Jitendra Mohan Sud v NSW Department of Education and Training

DECISION 1Mr Jitendra Mohan Sud (the Applicant) was employed by the Director General, Department of Education and Communities (the Respondent) from 22 July 2002 until his dismissal as a full-time Mathematics Class-room Teacher.

BACKGROUND 2Mr Sud commenced his employment as a Teacher at Walgett Community High School. He was transferred to Randwick Boys' High School on 27 April 2004. 3In early 2008, Mr Sud was identified as experiencing difficulties with his classroom teaching and was required, amongst other things, to attend meetings with the Principal to discuss the implementation of a Teacher Improvement Program (TIP). He refused to comply with those directions and was subsequently terminated on 13 November 2009. 4A section 84 application was heard by Macdonald C who, on 16 July 2010 ordered his reinstatement with continuity of employment Jitendra Mohan Sud v NSW Department of Education and Training [2010] NSWIRComm 1024. 5An appeal by the Department to a Full Bench was dismissed and, on 3 November 2010, Mr Sud's reinstatement was confirmed: NSW Department of Education and Training v Sud [2010] NSWIRComm 147. 6Nevertheless, the appeal was upheld to the extent that the Full Bench held the following: Nothing in this decision in any way limits the Department from implementing a Teachers Improvement Program. If one is introduced, a decision to that effect (if necessary, confirming any previous instruction) should be made as soon as possible after this decision. Mr Sud shall attend the program in accordance with any lawful terms imposed. Any failure to comply with the performance improvement program by Mr Sud may be dealt with in accordance with s 93J of the Teaching Service Act 1980. 7On resumption of work, a meeting was arranged between Mr Sud and the Principal to discuss the implementation of the TIP. 8The TIP was prepared and was scheduled to commence on 15 November 2010 but was not implemented for reasons set out below. 9As a result, Mr Sud was directed to non-teaching alternative duties at the Department's Bondi District Office from 17 February 2011 and the matter was referred to the Employee Performance and Conduct (EPAC) Directorate for investigation of Mr Sud's alleged misconduct. 10On 17 February 2011, Mr Sud applied for, and was granted leave of absence without pay by Ms Sue Cran. Ms Stephanie Canacles, for Bill Reid, Leader, Employee Services-Wollongong, wrote to the Applicant at his post office box address at Randwick on 25 February 2011 advising of the approval of his application for leave without pay for the period 18 February 2011 to 26 January 2012. The correspondence stated in part, Should you change your correspondence address from that noted above, please notify the office in writing. You will maintain right of return to your position at Randwick Boys HS at the end of this leave. 11In the interim, the investigation into his conduct was continuing. A letter dated 23 February 2011 was forwarded to Mr Sud at his post office box address setting out the allegations against him. No response was received by the Respondent. 12The investigation was completed. A copy of the investigation report, and an accompanying letter from the decision maker, were forwarded to the Mr Sud on 15 June 2011 by express post to his post office box address. Mr Sud was advised that he had engaged in misconduct and dismissal was being considered. Mr Sud was provided with 14 days to respond. No response was received by the Respondent. 13Mr Sud was dismissed by letter dated 7 July 2011 sent to three of his last known addresses: In relation to the post office box address at Rockdale, the copy sent by express post was returned with the notation "Not on this address". Another forwarded by registered post to the post office box address at Rockdale was returned unclaimed. A third copy sent in an unmarked envelope to the said post office box address was not returned. 14A copy of the letter was forwarded to a Carlton address previously provided to the Respondent by the Applicant. That was returned with the notation, "Not on this address". 15When he attended for work on 28 January 2012, he was advised by the Principal of Randwick Boys' High School, Mr Duncombe, that his employment had been terminated by letter sent to his Carlton address on 7 July 2011. 16Mr Sud sought legal advice and as a result filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the IR Act) on 8 February 2012, 216 days after his dismissal. 17The Respondent contended that the application was 195 days out of time and pressed that contention as a jurisdictional issue. 18The Applicant contended that he did not receive any of the letters of termination nor was he informed of his termination prior to 28 January 2012 and therefore his claim is not out of time.

LEGISLATIVE FRAMEWORK 19Section 85, Time for Making Applications, of the IR Act relevantly provides as follows: 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 thee 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. 20Section 5A of the Teaching Service Act 1980 (the Teaching Act) provides: (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. 21The objects of Part 4A of the Teaching Act which deals with management of conduct and performance are found in section 93A. This provides: 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. 22Section 93F of the Teaching Act provides in part: (1) If an allegation is made to the Director General that an officer may have engaged in any misconduct, the Director General may do either or both of the following: (a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, (b) take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Director -General may, if the Director-General is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Director-General is considering taking. 23Section 93H of the Teaching Act provides: (1) If, following completion of the review of an officer's performance, the Director General is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Director General may implement a performance improvement program for the officer. (2) The officer must participate in any such performance improvement program in the manner required by the program. (3) A performance improvement program is to be on such terms, and is to be implemented for such period, as the Director General considers appropriate. 24Section 93Q of Part 4A of the Teaching Act provides as follows: 93Q Officer whose address is unknown If the Address for the time being of an officer is unknown to the Director-General, any notice required to be given to the officer under this part may be posted to the address of the officer last known to the Director-General. 25Regulation 5 of the Teaching Service Regulation 2007 (the Teaching Regulation) provides as follows: 5. Compliance with directions (1) A member of the Teaching Service must immediately comply with any lawful direction given by a person who has authority under the Act or this Regulation to give the direction. (2) A request for the review of a direction may be made by or on behalf of one or more members of the Teaching Service by means of a notice in writing given to the person who gave the direction. (3) The person to whom such a notice is given must immediately sent it to the Director-General or to an officer authorised by the Director-General in writing for the purposes of this clause. (4) The making of a request for the review of a direction does not relieve a member of the Teaching Service or his or her obligations to comply with the direction as far as is reasonably practicable. 26Part 4.1 of the DET Code of Conduct provides: 4.1 As a departmental employee, you are expected to: (i) perform your duties to the best of your ability and be accountable for your performance (ii) follow reasonable instructions given by a supervisor (iii) comply with a lawful direction

THE EVIDENCE 27The following are noted in relation to the evidence: (1) All meetings held with Mr Sud were minuted and copies of the minutes were annexed to the Respondent's statements; (2) Contemporaneous notes were kept of all conversations held with Mr Sud and copies of those notes were also annexed to the Respondent's statements; (3) In all the correspondence that passed from the Respondent to the Applicant, he was reminded of the confidential counselling services that he can access through the Employee Assistance Program (EAP) and was provided with contact numbers; (4) In addition, each time he was required to attend a meeting, he was reminded of his ability to have a support person accompany him. (5) Despite Mr Sud referring to "the rules" on a number of occasions, he had ignored requests for clarification of his comments.

