Macdonald v Commissioner of Police

Background

1. According to the respondent, on 1 December 2014, Senior Constable Matthew Roach, a friend of the applicant, accessed the Computerised Operational Policing System ("COPS") and obtained information relating to an Apprehended Domestic Violence Order which had been taken out against the applicant following a domestic incident involving the applicant and his family on 14 November 2014.
2. Following an investigation into the unauthorised access of COPS, Chief Superintendent Greg Rolph APM, Director, Investigations and Field Services, wrote to the applicant on 4 July 2016 alleging that he may have engaged in misconduct between November and December 2014 in that he requested and subsequently pressured Senior Constable Roach on several occasions to access COPS in order to obtain confidential information concerning the domestic incident involving the applicant.
3. On 28 July 2016, the applicant responded in writing to the allegation claiming that he had no recollection of ever asking Senior Constable Roach to access COPS to glean information regarding this domestic incident.
4. On 18 August 2016, Detective Acting Chief Superintendent Kerrie Lewis, Director, Investigations and Field Services, wrote to the applicant stating that the allegation of misconduct was proven and advising him that his employment may be terminated.
5. On 23 September 2016, the applicant provided a written response to this finding. The applicant stated in part: My first issue is the finding the complaint is proven. I do not disagree with this finding. The applicant claimed that, on 28 November 2014, he was admitted as a voluntary patient to the Currumbin Clinic for a Major Depressive Disorder, Acute Anxiety Disorder and Generalised Stress Disorder. He further claimed that it was only days after this admission to care that he pressured Senior Constable Roach into accessing COPS and maintained that he had "no recollection of particularity".
6. On 9 November 2016, Detective Acting Chief Superintendent Lewis wrote to the applicant providing the final determination, being a determination to terminate the applicant's employment after giving him the opportunity to resign. The letter set out in detail the reasons for this determination, including that the misconduct allegation had been proven and that to allow the applicant to return to the workplace would compound Senior Constable Roach's stress and anxiety and pose an unacceptable risk to his health and wellbeing.
7. The applicant was advised to submit his resignation by close of business on 5 December 2016, which would be his last day of service. He was further advised that, should he fail to submit his resignation by the nominated date, action would be immediately taken to terminate his employment. However, before the nominated date arrived, on 2 December 2016, the PSA notified this Commission of an industrial dispute.
8. The dispute centred on the refusal of the respondent to provide the applicant with the investigation report which preceded the allegation of misconduct which had been laid against him. On 14 December 2016, I convened a compulsory conference which was attended by representatives of the PSA and the NSW Police Force. Following those proceedings, the applicant was provided with additional information and given until 31 January 2017 to provide any further response. The compulsory conference was stood over for report back on 25 January, 1 February and 1 March 2017. On the last of those occasions there was no appearance by the PSA.
9. On 31 January 2017, Ms Emery emailed a further submission on behalf of the applicant to Ms David. Following this, on 8 February 2017, Chief Superintendent Rolph wrote to Ms Emery in the following terms: I acknowledge receipt of your submission sent by email at 3.07pm on 31 January 2017 concerning the above mentioned matter. I have had regard to the matters raised and confirm the earlier decision of Acting Chief Superintendent Lewis dated 9 November 2016, and that is to terminate Mr MacDonald's employment after giving him the opportunity to resign pursuant to section 69(4)(b) of the Government Sector Employment Act 2013. Mr MacDonald should tender his resignation to me by close of business 1 March 2017 if he wishes to do so, otherwise I will take steps to immediately terminate his employment. This letter was emailed to Ms Emery on 9 February 2017 and to the applicant on 10 February 2017. The applicant claimed that, when he received this letter, he called Ms Emery and she advised him to the following effect: This is still only a threatened dismissal, the letter states that Police will take steps to terminate you if you don't resign. As discussed the GSE Act requires that the Police send you a letter stating that your employment has been terminated. Let me know as soon as you receive anything, as you know you have 21 days from the termination date to lodge an unfair dismissal claim. The applicant did not resign.
10. On 2 March 2017, having not received a letter of resignation from the applicant, Chief Superintendent Rolph signed a "Notice of Termination" which set out his determination that the applicant's employment be terminated after having been given an opportunity to resign. This document was in the following terms:

Mr Alisdair Macdonald Serial No: 2002308 Please be advised that I Detective Chief Superintendent Greg Rolph, am the Commissioner's Delegate under HR delegation Government Sector Employment Act, section 69-dealing with misconduct (administrative), 13 May 2015. I have determined the following action for administrative employee, Mr Alisdair Macdonald Serial No: 2002308. N.B. The action is a result of Professional Standards Command disciplinary matter No: AD2016/17: Mark Determination of Action "X" ………………….. X Termination of employment after being given the opportunity to resign OR without being given the opportunity to resign X NOT to be re-employed in any capacity …………………… The effective date of this determination is 2 March 2016. I can confirm that the involved administrative employee, Mr Macdonald was informed of the final determination on the 10th February 2017. Mr Macdonald did not tender his resignation, therefore his employment is to be terminated. It would be appreciated if the manager, Payroll Services process this final determination as a matter of urgency and confirm to this office (AOCU) via email to #pscadminconduct, immediately the final determination decision has been actioned; Signed Greg Rolph Detective Chief Superintendent Commissioner's Delegate 2 March 2017 The stated "effective date of this determination", namely 2 March 2016, is clearly a typographical error and should have been 2 March 2017. This document was not forwarded to the applicant nor to the PSA.

