Mulhall v Secretary in respect of the Department of Education

Industrial Relations Commission (NSW)|2024-08-14

ex tempore DECISION

On 20 May 2024, Patricia Mulhall ("applicant") filed a claim for unfair dismissal in respect of the termination of her employment as a teacher by the Secretary in respect of the Department of Education ("respondent") pursuant to s 84 of the Industrial Relations Act 1996 ("Act") ("application"). Ms Mulhall was a classroom teacher, at Jindabyne Central School ("the School").
The matter was listed for conciliation and directions on 29 May 2024. The respondent raised an objection to the Commission extending the time within which the application can be accepted. The respondent did not consent to the matter being conciliated and a timetable was made for a hearing of the out of time application.
In respect of the time for filing an application for unfair dismissal, s 85 of the Act relevantly provides: 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. … (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.
I have decided not to accept Mr Mulhall's application out of time for the reasons I will elaborate on in this decision.

Onus on Applicant

The prima facie position is that an application brought out of time is excluded by s 85 (1) of the Act.
The onus rests on Ms Mulhall to convince the Commission of a "sufficient reason" to accept an out of time application.
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 matters set out in subsections (a) to (c) of s 85 (3) of the Act. I will shortly turn to consider these factors in the context of this matter.

The evidence and submission

Ms Mulhall relied upon her statement field on 19 July 2024 ("applicant's statement"): Ex A1. In summary it provided (after Ms Mulhall corrected various dates before the Commission):

When she was asked to resign on 12 October 2023, Jenny Moes of the NSW Teacher Federation gave her advice to the effect that: 1. an "appeal" was unlikely to be successful; 2. the best way forward was to work with the Professional and Ethical Standards Directorate ("PES") to retain her right to teach, "[o]r I may loose my position but could supply (sic) teach, was what she proposed we worked toward"; 3. she should apply for teaching in the Australian Capital Territory "because it was unlikely that NESA…. would ever pursue the claim that I had failed the TIP Teacher Improvement program."
Ms Moes provided her with advice that she could make an application for 'unfair dismissal' the day she submitted her resignation.
At the end of 2023, she was emotionally vulnerable in terms of her mental health, suffering from anxiety and depression. She was supported by her Doctor with medication and sessions with a psychologist fortnightly from June 2023 although she is no longer able to afford these sessions.
In January 2023 she sought legal advice from the ACT Legal Aid in response to letters she received from NESA. She stated that, "This is when I realised that the assurance that my registration as a teacher in the ACT would be OK, it became clear to me that this was not the case."
NESA revoked her teaching accreditation on 10 March 2024.
Ms Mulhall has not worked since October 2023 and is concerned that her age and lack of non-teaching experience will impact on her ability to secure a role that is as financially secure as her teaching position.

At the hearing today, the applicant was granted leave to give additional oral evidence in chief. In summary, the applicant gave the following additional evidence:

she apologised for the delay;
at all times, she disputed the unfairness of the TIP with the respondent. She said that she had always maintained that the process was biased;
she did not think that her teacher's accreditation would be affected and she acted as soon as she received information from NESA;
she needed to take time out after the dismissal due to her mental health;
she was told by the Teacher's Federation at the time of the termination that she had 21 days to make her application. However, she did not know how strict or severe this timeline was; and
she had difficulties trying to manage the appeals by herself.

When cross-examined, Ms Mulhall gave evidence that:

she was made aware by Ms Moes on 12 October 2023 that she had 21 days to lodge an unfair dismissal application;
she did not contact the solicitor in the Blue Mountains referred to by Ms Moes who she was informed had acted for other teachers in unfair dismissal proceedings;
she did not know the time limit was "so strict";
she felt that she had a proper reason not to file the claim because she was discouraged from doing so;
she needed to take a "breather" for her mental health after the dismissal and she did not feel that she was getting the right support at this time as she did no trust Ms Moes of the Teachers Federation;
agreed that the motivating factor to file was the removal of her accreditation by NESA;
agreed she lied to the ACT TQI with respect of her application to attain accreditation in the ACT to be a teacher;
the reason it took a considerable amount of time to file the application was because she did not know the system; and
although she was aware she could lodge the application for unfair dismissal in October 2023 she was just following the advice of Ms Moes.

