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[2026] NSWIRComm 1110
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-11-02
Deputy President McDonald
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Nunes v Verinder [2026] NSWIRComm 1110
Hearing dates: On the papers
Date of orders: 2 November 2026
Decision date: 02 November 2026
Jurisdiction: Industrial Relations Commission
Before: Deputy President McDonald
Decision: The applicant is granted an extension of six days in which to bring his appeal, such that his Application for Leave to Appeal and Appeal filed on 28 September 2026 has been filed within time.
Catchwords: APPEALS — Procedure — Time limits — Extension of time — Self represented litigant — Delay in receiving transcript — Where applicant took immediate steps to order transcript — Where transcript necessary for grounds of appeal — Short delay — Application for extension of time granted
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Teachers
Legislation Cited: Fair Work Act 2009 (Cth), s 789FD
Industrial Relations Act 1996 (NSW) ss 144C, 144G, 188, 189
Industrial Relations Commission Rules 2022 (NSW) r 7.1
Cases Cited: Carvacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247; [2002] NSWIRComm 341
Charisse Cachuela v Commissioner of Police [2025] NSWIRComm 1
El-Hanania v Vella [2019] NSWCA 167
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257
Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287
Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 13
R v Lesser (1940) 27 Cr App R 69; [1939] 3 WLUK 32
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100
Workcover Authority of New South Wales (Inspector Salmon and Parkes Council) (1996) 70 IR 298
Category: Procedural rulings
Parties: Pedro Miguel Praca Cavaco Nunes (Applicant)
Katrina Verinder (First Respondent)
Emma Blake (Second Respondent)
Shaun Michaeil (Third Respondent)
Lawrence Yu (Fourth Respondent)
Kirsten Stroak (Fifth Respondent)
Sharon Sands (Sixth Respondent)
Secretary of the Department of Education (Seventh Respondent)
Representation: Counsel:
K Plowman (Respondent)
Solicitors:
Minter Ellison (Respondent)
Others:
P Nunes (Self-represented)
File Number(s): 2026/00406827
Publication restriction: None
On 1 September 2026 Commissioner Muir dismissed an application for stop bullying orders brought by Pedro Nunes against his employer, the Secretary of the Department of Education and various individuals (Primary Decision).
On 28 September 2026 Mr Nunes filed an Application for Leave to Appeal and Appeal (Application), seeking leave to appeal from the whole of the Primary Decision.
An appeal to a Full Bench of this Commission must be made within 21 days after the date of the decision appealed against, unless further time is allowed by the Full Bench or a Presidential Member, pursuant to s 189 of the Industrial Relations Act 1996 (NSW) (IR Act). This requirement is reflected in r 7.1 of the Industrial Relations Commission Rules 2022 (NSW) (IRC Rules) which stipulates that an Application for Leave to Appeal and Appeal must be made within 21 days after the date of the decision to be appealed, or a further period as allowed by the Commission.
Mr Nunes was six days late in filing his Application. Consistent with r 7.1(2) Mr Nunes, who is unrepresented, included in his Application an application to extend the time to appeal.
The Respondents do not object to Mr Nunes’ application for an extension of time and all parties consented to the application being determined on the papers.
For the reasons that follow I have determined to grant Mr Nunes’ application for an extension of time.
The principles to be applied in an application for the extension of time for leave to appeal and appeal are set out in Workcover Authority of New South Wales (Inspector Salmon and Parkes Council) (1996) 70 IR 298 at 229-300 and Carvacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247; [2002] NSWIRComm 341 at [40]-[43].
More recently in Charisse Cachuela v Commissioner of Police [2025] NSWIRComm 1, cited with approval by the Full Bench in Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100, the Commission determined, without limiting the considerations that may be relevant in a particular case, that when considering the question of an extension of time to appeal, regard must be had to:
the extent of the delay;
whether there is some reasonable explanation for the delay which might include but is not limited to, an error on the part of any legal advisor;
the extent of any prejudice that would be suffered by the parties by reason of extending time or refusing to extend time; and
the prospects of success on appeal.
These matters will inform the exercise of the discretion to extend time provided by s 189 of the I**R Act*,* the sole purpose of which is “enabling justice to be done between the parties”. [1]
The limitation period represents the legislature's judgment that it is in the public interest that such an action be litigated within the time stipulated and that a successful litigant can proceed on the basis that a decision in its favour will stand in the absence of an appeal being filed within the time prescribed. [2] As such, it is for Mr Nunes to show that his case justifies an extension being granted.