1. On 8 March 2017, two documents were forwarded by the respondent to the applicant by post. One of these documents was a letter addressed to the applicant which referred to "your resignation" and confirmed that the applicant's last day of service with the NSW Police Force was 2 March 2017 and set out the applicant's accrued leave entitlements as at that date. The other document was a "Statement of Service" which stated that the applicant's last day of service was 2 March 2017. These two documents were annexed as Annexures C and D respectively to the applicant's unfair dismissal application when it was filed on 30 March 2017.
2. The applicant, who is a member of the Army Reserve, claimed that, on 10 March 2017, he left to undertake an intense training course with the Army at Puckapunyal in Victoria. According to the applicant, he did not receive the letter and Statement of Service dated 8 March 2017 until the evening of 22 March when they were forwarded to him by email from a colleague, Andrew Eppelstun, who was collecting the applicant's mail while he was in Victoria training with the Army. The applicant immediately forwarded the documents to Ms Emery with a covering email which read: Dear Susan, confirmation the department have terminated my employment. What happens now?!
3. The applicant and Ms Emery had a telephone conversation the next day, 23 March 2017, which was the last day of the 21 day period following his dismissal for the applicant to file an unfair dismissal application. In this conversation Ms Emery said words to the following effect: It is odd, as it states that you resigned on 2 March 2017, even though you didn't. The NSW Police still haven't sent you a letter confirming that your employment has been terminated, and the reasons for the termination as required so I will file a threatened dismissal claim in the IRC.
4. As previously stated, the applicant's unfair dismissal application was not filed until 30 March 2017, 28 days after the applicant's last day of employment with the NSW Police Force. The "Reasons for Application" on the unfair dismissal form stated in part: 19. The PSA made submissions to NSW Police expressing concern about the process on 31 January 2017, and sought that NSW Police not terminate Mr MacDonald's employment. (see Annexure "A") 20. NSW Police confirmed by letter dated 8 February 2017 an earlier decision to terminate Mr MacDonald's employment after giving him an opportunity to resign. (see Annexure "B") 21. By letter dated 8 February 2017, NSW Police stated - "Mr McDonald should tender his resignation to me by the close of business 1 March 2017 if he wishes to do so, otherwise I will take immediate steps to terminate his employment." 22. NSW Police has not sent any correspondence to Mr McDonald advising that his employment has now been terminated. 23. On a date after 8 March 2017, Mr MacDonald received a letter dated 8 March 2017 from NSW Police, referring to his resignation and confirming that the last day of service was 2 March 2017. NSW Police also advised in this letter the leave entitlements owing to Mr MacDonald. NSW Police also received a Statement of Service on or after 8 March 2017. (See Annexures "C" and "D") 24. Mr MacDonald did not resign from his employment. 25. NSW Police has breached its duty of care to Mr MacDonald which led to the breakdown of his health. Mr MacDonald will suffer ongoing hardship as a result of a decision to terminate his employment.

