McHughes v Secretary, Department of Education

Procedural matters

1. The respondent notified his willingness to conciliate before pressing the jurisdictional objections and I determined pursuant to cl 6 of Practice Note 17A that I would conciliate the matter prior to dealing with the jurisdictional matters.
2. The matter was conciliated by me on 9 May 2019, unsuccessfully. Following the conciliation, I made procedural directions and further directions were made on 25 July 2019, including that the procedural issue would be dealt with "on the papers".
3. On 29 May 2019, the applicant filed three documents headed "Statement".
4. The first statement attaches 13 documents including: a one page "Overview"; the Application; and a letter to the then Chief Commissioner addressing the Application being filed out of time ("the applicant's first statement").
5. In the second statement the applicant provides evidence about the correspondence between him and the respondent prior to the Application being filed and attaches information from the www.localcourt.justice.nsw.gov.au website about Local Court opening times ("the applicant's second statement").
6. In the third statement the applicant provides evidence about the alleged offence.
7. On 20 June 2019, the respondent filed submissions on the "out of time" question ("the respondent's submissions") and an affidavit from Mr Wright-Smith affirmed on 19 June 2019.
8. On 12 August 2019, the applicant filed a fourth document headed "Statement" which attached: three pages of submissions ("the applicant's submissions in reply"): and a copy of the directions of the Commission made 25 July 2019 ("the applicant's fourth statement").
9. On 19 February 2020 the applicant informed the Commission that a "not guilty" verdict was given in the criminal matter with which he was charged.
10. The respondent was provided with an opportunity to make submissions following the applicant's notification of his "not guilty" verdict but the respondent's submissions on this matter have not been considered by the Commission.
11. The documents filed by the applicant were a mixture of evidence and submissions and much of the material contained in the applicant's submissions and the affidavit of Mr Wright-Smith filed by the respondent addressed the substantive issues and not the matters to which the Commission is to have regard pursuant to s 85(3) of the Act. However, pursuant to s 163 of the Act the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. In the circumstances of this matter, I have considered all of the material filed by both parties.

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.
2. The Act makes it mandatory that applications pursuant to s 84 be made within 21 days of the dismissal. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. These circumstances do not arise in this matter.
3. Subsection 85(3) of the Act provides that the Commission "may", as a matter of discretion, accept an application which is made out of time.
4. The applicant for an extension of time pursuant to sub-s 85(3) has the burden of establishing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416.
5. The Commission's exercise of discretion requires the formation of the view that there is a sufficient reason for an extension of time having regard in particular to the factors in sub-s 85(3)(a) to (c): Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054 at [25]. It is not appropriate to formulate any definition of what constitutes a "sufficient reason": Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190 as cited in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 ("Hurrell") at [13].
6. In order to determine if sufficient reason exists for the Commission to exercise its discretion to accept the Application out of time, the Commission must consider: the length of the delay; the applicant's stated reasons for the delay in filing; hardship that may be caused to the applicant and/or the respondent; and the conduct of the employer relating to the dismissal.

Length of the delay

1. The Commission must have regard to the length of the delay (section 85(3)(a)). The Application is brought eight days out of time in circumstances where a relatively short limitation period of 21 days is prescribed. While it may appear to be a trivial or negligible period of time, it is over a third of the 21 day limitation period.

Reason for the applicant's delay

1. The applicant gives as his reasons for the Commission accepting the Application out of time: 1. after receiving the Termination Letter he sought the advice and assistance of the PSA. On 13 March 2019, the PSA wrote to the respondent, on the applicant's behalf, appealing the decision and asking for a reply by 20 March 2019. Mr Peter Riordan, Deputy Secretary, Corporate Services, NSW Department of Education ("the Department") responded to this letter at 6:30 pm on 22 March 2019. The applicant says he had been "hopeful" that as a consequence of this exchange of correspondence his contract would be reinstated without the need to lodge an unfair dismissal application [1] . The applicant says that after receiving the response from the Department the applicant was advised by the PSA to file an unfair dismissal application [2] ; and 2. the applicant lives in Brewarrina, in regional New South Wales and "the earliest [he] could file this application [was] Tuesday 2 April 2019" [3] because the Brewarrina Local Court is only open on Tuesdays and Wednesdays. The applicant says that he cares for his disabled son and that "the next court Bourke court is 100 km away from [his] home address" and "so all court action is to go through Brewarrina court and they only open on Tuesday and Wednesday". [4]
2. The 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. The respondent says that each of Mr McHughes's reasons do not withstand scrutiny and as such the applicant does not make out his burden.