When considering the prospects of success on appeal it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success. [3] If it appears that the appeal is a highly meritorious one, that will weigh heavily in favour of an extension of time, although it is not decisive; but if it appears that the appeal cannot succeed, an extension of time to bring a hopeless appeal should not be granted. [4]
In respect of an application for an extension of time in which to appeal under s 189 of the IR Act, the Commission must consider the likelihood of the appellant obtaining leave to appeal by virtue of s 188 of the , which requires a Full Bench to be of the opinion that the matter the subject of the appeal is of such importance that, in the public interest, leave should be granted. [5]
Mr Nunes seeks an extension of time in which to bring his appeal on the basis that:
the delay was only six days;
he encountered considerable difficulties in obtaining a transcript of the hearing, a situation which was exacerbated by his lack of understanding as a layperson as to how to use the online portal to order the transcript; difficulties registering because of his long family name; that the portal was sometimes offline; and the need to borrow money from his family to pay the transcript fee;
he recently underwent a change of medication which made him forgetful and unable to concentrate;
the short delay will not cause prejudice to the Respondents; and
the appeal raises arguable questions of general importance.
In support of his application Mr Nunes relied on an affidavit affirmed on 28 September 2026 and a letter from his doctor dated 28 September 2026 explaining that due to a change in medication at the beginning of September, Mr Nunnes’ medical state had deteriorated “to such an extent that he was forgetful and unable to concentrate and function with mental tasks during this time.”
Mr Nunes’ affidavit is brief and relevantly states:
“2. I decided on the 2 September 2026 to apply for the hearing transcript of my IRC case stated above. I wanted to see the transcript to check if there were sufficient grounds for an appeal to be successful. I followed the process and applied through the portal. I then experienced a great number of difficulties.
- The online portal was difficult to navigate and was sometimes offline which made it impossible to use at times.
- My surname is composed of 3 names, and my Medicare card only shows the first part of my surname. This discrepancy made it impossible for me to register on my own, online, so I asked the Registry and Daniel (legal eServices) to help me.
5. After several unsuccessful attempts to register on the online portal, and several emails exchanged with Daniel, the only solution was for Daniel to register manually.
- Despite this, I could still not apply for the transcript. I was not sure what the problem was and I sent screen shots to Daniel. He thought there was a confusion between the different jurisdictions. Three different Jurisdictions seemed to correspond to the Parramatta IRC, but only one of those could be used.
- Daniel explained to me on the 8th September 2026 which jurisdiction was the correct one.
- On the 16th September 2026, Ms Alice Gordon explained to me that there was an error on my transcript request concerning the dates. She told me to edit the request online and that if I couldn't edit online, to then ask the Registry to reject my initial request so I could submit a new request.
- As I could not edit online, I emailed the Registry on the 17th September 2026 asking for my initial request for the transcript to be rejected.
- Then I realised that the fee waiver declaration form from the IRC online portal was faulty.
- On the 18th September 2026, I emailed the Registry to let them know of this issue.
- This issue could not be resolved, so Daniel emailed me the form on the 21 September 2026.
- The fee waiver request was rejected. I approached my family to ask them for financial support to pay the transcript fee which is over $5,000. On the 23rd September 2026, my mother accepted to help me pay this fee.
- On the 25th September 2026, I paid the amount due for the transcript and received the transcript.
- There were additional incidents and other issues with the online portal which I have chosen not to mention in this affidavit as they were less important.
- I prepared the appeal during the weekend 26-27 September 2026.”
As noted above, the Respondents did not oppose Mr Nunes’ application for an extension of time and so tendered no material countering the above account.