The legislation

1. Section 85 of the Act is in the following terms: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.

Approach of the Commission to 'out of time' applications

1. The Commission has, in recent times, dealt with a number of 'out of time' applications pursuant to subsection 85(3) of the Act (see Stephen York and NSW Department of Education [2015] NSWIRComm 1011; Hilton Mtanda and New South Wales Health, Nepean Blue Mountains Local Health District [2016] NSWIRComm 1002; John v NSW Health Pathology [2016] NSWIRComm 1042; Katsantonis v Inner West Council [2017] NSWIRComm 1015; Denis James Dominguez and Department of Finance, Services and Innovation [2017] NSWIRComm 1053; Shao v Department of Aging Disability and Home Care [2017] NSWIRComm 1054)
2. In Katsantonis Newall C had before him an unfair dismissal application which was filed 16 days out of time. Ms Katsantonis was an unrepresented applicant who claimed to have no practical knowledge of how to go about contesting her dismissal. Newall C accepted her evidence to this effect. However, the Commissioner also found that Ms Katsantonis had been advised by a barrister who was handling her workers compensation claim that she must lodge her unfair dismissal claim within 21 days of the date of her dismissal. She received this advice during the 21 day period and then sought assistance from her union. However, this assistance was not forthcoming due to an issue involving unpaid membership fees. Nevertheless, Newall C was satisfied that Ms Katsantonis became aware of the time limitation upon section 84 applications before the expiry of that time. The Commissioner stated as follows: 8. The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3). 9. It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only those matters to which the Commission is to have particular regard. 10. Each case in which subsection 85(3) is invoked is decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. 11. Given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. 12. The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [12].... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 13. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998); Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [[2013] NSWIRComm 1012. 14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. 15. The overarching principle is therefore that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, is paramount: Hurrell at [13]. 16. And fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.' Brisbane South Regional Health Authority v Taylor loc cit at 553. …………………. Consideration 23. I have set out above the statutory provisions and the fundamental principles to apply to an application pursuant to s.84 that is brought late. 24. The Commission, in exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, must, in considering whether there is 'sufficient reason to do so', consider the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act. I now turn to those. Length of and reason for the delay 25. First, the Commission must have regard to the length of and reason for the delay. 26. The application is brought 16 days out of time in circumstances where the legislature has chosen to set a relatively short time period of 21 days. In that context the delay cannot be disregarded or treated as trivial. 27. I accept that Ms Katsantonis did not herself know, at the time of her dismissal, where to apply for relief. I accept that may well be difficult for a person who has been dismissed, without knowledge of the various systems of industrial regulation, to know where to turn. Once, however, a person who has been dismissed has been advised by a lawyer of the correct forum and of the time limitation attaching to applications within that time limit, as happened here, the Commission would need to be satisfied that there was another intervening factor providing a reason for a delay beyond the statutory time limit. I am not able to find another factor, on the evidence before the Commission. Hardship to the applicant 28. The Commission is also required to have regard, pursuant to subsection 85(3)(b), to any hardship that may be caused to the applicant or the employer if the application is or is not rejected. 29. The hardship to the applicant if the application is rejected is that she will not be able to pursue her unfair dismissal claim. That is a hardship, of course, which every out of time applicant suffers whose application is rejected. That hardship must be seen in my view in the context of the fact that Ms Katsantonis expressly does not seek reinstatement or re-employment, but only compensation, and that she was paid five weeks' pay in lieu of notice on termination. 30. In circumstances where reinstatement and re-employment are expressly not sought, the maximum compensation payable is 26 weeks' pay. The maximum is, unsurprisingly, rarely awarded. 31. And in the context of subs.85(3)(b) it is proper to consider the strength of Ms Katsantonis' case, as it is one measure of the disadvantage she may suffer if her application is not accepted. I say that noting again what the High Court held in Brisbane South Regional Health Authority v Taylor at 553, that is, that an applicant with an arguable or even a good case is not for that reason alone guaranteed admission of a late application. 32. I form, of course, no final view about the termination, the facts of which have not been tested in evidence before the Commission. There is very clearly a significant gulf between Ms Katsantonis' account of the circumstances of her employment and its termination and the respondent's, particularly as it goes to the question of qualifications and responsiveness to lawful directions. I do not need to resolve those matters here, because in my view it is sufficient to say that even were Ms Katsantonis successful in her application before the Commission, the likely compensation would not so very greatly add to what she was paid on termination as to make the loss of a chance to argue for it a substantial matter. 33. I emphasise that in saying that I make no criticism of Ms Katsantonis in any way, nor do I call into question her accounts of what occurred. Hardship to the employer
3. No evidence was brought suggesting hardship to the employer if the application were admitted and, although I consider that matter as I am bound to do under the statute, consideration of hardship to the employer has had a negligible effect on the exercise of discretion in this matter, beyond observing that where a time limitation exists, a party who might be a respondent is entitled, once the time limit has passed, to regard themselves as free from suit. 35. Thirdly, I have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed only insofar as it has any bearing on the lateness of the application. 36. I cannot see that the employer's conduct had any bearing on the lateness of the application. There is no dispute that the notification of termination was received by the applicant on 7 November 2016. From that point on the respondent had no involvement in the matter. Overall consideration 37. On the basis of the whole of the above consideration, Ms Katsantonis has not discharged her onus to persuade the Commission to admit her application. That is essentially because no telling reason has been advanced to show why Ms Katsantonis did not lodge an application within time, given that she received legal advice as to where to apply, and that there was a time limit, within the time required. Again I say, I accept that a person who has lost their employment is necessarily subject to stress and financial incapacity. The Parliament must be taken to have understood that when fixing 21 days as a limit for applications. There has to be some telling reason over and above that circumstance to persuade the Commission to overturn the prima facie position. There was not one here. 38. Accordingly, the Commission's guided discretion must in this case be exercised to decline to disturb the prima facie position. To do justice in this particular case, which is the overarching test, requires that outcome. To do justice to other parties who rely on consistent application of the principles by the Commission in determining these questions requires the same result. The application will not be accepted. 39. I emphasise that I am not ruling on whether the dismissal was fair or unfair, or on any of the matters in contest between the applicant and respondent. I do not question Ms Katsantonis', or anyone else's, truthfulness or credit about any aspect of the matter. The application cannot be accepted because the material which would direct the Commission's discretion toward admitting it is simply not there.