Advice from the PSA and receipt of letter from the Department on 22 March 2019

1. On 13 March 2019, Mr Wright of the PSA wrote to the respondent in a letter erroneously dated 13 February 2019, asserting: EPAC's decision to terminate Mr McHughes's contract pre-empts the outcome of any external legal process that may (or may not) ensue. … … the decision to terminate Mr McHughes's contract in the absence of any external matter legal matter or … commencement of an internal EPAC investigation is unfair, unreasonable and unjust. … As you may be aware, Mr McHughes may have an external remedy with respect to an unfair dismissal application. The union requests expedited consideration of the re-instatement of Mr McHughes's contract. We request the outcome of our submissions … be received by close of business 20 March 2019 to allow our member to consider his options.
2. The applicant says in his second statement: 2. After I received [the] termination letter effective from the 4th March 2019, from the Department of Education, I sought advice from Mr Anthony Wright PSA union. They assisted me with an appeal letter. The PSA can only provide limited support as I have just joined the PSA union. They assisted with an appeal letter to Mr Mark Scott, 13th March 2019. The NSW Department of Education sought an extension to 22nd March 2019. 3. The letter from Mr Peter Riordan … arrived via on Friday 22nd March 2019 at 6.30pm. I was devastated because I thought I would be reinstated. I sought further advice from Mr Anthony Wright PSA and he advised me to put [in] a claim for Unfair Dismissal.
3. The applicant says in his letter to the former Chief Commissioner dated 29 March 2019: 1. I was waiting for a reply from the Department of Education. The Department sought additional time to provide a response. I agreed to the extension request, as I was hopeful for the reinstatement of my contract without requiring lodging an unfair dismissal application.
4. On the bases that: 1. the correspondence from Mr Wright dated 13 February 2019 (noting this date should have been 13 March 2019); 2. the applicant's statements, in particular the applicant's second statement; 3. the letter to the former Chief Commissioner; 4. the fact that the PSA is a professional industrial association and Mr Wright is known to the Commission; and 5. the applicant has not provided evidence to prove, or submitted, to the Commission that the PSA did not provide advice about the 21 days' limitation period prior to the expiration of it it is reasonable for me to infer that the PSA informed the applicant of his right to make an unfair dismissal claim which would have included advice about the 21 days' limitation period as early as the date of the letter from Mr Wright to the Department, 13 March 2019, and more than likely before that date. Mr McHughes's temporary employment was terminated effective 4 March 2019. Mr McHughes had at least 12 days from the date of the letter from Mr Wright to the Department to file the Application within the statutory time period.
5. In making the above inference I have taken into account that the applicant is now self-represented and may not understand the relevance or importance of certain evidence or of the time limit for filing. However, I have also been conscious that the applicant was represented before filing the Application.
6. The applicant has not filed any evidence that the PSA advised him to wait for a response to its letter before filing. I infer, consistent with the material filed by the applicant, that it was the applicant's decision to wait for the response from the Department before filing, and that it was not representative error.
7. In my assessment, most employees whose employment is ended by their employer against their wishes would prefer to resolve matters through correspondence and not through an application for unfair dismissal. While the legislature has given the Commission the discretion to accept late applications, it is expected that applicants must act to preserve their ability to bring a claim by commencing an application within the time limit even while negotiating with their former employer.
8. I accept, in this instance, that the applicant believed that the content of the letter from the PSA to the Department which outlined the applicant's specific family circumstances and the connection between his circumstances with the applicant's role as School Learning and Support Officer would result in a reconsideration of the termination of his contract. I also accept that this expectation was a factor in the applicant not taking steps to commence the Application before receiving a reply to the PSA's letter.
9. The applicant says further that because the respondent did not reply to the PSA's letter by the date the PSA had requested this "took 48 hours from his 21 days from the date of termination to lodge an in-time application".
10. Mr McHughes has not provided any evidence that his decision to wait for a response to the PSA's letter, including allowing the Department an additional 48 hours to respond to the letter, before filing the Application, was a consequence of any encouragement by the Department.

Opening days of Brewarrina Local Court

1. The applicant submits In the small town of Brewarrina NSW, the court only operates on Tuesday and Wednesday. Sometimes it can be closed. If Brewarrina Court operated five days a week this would have met the time frame. Unfortunately if Brewarrina Local Court operated in Thursday it would have met the time frame.
2. It is not correct that if the Brewarrina Local Court was open on Thursday 28 March 2019 that the applicant would have had the opportunity to file the Application on time. In order for the applicant to have filed within the time period, the Application should have been filed on or before Monday 25 March 2019, the first working day after receipt of the letter from the Department.
3. The applicant could not file the Application at Brewarrina on Monday 25 March 2019 because the Brewarrina Local Court was not open on that date.
4. However, the applicant did not file on Tuesday 26 or Wednesday 27 March 2019 but waited another week.
5. The respondent says the applicant was aware of the time limit prior to its expiry and the applicant has not filed any specific evidence on why he could not have filed the Application on Tuesday 26 and Wednesday 27 March 2019 or why he could not have travelled to other courts in the vicinity of Brewarrina to file the Application.
6. The applicant's evidence does not address when the applicant became aware that the Brewarrina Local Court was only open on Tuesdays and Wednesdays. The applicant has not asserted that he did not know the Local Court at Brewarrina was only open on Tuesdays and Wednesdays prior to the end of the 21 days' period from the end of his employment.

