This is an application pursuant to section 85(3) of the Industrial Relations Act 1996 (NSW) for the Commission to exercise a discretion to allow the late filing of an application that the dismissal of the applicant was unfair.
The applicant was employed by NSW Health Pathology until the termination of her employment on 22 December 2021. An Unfair Dismissal application ("the Application"), pursuant to section 84 of the Act, was filed in the Industrial Registry on 11 February 2022.
Pursuant to section 85 of the Act, the applicant had until 12 January 2022 if the Application was to comply with the presumptive statutory timeframe for filing her Unfair Dismissal application. Accordingly, the applicant requires the Commission to exercise its discretion for the Application to proceed.
The respondent did not object to conciliation taking place but reserved its position should conciliation not succeed. Conciliation took place by telephone on 9 March 2022 and was not successful.
Pursuant to orders of the Commission, the applicant and respondent each filed material as to the acceptance of the Application out of time.
[2]
Applicant's case
The applicant filed a document titled as a submission, but which largely set out facts about her termination and the steps taken by the applicant to file the Application. I have accepted this as the applicant's statement of facts and treated it as her evidence on the question of acceptance of her application out of time.
The applicant outlined that:
1. She had not contemplated that her employment would be terminated, and that it came as a complete shock to her when she was dismissed. Accordingly, she had not taken any steps before her dismissal to obtain and keep documents she needed to complete an Unfair Dismissal application.
2. On termination, she was unable to obtain these documents, as she was dismissed with payment in lieu of notice and immediately locked out of her work email and the respondent's system for employee records.
3. Adding to her delays, the respondent's office was closed over the Christmas and New Year holiday period.
4. On 24 January 2022, she attempted to file her Unfair Dismissal application with the Local Court at Kogarah, but the Kogarah Court House was closed due to COVID.
5. On 25 January 2022, she sought to file her application at the Industrial Registry, but was advised that she was not permitted to enter the Industrial Registry as she was unvaccinated. She was advised she should post her application.
6. On 26 January 2022, Australia Post stores were closed for a public holiday.
7. She was unable to leave her home on 27 January 2022, as she was deemed to be a close contact of a person with COVID. She subsequently developed COVID symptoms and was required to isolate until her symptoms subsided.
8. On 10 February 2022, she was able to leave her home, attend a post office and post her application to the Industrial Registry.
With her evidence, the applicant also filed a document titled 'Further Submissions Regarding My Unfair Dismissal', which went exclusively to matters about the substance of the Application.
In reply to the respondent's submissions and evidence, the applicant filed material which largely repeated the matters set out in the earlier document titled 'Further Submissions Regarding My Unfair Dismissal'. It contained one paragraph which in part reiterated her stated difficulties in obtaining information needed to make her application.
The applicant's material in reply also contained a further submission that in drafting section 85(3)(a) the parliament did not have the possibility of a COVID pandemic in contemplation. In the applicant's submission, the extraordinary circumstances of the COVID pandemic should be a factor in accepting the Application out of time.
[3]
Respondent's case
In its submission, the respondent:
1. Noted that the Industrial Registry re-opened after the Christmas/New Year closure on 10 January 2022.
2. Asserted that the applicant had provided no evidence that the Kogarah Court House was closed on 24 January 2022.
3. Submitted that the inability of the applicant to file her application on time was materially impacted by her own decision not to be vaccinated. As this was a decision the applicant had made it should not be open to her to rely on any difficulty created by her unvaccinated status.
4. Referenced the statutory framework created by section 85(3) and emphasised that it was a matter for the applicant to show sufficient reason for the application to be accepted out of time.
[4]
Legal issues
Section 85 of the Act prescribes the time for making applications for relief from an unfair dismissal. An application is to be made within 21 days of the date of dismissal, with 2 exceptions provided. Only subsection 85(3) is relevant to this application.
Section 85(3) provides:
(3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to -
(a) the reason for, and the length of, the delay in making the application, and
(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and
(c) the conduct of the employer relating to the dismissal.