The Applicant's Evidence 28Mr Jitendra Mohan Sud provided a statement in the proceedings to which he attached correspondence that passed between the parties and on which he relied. 29In a letter to Mr Sud dated 5 November 2010, the Principal of Randwick Boys' High School, Wayne Duncombe, noted that the Industrial Relations Commission had reinstated him effective from 3 November 2010 but the Applicant was absent sick on 4 November 2010 and recommenced at work on 5 November 2010. The correspondence went on to identify the classes he was being allocated and teaching was to commence on8 November 2010. In the interim, he was to sit in as an observer on a number of classes. He was also informed of the action being taken to ensure his computer access was restored. Finally, an appointment was made to meet with Mr Sud on 10 November 2010 to discuss the actions outlined in a letter sent to him by the EPAC Directorate to his home address by express post. He was asked to provide his current address, contact telephone numbers and car registration details to the Administration staff by the end of that day to ensure that the Respondent's records are accurate. 30The correspondence from Kevin Schipp, A/Director, EPAC, dated 5 November 2010 was forwarded to Mr Sud at a Blakehurst address. The correspondence pointed out that prior to his dismissal, Mr Sud had been identified by the Principal as a teacher experiencing difficulties with his performance. He was advised that, upon resumption, arrangements will be made to place him on a Teacher Improvement Program (TIP) in accordance with the Department's Teacher Improvement Program Procedures dated February 2010. A copy of the procedures were attached for his information. He was invited to contact the author if he had any queries. 31A further letter was forwarded to Mr Sud dated 8 November 2010 in which Principal Duncombe advised that a meeting had been organised on 10 November 2010 to discuss the difficulties he was experiencing in his role as a teacher and to commence the implementation of a formal TIP. He was informed that the Head Teacher, Mrs Yiota Loizou, would be in attendance and would be oversighting the implementation of the TIP. Attached was copy of the Program in full for his information. He was encouraged to read it prior to the meeting and take it with him to the meeting. He was also advised to contact the NSW Teachers' Federation for advice in relation to the procedures. He was also advised that he may take a support person with him to the confidential meeting. 32Mr Sud attached to his statement a copy of the Minutes of the meeting of 10 November 2010 as prepared by Mr B Thornton, Minute Taker, who also happened to be the NSW Teachers' Federation representative. It is noted that also present at the meeting were Principal Duncombe, Ms Loizou and the Applicant. It is also noted that Mr Sud did not have a support person in attendance with him. A reading of the minutes demonstrates that Mr Sud did not actively participate in the meeting. He said he was in attendance only to receive a copy of the TIP prepared for him and the check list he needed to go through and did not want to pursue the meeting any further and would not make any further comments except to say that the letter of 5 November 2010 from DET violated DET rules and so can be ignored and, on that basis, the letter from the Principal can be ignored as well as it is based on the letter from DET. Mr Duncombe advised that a further meeting would be required and input from Mr Sud would be welcome as the TIP was scheduled to commence on 15 November 2010. In discussions, Principal Duncombe identified Mr Sud's strengths. He advised Mr Sud that his name would be flagged on the DET Computerised Program as a person on an Improvement Program. 33Principal Duncombe wrote to Mr Sud on 11 November 2010 to confirm all the documents provided to him on10 November 2010 and to advise that a further meeting has been scheduled for 12 November 2010 at which time he expected to collect from him the signed documents provided to him, discuss with him any comments he had in relation to the TIP, determine a time for regular meetings and determine which classes Mr Duncombe and Ms Loizou would be attending, separately, during the first week . 34The meeting scheduled for 12 November 2010 did not proceed as Mr Sud was absent from school. The meeting was rescheduled for 18 November 2010. He was reminded of all the matters contained in the letter of 11 November 2010. 35The meeting scheduled for 18 November 2010 did not proceed as Mr Sud was absent from school. The meeting was rescheduled for 22 November 2010. Once again, he was reminded of all the matters contained in the letter of 11 November 2010. 36The meeting scheduled for 22 November 2010 proceeded as planned. Ms Loizou was not in attendance. Mr Sud confirmed that the minutes of the meeting of 1 November 2010 were accurate but apart from that refused to comment on anything else, including the TIP. He provided Mr Thornton with a prepared statement to record in the minutes. The following statement brought the meeting to an abrupt end despite the detailed agenda prepared for that meeting: As I have already mentioned during the meeting of 10th November 2010, that the provided documents violates the Department of Education Rules. Today's meeting is again the repetition of the same, and hence violating rules again. I will be walking out of this meeting as Mr Wayne needs to comply with the rules. If you have any questions, please give me in writing. 37On 25 November 2010, Principal Duncombe wrote to Mr Sud advising that the TIP had been finalised and attaching a copy of it. He was provided with a time table for his and Ms Loizou's visits and the timeframe for the program. He was also advised that weekly meetings would be held each Thursday to discuss his progress, with the first meeting scheduled for 2 December 2010. He was reminded of his obligations pursuant to that program. Finally, Principal Duncombe asked the Applicant to see him as soon as possible to explain why he believed that the DET letter of 5 November and the documents that he had provided to Mr Sud violated the DET rules. 38Mr Sud attached a handwritten note to his statement signed by Mr Thornton as Federation Representative. Mr Thornton noted what Mr Sud said to him on 25 November 2010 regarding the TIP prepared for him:

The Respondent's Evidence 68Mr Kevin John Schipp has been Manager, Staff Efficiency and Conduct Unit, with the Respondent since March 2005 having commenced in that Unit in 2002 and as a classroom teacher in 1975. 69Mr Schipp said he has been aware of concerns Principal Duncombe had with Mr Sud's performance since around April 2008 when the former sought assistance in relation to a TIP for the latter. 70Mr Schipp confirmed that he was aware of the decision of Macdonald C, and the outcome of the subsequent appeal by the Respondent. He confirmed that he had written to Mr Sud advising of the requirement to participate in a TIP upon resumption following his reinstatement. 71Mr Schipp stated that he did not become aware of Mr Sud's concerns, as contained in the handwritten note dated 2 February 2011, until he read Mr Sud's statement prepared in these proceedings. 72Mr Schipp stated that he had been aware of the concerns about Mr Sud's conduct and the fact that those concerns had been referred to EPAC for investigation. He had also been aware of the allegation that Mr Sud had not complied with directions regarding the TIP and the direction by Ms Thorpe that he perform alternative duties pending the outcome of the investigations. 73Mr Schipp recalled a telephone conversation he had with Ms Cran on 17 February 2011 when she called to discuss Mr Sud's application for LWOP: Cran: Mr Sud has sought approval to take a period of leave without pay rather than attend alternative duties. I would like your input from an EPAC perspective before I make a decision. Schipp: That would be acceptable as long as he is aware that his mater will be progressed and we will need to get in contact him during the process. We need an address and a telephone number for him. He said he subsequently received an email from Ms Cran providing Mr Sud's post office box address and his wife's mobile telephone number. He said he spoke to Ms Cran and asked that she attempt to obtain a residential address for him. 74Mr Schipp stated that he was aware of Mr Sud's contention, made during meetings with Principal Duncombe, that the Department was not following the rules. However, he was not aware of any clarification provided by Mr Sud or any particular allegations made against the principal either then or now by either Mr Sud or his barrister. 75He confirmed that he, as Manager, Staff Efficiency and Conduct Team, signed the letter of allegations addressed to Mr Sud at his post office box address on 23 February 2011. He recalled that no response was received from the Applicant. 76Mr Schipp asked Mr Paul Conroy, the Employee Performance Officer, to contact Mr Sud's on his wife's mobile telephone number to chase up a response. He received the following email response from Mr Conroy: on 17 March 2011: I spoke to Mrs Sud: She confirmed PO address was correct. I advised her that a letter from you to Mr Sud was issued to the PO Box address on 23 February 2011 That no response had been received from Mr Sud and that the matter would be progressed. She said she would inform Mr Sud I then asked if she would provide their residential address ... she advised that they didn't like to give the address out I advised: this was a serious matter and the Dept were keen to ensure Mr Sud received correspondence it is a requirement that all DET personnel provide a residential address Mrs Sud again agreed to inform Mr Sud. 77The investigation report into the allegations of misconduct by Mr Sud was completed and referred to the decision maker, Mr Peter Riordan, the Deputy Director-General, Workforce Management and Systems Improvement. Mr Riordan sought from him, on or about 25 May 2011,any further information he was required to take into account in arriving at his decision in the matter. He provided that additional information on 8 June 2011. 78Mr Riordan formed the opinion that Mr Sud had engaged in misconduct and informed him accordingly in correspondence dated 15 June 2011. Attached to that letter was a copy of the investigation report and annexures. Mr Sud was provided with an opportunity to make submissions in relation to the proposed disciplinary action. Mr Schipp arranged for Mr Conroy to forward the letter and enclosures to Mr Sud by express post. No response was received from Mr Sud. 79On or about 7 July 2011, Mr Schipp became aware of Mr Riordan's decision to terminate Mr Sud's employment. Mr Riordan signed correspondence to that effect on the same date. 80On 8 July 2011, Mr Schipp said he telephoned Mrs Aish Sud on the mobile telephone number provided by her husband. He kept a contemporaneous note of that conversation. Mr Karen Wee, Administrative Officer, was present during that telephone conversation and made a note of it on ASIS. He recalled the conversation as follows: Schipp: Hi is that Mrs Sud? Female: Yes. Schipp: Are you married to Mr Jitendra Sud? Female: Yes. Schipp: My name is Kevin Schipp I am the Relieving Director of the Employee Performance and Conduct Directorate with the Department of Education. We are sending some correspondence to Mr Sud and I just want to confirm the address. The address we have is PO Box 222 Rockdale NSW 2216, is that correct? Mrs Sud: Yes. Schipp: Does Mr Sud receive mail at that address? Mrs Sud: Yes Schipp: So if I send some correspondence to Mr Sud at that address he would get it? Mrs Sud: Yes. Schipp: We have sent some correspondence out to Mr Sud at that address and he should expect that to be delivered in the next couple of days. Mrs Sud: OK 81Mr Schipp provided an itemised bill for the telephone number he was using to prove that such a call was made on that date to Aish Sud's mobile number at 11.43 am. 82Mr Schipp was aware that the letter was returned with the notation "Not on this address". Mr Schipp directed, in accordance with s 93Q of Part 4A of the Teaching Services Act, that copies of the dismissal letter be sent to various addresses that had been used by Mr Sud over the last couple of years. 83Mr Paul Bernard Conroy, Employee Performance Officer, Staff Efficiency and Conduct Team, provided a statement in the proceedings in which he advised that he had been allocated Mr Sud's file in or around November 2010. Mr Sud had been identified as experiencing difficulties with his teaching and Mr Conroy was assigned to provide support and advice to Principal Duncombe in implementing a TIP for Mr Sud. 84He stated that Mr Duncombe called him on more than one occasion to advise that Mr Sud was not participating in the process. 85Mr Conroy stated that on 23 February 2011, he arranged for a letter of allegations to be mailed to Mr Sud addressed to his post office box address. That letter, to his knowledge, was not returned to the Department. Nevertheless, no response was received from Mr Sud. 86On 17 March 2011, Mr Conroy received an email from Ms Cran regarding her futile attempts to contact Mr Sud. The email, which was annexed to his statement, stated as follows: ... When I met with Mr Sud 17/2 he assured me that I would be able to contact him through his wife's phone number .... I have made the following contacts/requests 24/2 Spoke to Aish and asked Jitendra to call me at the office - gave the number 1/3 Spoke to Aish and asked Jitendra to call me at the office. Aish told me that Jitendra was not living in Sydney. I asked if he was in Australia and she answered yes 2/3 Left a message asking jitendra to call me at the office 7/3 Left a message asking Jitendra to me at the office within the next 24 hours 8/3 Spoke to Aish and told her that I was very disappointed. I said that Jitendra had given me his word. I explained that I had supported his request to take leave on the basis that I could contact him but that he has let me down. I commented that this was the 5th time I had called. I asked that he please call me. 17/3 I called and the phone was answered by someone who sounded like Aish. When I introduced myself she hung up. 87Mr Conroy stated that he contacted Mrs Sud on the same mobile number also on 17 March 2011. They had the following conversation: Conroy: Hello Mrs Sud my name is Paul Conroy from the Department of Education and Training Mrs Sud: I am sorry Sue Cran tried to call me but we got cut off. Conroy: Can I ask that you confirm the PO Box address that we have for Mr Sud? Mrs Sud: It is PO Box .... Rockdale [number confirmed]. Conroy: And the postcode? Mrs Sud: It is 2216. Conroy: A letter was issued to Mr Sud at that address on 23 February 2011 from Mr Kevin Schipp and Mr Sud had not responded. Could you please advise Mr Sud that the matter will be progressed. Mrs Sud: I will tell him. Conroy: Are you able to provide a residential address? Mrs Sud: The PO Box is the address. Conroy: I meant an address where you live like in a house. Mrs Sud: We don't like to give that out. Conroy: We need it for future correspondence as it is a serious matter and the Department are keen to ensure that correspondence is received by Mr Sud. It is also a requirement that Departmental personnel provide a residential address. Mrs Sud: I will let Mr Sud know. 88Mr Conroy stated that he had kept a contemporaneous note of that conversation, a copy of which he attached to his statement. Mr Conroy provided an itemised bill for the telephone number he was using to prove that such a call was made on that date to Aish Sud's mobile number at 2.18 pm. He had relayed the above conversation to Mr Schipp and Ms Cran in separate emails on the same day 89Mr Conroy sent a letter from Mr Riordan, together with the investigation report, to Mr Sud via express post envelope to the post office box address. Proof of express post delivery was annexed to the Statement. Proof was also provided of the returned envelope marked with the notation "NOT ON THIS ADDRESS". 90Mr Conroy tracked the delivery of the letter with the Australia Post Inquiry Line. He was advised, on 18 July 2011, that the letter was delivered to the Rockdale post office box address on 11 July 2011; the person who had access to that post office box would have made the notation and returned it; and it was returned to Waterloo Post Office on 13 July 2011. 91As a result, an electoral roll search was conducted which revealed that no one with that name was listed. The only Suds on the Roll were a "Julius Mohan Sud" and a "Freddy Mohan Sud" - both listed as the same address at Carlton NSW. It was noted that the Applicant had used the same address in the past. 92Mr Conroy did as directed and sent copies of the dismissal letter in both marked and unmarked enveloped to a number of different addresses, including the Carlton address. The envelope forwarded to the Carlton address was returned with the same handwritten notation "NOT ON THIS ADDRESS". A copy of the front of that envelope containing the notation was annexed to his statement. The copies that were forwarded in unmarked envelopes to the Loftus and Rockdale addresses were not returned to the Department. The envelope sent by registered mail to the post office box address at Rockdale was returned to the Department. A card had been issued by Australia Post but the envelope had not been collected. 