Based on Mr Nunes’ evidence, and inferences I have drawn from it, I find that:
Mr Nunes decided to order the transcript of the hearing the day after receiving the Primary Decision as he believed at that time that he needed to see the transcript to confirm that there were sufficient grounds to appeal;
due to Mr Nunes experiencing difficulties ordering a transcript, arising from problems in registering on the online transcript portal due to his long surname; difficulties in identifying the correct jurisdiction; and the portal being offline at times, his initial order for a transcript was only lodged on or about 8 September 2026, a week after the Primary Decision was delivered;
Mr Nunes was advised on or around 16 September 2026, that is, over a week after he had lodged his initial order, that his order had not been processed as the dates of the hearing had been wrongly identified;
while it is not clear whether Mr Nunes attempted to make a fee waiver request when he placed his initial order for a transcript on 8 September 2026, he became aware that the fee waiver declaration form on the IRC online portal was “faulty” on or around 18 September 2026 and was thereafter only able to lodge a fee waiver request on or around 21 September 2026, the day before the deadline for filing his appeal;
after learning that his fee waiver request had been declined Mr Nunes ultimately paid the fee for the transcript on 25 September 2026, after borrowing money from his mother and received the transcript on the same day;
Mr Nunes filed his Application for Leave to Appeal and to Appeal three days after receiving the transcript.
The above findings lead me to conclude that had Mr Nunes not encountered the difficulties he did, which I accept were matters largely beyond his control, he would likely have received the transcript and lodged his Application for Leave to Appeal and Appeal well before the deadline, despite memory and concentration difficulties.
The delay in filing the Application was relatively short and Mr Nunes has provided an explanation for it. The question is, is that explanation reasonable, such that it might weigh in favour of the Commission granting an extension of time?
In his Application Mr Nunes acknowledged that the difficulties he encountered in obtaining the transcript “did not stop time running, and that a short application could have been filed within time and later amended”, however as “a self-represented party, he believed he needed the transcript in order to state his grounds accurately, and he has acted promptly since paying for it and receiving it.” The fact that Mr Nunes understood that he could have filed a “short application” and amended it later, speaks against the grant of an extension of time, although it is also understandable that as a lay litigant, he wanted to “check if there were sufficient grounds for an appeal to be successful” before committing to filing an appeal.
Delay in obtaining transcript is sometimes proffered as an excuse for failing to file an appeal, or an application for leave to appeal, on time. However, typically this occurs in circumstances where the transcript of the hearing is the only authoritative record of the decision being appealed from. That is not the case here, where the Primary Decision was published on Caselaw NSW and provided to the parties on the same day it was delivered.
The Court of Appeal has rejected delays in obtaining transcript as providing a reasonable explanation for delays in filing an appeal where legal practitioners were present at the time the primary decision was delivered. Practitioners are expected to take notes of the oral reasons for the decision, and other “essentials of what occurs in court”, [6] sufficient to be able to file any appeal within time. In the present matter however, Mr Nunes was unrepresented and did not have the advantage of a legal practitioner keeping notes of what was occurring during the hearing.
In Kumar**i v State of New South Wales, NSW Treasury [2025] NSWIRComm 13 Taylor J, P, was not satisfied that the delay in receiving transcript impacted the applicant’s ability to file an application for leave to appeal and appeal within the required timeframe. In that matter while the primary decision was given ex tempore, it was published in written form that same day. In explaining why he was not satisfied that the delay in receiving transcript provided a reasonable explanation for the delay in filing the appeal application, his Honour considered whether the transcript was in fact required to prepare the application:
“17. Ms Kumari has not satisfied me that the delay in receiving the transcript impacted her ability to file the application within the timeframe provided. Given that her legal representative was present during those proceedings, it is difficult to understand why it was necessary to obtain the transcript before filing the application. There is nothing before me to suggest that she could not have filed the application based on the Decision while seeking a copy of the transcript.
- In this regard, Mr Thakur suggested that the decision required a close examination of the transcript because it was "very technical". I reject that submission. There is nothing about the Decision or any of the matters that Mr Thakur has identified from the transcript which would suggest that it was necessary to obtain a copy of the transcript before a decision could be made to appeal the Decision.
- As such, I find that the delay in seeking transcript is not a reasonable explanation for the delay.
- Two further matters reinforce that finding. First, the applicant says she had obtained all the transcripts by 28 April 2025. The absence of full transcript before that date provides no justification for the delay in filing the application until 13 May, some 15 days later.
- Second, an examination of the application for leave to appeal and appeal particularises no aspect of the transcript. It is drafted in the most general terms, claiming a series of high-level errors that are not grounded in any particular finding of Commissioner McDonald, in the manner one might expect to find in a pro forma precedent, or an application written by artificial intelligence.”
(Emphasis added)
Mr Nunes’ Application, by contrast, does reference the transcript multiple times. It is therefore necessary to consider Mr Nunes’ appeal grounds and whether it was reasonable in light of those grounds, for Mr Nunes to await receipt of the transcript before filing his Application.
