be dealt with under s 69 of the GSE Act. In summary, it was alleged that in certain correspondence with SCO Jones, Ms Storr had attempted to interfere with the evidence given by him and had harassed him ("the Second Allegations").
6. Ms Storr disputed the Second Allegations and responded in writing to them on 29 September 2016.
7. On 20 October 2016 Assistant Commissioner Wilson wrote to Ms Storr informing her that the First Allegations and the Second Allegations had been substantiated and that it had been found that Ms Storr had engaged in misconduct. Assistant Commissioner Wilson stated that he was considering taking disciplinary action against her. He invited Ms Storr to make a submission for consideration.
8. Ms Storr made a submission during a recorded interview with Assistant Commissioner Wilson and others on 7 November 2016, which had been organised at her request.
9. On 20 December 2016 Assistant Commissioner Wilson wrote to Ms Storr to inform her that he had decided, pursuant to the GSE Act, to reduce her grade from SCO to the classification of Correctional Officer ("the Demotion"). Ms Storr received this letter on 6 January 2017.
10. Throughout 2017 Ms Storr took numerous steps to challenge the Demotion, including: 1. from and after 20 January 2017 seeking advice from the Public Service Association of NSW ("the PSA"); 2. on 20 January 2017 emailing a letter to Assistant Commissioner Wilson seeking to appeal the Demotion; 3. on 1 March 2017 and 24 May 2017 writing to the Honourable David Elliott MP, then the Minister for Corrections, seeking his intervention; 4. on 24 May 2017 writing to Assistant Commissioner Wilson raising allegations of bullying and harassment said to have arisen from events in 2015 and 2016; 5. on 24 May 2017 writing to CSNSW Assistant Commissioner Kevin Corcoran; 6. on 19 June 2017 writing to CSNSW seeking to have the Demotion reviewed and overturned; 7. on 10 July 2017 writing to the Honourable David Shoebridge MP seeking his assistance; 8. on 21 July 2017 commencing proceedings in the Commission, purportedly under Part 7 of the Act. Those proceedings did not progress past conciliation conducted on 21 August 2017; and 9. engaging legal advice.
11. Throughout 2017 Ms Storr was also dealing with criminal proceedings that had been brought against her as a result of an altercation with a prisoner on 12 May 2016. Happily for Ms Storr, the charges against her were ultimately dismissed on 23 October 2017.
12. In his statement of 1 June 2018 Stuart Gray states that he first received instructions to act on behalf of Ms Storr on 9 January 2018. That must be taken to be a reference to instructions to act in these proceedings, as Mr Gray appears to have represented Ms Storr throughout the criminal proceedings.
13. The Application was filed on 13 February 2018. Under the terms of s 213(3), with the Demotion having taken place on 20 December 2016, the Application should have been filed no later than 10 January 2017.

The Law

1. Section 213 of the Act is in these terms: 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.
2. Subsection 213(3) makes it mandatory that applications be made within 21 days after the relevant contravention. The prima facie position is that an application made out of time is excluded by the subsection. An application can only be accepted by the Commission subject to s 213(4).
3. Subsection 213(4) confers on the Commission the discretion to accept an application made out of time, but this discretion is not unfettered. The Commission may only accept an application that is made out of time if it considers that there is "a sufficient reason" to do so. In considering whether such a sufficient reason exists the Commission is required to have regard "in particular", but not exclusively, to the matters set out in s 213(4)(a), (b) and (c).
4. The Act does not provide a definition as to what constitutes a "sufficient reason". It is not appropriate to attempt to formulate any such definition: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. Each case in which the Commission is asked to exercise its discretion under s 213(4) must be 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.
5. An applicant seeking to invoke s 213(4) bears the onus of demonstrating that the justice of the case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan (1982) 45 ALR 411 at 416. As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: 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. As the New South Wales Law Reform Commission has pointed out: "The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served." … In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. [Emphasis added, footnotes omitted]
6. In Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 Newall C stated as follows: [13] It is perfectly clear that the prima facie position is that an application brought out of time is excluded and therefore that an applicant bears the positive burden of demonstrating that the justice of the case requires an extension. If an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail, that is the application remains excluded, as the Commission recently held in Tolley v Secretary of New South Wales Ministry of Health [2016] NSWIRComm 1043.
7. As noted above, s 213(4) confers a discretion on the Commission to accept an application out of time, but it is a guided discretion. In deciding whether Ms Storr has discharged the onus on her to prove that sufficient reason exists to accept the Application out of time, I must have regard in particular to the matters set out in s 213(4)(a), (b) and (c). However, I am not limited to those matters. In particular, it is relevant to consider whether an applicant has an arguable case and the applicant's prospects of success: Hurrell v Queensland Cotton Corporation Limited (2002) 125 IR 145 at 150.