4. In Public Service Association of NSW (o/b Morawsky) v Department of Justice ([2017] NSWIRComm 1059) Newall C dealt with an enforcement application under section 213 of the Act in relation to an alleged contravention by the respondent of section 210 - Freedom from victimisation. Section 213 is in the following 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.
5. It will be noted that subsection 213(4), which gives the Commission the discretion to accept victimisation applications made out of time, is couched in similar terms to subsection 85(3) which deals with unfair dismissal applications made out of time. In this case the victimisation application was made some 32 days out of time.
6. The Commissioner stated as follows: 8. As I have said, the Act makes it clear that an enforcement application must be made within 21 days of the alleged contravention of s 210. But a discretion, which is a guided discretion, not an open discretion, guided in the sense that the Act provides the bases on which the Commission is to consider the exercise of its discretion, at subs 213(4), exists to admit applications brought out of time. 9. The general principles applying to waiver of time limits for filing of civil claims at least, which this is, was canvassed as some length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR at 541. There McHugh J said, in a passage which has been accepted repeatedly by that Court and other Courts since: "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that where there is delay, the whole quality of justice deteriorates". 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. His Honour goes on to say that a limitation period is not to be seen as an arbitrary cut-off point, but that it will be the case that even a good case may not be able to run if it is brought out of time and there is no proper basis on which the discretion to admit it should be exercised. 12. In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a sufficient reason has been made out by the applicant. The term "sufficient reason" is not defined in the Act. The Full Commission in Griffith Ex-Services Club v Federated Liquor and Allied Industries Employees Union (1993) 51 IR 186 said that it was not appropriate to attempt to formulate a definition of what constitutes a sufficient reason. What that means is that the Commission must then decide whether or not to exercise its discretion in a matter of this kind on the balancing of a range of considerations, including those set out in subs 213(4) of the Act. 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. 14. So when one looks at what the statute provides to guide the Commissioner's discretion of the sub-section, there are essentially three matters, all within the rubric of whether there is sufficient reason to do so. The first is the reason for and length of the delay, the second being hardship to either party and the third being the conduct in relation to which the order is sought, that here being the provision of the reprimand letter to Mr Morawsky. Newall C declined to exercise his discretion to accept the application out of time.
7. In Dominguez Seymour C had before her an unfair dismissal application from an unrepresented applicant which was made 19 days out of time. The Commissioner stated as follows: 21. In exercising its discretion to depart from the prima facie position and accept an application which is brought out of time, the Commission must determine there is 'sufficient reason to do so', taking into consideration the matters set out in sub-subsections 85(3) (a) (b) and (c) of the Act. 22. Each case is decided on its own facts and circumstances. Previous decisions are authorities on principles not factual circumstances: Jess v Scott (1986) 12 FCR 187 at 195. There is no prescription in the Act or in cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. 23. In Marko Markovski and Director General of the Department of Health in respect of Sydney South West Area Health Service [2010] NSWIRComm 1043, Commissioner Connor summarised the key principles: 194 In Green & Yum! Restaurant Pty Ltd the Commission, as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as originally expounded by Sams D P in Kent Gorrell v Uwatec Pty Ltd ( unreported, IRC 1700/99, 5 July 1999) (with appropriate and relevant cases cited under each principle) and applied in numerous decisions since, as follows: 1 The Commission's power to accept out of time applications is discretionary. 2 The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3 It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances. 4 There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing. 5 There is a public interest in the prompt institution and prosecution of litigation before the Commission. 6 The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties. 7 Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8 Ignorantia legis neminem excusat (ignorance of the law excuses no one). 24. The prima facie position is that an application brought out of time is excluded by subsection 85(1). An applicant therefore bears the burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. 25. The approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: The Commissioner then set out those passages from the Full Bench decision in Hurrell which were cited by Newall C in Katsantonis at [12] (see paragraph 28 above) and then continued as follows: 26. The overarching principle is that in exercising a discretion whether to accept proceedings brought out of time, the Commission is to consider the requirements of justice in a particular case, in the context of the particular statutory scheme: Hurrell at [13].
8. It is not disputed that the Commission has the discretion to accept an unfair dismissal application which has been made outside the 21 day time limit set out in subsection 85(1) of the Act. The guidance which I draw from the decided cases discussed above, in the context of the facts of this case, may be stated as follows:
9. The prima facie position is that unfair dismissal applications made out of time will not be accepted by the Commission.
10. An applicant who has made an application out of time bears the onus of persuading the Commission to accept such application.
11. An out of time application will not be accepted unless the Commission is satisfied, having regard in particular to the reason for, and the length of, the delay in making the application, that a "sufficient reason" exists for the Commission to exercise its discretion in favour of the applicant.
12. Whilst a lengthy delay in making an out of time application will militate against its acceptance by the Commission, it does not follow that an application made only one, two or a few days after the expiry of the 21 day time limit will be accepted by the Commission without there being demonstrated by the applicant that there was a reason for delay which the Commission can accept as a "sufficient reason" to accept the application out of time.
13. If hardship to the applicant is to be considered as a factor weighing in favour of acceptance of an out of time application, the hardship that may be caused to the applicant if the application is rejected must be more than just the loss of the opportunity to have the application considered by the Commission.
14. If the conduct of the employer relating to the dismissal is to be considered as a factor weighing in favour of acceptance of an out of time application, such conduct needs to have some connection to the delay in making the application.
15. The overarching principle which guides the Commission's discretion is the attainment of justice for the parties in the particular case.