The Commission also confirmed the applicant's receipt of an email dated 11 April 2024 from the Industrial Registry advising her of the time within which to lodge an unfair dismissal, to which I have already referred. I have referred to that evidence in this decision further shortly.
The respondent relied upon an affidavit sworn by Mellissa Buchanan, Principal Legal Officer within the PES of the respondent on 7 August 2024 (Ex R1). Ms Buchanan's affidavit provided a brief background to the matter and contained an Exhibit consisting of 42 pages that included (Ex R2):

Ms Mulhall's resignation form;
The letter directing Ms Mulhall to resign;
Documents produced by NESA, and the Teachers Federation in response to summonses for production.

Ms Buchanan was not required for cross-examination. The respondent relied upon an outline of written submissions filed on 7 August 2024.
The parties gave oral submissions at the hearing. Ms Mulhall was invited to address the criteria in s 85(3). She submitted, in summary that: 1. the letter from NESA about her accreditation was a "bolt out of the blue" and this activated her to lodge the applications with the Commission; 2. most of the delay was due to her ignorance and it took time to know her career was on the line; 3. with respect to the hardship, she noted her long history as a teacher, and the difficulties she would have getting another job. 4. With respect to the prospect of her matter succeeding (relevant to the question of hardship in s 85(3)(b)): 1. her evidence of not being truthful to the ACT TQI was not relevant to these proceedings. Further in this context she referred to her feeling guilty about the lie and that she had apologised for it, and this was enough for the ACT TQI; 2. NESA gets its information from the Department and this is why her unfair dismissal impacted on the whole of her career, by virtue of NESA's decision to revoke her accreditation; 3. She does not see it as a difficulty in her case that the TIP was subject to a review, because this was not an external review;
Ms Mulhall helpfully conceded that s 85(3)(c) was not relevant and the respondent had not contributed to the delay.

Reason for, and the length of, the delay in making the application

The application is brought 196 days out of time (about 6.5 months). In the context of the statutory requirement to lodge the unfair dismissal application within 21 days, the delay is significant. Although Ms Mulhall filed the NESA application on 9 April 2024, that was still 155 days (about 5 months) out of time. Despite being advised of the time limitation and that she should act quickly by the Industrial Registry on 11 April 2024, Ms Mulhall waited a further 39 days to file the unfair dismissal application.
Ms Mulhall's evidence is that she learned of the capacity to bring an unfair dismissal claim on the day she submitted her resignation. Ms Mulhall's evidence was that she was at all times aware of the 21-day time limit but that she did not know it was "strict" or as "severe as I now know". This is consistent with the file notes and email materials produced by the Teachers Federation, relied upon by the respondent. It is clear from Ms Mulhall's evidence and the chronology of events that she became concerned with her dismissal about the time she learned that NESA had revoked her teaching accreditation. This is supported by the fact that the applicant commenced the NESA application prior to this application. It is clear that Ms Mulhall had hoped to commence teaching in the ACT and that she could effectively put her past employment with the respondent behind her. However, NESA's decision had an impact upon her ability to execute that plan. NESA's decision to revoke Ms Mulhall's teaching accreditation, along with her failure to declare that her work had been deemed as unsatisfactory in NSW, led to the ACT TQI refusing her application for teaching accreditation in the ACT.
At the time of her dismissal, the applicant was receiving support and advice from Ms Moes of the Teachers Federation. On 11 October 2023 Ms Moes advised Ms Mulhall in an email: "In regards to NESA, the determination of the Department will be forwarded to NESA and NESA will make an assessment of your accreditation. It is likely that you will receive further communication from NESA regarding any action they may take in regards to your accreditation."
Ms Mulhall sought to distance herself from this email. She stated that she was told by Ms Moes that it was unlikely that NESA would revoke her accreditation. I find that Ms Mulhill was aware at this time of her termination that NESA might consider revoking her teaching accreditation. However, I agree with the respondent's submissions that even accepting that Ms Mulhall was advised that NESA was unlikely to revoke her accreditation as she claimed, this is not a sufficient reason for the delay in commencing proceedings. Ms Mulhall was prima facie, obliged to commence the proceeding within 21 days. She was aware of that requirement and choose to do nothing about it.
Ms Mulhall's submitted that there were other reasons for the delay which I should find were sufficient to accept the application out of time. As I have already stated, I find that the real reason for the delay was that the applicant decided not to pursue the unfair dismissal claim, but she changed her mind when she was confronted with NESAs decision to revoke her teaching accreditation. However, I would not accept any of the other reasons provided by the applicant as being sufficient reasons for accepting the application out of time. As best I can understand and giving Ms Mulhall case a generous construction, she submits that other reasons for the delay were:

She received advice from the Teachers Federation was that an unfair dismissal application was unlikely to be successful.
She had difficulties obtaining legal advice.
She was suffering from mental health illnesses including anxiety and depression and she needed a "breather" after the termination.

The fact that Ms Mulhall received advise that her unfair dismissal application was unlikely to succeed does not provide a sufficient reason for the delay.
While I accept Ms Mulhall had some difficulties obtaining legal advice, this could not explain the whole of the delay. Ms Mulhall had the benefit of the advice of the Teachers Federation from the time of her termination. She was advised of the availability of the jurisdiction, and an assessment of her prospect was given. Apart from contacting Legal Aid in January 2024, Mr Mulhall did not give evidence of prior attempts to obtain legal advice. For example, she did approach the "solicitor in the Blue Mountains" referred to by Ms Moes. Ms Mulhall's inability to source an alternative legal opinion would not be a sufficient reason for the delay, because she didn't try to obtain that assistance for months after her dismissal. The Commission is not a court of proper pleading. Ms Mulhall could have commenced proceedings earlier without legal representation and continued to seek out assistance as the matter proceeded. Indeed, the applicant could and did so once she decided to commence proceedings.
I accept Ms Mulhall's evidence that she was suffering from mental health difficulties. However, I have no medical evidence to explain how that impacted upon her capacity to file the claim within time. I am therefore unable to find that this was a sufficient reason for the delay.
In my view, Ms Mulhall has not presented a sufficient reason for the delay to the Commission.

Any hardship that may be caused to Ms Mulhall or the employer if the application is or is not rejected

If the application for an extension of time is rejected, Ms Mulhall is denied an opportunity to have her unfair dismissal claim determined. Ms Mulhall provides that her long history of teaching means that her dismissal will cause her severe hardship. She also submits that her dismissal has also damaged her prospects of teaching again in the ACT.
Although it is not the time to determine the merits of Ms Mulhall's claim, it is appropriate for the Commission to consider the prospect of it succeeding in the context of determining the hardship that may be visited upon Ms Mulhall if the application for an extension of time is rejected. Ms Mulhall has provided limited evidence upon which the Commission is able to assess the prospects of her application succeeding. The application has attached to it a document which appears to have been submitted by Ms Mulhall to the respondent in the context of the decision to terminate her employment. I understand that Ms Mulhall argues that her termination was unfair for reasons including a lack of support, her emotional wellness at the time of the TIP, inaccuracies in the details of assessments of her performance, incorrect assessment of her performance as unsatisfactory, and the fact that she was on sick leave during the TIP, because of the stress it was causing her. Ms Mulhall claims Mr Henretty, who administered the TIP created an unfair and unbalanced process. She also claims that she was personally biased.
I am not in a position to assess the applicant's claims, however, I observe that the decision-making process undertaken by the respondent was subject to a Review by Desley Pfeffer, Principal, Employee Performance Management and Improvement of the PES. The ultimate decision to terminate the applicant's employment fell upon the delegate, Denise Hazell, Director, Employee Performance, PES. This suggests that there were checks and balances in place to ensure fairness in the evaluation of the applicant's performance. To succeed, the applicant would need to demonstrate these measures failed. She may also have some difficulties establishing herself as a credible witness given her admission in these proceeding that she was untruthful in her application to the ACT TQI. Given the nature of the allegations being made by the applicant, her credibility would likely be an important factor in claiming her dismissal was unfair. It is for this reason, I reject the applicant's submission that her admission of lying is not relevant to this application for extension of time.
Additionally, I note the applicant seeks reinstatement in her application. NESA has revoked the applicant's teaching accreditation. Whilst I note the applicant has appealed against that decision in NCAT, I have no evidence of the prospects of that appeal succeeding or failing. That is to say, unless the applicant is successful in the NCAT appeal, even if she is successful in the unfair dismissal matter, she will not be able to resume her teaching duties.
With respect to the hardship suffered by the employer, I accept the applicant's evidence that she has always disputed the efficacy of the TIP. The respondent was on notice that the applicant may contest her dismissal. There is always a prejudice associated with a matter being delayed in terms of the decline in the quality of evidence that requires the recall of individuals with the passage of time. However, I anticipate that the respondent's case would be largely dependent upon the documentary evidence of the TIP process, given this was the reason for the termination. I do however note as a well-established principle, that where a time limitation exists, a party is entitled to regard themselves as free from suit after the time limit has expired: Katsantonis v Inner West Council [2017] NSWIRComm 1015 at [34].