Hardship to the applicant and/or the respondent

1. The applicant does not explicitly set out the hardships that may be caused to him if the Commission does not accept the Application. In his fourth statement the applicant sets out hardships suffered as a consequence of his circumstances in Brewarrina and the matter in general and says: 9. The difficulty of this case is the Department of Education process. At anytime we can be charged by the NSW Police. I cannot address the issue with the Department … until after the matter goes to court yet I'm not sure the Department … had all the facts at the time of my dismissal…. I am denied an income until a lengthy process can happen.
2. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ("Taylor") Toohey and Gummow JJ observed as follows at 459: … in one sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised.
3. The hardships that the applicant claims are similar to the vast majority of unfair dismissal claims although it is noted that the applicant's employment involves providing care to his disabled son. If the Application does not proceed, the applicant cannot seek redress for what he asserts was an unfair dismissal which removed him from this role.
4. The respondent says that he will be put to hardship as: 1. he is entitled to regard himself as free from an unfair dismissal application once the time limit has passed, as Commissioner Newall accepted and acknowledged in Katsantonis v Inner West Council [2017] NSWIRComm 1015 at [34]; and 2. the applicant was employed as a temporary employee who was employed pursuant to s 21 of the Education (School Administrative and Support Staff) Act 1987 ("the Education (SASS) Act") and the remedies available to him are limited by s 21(6) of the Education (SASS) Act. The respondent says this is a relevant factor for the Commission in determining an out of time application and relied on Commissioner Newall's decision in John v NSW Health Pathology [2016] NSWIRComm 1042 ("John") at [30] - [31].
5. The first matter that the respondent submits will cause hardship to him includes the usual effects of delay including the oppressiveness which may be caused in allowing an action to be brought long after the circumstances which gave rise to the claim occurred, the proposition that people should be able to arrange their affairs and resources on the basis that claims will no longer be made, and the public interest in the quick resolution of matters. However, this consideration does not weigh heavily in this circumstance of a delay of eight days.
6. As to the second hardship, sub-s 21(6) of the Education (SASS) Act is in the following terms: (6) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuation entitlements.
7. It is relevant to the exercise of the Commission's discretion that the remedies available to the applicant are limited by s 21(6) of the Education (SASS) Act.
8. In John, the Commissioner was satisfied that Mr John did not seek the remedies available under the IR Act, reinstatement, re-employment nor compensation but instead sought a reference to assist with future employment: at [19]. The Commissioner considered that it was relevant to the hardship to the employer that "[t]he respondent would be obliged, if the application were admitted, to prepare for and conduct a case that would have no outcome within the remedies contemplated by the [IR] Act. In my view to conduct otiose proceedings is an unnecessary hardship to the respondent": at [31].
9. Relevantly, Commissioner Newall continued: It is also contrary to the Commissioner's obligations under the [IR] Act and under ss 55-58 of the Civil Procedure Act 2005. The Civil Procedure Act militates strongly against using court time and public and private resources for any purpose the outside the just, quick and cheap resolution of issues. To conduct otiose proceedings is not within that compass.
10. The applicant, who is unrepresented, did not address, in the applicant's submissions in reply, or elsewhere in his filed material, the effect of sub-s 21(6) or the question of whether these proceedings are otiose. However, the applicant asserts he has "been a casual employee of the Department of Education since 2010 and [has] held a long-term contract since 2013" [5]
11. Sub-section 21(2) of the Education (SASS) Act provides: (2) A person employed under this section may be employed for a period or periods of up to 3 years.
12. Attached to Mr Wright-Smith's affidavit is a copy of the Long Term Temporary Non-Teaching Staff Contract for the applicant for the period 5 February 2019 to 3 February 2020. Mr Wright-Smith's affidavit does not deal with any earlier periods of temporary or casual employment.
13. The respondent's submissions set out s 21 of the Education (SASS) Act [6] and refer to the incident which was the subject of the alleged offence taking place during "a previous temporary engagement with the Respondent" [7] but do not respond to the applicant's assertion that he has "held a long-term contract since 2013".
14. As the evidence before the Commission on this matter is limited and there were no oral submissions on this matter there remains a question as to whether the applicant may have been employed pursuant to s 21 of the Education (SASS) Act for more than three years. I have not formed a view as to the effect of employment for more than three years pursuant to sub-s 21(2) on the operation of sub-s 21(6) of the Education (SASS) Act. I have merely formed a view that if the applicant was employed under temporary contracts from 2013 then the question as to whether the proceedings are otiose requires a closer examination.