Case for the respondent

1. In the written outline of submissions filed on 15 September 2017, the respondent put the following: D. RESPONDENT'S CASE 31. The Respondent deals with each of the matters set out in s.85(3) of the IR Act in turn. Reason for, and length of delay 32. The Application is brought 7 days out of time in circumstances where the legislature has chosen to set a relatively short period of 21 days for the filing of such applications. 33. In that context, the delay of 7 days cannot be disregarded or treated as trivial. This is particularly so in circumstances where: (a) Mr Macdonald was aware that the Respondent intended to terminate his employment as early as November 2016, when the final determination was issued by the Delegate; (b) Mr Macdonald was notified personally on 10 February 2017 that the Respondent was going to take steps to terminate his employment "immediately" if he did not resign by close of business on 1 March 2017; and (c) At least since December 2016, Mr Macdonald was represented by the PSA, a union which is very familiar with this jurisdiction and regularly appears in the Commission. 34. Further, and importantly, no reason at all has been provided by Mr Macdonald to date to explain the delay in filing the Application. As stated above, the Application in fact does not even record an acknowledgement that it is being filed late. This is notwithstanding the fact that the dismissal date (although it is inexplicably described as a 'threatened dismissal') provided in the Application is 2 March 2017. 35. In those circumstances, the Commission cannot be satisfied that there is 'sufficient reason' to accept the out of time Application. Hardship to the applicant or the employer 36. There can be no doubt that every dismissal brings with it some degree of hardship, if nothing else, at least financial hardship. However, as noted in McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [44], s.85(3)(b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing varying degrees of hardship, nevertheless, are able to file within time: Paul Thomas v Repco Auto Tech - unreported, Tabbaa C, 23 March 1999. 37. In this instance, no additional or excessive hardship has been identified by Mr Macdonald to date, and none can be identified by the Respondent. 38. On the other hand, it has been accepted by the Commission that it is not appropriate for an employer to have its business dislocated and costs incurred beyond a reasonable period in which it would otherwise expect to face litigation. When nothing is filed within the 21 day time period provided by the IR Act, the Respondent is entitled to expect finality of the matter. 39. For these reasons, the Commission cannot be satisfied that Mr Macdonald has or will suffer additional or excessive hardship if the Application is not accepted. Conduct of the employer 40. It was recognised in Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998) that the 'conduct' which s.85(3)(c) is concerned with is any conduct on the part of the employer, after the applicant's dismissal, which may have contributed to the reason(s) provided for delay in the lodgement of the application. 41. As no reason has been provided by Mr Macdonald for the delay, it follows that no conduct of the Respondent could have contributed to that reason (being no reason at all). 42. To the extent that the Application (specifically, Annexure C to the Application) erroneously refers to Mr Macdonald having resigned from his employment (which is alluded to in the Application at paras 23-34 (sic 24)), there is no reason why that error, which appeared on a document setting out Mr Macdonald's leave entitlements, would have in any way prevented or inhibited Mr Macdonald from filing his Application on time. This is particularly so in circumstances where: (a) It is clear that Mr Macdonald did not resign (although he was provided with an opportunity to do so); (b) The reference to a 'resignation' in Annexure C to the Application is clearly an administrative error; and (c) Neither Mr Macdonald nor the PSA contacted the Respondent to seek clarification as to why there is a reference to 'resignation' in the Annexure C document. 43. In light of the above, there is no evidence that the conduct of the Respondent inhibited, or prevented Mr Macdonald from filing his application within time. Other considerations 44. The Respondent is not aware of any other factors which would provide a reason, let alone a "sufficient reason", to accept the late filed Application. 45. To the extent that some allegation is made by Mr Macdonald that the Respondent 'breached its duty of care' to him (see para 25 of the Application), that is not a matter to be determined by this Commission in considering the Application. Relief for any such claim (if it is proven) is unaffected by the Commission deciding not to exercise its discretion to accept the out of time Application. E. CONCLUSION 46. Mr Macdonald has not discharged his onus of establishing a "sufficient reason" for failing to lodge the Application within the time period prescribed in the IR Act. 47. It follows that the Commission ought to decline to exercise its discretion pursuant to s.85(3) of the IR Act and order that the Application be dismissed.