93The Respondent transferred his termination pay, amounting to a sum of $7,038.83, into the Applicant's bank account on 22 July 2011. 94On or about 5 August 2011, he was aware that another letter was sent by Mr Schipp to Mr Sud's post office box address at Rockdale. That letter was also returned with the identical notation "NOT ON THIS ADDRESS". 95Ms Thorpe, Director, Employee Performance and Conduct Directorate, on 22 August 2011, forwarded correspondence in a marked envelope to the post office box address of the Applicant advising that his name had been place on the Not To Be Employed List. That envelope was subsequently returned with the identical notation "NOT ON THIS ADDRESS". 96Mr Wayne Reginald Duncombe, Principal of Randwick Boys' High School, provided a statement in the proceedings in which he advised that he had identified Mr Sud as experiencing teaching difficulties back in 2008. When Mr Sud resumed duties on 5 November 2010 following his reinstatement, Mr Duncombe resumed his attempts to deal with those difficulties. 97Mr Duncombe stated that he was painfully aware of the previous IRC proceedings involving Mr Sud and therefore had taken pains to ensure, by close liaison with the Staff Efficiency and Conduct Directorate, that the process he followed was fair and was consistent with the Department's policies and procedures. 98He confirmed that he provided Mr Sud with the 5 November 2010 letter from Mr Schipp relating to the conditions upon which he was returning to work. 99On 8 November 2010, Mr Duncombe provided with Mr Sud with a letter confirming a meeting to be held on 10 November 2010 to discuss his teaching difficulties and to commence implementing a TIP. Mr Sud went home sick at 11 am on that day. 100At the meeting on 10 November, 2010 (during which Minutes were kept), Mr Sud was provided with all the relevant documentation relating to the TIP and was given a couple of days to digest that information. 101On 11 November, 2010, he provided Mr Sud with a letter advising that a further meeting had been scheduled for 12 November for prepare for the implementation of the TIP. Mr Sud absented himself from work on 12 November 2010. No medical certificate was provided in relation to that absence. 102The meeting was rescheduled, by letter dated 15 November 2010, to 18 November 2010. Mr Sud absented himself from work on 16 and 18 November 2010. No medical certificates were provided in relation to those absences. 103The meeting was rescheduled once again, by letter dated 19 November 2010, to 22 November 2010. Details of the meeting are set out above. 104Mr Duncombe, by letter dated 25 November 2010, advised Mr Sud that the TIP had been finalised and was ready to commence. He also advised of the schedule of observations to commence on 30 November 2010. 105As a result of the contents of a handwritten document provided to him by Mr Thornton, and confirmed by Mr Sud as his comments, Mr Duncombe prepared a letter dated 26 November 2010 directing Mr Sud to participate fully in the TIP. Upon handing that letter over, Mr Sud said to him "I have consulted my lawyer and this letter is different because it is a legal direction, I will need at least 10 days to respond". Mr Duncombe stated that he had replied by reminding Mr Sud that the TIP had commenced. Mr Duncombe stated that he had never been contacted by anyone purporting to be Mr Sud's legal representative. 106Mr Sud absented himself from work on 29 and 30 November 2010. No medical certificates were provided in relation to those absences. 107At the request of Mr Duncombe made on 1 December 2010, Mr Sud met with him that morning at which time Mr Duncombe handed him a letter dated the same day setting out the schedule of observations to be conducted during week commencing 6 December 2010. 108Mr Duncombe, accompanied by Mr Thonton, proceeded to observe Mr Sud's lesson during period 3 on 1 December 2010. Mr Duncombe annexed contemporaneous notes he kept of that conversation to his statement. He recalled the following conversation with Mr Sud: Duncombe: Good morning, I am here to observe your lesson. Sud: No. Duncombe: I am here to observe your lesson. Are you going to participate? Sud: No. You must follow the rules. Duncombe: Do I take it you are not going to participate? Sud: No. You must follow the rules. Duncombe: Are you going to participate? Sud: You must follow the rules. Duncombe: I take it from that, that you are not going to participate. Sud: Must follow rules. Duncombe: I will take that as a statement that you are not going to participate. 109Mr Sud went home sick after lunch on 1 December 2010 and remained absent until 17 December 2010 which was the end of the school year. He did not provide a medical certificate for that absence. 110On 28 January 2011, Mr Duncombe said he met with Mr Sud and provided him with two documents dated the same day - firstly, a letter directing him to participate in the TIP and, in particular allowing observations of his lessons; and, secondly, a letter setting out a summary of concerns regarding conduct issues which had been brought to his attention. 111Mr Sud was absent from work on 1 February 2011. On resumption on 2 February 2011, Mr Duncombe said he handed him three letters which are described above. Mr Duncombe denied receiving or having any knowledge of Mr Sud's handwritten note of 2 February prior to reading it as part of the annexures to his statement in these proceedings. 112On or about 2 February 2011, Ms Loizou, Head Teacher Mathematics, provided him with a letter handed to her by Mr Sud. That letter was a copy of the letter provided to him by Mr Duncombe on 1 February 2011 setting out the observations to commence in week beginning 7 February 2011. Mr Duncombe annexed that document to his statement. It is noted that Mr Sud had hand written on top of the typed letter the following: Copy to H.T. ()Maths) Principal need to follow rules. Avoid force entry to class (Signed) (J. Sud) 02/02/1 113Mr Duncombe confirmed that he held a meeting with Mr Sud on 2 February 2012 but denied receiving any correspondence at the conclusion of that meeting pointing out that he had a numbering system he followed in relation to correspondence and he had no record of that letter. 114Mr Duncombe said he went to Mr Sud's classroom in period 5 on 8 February 2011 to observe in accordance with the TIP and held the following conversation with Mr Sud: Duncombe: Mr Sud will you be participating in this lesson observation? Sud: No Duncombe: Will you be participating in future lesson observations? Sud: No. Duncombe: Will you be participating in the review meeting on Thursday? Sud: No. I will participate in the meeting if I am advised of it in writing but lessons, no. 115Mr Sud was absent from work on 9 February 2011. Mr Sud did not attend the weekly review meeting scheduled for 10 February 2011. 116Mr Duncombe stated that he was accompanied by Ms Loizou to the lesson observation on 11 February 2011. He reported the following conversation with Mr Sud outside the classroom: Duncombe: Mr Sud, will you be participating in the lesson observation? Sud: Because you are not following the rules, I will not participate. Duncombe: Will you be participating in future lesson observations? Sud: We'll see. 117Later in the day, Ms Cran attended at the School and held a meeting with Messrs Duncombe and Sud. Mr Duncombe observed Ms Cran hand over to Mr Sud a letter directing him to participate in the TIP. 118Mr Sud left the school at approximately 1.30 pm on 11 February claiming that he was sick. He was absent on 14 - 16 February 2011 inclusive. 119When Mr Sud attended for work on 17 February 2011, Mr Duncombe said he handed him a letter dated 14 February from Ms Thorpe relating to alternative duties. 120Mr Duncombe confirmed that when Mr Sud attended the school on 28 January 2012, he reported to him and had the following conversation: Sud: I am returning to duty. Duncombe: Jitendra, it is my understanding that your employment has been terminated. Sud: No I have been on leave without pay. 121Mr Sud showed him the letter from Ms Canales approving his LWOP. Mr Duncombe stated that he contacted the Staff Efficiency and Conduct team to obtain details of the dismissal which he wrote on the document provided to him by Mr Sud and then returned the document to Mr Sud before instructing him to leave the premises. 122Mr Duncombe gave evidence that he had observed Mr Sud using a mobile telephone at Randwick Boys' High School. 123During cross-examination, Mr Duncombe agreed that the TIP is made up of both informal and formal processes. He said that he had received advice from Mr Schipp to proceed directly to the formal processes of the TIP because the Department had already attempted to engage Mr Sud with informal support towards the end of 2008 and he had rejected it - he refused to attend meetings and took 42 days single day absences from school sequentially but rang in every day for each of the 42 days thereby creating logistical problems in terms of being able to provide casual support for his classes. For that reason, Mr Duncombe had not undertaken any of the types of informal support available under that Program. 124He denied that Mr Sud was being set up for dismissal by going directly to the formal process under TIP. A. I think that is incorrect and the reason for that is that the purpose of a Teacher Improvement Program is to support a teacher to reach a satisfactory level of teaching. The aim of the Teacher Improvement Program is not of itself termination, that may be a consequence of it but it's not the aim of the Teacher Improvement Program. I had identified concerns with Mr Sud's teaching, it was my aim, through the Teacher Improvement Program, to provide a formal mechanism of support to see if Mr Sud could reach a satisfactory level of teaching. 125Mr Duncombe was emphatic that he did not know what Mr Sud was talking about when he referred to him not following the rules. He said he asked Mr Sud, on more than one occasion, to explain what he meant because he was happy to engage him in a discussion of what the rules were but Mr Sud refused to elaborate. 126Mr Samuel John Cox provided a statement in the proceedings in which he advised that he is a classroom teacher at Randwick Boys' High School. During cross-examination, Mr Cox confirmed that he had joined the Mathematics Department at Randwick Boys' High School at the beginning of 2010, after Mr Sud was terminated in November 2009. At the time Mr Sud was reinstated, he was a permanent full-time employee in that Department and there was an excess maths teacher position at the school. 