Conduct of the employer relating to the dismissal

1. As Commissioner Newall held in Isaac v Department of Family and Community Services [2018] NSWIRComm 1008: 13. … 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]; 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. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others.
2. The applicant says that the respondent's request for an additional two days to respond to the letter from Mr Wright played a part in the delay in the applicant filing his unfair dismissal application. It seems to me that there is some element of reliance on the request for further time for a response. It is not the whole of the answer to the delay but it had an impact upon the applicant. To that extent there is some degree of the conduct of the employer relating to the dismissal that bears upon the delay.

Consideration and decision

1. The essential principle is 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, are paramount: Hurrell at [13].
2. The onus is on the applicant to convince the Commission to exercise the discretion in her favour: Taylor per McHugh J at 554.
3. The 21 days' time limit prescribed by s 85(1) is a clear instruction by the legislature that such a time limit be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Pt 6 applicant: Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5. Otherwise the time limit in s 85(1) would be meaningless.
4. In exercising my discretion under s 85(3) it is a question of determining where the balance of convenience lays: whether a late applicant employee should be denied a remedy or the respondent employer be put to any inconvenience which may arise for him from a late application: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (1993) 51 IR 186 at p 191.
5. By the barest of margins, the balance of convenience favours the applicant in this case given the delay of only eight days, and the geographical considerations. The applicant would certainly be prejudiced if his Part 6 application was unable to proceed without his being given the opportunity to present his case.
6. The applicant has discharged his onus to persuade the Commission that there is a sufficient reason to accept the Application. In forming this opinion, I have paid particular regard to the following matters: 1. the Application was made eight days out of time. Whist a delay of this magnitude is not insignificant, it is not excessive; 2. given the evidence of earlier contracts between the applicant and the respondent, the respondent has not convinced the Commission that it would be put to preparing for, and arguing, a case for which there is no available remedy and the proceedings are otiose; 3. from the date that the applicant was informed of the termination of his contract he has sought to challenge this decision as unfair.
7. In these circumstances, I propose to exercise my discretion under s 85(3) of the IR Act in favour of the applicant and permit the Application to go forward. I will set this matter down for directions on 5 May 2020 by telephone for programming of the matter.

Orders

1. I make the following order: 1. The application made by Mr Belmont James McHughes pursuant to s 85 of the Industrial Relations Act 1996 that his application pursuant to s 84 of the Industrial Relations Act 1996 be accepted out of time, is accepted.

Directions

1. I make the following direction: 1. The matter is listed for directions by telephone at 10 am on 5 May 2020. N J Constant Chief Commissioner

Corrigendum Submissions filed by the respondent by email on 8 April 2020 were not brought to the attention of the Commission as constituted to hear the jurisdictional objection before the publication of this Decision. Consequently, the Commission as constituted to hear the jurisdictional objection did not read these submissions and these submissions were not considered in this Decision. Paragraph [17] of this Decision when published on 24 April 2020 stated: [17] The respondent was provided with an opportunity to make submissions following the applicant's notification of his "not guilty" verdict but the respondent has not done so. Paragraph [17] has been amended to remove reference to a failure by the respondent. The circumstances leading to this amendment are set out below. Following the publication of this Decision on 24 April 2020, the respondent notified the Commission that the respondent's representative had sent an email to the Commission's Commissioner Support email address on 8 April 2020 attaching submissions in respect of the applicant's "not guilty" verdict. It is usual practice that submissions in matters before the Commission must be filed in hard copy as the Commission does not have e-filing facilities. Due to protocols in place at the Commission in response to COVID-19, filing by email was accepted practice as at 8 April 2020. In response to the notification from the respondent's representative on 24 April 2020, the Industrial Registrar reviewed the emails received in the Commission's Commissioner Support and Registry email in-boxes on and around 8 April 2020. On 30 April 2020, the Industrial Registrar established that the email from the respondent's representative attaching the respondent's submissions was captured in the "Junk Email" folder of the Commissioner Support email address. The Industrial Registrar was informed by the Security Administrator, Information & Cyber Security, NSW Department of Communities and Justice, that the email from the respondent's representative was captured in the "Junk Email" folder because the sender's Department of Education email address did not contain a "sender policy framework" record.

Endnotes

1. Letter to the former Chief Commissioner dated 29 March 2019 attached to the Application
2. The applicant's second statement par 3
3. Letter to the former Chief Commissioner dated 29 March 2019 attached to the Application
4. Applicant's reply submissions para 6
5. Application for Relief in Relation to Unfair Dismissal filed 2 April 2019 - Reasons for Application at point 6
6. At para 4
7. At para 5

Amendments 07 May 2020 - 1. Refer to the Corrigendum below. 2. Corrigendum added. 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: 07 May 2020