Case for the applicant

1. The written outline of submissions filed on behalf of the applicant on 9 and 10 October 2017 contained the following: 37. On 8 February 2017 the Delegate of the Professional Standards Command confirmed the earlier determination dated 9 November 2016 to terminate Mr MacDonald's employment, after giving him the opportunity to resign. Mr MacDonald was given until close of business on 1 March 2017 to tender his resignation or the Delegate was to take steps to immediately terminate his employment. 38. The letter dated 8 February 2017 indicates that certain steps would be undertaken by NSW Police to effect termination, and is clearly an intention to terminate rather than a Notice of Termination. 39. The letter dated 8 February 2017 was sent to the PSA on 9 February 2017, via email, and to Mr MacDonald directly on 10 February 2017, also via email. 40. Mr MacDonald did not tender his resignation with NSW Police. 41. A Statement of Service and Notice of Leave Entitlements dated 8 March 2017 were sent to Mr MacDonald by post. The Notice of Leave Entitlements refers to Mr MacDonald's resignation and not termination of his employment. 42. NSW Police did not send a letter at any stage to Mr MacDonald advising that his employment had been terminated consistent with the requirements of Section 47 of the Government Sector Employment Act. 43. Mr MacDonald's termination did not take effect on 2 March 2017 as NSW Police did not comply with the requirements of Section 47 of the Government Sector Employment Act and did not issue and Instrument in Writing that termination had occurred. 44. The letter of NSW Police is an intention to terminate employment and raises the entirely reasonable expectation that further steps would be taken to effect termination. The Application for Unfair Dismissal is an Application for Threatened Dismissal, and is filed within the 21 day time period. 45. In the event that the Commission finds that the Unfair Dismissal Application is out of time, the Commission should exercise its discretion in allowing the Application under Section 85 of the Industrial Relations Act The submissions then discussed some of the legal principles relating to the exercise of the Commission's discretion to accept out of time unfair dismissal applications, and continued as follows: D. APPLICANT'S CASE 50. The Applicant deals with each of the matters set out in s.85(3) of the IR Act in turn. Reason for and length of delay 51. If the Commission finds that application is out of time and the dismissal took effect from 2 March 2017, the delay in filing the Unfair Dismissal amounts to one week's duration. This is a very insignificant delay in the context of other matters that come before the Commission and does not afford any detriment or disadvantage to NSW Police. The time taken for filing the application does not disadvantage NSW Police in defending or responding to the Unfair Dismissal application and does not affect evidence in the matter. The reason for delay purely arises from an understanding of the correspondence by NSW Police dated 8 February 2017 and the legitimate expectation that further steps would be taken before termination was effected. 52. The reason for the timing of the application also arises as a result of the legitimate expectation that NSW Police would provide a notice in writing that Mr MacDonald's employment had been terminated and that the reason for the termination would be included in the Instrument of Termination as required by s.47 of the Government Sector Employment Act. The timing of the application arises from the belief that NSW Police would conduct itself as other Government agencies and comply with the requirements of the Government Sector Employment Act and communicate the termination once it had occurred. 53. There is no omission by Mr MacDonald in the matter, and he should not be disadvantaged in the matter. Hardship to the applicant or the employer 54. Mr MacDonald is 55 years old and resides in an area of high unemployment. He has very specific skills and expertise which are of significant value to NSW Police but there are few opportunities for these skills outside of the NSW Police Force. Mr MacDonald's ability to obtain further employment will also be hampered by the termination of his employment by NSW Police and the psychiatric illness he suffered for which the Workers Compensation Insurer has admitted liability. Further, Mr MacDonald's marriage has broken down as a result of his health issues and he must contribute to the maintenance of his 3 young children. He will suffer ongoing hardship as a result of termination of his employment. 55. Mr MacDonald has a very legitimate case for Unfair Dismissal and he will suffer hardship if the opportunity to present his case is denied. 56. Alternatively NSW Police does not suffer any hardship or detriment in the matter apart from the ability to dismiss a very legitimate Unfair Dismissal claim. It is one of the largest and most resourced Government employers in New South Wales and will not be impacted by a proper consideration of the matter. Conduct of the employer 57. It is clear that NSW Police has contributed to the current situation in relation to the timing of the Unfair Dismissal Application. The communication by NSW Police on 8 February 2017 is not consistent with Government legislation which is designed to provide certainty and clarity in relation to employment of Public Servants and NSW Police have failed to comply with the Government Sector Employment Act. 58. The PSA is entitled to have an expectation that NSW Police would comply with Government legislation and in that context, anticipated that a notice pursuant to s.47 of the Government Sector Employment Act would be sent to the PSA and the employee. Until such a notice was sent, a reasonable interpretation of the letter of 8 February 2017 was that it was a threatened termination. It is noted that NSW Police sent two other letters in 2016 to the employee giving him an opportunity to resign or it would terminate the employment of the employee. This did not occur and it could fairly be assumed that further steps needed to be taken within the NSW Police administrative processes to effect termination. The submissions then proceeded to canvass the prospects of success of the applicant's unfair dismissal application.
2. In his final address, counsel for the applicant relied upon the decision of Oakman AC in Australian Rail, Tram and Bus Industry Union, NSW Branch (on behalf of Sanawaz Burtaleea) and State Transit Authority of NSW ([2011] NSWIRComm 1011) for the proposition that the time limit in subsection 85(1) of the Act should not "commence to run until the person (employee) has been notified or otherwise been made aware of the action or decision (dismissal) that gives rise to the right of appeal".