It is apparent from the section that the onus to establish a sufficient reason is borne by the applicant. The Act does not prescribe what constitutes a sufficient reason.
It is clear from the section that consideration must be given to the matters set out in each of paragraphs (a), (b) and (c).
A sufficient reason may arise from the issues specified in one of paragraphs (a), (b) and (c), a combination of them or otherwise. It may indeed be a balance between factors for and against the exercise of discretion from the totality of the issues specified in paragraphs (a), (b) and (c), with or without other factors.
In short, the Commission should have specific regard to the matters in each of the paragraphs of section 85(3) but should be guided by the overall justice of the case. The onus is on an applicant to persuade the Commission that discretion should be exercised in her favour.
Neither party referenced any previous decisions of the Commission or other tribunal or court.
[5]
Consideration
In the context of the procedural question of late acceptance, the material filed by the applicant is a sufficient basis to accept that the applicant attempted to file her application at the Kogarah Court House on 24 January 2022 but could not do so because the Kogarah Court House was closed.
In any context, I would have taken account of the Industrial Registry not being open to unvaccinated people, were the applicant's delays up to that point satisfactorily explained. The Industrial Registry rules on access were referrable to those applying at the Supreme Court and made for a rational reason. Nevertheless, access to justice should not be curtailed by difficulties created by such rules.
Unfortunately for the applicant she has failed to explain in a satisfactory manner the gap between the day the presumptive deadline expired and the day she first attempted to file her application. The difficulties she experienced as an unvaccinated person did not manifest until 14 days after the presumptive deadline.
A similar conclusion meets the applicant's submission that the context of the COVID pandemic generally should be a factor in accepting her application out of time. This submission fails to explain the 14 days between the presumptive deadline and her first attempt to file her application.
The applicant asserts that she did not have access to her former work email account or her former employer's system for employee records. However, this cannot amount to sufficient reason for the 14 days between the presumptive deadline and the date she first attempted to file her Unfair Dismissal application, particularly as it was never set out when or how the applicant obtained the supporting documentation.
The applicant attached an apparently complete set of the relevant documentation exchanged with the respondent leading up to her dismissal. An examination of those documents shows that, on their face, each attached email was either sent to or from her personal email account, or if addressed primarily to her work account was copied to her personal email account, and each letter was on its face sent to her home address.
On their face, none of the documentation attached to the Application required access to the applicant's former work email account or the respondent's systems.
An Unfair Dismissal application can, in any event, be completed without substantial, or if necessary, any, supporting documentation.
The applicant submitted that the termination has caused "significant financial hardship" to her and her family. No elaboration or quantification beyond that submission was provided.
On the material submitted, I can see no hardship to the applicant beyond that of any applicant whose out of time application is declined.
Neither party expressly addressed the 'conduct of the employer' in the context of the out of time application.
The applicant's submissions reference her Christian faith, and in that context a dismissal three days prior to Christmas must have been distressing to the applicant, over and above the distress of dismissal as such.
Despite not specifically raising this issue in her submissions, this factor is supportive of granting the applicant an extension of time.
The timeline of events as set out in the applicant's submissions includes her beginning isolation on 27 January 2022, which isolation concludes with her being "… able to leave home to attend a post office ..." on 10 February 2022. Unexplained is that the statutory declaration within her application was made before a Justice of the Peace on 7 February 2022.
[6]
Outcome
In totality, the statutory and other factors do not constitute a sufficient reason to accept the application out of time. On the contrary, the totality of matters clearly favours the Commission declining to exercises its discretion to allow the late application to proceed.
[7]
Decision
Accordingly, the Commission declines to accept the Application for Relief in Relation to Unfair Dismissal out of time.
C Muir
Commissioner
[8]
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: 18 May 2022
Parties
Applicant/Plaintiff:
Lisa Marija Botic
Respondent/Defendant:
Health Secretary in respect of NSW Health Pathology