127He said that, on the afternoon of 5 November 2010, he was sitting at his desk in the mathematics room when he overheard a conversation between Mr Sud and Ms Loizou. Mr Cox provided a description of the lay out of the staff room and explained that Ms Saxena was also present in the staff room during the conversation which appeared to be quite pleasant. He said he overheard Mr Sud comment on the role of a teacher and also made comments about Principal Duncombe. He said he noted that Mr Sud's voice became raised when he referred to the Principal. 128Mr Cox said that when Mr Sud left the room, Ms Loizou suggested that they prepare a statement about what they had overheard. Together they prepared some notes about what said and Ms Loizou typed them up. Later in the day, he had checked the typed notes and was satisfied they were an accurate reflection of the conversation. 129It was a few weeks' later (on 25 November 2010) that Ms Loizou approached him and asked him to sign the typed notes which he did. He explained that Ms Loizou was not available to give evidence herself as he was on extended leave caring for her husband who was unwell. 130During cross-examination, Mr Cox said he was working at his desk but was able to hear what was being said and, at one point, Ms Loizou had asked him a question about a projector - one of the things they were discussing. 131He had been provided with a copy of the statement but not asked to sign it at that time. He did not resile from the contents of the statement. He said he signed it when he was asked to do so but denied that it was to impress Ms Loizou. 132The statement contained the following relevant matters: I know nobody can kick me out from here. If they do I will be back again and again. I don't know how long I will be back or how long I will be here. I will be sick 80% of the time or more. The days I am here, I don't know how long I will be here. I don't know. I have another business and I will be attending to it. I make over half a million dollars in my other business. Do you know how much my house is worth? I live in a 3 million dollar house and I drive a car worth over $100,000. I can't get that on a teacher's pay. that only gives me $45,000 - $50,000 after tax. So you see I don't even need the money from teaching. You saw the top barristers I had in the court. They cost more than the two years back pay. They charge a lot. I have come with a different way of thinking. They want to play nasty. I have been treated very badly. I am only here to get on those people's back. Spent more than 2 years of pay on courts. 133Mr Cox said that, in response to a comment from Ms Loizou pointing out her concern that the students will be affected by his actions, Mr Sud had continued: Kids? Who cares about students? I don't care about students. The principal does not care about the teachers so why should the teachers care about the students? It's like water: it runs from the top down, it doesn't go up..... they cannot put me on a program. I am telling you: be prepared for all these stupid things. They cannot put me on program. 134Mr Cox said that, at one stage, Mr Sud angrily referred to the principal as "the bastard treated me badly", 135Ms Susan Caroline Cran provided a statement in the proceedings in which she advised that she is employed by the Respondent as the School Education Director, Woronora River Network. 136She was emphatic that Mr Sud had not, at any time, complained to her about Mr Duncombe's alleged behaviour towards him since his reinstatement. 137Ms Cran pointed out that Mr Sud had previously been on alternative duties at the Bondi Regional Office whilst allegations of misconduct were being investigated. As she had experienced difficulties with his attendance on that occasion, she took pains to ensure that, on this occasion, he understood exactly what was required of him. To that end, she had handed him, on the morning of 17 February 2011, a document titled "Protocols for Alternative Duties" and confirmed that it contained the protocols he was required to observe while on alternative duties at Bondi. He replied that he had no questions regarding that document when she inquired of him. During cross-examination, Ms Cran stated that it was intended that either she, or a member of her staff, would check on Mr Sud's whereabouts during the day to ensure compliance with the protocols which included when he would take his breaks. During re-examination, Ms Cran pointed out that the protocols were intended to have general application to all officers reporting for alternate duties at the Bondi regional office. 138Ms Cran said that she took him to his workstation downstairs and returned to her office. A short time later, Ms Louise Ferguson, Regional Director, School Education Director, Sydney Port Jackson came to her office and said to her that Mr Sud had asked for a period of leave of absence without pay pending resolution of the allegations against him. 139Ms Cran said she called Mr Schipp to obtain advice from him. She could not recall making that telephone call in the presence of Mr Sud. Mr Schipp had no problem with it providing Mr Sud provided contact details in the form a telephone number and contact address as the matter was going to be progressed in his absence. 140She had a pleasant and reasonable 10-15 minutes conversation with Mr Sud during which she relayed what was required of him. The following conversation took place: Cran: EPAC have agreed to allow you to take leave so long as we have a residential address and a telephone number so we can contact you. We will need to contact you because things will still be happening in this matter. Sud: I don't want to give my residential address. Cran: In your form you have indicated that you want leave without pay until your matter is resolved, this is why we need your contact details. EPAC need to be able to contact you. Sud: You can use the PO box address. Cran: How do we know we can get through to you with that? Sud: My wife empties it every day. Cran: We will need a contact number as well. Sud: I don't have a mobile phone. Cran: I can't let you take leave unless I have a way of getting in contact with you. Sud: I can give you my wife Aish's mobile number and I assure you that if you call that number I will call you back.... 141Ms Cran was emphatic that Mr Sud had not mentioned "travel" when he requested LWOP. 142During cross-examination, Ms Cran insisted that she had not made any telephone calls in his presence and the request for a contact number was not an afterthought. She said that he had given her Mrs Sud's mobile number but she had not yet written it on the form. Cran: I don't recollect whether the conversation asking Mr Sud for a phone contact was prior to me photocopying or where it was in that conversation, but the conversation I had with Mr Sud about the phone was crucial to the leave and was done prior to approving the leave, not after it.... ..... A. No, I asked him for a phone number because I said that EPAC had to be able to contact him. I said we had to be able to contact him, when I spoke to Kevin Schipp, prior to talking to Mr Sud, he insisted that I would need a residential address and a phone number. I was asking Mr Sud for a phone number. Boyce: You didn't see the need to put any of these requirements on the form approving his leave without pay? A. No I didn't because the conversation was amicable, I did not realise that, I suppose, that particular conversation would come under this much scrutiny. I assumed it was understood because I was very explicit that we needed a phone number and we needed a residential address. No I didn't write it all on the form, if I had my time again I would have. 143Ms Cran insisted that she had not inserted an end date on Mr Sud's LWOP application nor had she, at any time during her conversation with him, approved a period of 12 months' LWOP. She attached a copy of the form on which she had indicated Aish's mobile telephone number and noted that EPAC had approved the leave. 144Ms Cran insisted that had Mr Sud informed her that he was going to be out of Sydney during that leave, that advice would have gone against the granting of the application as she was aware that the matter was to be progressed in his absence, hence the requirement for him to provide a contact telephone number and address. She annexed to her statement a copy of an email she had forwarded to Mr Schipp at 11.56 am confirming the contents of her statement. 145Ms Cran stated that, as School Education Director, she would have been made aware if any concerns were raised in relation to the Principal of Randwick Boys' High School and she had not. 146Ms Cran could not recall having any discussion with Mr Sud on 18 February 2011. She had also checked her telephone bill and cannot find any trace of a call to Aish Sud's mobile on that day. 147On Mr Schipp's insistence, she had called Mrs Sud on 24 February 2011 and asked for the Applicant to call her. She needed to talk to him about a query he had regarding his pay and use that opportunity to ask for a residential address. Mrs Sud agreed to give her husband the message to call Ms Cran. Again there was a paper trail confirming that statement. Ms Cran had emailed Mr Reid (c.c. Mr Schipp) on the same date to confirm the above. 148As Mr Sud had not responded to the 24 February message, Ms Cran said she called Aish Sud again on 1 March 2011, identified herself and asked her to get Mr Sud to call her. She said Mrs Sud advised that her husband was not living in Sydney at the moment but confirmed that he was in Australia. Mr Sud did not return that call either. 149Ms Cran said she left a message on Mrs Sud's mobile telephone on 2 March 2011 asking for Mr Sud to call her. Once again, Mr Sud did not return that call. 150Ms Cran said she made two further attempts at contacting Mr Sud on 7 march 2011 - 3.01 pm when the phone was not answered and again at 3.02 pm when she left a voice message. 151Ms Cran called Aish Sud again on 8 March 2011 at approximately 1.46 pm at which time she voiced her frustration at not being able to speak to Mr Sud "I am very disappointed that Jitendra has not returned my call. He gave me his word. I feel as though he has lied to me - I gave him what he wanted - but he has let me down. this is the 5th time that I have called. Please ask him to call me." Mr Sud did not return that call. 152 Ms Cran called again at approximately 1.50 pm on 17 March 2011 but the phone was disconnected after she identified herself. Ms Cran annexed her phone records for all calls made for the periods 16 February 2011 - 9 March 2011 and 17 March 2011 - 5 April 2011. 153Ms Cran forwarded an email to Mr Conroy on 17 March 2011 setting out details of the number of failed attempts she had made to contact Mr Sud [paragraph 77 above].