Has the applicant been dismissed?

1. The applicant's submissions at paragraphs 37 to 44 of the written outline of submissions (see paragraph 35 above) would, if accepted, lead to the outcome that the applicant has not been dismissed and is still an employee of the respondent.
2. Because it is relevant to this aspect of the applicant's case, I set out below section 47 of the Government Sector Employment Act 2013 ("GSE Act"): 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: (a) the employee has failed to meet a condition of engagement as an employee under section 54, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 56, (f) the employee has refused to perform the duties of the role assigned to the employee, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69, (j) the employee is determined in accordance with the regulations and the government sector employment rules to be excess to the requirements of the relevant part of the agency in which he or she is employed, (k) on any other ground prescribed by the regulations. The instrument is to set out the ground or grounds on which the employment is terminated. (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment.
3. The applicant submits that the only power which the respondent has to dismiss him from his employment is found in section 47 of the GSE Act. It is then submitted that the respondent's letters to the applicant of 9 November 2016 and 8 February 2017 do not satisfy the requirements of section 47. It is submitted that the latter correspondence "is clearly an intention to terminate rather than a Notice of Termination".
4. In relation to the "Notice of Termination" signed by Chief Superintendent Rolph on 2 March 2017, which is substantially reproduced at paragraph 21 above, it is submitted on behalf of the applicant that this document cannot be "the section 47 document because it doesn't… have the reasons in it, and it hasn't been communicated".
5. There is no other document in evidence which would, on the applicant's analysis, comply with the requirements of section 47 of the GSE Act. If this be right, it must follow that the applicant has not been dismissed by the respondent in accordance with the requirements of the relevant legislation and is, therefore, still employed by the respondent. If this were the case, the application currently before the Commission would need to be treated as an application in relation to a threatened dismissal and the 21 day time period in subsection 85(1) of the Act will not have begun to run.
6. I reject this submission. The "Notice of Termination" signed by Chief Superintendent Rolph on 2 March 2017 does, in my opinion, satisfy the requirements of section 47 of the GSE Act. It is clearly an "instrument in writing". The "ground… on which the employment is terminated" is stated as follows: "Mr Macdonald did not tender his resignation, therefore his employment is to be terminated."
7. The previous letters to the applicant of 9 November 2016 and 8 February 2017 clearly spell out the reasons why the decision was made to terminate the employment of the applicant after giving him the opportunity to resign.
8. The applicant is under no misapprehension as to the respondent's reasons for dismissing him, which reasons had been communicated to him in writing.
9. The proposition that the "Notice of Termination" signed on 2 March 2017 is not the instrument in writing required by section 47 of the GSE Act because it does not set out the ground on which the employment was terminated, and because it was not communicated to the applicant, would, if accepted, elevate form above substance in a manner which has traditionally not found favour in this jurisdiction.
10. There is no requirement in section 47 for the instrument to be communicated to the applicant.
11. In my opinion, the respondent did satisfy the requirements of the GSE Act to effect the dismissal of the applicant on 2 March 2017.