Consideration

1. I turn now to apply these principles to the facts of the case.

The reason for, and the length of, the delay

1. The Application is brought more than 13 months out of time. Given that the legislature has set a time period of 21 days, such a delay is manifestly substantial.
2. The central issue, particularly and indeed perhaps the more when the delay is of that length, is the reason for the delay: Clark v Family and Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [22].
3. In her submissions, Ms Storr proffers a number of reasons for the delay. I will deal with each in turn.
4. Firstly, Ms Storr claims that CSNSW did not advise her by way of written correspondence or otherwise of the avenue of appeal with regards to its decision or the forum for such an appeal.
5. As a factual matter this does not appear to be in dispute. However, CSNSW submits, and I accept, that it was under no legal obligation to provide Ms Storr with that advice. If the Commission were to hold that the failure to inform Ms Storr of her appeal rights justified an extension of time under s 213(4), the Commission would effectively be imposing on CSNSW an obligation that the legislature has not seen fit to impose under the GSE Act.
6. Further, on 22 January 2017 Ms Storr sent an email to Julie-Ann Bond of the PSA. That email appears at page 59 of exhibit "JS-1" to Ms Storr's statement. It contains the following passages: I have been given demotion letter by PSB and am appealing….I only have until Thursday to lodge this appeal. [sic]
7. The email does not specify what avenue of appeal Ms Storr was contemplating. It is clear, though, that even without having been informed by CSNSW of her possible appeal rights Ms Storr had not only identified an avenue of appeal, but was aware of the time limits in pursuing it.
8. Secondly, Ms Storr submits that she obtained incorrect advice from her industrial representatives as to the proper process and proper forum for appealing the Demotion.
9. From Ms Storr's evidence, she first contacted the PSA on 20 January 2017. The last communication Ms Storr had with the PSA appears to have been on 18 February 2017. She claims that at about this time she became aware that the advice she had received from the PSA was incorrect. It is not apparent that the PSA was requested to and did provide advice in relation to Ms Storr making an application under s 213 of the Act. It follows that it is not possible on the evidence to form a concluded view as to whether the PSA provided Ms Storr with relevantly incorrect advice. Even if I assume that to be the case for the purpose of this decision, the Application would already have been out of time when Ms Storr first sought that advice. More particularly, the fact does not explain why it took a further 12 months after the error had been discovered for the Application to be filed.
10. Thirdly, Ms Storr submits that she evinced at all relevant times an intention to appeal the Demotion. This is said to be demonstrated through the steps she took as summarised at [13] above.
11. Again, as a factual matter this does not appear to be in dispute. However, the fact that Ms Storr may have pursued other avenues to seek redress does not preclude the operation of the time limit in s 213(3) or of itself excuse the delay: Prehm v Department of Environment and Conservation [2006] NSWIRComm 222.
12. Fourthly, Ms Storr submits that she was suffering from a psychological illness during the relevant period as a consequence of bullying and harassment to which she was subjected by employees of CSNSW.
13. There is evidence that Ms Storr was certified unfit for work from 21 March 2017 until 21 April 2017, and from 21 May 2017 until 17 August 2017. The evidence does not directly deal with whether Ms Storr's condition rendered her unable to commence proceedings such as these. Further, there is no independent medical evidence that Ms Storr was under any psychological impediment at the time the Application ought to have been filed in accordance with s 213(3) of the Act. At best, the evidence might be relied on to excuse a failure to commence proceedings between 21 March 2017 and, applying a generous construction, 17 August 2017. It does not explain the delay before and after this period.
14. It is also relevant that throughout the periods in which she was certified unfit for work, Ms Storr was able to and did take other action to challenge the Demotion as outlined in paragraph [13] above. This calls into question the extent to which the psychological illness from which she was suffering offers a legitimate reason for the delay in filing the Application.
15. Fifthly, Ms Storr submits that she was burdened with defending criminal proceedings. This is undoubtedly true, but again that burden did not prevent her pursuing other avenues for redress. Further, that burden was lifted when the proceedings were determined in her favour on 23 October 2017.
16. Sixthly, Ms Storr submits that there were events in her personal life that impeded her seeking legal advice between 23 October 2017 and 9 January 2018. I will not traverse the details of the evidence in relation to this submission, but from her statement it seems that Ms Storr was beset with a number of problems in late 2017.
17. At its highest, this evidence might explain a lack of action between those dates. It obviously does not explain the delay until 23 October 2017.
18. Seventhly, Ms Storr submits that "[a]ny delay from the obtaining of legal advice in 2009 should not be laid at the feet of the Applicant". It is not clear how this submission relates to the facts of this matter.
19. On the issue of legal advice, it is Ms Storr's evidence that in mid-February 2017 she had received some advice "in passing" from an acquaintance who is a workers compensation solicitor regarding time limits for appealing the Demotion. That advice is not said to have related to a possible claim under s 213 of the Act. Throughout 2017 she had legal representation in relation to the criminal proceedings, which appears to be the same representation she now has in these proceedings. On or about 21 August 2017 she delivered a bundle of documents to her solicitors for the purposes of obtaining advice on her rights to appeal the Demotion, but these seem to have been incorrectly filed by the law firm. Ms Storr apparently did not follow up the matter until 9 January 2018.
20. Given that Ms Storr had been active in challenging the Demotion throughout 2017, it is perhaps surprising that she did not seek advice from her solicitors as to her options prior to August 2017. It is more surprising that she waited until 9 January 2018 to follow up on the documents she had left with them in August, when she had dealings with them in relation to the criminal proceedings until at least 23 October 2017.
21. Eighthly, Ms Storr submits that until 9 January 2018 she acted on incorrect legal advice.
22. The evidence does not bear this out. To the extent that Ms Storr sought and obtained legal advice from the PSA I repeat the observations made at [33] above. There is no evidence that the advice she received "in passing" in February 2017 related to s 213 of the Act, or that it was incorrect. There is also no evidence that Ms Storr otherwise obtained legal advice in relation to the Application until 9 January 2018.
23. Finally, and in relation to the delay between 9 January 2018 and 13 February 2018, Ms Storr submits that the delay can be laid at the feet of her representatives. She submits: By this stage, the matter was already significantly out of time and any further delay caused no hardship or prejudice to the Respondent.
24. Leaving aside the question of hardship, which I deal with below, this submission can be given no weight. Ms Storr cannot reasonably rely on the fact of the Application being out of time to excuse further delay. That would be entirely contrary to the legal principles outlined above.
25. I note further that no explanation is offered for the delay after 9 January 2018.
26. Having considered these matters I am not satisfied that, separately or collectively, the reasons offered by Ms Storr sufficiently explain the delay in commencing proceedings.