SUBMISSIONS 154The submissions of the parties are summarised below under the following sub-headings.

Reason for the delay 155It was submitted on behalf of the Applicant that the reason for the delay was straightforward - the Applicant contends that he filed his claim within 21 days of becoming aware of his dismissal. He did not become aware of it earlier because he was on an authorised period of leave of absence without pay. 156It was also submitted on behalf of the Applicant that there is no issue as to the length of the delay that would go against the exercise of the Commission's discretion in the Applicant's favour in circumstances where the Applicant had not been aware of his termination. 157It was submitted on behalf of the Respondent that the Applicant's assertion that he was not aware of his dismissal prior to 8 January 2012 was not believable and the Commission, having heard his evidence, should be reluctant to accept it. 158The Respondent urged the Commission to draw a Jones v Dunkel inference in relation to the failure of Mrs Sud to give evidence, particularly in light of the contribution she could have made to the proceedings and in light of the fact that no evidence was provided to explain her absence. 159The Respondent pointed out the following in relation to the mail box: (c)that the Applicant agreed that he had provided his mailing address at the post office box at Rockdale and had provided his wife's telephone number; (d)The evidence before the Commission confirms that Ms Aish Sud applied for the said post box on 18 December 2009 and 8 April 2010 and gave Australia Post a street address at Carlton; (e)In the latter application, she had advised that mail addressed to J Sud would be received at that mail box; (f)The request for the mail box was authorised by a "Julius Mohan Sud" who, it was submitted, had a signature which looked remarkably like that of the Applicant; and (g)A mail redirection application was submitted by a J M Sud to Australia Post on 26 October 2010 directing all mail from the Carlton street address to the said mail box. The redirection notice applied to a number of persons including a "J M Sud". The application was initially for the period 1 November 2010 to 1 November 2011 but was extended to 30 October 2012. 160The Respondent pointed out the following in relation to the failed attempts by its staff to make contact with the Applicant during the relevant period: (i)Ms Cran gave evidence that Mr Sud provided her, ON 17 February 2011, with the said post office box address for contact by EPAC; (ii)Ms Cran also gave evidence that Mr Sud provided her with his wife's mobile telephone number assuring her that he would return the call if a message was left for him; (iii)Mr Conroy gave evidence that the letter, which contained the allegations against Mr Sud, was mailed to him on 23 February 2011 at the post office box address and was not returned; (iv)Ms Cran gave evidence that she left messages for Mr Sud to call her with Mrs Sud on 24 February 2011, 1, 2, 7 and 8 March 2011 and he failed to return her calls; (v)Ms Cran gave evidence that she called Mrs Sud on 17 March 2011 and believed that the latter hung up on her. (vi)Mr Conroy gave evidence that he called Mrs Sud on 17 March 2011. She had confirmed the address, undertook to advise him about the letter of 23 February 2011, inform him that the matter will be progressed in his absence and also inform him that he was required to provide a residential address; (vii)Mr Sud confirmed that he received correspondence dated 25 March 2011 which was sent to his post office box address; (viii)Mr Conroy gave evidence that correspondence forwarded from Mr Riordan to Mr Sud via his post office box address dated 15 June 2011 was not returned; (ix)Mr Conroy gave evidence that correspondence forwarded to Mr Sud by express post on 7 July 2011 via his post office box address was returned marked "Not on this address". That was not consistent with Australia Post records. (x)Mr Conroy gave evidence that further documents were mailed to Mr Sud at various addresses during the period 7 July 2011 to 22 August 2011. Some were returned and some were not. Those that were returned were marked "Not on this address". It was noted that the handwriting and expression used looked remarkably similar irrespective of the address they were returned from; (xi)The evidence reveals that the Applicant was overseas for about four weeks from the end of February 2011 to the end of December 2011 (11-18 March 2011; 8-14 October 2011; 31 October -6 November 2011 and 6-12 December 2011). Therefore, the rest of the time he may have been, according to his evidence, either in Sydney, Melbourne, Brisbane, Canberra, Newcastle or Wollongong - all of which have mobile phone networks. (xii)The Applicant's passport confirms that Mr Sud was in Australia on the following relevant dates: 23 February 2011 when the "allegations" letter was forwarded to him; 24 February 2011, 1 and 8 March 2011 when Ms Cran spoke to Mrs Sud 2 and 7 March 2011 when Ms Cran left a voice mail message on Mrs Sud's phone 15 June 2011 when the "findings" letter was forwarded to him together with the proposed penalty action and investigation report 7 July 2011 when the "dismissal" letter was forwarded to him 8 July 2011 when Mr Schipp spoke to Mrs Sud 22 July 2011 when the Respondent transferred his termination pay into his account. Thereafter he was only overseas for a period of two weeks. (xiii)There was no evidence of any absence from Australia of Mrs Sud during the relevant periods. There was no suggestion that Mr & Mrs Sud were not living together. The Applicant's evidence was that his family knew where he was, most of the time, when he was in Australia during which time he stayed with unnamed friends doing unnamed family business. 161It was submitted that the Respondent forwarded the relevant documentation advising of the allegations, attaching the investigation report and finally the dismissal letter to the Applicant's last known address in accordance with section 93Q of Part 4A of the Teaching Service Act. The Respondent pointed out that it was highly suspect that the envelopes that were being returned to the Respondent had inscribed on them, in very similar handwriting, the same unusual expression "Not on this address" as opposed to "Not at this address". The evidence indicates that the post office box was used by Mrs Sud and their children. The postal records further indicate that mail from a residential address previously provided by Mr Sud was redirected to that post office box address. 162The Respondent pointed out that the Applicant has a history of avoidance of participation in a TIP and his refusal to respond to the attempts at contact described above is consistent with that behaviour. On that basis, the Commission should not readily accept his contention that he first learned of his dismissal on 28 January 2012. 163If the Commission accepts the Respondent's submissions, then it is clear, the Respondent submitted, that there is no evidence before it of the reason for, and the length of, the delay in making the application.