Out of time application

1. Subsection 85(1) of the Act states that unfair dismissal applications "must be made not later than 21 days after the dismissal of the employee" (emphasis added). As stated at paragraph 33 above, the prima facie position is that applications made out of time will not be accepted by the Commission. The applicant bears the onus of demonstrating that there is a "sufficient reason" for the Commission to accept an application which is made outside of this period.
2. I reject the submission put on behalf of the applicant based on the decision of Oackman AC in ARTBIU (o/b Burtaleea) and STA. That matter involved a situation where an employee had been off work for a period of time to have surgery on his eyes. After some unsuccessful attempts by the employer to contact the employee by telephone, a letter was sent to him to advise him of the commencement of abandonment of employment proceedings under the relevant award. This was followed by further unsuccessful attempts to contact the employee by telephone and further letters, the last of which advised the employee that his employment was deemed to have been abandoned. The problem was that the letters had been sent to an old address and were not received by the employee. He did not become aware that his employment had been deemed to have been abandoned until he had a face to face meeting with his manager.
3. In the present case, the applicant and the PSA have been on notice since 9 November 2016 that the respondent had determined to terminate the applicant's employment after giving him the opportunity to resign. The letter to the applicant of this date set out in some detail the reasons why the respondent had made this determination. There can be no doubt that, at this time, the applicant was aware that he was facing dismissal on 5 December 2016. The reason why he was not dismissed at that time was that the PSA took action, on 2 December 2016, to file a notice of dispute and to seek the assistance of this Commission in relation to the provision of further documentary material relating to the decision to dismiss the applicant.
4. On 8 February 2017, the respondent wrote to the PSA confirming the earlier decision to terminate the applicant's employment after giving him the opportunity to resign. The applicant was given until 1 March 2017 to tender his resignation, otherwise the respondent would take steps to immediately terminate his employment. This correspondence was provided to the PSA on 9 February and to the applicant on 10 February 2017. There can be no doubt that, as at that point of time, both the applicant and the PSA were well aware that the applicant was facing dismissal immediately after 1 March 2017 and were aware of the reasons why that decision had been made. In effect, the applicant had been given notice of termination of employment at that point in time.
5. There was nothing to prevent either the applicant or the PSA from filing an application in relation to the threatened dismissal of the applicant prior to that dismissal taking effect. The background facts were known to the applicant and his union and the preparation of such an application should have been relatively uncomplicated and straightforward.
6. As stated above, the dismissal of the applicant was effected by the respondent on 2 March 2017. The applicant became aware of this on 22 March 2017 when he received the two documents generated by the respondent on 8 March 2017. Despite the fact that the letter to him concerning his accrued leave entitlements referred to "your resignation", the applicant understood that the respondent had terminated his employment. The email which he sent Ms Emery that evening attaching these two documents, five minutes after first seeing them, stated: Dear Susan, confirmation the department have terminated my employment. What happens now?!
7. The applicant spoke to Ms Emery the next day, 23 March 2017, still within the time limit set by subsection 85(1) of the Act. Despite Ms Emery's observation that the respondent still hadn't sent the applicant a letter confirming that his employment had been terminated, and the reasons for the termination as required, she indicated to the applicant that she would file a threatened dismissal claim in the Commission. This was not done for a further seven days.
8. No explanation has been proffered for this delay. The application which was filed on 30 March 2017 was relatively straightforward and set out a short recitation of the facts which had been well known to the applicant and to the PSA for some time. The closest one finds to a "reason" for this delay is found at paragraphs 51 and 52 of the applicant's written outline of submissions (see paragraph 35 above) and in the following passages from the final address to the Commission by counsel for the applicant: And the Commission heard some evidence as to the circumstances in which this application came about in terms of Ms Emery having an expectation that a document approximately in the form of tab 14 would be sent to her, rather than the statement of service, and there was a genuine confusion on her part as to whether the employment had been terminated or if in fact it was a threatened dismissal. ……………………. Now, my learned friend says that, well, he could have lodged a shell application. I don't think that submission can be accepted. An application needs to be lodged, it needs to be a reasonable application. It's been lodged by a union representative. One expects it to take a little bit of time. A week is not, by any stretch of the imagination, an extended period. In addition, none of those matters were put to Ms Emery. There was no suggestion to her that she could have in fact lodged a shell application the day she received instructions. It's also clear from her evidence that she had some confusion in her mind as to what had happened, and there is the fact that the letter to the applicant refers to a resignation when clearly that had not occurred.
9. Even if it is accepted that there was genuine confusion on the part of Ms Emery as at 23 March 2017, that is no reason for a delay of a further seven days for the filing of the application.
10. As previously ststed, the applicant bears the onus of establishing a "sufficient reason" for the delay in filing the application. There was no obligation on the respondent to explore with Ms Emery, during cross-examination, possible explanations for the delay or how it might have been avoided.
11. To the extent that it is put that there was an obligation on the applicant to lodge a "reasonable application", and accepting that the application as filed meets that description, there has been no attempt to explain why it took a full week after 23 March 2017 to put the application together and file it.
12. Whilst a delay of seven days may not seem excessive, in the context of a 21 day time limit imposed by the Act, it cannot be regarded as insignificant. This is especially so in circumstances where no explanation at all for a delay of this magnitude has been proffered.
13. There was no conduct on the part of the respondent which had any bearing on the delay in filing the applicant's unfair dismissal application.
14. However, it is clear that the applicant was poorly advised in relation to the requirements of section 47 of the GSE Act. Contrary to what he was told, there is no requirement in the legislation for the instrument in writing terminating his employment to be communicated to him or to the PSA. Further, he was aware as of 10 February 2017 that, if he did not resign by 1 March, steps would be taken to immediately terminate his employment.
15. Nevertheless, I have formed the opinion that, by the barest of margins, a sufficient reason has been established for the Commission to accept the applicant's unfair dismissal application out of time. In forming this opinion I have paid particular regard to the following matters:
16. The application was made seven days out of time. Whist a delay of this magnitude is not insignificant, it is not excessive.
17. The respondent cannot point to any real prejudice or hardship if the application is accepted by the Commission.
18. When the applicant became aware on 22 March 2017 that his employment had been terminated on 2 March, being still within the 21 day period specified in subsection 85(1) of the Act, he immediately contacted Ms Emery and placed the matter in her hands.
19. It would visit an injustice upon the applicant if his application were to be dismissed as a result of the failure of the PSA to prepare, file and serve it in a more timely fashion.

Order

1. Pursuant to subsection 85(3) of the Industrial Relations Act 1996 the Commission accepts the unfair dismissal application of Alisdair Macdonald despite it being made out of time. Commissioner John Murphy

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 November 2017