Hardship

1. Ms Storr submits that she would suffer hardship if the Application is not accepted out of time. Her submissions go primarily to the financial consequences of the Demotion in the form of reduced household income.
2. The effect of these submissions is that if the Commission does not accept the Application out of time Ms Storr will suffer the hardship of not being able to pursue her claim, and so seek redress for the Demotion. That is a hardship suffered by any applicant whose out of time application is rejected.
3. It is in this context that the merits of Ms Storr's case have relevance. It is no hardship to an applicant if they are precluded from running case they cannot win: Morawsky at [23].
4. Ms Storr alleges that she was demoted as a result of taking carer's leave. As noted above, the Application further suggests that the Demotion was motivated also by complaints she had made regarding bullying and harassment, and (possibly separate) other breaches of industrial relations legislation. If she were able to satisfy the Commission of these matters there could be a case for CSNSW to answer under s 210(1)(e) and (f) of the Act.
5. CSNSW denies that it victimised Ms Storr and disputes that the Demotion was in any way motivated by the matters alleged by her. None of the documents provided by CSNSW to Ms Storr from 12 September 2016 to 20 December 2016 make any reference to these issues. CSNSW submits that the disciplinary process, and ultimately the Demotion, was motivated exclusively by the First Allegations and the Second Allegations.
6. Ultimately, at the heart of the dispute between Ms Storr and CSNSW is a factual disagreement as to what occurred on 18 May 2016, and in particular what was said in the conversation between Ms Storr and SCO Jones. This is fundamental to Ms Storr proving that she requested and was granted leave. However, there are competing versions of this conversation in the evidence. This is not a conflict that I am able to resolve on the material available to me. I do not have all of the facts of the matter and they have not, in any event, been tested in evidence before the Commission. Suffice it to say, I consider that this evidentiary conflict represents a significant hurdle for Ms Storr.
7. In all of the circumstances I am not satisfied that any hardship that would be suffered by Ms Storr if the Commission rejects the Application warrants of itself the exercise of the Commission's discretion.
8. Ms Storr submits that there would be no hardship to the CSNSW should the application be allowed. Even if this were the case, it would not solely determinative of these proceedings: Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 at 6.
9. In any event, CSNSW submits that hardship would arise in having to defend a decision made some time ago, in particular in relation to the recollections of witnesses. Concerns are also raised as to the hardship that might be caused to SCO Jones, who was at the centre of the Second Allegations.
10. I have taken these submissions into account. I have also considered the comments made by McHugh J in Brisbane South Regional Health Authority referred to at [21] above. As stated by Newall C in Morawsky, relying on that authority: [10] His Honour goes on, and without reading the whole of the quote, to identify bases from which that central proposition flows, including of course, that people should be able to arrange their affairs on the basis that claims cannot be made once the time period has passed; that has an effect on, particularly, public institutions such as the respondent, which are ultimately taxpayer-funded.
11. Ultimately, the prejudice that may be caused to CSNSW if the Commission accepts the Application has not had a material bearing on my decision.