Hardship 164 It was pointed out on behalf of the Applicant that the Respondent had not brought any evidence of hardship. 165For his part, the Applicant submitted that if his application is deemed to have been filed out of time, then he would be deprived of the ability to challenge the termination decision, the ability to obtain redress and the ability to obtain a permanent full-time position given that he is currently 60 years of age. 166It was submitted on behalf of the Respondent that no hardship would be caused to the Applicant as the merits of his claim are weak and, therefore, the interests of justice do not favour the exercise of any discretion in his favour. The weakness of Mr Sud's merit case was demonstrated in the evidence of Messrs Duncombe and Schipp, particularly in light of paragraph 50 of the Full Bench decision in Sud which preserved the Respondent's right to require the Applicant to participate in a TIP. 167The Commission was reminded that the Applicant was discovered to have been working without permission from the Respondent.

Conduct of Respondent 168In relation to the conduct of the Respondent, the Commission was reminded by the Applicant of the previous unfair dismissal of the Applicant who was reinstated by the Commission and that decision was upheld on appeal. 169It was pointed out that, despite the Applicant's successful application to the Commission, he was placed on a TIP immediately upon his resumption at work. It was submitted that the Respondent had erred, once again, in its implementation of the TIP. It was pointed out that irrespective of whether Mr Sud resisted it on the previous occasion, the Respondent was required to conduct and conclude the informal process before implementing the formal processes of the TIP. That was not done on this occasion. The Applicant was placed immediately upon resumption at work on a formal Teacher Improvement Program rather than restart the informal process. 170It was acknowledged that the issue was further complicated by the approval by Ms Cran of leave without pay for an extraordinarily long period of time - just under 12 months - without any express conditions as to contact. The leave of absence intervened and the Applicant did not contact his Barrister to make representations on his behalf as he intended that he would deal with the issue upon his return. 171 It was submitted by the Applicant that the leave without pay approved by the Respondent was unconditional both in relation to the leave application and in relation to the TIP. 172In conclusion, it was submitted that the Applicant's dismissal was effected without his knowledge and whilst he was on a period of approved leave without pay thereby providing the Commission with sufficient reason to exercise its discretion to accept the Applicant's claim for unfair dismissal out of time. 173The Respondent submitted that, given the circumstances described above, the conduct of the Respondent is blameless. 174There was available to the Applicant and his Union the ability to utilise the Dispute Resolution Procedure contained within the TIP procedures if they had any concerns with any aspect of that program. No such dispute was notified. The Applicant merely avoided the process altogether. The Respondent submitted that if such conduct is allowed to go unchecked, then it would make a mockery of both the NSW Education system and the TIP process. 175The Respondent submitted that the Commission is obliged, in these proceedings, to also consider the terms of the Teaching Services Act 1980. That Act stipulates:

Credit 177It was submitted on behalf of the Respondent that the issue of credit is vital to these proceedings and it is important to consider two factors in assessing whether the Applicant was aware of his dismissal prior to 28 January 2012. Firstly, the Applicant's evidence differed from that provided by all of the Respondent's witnesses and therefore the Commission will have to determine whose evidence it prefers. Secondly, the Commission was reminded that Messrs Schipp and Conroy were not required fro cross-examination and therefore their evidence was uncontroverted. In addition, the evidence of Ms Cran in regards to two major factors was not challenged - the fact that the Applicant was made aware of the need for contact to be made with him; and the fact that the Applicant was notified of his termination prior to 28 January 2012. It was noted that the Applicant provided no evidence in support of his assertion that he did not receive the termination letter nor did he deny any discussion with Mrs Aish Sud on this matter. It was also noted that Mrs Sud was not called to give evidence. 178It was also submitted that in making its determination as to whose evidence it prefers, the Commission should have regard to three main issues: (i) the honesty and reliability of the witnesses. If there are any lies in relation to one matter or contradictions during the course of their evidence then it would impact on the reliability and credibility of their evidence as a whole; (ii) whether or not there is inherent consistency in the versions they have given every time they have been asked to recount their story; and (iii) Whether the conduct/behaviour of the witnesses in delivering their evidence is consistent with the allegations they are making. 179The Respondent submitted that if those tests are applied to the Applicant's evidence then the evidence of the Respondent's two witnesses should be preferred to that of the Applicant for the following reasons: Firstly, a considerable chunk of the Applicant's evidence was contradicted by the Respondent's witnesses; secondly, the Applicant provided a number of inconsistent versions; thirdly, the Applicant has "tailored" his evidence to suit his particular circumstances and, in the absence of corroboration by another witness, should not be accepted; and, finally, the Applicant displayed a distinct lack of recall of events that occurred over the last few weeks let alone 12 months ago. 180It was argued on behalf of the Respondent that if the Applicant's submissions are upheld, then the Respondent can never move to the next stage and implement the formal program if a teacher keeps resisting the informal process by simply not cooperating. 181It was pointed out that the applicant did not give any evidence as to any of the discussions he had with his wife; any evidence that his wife, whose hands are all over this matter, did not mention any of those things to him; nor did he give any evidence regarding his wife's failure to give evidence in the proceedings in the light of the role she played in the matter. She prepared a short statement, knew she was required for cross-examination and did not turn up for the proceedings. 182The Respondent submitted that the Applicant was not a full and frank witness. His evidence and method of giving of evidence was entirely different and less believable than those of the Respondent's witnesses. It was submitted that the Applicant cannot be trusted to give a straight answer. The Commission was reminded that he could not even admit that the newsletter tendered in the proceedings included an interview with him - it was his picture; his name, it was from an organisation that he was Vice President of; It was about a person who went to the same university he went to; It was about a person who got the same degree he got at first instance; It was about a person who then got a further degree, exactly the same as him and it was about a person that had an exactly the same role that he had occupied in India. 183In conclusion, it was submitted on behalf of the Respondent that the Commission would be doing the Applicant a favour by not granting an extension of time because he is going to be avoiding the further costs of these proceedings in running a hopeless case.

Exercise of Discretion 184The Respondent conceded that the Commission's discretion under section 85 (3) of the Act is a "broad one" allowing for the strict 21 day time limit to be departed from for the sake of fairness: Markovski v Sydney South West Area Health Service [2010] NSWIRComm 1043. It was pointed out, nevertheless, that the discretion must be exercised judicially and the Commission must be satisfied that there was a "sufficient reason" for the delay, albeit that term is not defined in the IR Act. Any one, two or all three matters set out in section 85 (3) (a) - (c) of the IR Act may constitute a sufficient reason, or reasons, for the favourable exercise of the Commission's discretion: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283. Each case is to be decided on its own set of facts and circumstances. 185The Commission's attention was drawn to the general principles applying in out of time matters enunciated in several decisions of the Commission including: Markovski, Green v Yum! Restaurants Pty Limited [2004] NSWIRComm 1109 at [138]; Khorramdel v Sydney South West Area Health Service [2010] NSWIRComm 1018 at [180]; Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [15] and Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14]. 186The Respondent relied on the judgment in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 where the Full Bench observed at [12] - [14]: [12] ... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. 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) 51 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': 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. [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 187The Respondent summarised its submissions as follows:

CONSIDERATION 190Mr Britt is correct in submitting that, in many respects, this is a relatively simple case from both a legal perspective and a factual perspective. 191Section 85(1) of the Act provides that "Any application under this Part must be made not later than 21 days after the dismissal." 192Nevertheless, under s85(3) members of the Commission hold a discretion to accept an out-of-time Part 6 application if they consider that there is sufficient reasons for doing so: Brady v Kennedy, trading as "Sardines"(1999) 91 IR 258. 193The relevant factors the Commission must consider are set out in s85(3). They are: (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. 194The onus rests on the Applicant to convince the Commission that there is "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. 195The Applicant had set out his post office box address on the application for leave form. That form specifically states: "Should you change your correspondence address from that noted above please notify this office in writing". No change of address was provided at any time during his absence or upon resumption at work. 196In addition, the last paragraph on the application for leave form requires contact to be made with the Principal by fax prior to resumption at work from leave. It states: "Please ask your Principal to confirm your resumption of duty at the conclusion of this leave by fax". Mr Sud did not contact the Principal at any time prior to his resumption at work. 197Mr Boyce submitted that the Applicant intended to deal with the issue upon resumption at work. Yet, it is noted that the leave sought by the Applicant was open ended - it was the Respondent that added a return to work date on the leave form. He did not say he wanted the leave for any other reason save "I want to be on leave without pay till my matter is resolved". That can only mean that he expected the investigation to proceed to finality before returning to work. I agree with Mr Britt that it beggars the question as to how is the matter to be resolved without any involvement of the Applicant? How can the matter get resolved if the Applicant's union was not acting on his behalf, there was never any contact made by any lawyer on behalf of the Applicant and the Applicant himself refused to say in what way the Principal was not complying with the rules? 198It is also noted that Mr Sud produced the LWOP approval form upon being advised of his termination on resumption at work. It is quite odd that the Applicant would be carrying on his person his leave application form after a year's absence from work unless he arrived at work with the knowledge that he was to engage in discussions regarding the status of his employment. 199Section 8 of the Teaching Act makes provision for the delegation of the Director-General's functions. Delegation of authority was not in dispute in these circumstances and I am satisfied that the appropriate delegation existed. 200The length of the delay is considerable. 201I am satisfied that the Respondent did all that it could and, went over and above what was required of it, to contact the Applicant to progress the investigation, to warn of the penalties and finally to advise of his dismissal. 202Having detailed precisely the evidence of the parties above, it is abundantly clear that the evidence of the Respondent's witnesses is to be preferred to the evidence of the Applicant whose evidence was not persuasive, was evasive and did not satisfy the Commission as to its content. 203There was no credible evidence before the Commission that the Respondent did not comply with all of its obligations in relation to the Teaching Service Act and Regulations, its Code of Conduct and the Industrial Relations Act in managing the investigation, the TIP, and the subsequent dismissal of the Applicant. The Respondent produced to the satisfaction of the Commission a paper trail confirming all of the evidence given in the proceedings. 204The Commission has taken great pains to detail in chronological order the evidence before it. There can be only one inevitable conclusion reached as a result of that evidence. There is no sufficient reason for the Commission to exercise its discretion in relation to the late application having regard to section 85 (3) of the Act.

DECISION 205Matter IRC 321 of 2012 is hereby dismissed for want of jurisdiction. The matter is concluded.

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: 24 January 2013