The conduct of the employer relating to the dismissal

The relevant conduct per subs 85(3)(c) is conduct relevant to the delay in Ms Mulhall filing her application pursuant to s 84 of the Act. Even if the Commission were to regard the decision as egregiously unfair, the provision does not allow the Commission to exercise discretion in favour of an application: McClymont v Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Green v Mayne Nickless t/as Armagurd (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.
Ms Mulhall helpfully conceded that this is not a relevant factor in this matter.

Consideration

The law as to the approach to the exercise of the discretion under subs 85(3) is clear: 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) xx. 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 Frauds 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'."
I have carefully considered all the factual material available to the Commission, including Ms Mulhall's reasons for the delay. I have determined that Ms Mulhall has failed to discharge her onus that the application should, in the interests of justice, be admitted out of time.
As concluded in A v B [2021] NSWIRComm 1058 at [131]: "Parliament has chosen to condition the discretion to extend the time for making an application. A 'sufficient reason' has been mandated. That said, it must follow that Parliament has legislated on the basis that the employee who is aggrieved at being dismissed is expected to seek out information on any available remedy in a timely fashion such that any delay on account of ignorance of the statutory time limit is not, of itself, a 'sufficient reason'."
As I have explained earlier, the reasons provided by Ms Mulhall for the delay are not persuasive. Despite being aware of her right to make an application for unfair dismissal within 21 days, Ms Mulhall failed to do so for 196 days. She did not act quickly, even when advised directly of the need to do so by the Industrial Registry.
The denial of the opportunity to bring the unfair dismissal claim is significant to Ms Mulhall. While I am unable to assess the prospects of her matter succeeding at this stage of the proceedings, it is my view that Ms Mulhall would be faced with some challenges in advancing her matter to a successful outcome. It is therefore not a given that she will suffer any hardship because of the application being refused. I also need to consider this in the context of the hardship to the respondent who is, prima facie, entitled to have the claim commenced within time. The respondent may suffer some prejudice in responding to the claim because of the delay to the extent that the evidence presented by Ms Mulhall is new and relies upon the recollection of witnesses.
Finally, as I have already stated, I do not consider that the respondent contributed to the delay in the commencement of the proceedings.
Having considered these matters and balancing them, I have decided not to accept the application out of time. I am satisfied that there is insufficient reason for the Commission to exercise its discretion pursuant to subs 85(3) of the Act.

Orders

I make the following orders: 1. The application made by Ms Mulhall pursuant to s 85 of the Act that the Commission accept the application pursuant to s 84 of the Act out of time is refused. 2. The application made by Ms Mulhall pursuant to s 84 of the Act is dismissed for reason that it is not brought within time.

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: 14 August 2024

Industrial Relations Act 1991(NSW)

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