The conduct in relation to which the order is sought

1. In this matter, and for the purposes of s 213(4)(c) of the Act, it is necessary to clarify two things: firstly, precisely what conduct on the part of CSNSW is the subject of the Application; and, secondly, what is alleged to have caused that that conduct to amount to victimisation in contravention of s 210.
2. In relation to the alleged conduct, the Application refers to Ms Storr having received an "allegation of misconduct" on 12 September 2016. This is the conduct which, so far as the Application is concerned, is said to have amounted to victimisation under s 210. The Application does not directly reference the Demotion, although I note that paragraph B7 of the Application alleges a contravention of s 210(1)(e) and (f) of the Act "in that the Applicant has been and remains demoted as a consequence of the contravention".
3. The submissions filed on Ms Storr's behalf on 13 July 2018 are directed towards the motivation for and consequences of the Demotion. At [28] of Ms Storr's submissions the conduct in relation to which the order is sought is said to be as follows: The Applicant was demoted for exercising her right to personal or family and carers leave. [sic]
4. From my reading of the material, and as much as Ms Storr may have taken issue with having received the letter of allegations on 12 September 2016, it was the Demotion which is the principal source of her grievance. In my view, the Application should not be construed as limiting the impugned behaviour to the letter of 12 September 2016 but should extend to incorporate the Demotion.
5. I turn now to consider the basis on which it is alleged that in taking this conduct CSNSW contravened s 210 of the Act.
6. The Application asserts that when she left work on 18 May 2016 Ms Storr was availing herself of sick and/or carer's leave, being a benefit to which she was entitled under industrial relations legislation. This is also reflected in her submissions, and I have already referenced paragraph [28] of those submissions. It is not in dispute that CSNSW paid Ms Storr carer's leave for the time she was absent from work on that day.
7. The Application also makes reference to Ms Storr having informed CSNSW of breaches of "the industrial relations legislation" and of having completed a grievance form in relation to bullying and harassment. This would seem to form the basis of Ms Storr's reliance on s 210(1)(f) of the Act.
8. There is reference to the matters summarised in [68] above in Ms Storr's evidence but they are not explored in her submissions. It is unclear whether Ms Storr would intend to press this element of her claim if it proceeded on the merits. For caution, and for the purposes of this decision, I have assumed that she would.
9. I have taken into account the nature of the conduct alleged in the Application. I do not consider it determinative in the absence of sufficient other factors to warrant the exercise of this Commission's discretion.

Prospects of success

1. I have dealt with Ms Storr's prospects of success at [54] to [56] above.
2. It is necessary to address briefly the following submission made by CSNSW in relation to this issue: "[A]n application for relief from victimisation under section 213 is not the intended or appropriate process for appealing against a public sector disciplinary decision."
3. This submission is misguided. It is not supported by the language of the Act. An applicant might be prevented from pursuing multiple claims for the same conduct - "double dipping", as it were - but nothing can detract from the fact that the Act provides an applicant with a range of avenues from which to choose in pursuing relief. In the absence of a clear legislative intent to limit that choice, such a limitation should not be inferred.

Conclusion

1. For the reasons set out above I am not satisfied that Ms Storr has discharged her onus to persuade the Commission to accept the Application out of time. The delay is substantial. I am not satisfied that the reasons put forward by Ms Storr individually or cumulatively explain that delay.
2. I have considered the hardship that might be suffered by Ms Storr if I reject the Application, and by CSNSW if I accept it. I have also taken into account the nature of the conduct alleged in the Application. Again, I am not persuaded that these factors warrant the exercise of the Commission's discretion.
3. It follows that the application will not be accepted.

Orders

1. I make the following order: 1. The application for relief from victimisation made by Jannell Storr under s 213 of the Industrial Relations Act 1996 (NSW) is rejected on the basis that it is brought out of time. Damian Sloan 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: 23 August 2018