The Application sets out, in somewhat discursive form, ten grounds of appeal. For present purposes I set out below the gravamen of each ground and whether a reference to the transcript is made in relation to the ground and my assessment as to whether what is referenced is essential to the articulation of the ground.
“1. Repetition: how section 144C(1)(a) was interpreted and applied
The Commissioner made an error of law in how he interpreted and applied the words “repeatedly behaves unreasonably” in section 144C(1)(a) of the Act. Having found:
(a) two instances of unreasonable behaviour, each creating a risk to health and safety ([53], [111]–[114]);
(b) a sufficient connection between the individual respondents ([15]–[16]); and
(c) common features of both events, including a lack of care in carrying out management action ([52], [118]), the Commissioner decided that there was no repetition because the two management processes differed in subject matter, participants and timing ([117][119]).”
Appeal ground 1 essentially asserts, by express reference to parts of the Primary Decision, that the Commissioner acted on a wrong principle. Mr Nunes contends that the definition of “bullied at work”, which requires, inter alia, an individual, or group of individuals, to have repeatedly behaved unreasonably towards an employee, does not require the behaviour to be similar in character. At [18], [117] and [118] the Commissioner found that two instances of unreasonable behaviour on the part of a group of individuals were of a “sufficiently different character” that they did not constitute repeated behaviour.
No reference is made to the transcript in the above referenced paragraph or in the additional paragraphs in the Application supporting appeal ground 1. Reference is made only to specific parts of the Primary Decision. The transcript was not required for Mr Nunes to formulate ground 1 of his appeal.
“2. Known health circumstances and reasonable adjustments
The Commissioner made an error, or did not give adequate reasons, in assessing the reasonableness of management's responses to the Appellant, …, without properly considering what management knew about the Appellant’s circumstances, which the principle he adopted at [12](1)(a) required. Management knew of:
(a) his stress, marital separation, sleep loss and memory lapses, disclosed in his emails of 25 February, 3 March and 28 April 2025 (CB 274, 108, 333);
(b) his GP's certificate of 1 May 2025, recording stress related to work and family and advising that limiting stressful situations would help (CB 169); and
(c) his Recovery at Work Plan, circulated to the school's leaders on 22 May 2025 and marked ‘Ongoing’, which provided for minimising exposure to stressful situations, performance or conduct discussions in an appropriate setting (in private if necessary), the opportunity for a support person if required and a written clarification process (CB 342–344). “
“The circumstances known, or which ought reasonably to have been known, about the individuals concerned, including their physical and emotional circumstances, form part of that objective assessment;”
Mr Nunes asserts that the Commissioner then failed to take account of his physical and emotional circumstances, and the extent to which those circumstances were known to the group of individuals he asserted had bullied him, when determining whether their behaviour towards him was unreasonable.
In support of this ground Mr Nunes made references to three parts of the transcript, however those references do not appear to support or add to the evidence to which Mr Nunes otherwise referred in support of this ground, as found in the court book. I do not consider that the transcript was required to formulate ground 2 of the appeal.
“3. Swimming carnival and 3 March meeting
The Commissioner made an error, or did not give adequate reasons, in finding that Ms Stroak's conduct at the swimming carnival on 27 February 2025 fell well short of unreasonable behaviour and, even on the Appellant's account, could not reasonably cause humiliation ([36]–[37]), and that the only unreasonable behaviour was the Appellant's own ([38]), without adequately explaining how those conclusions took account of:
[other evidence, which supports an alternative finding]”.
“4. Delayed pay
The Commissioner made an error, or did not give adequate reasons, in finding that the Appellant's approaches to the wrong staff contributed substantially to the delay in correcting his pay for 1 May 2025 ([66], [72]), without addressing the written record [evidence], which shows: [matters Mr Nunes contends supports a contrary finding].
…
the reasons do not explain how [emails concerning Mr Nunes’ pay] were weighed in reaching the finding at [71] [that “it was entirely reasonably for Ms Blake to intervene in support of the administrative officer” and that “Mr Nunes was pursuing his legitimate concern in an unreasonable manner with the administrative officer.”
**“**5. Mr Yu’s inquiry
The Commissioner made an error in finding that Mr Yu’s inquiry was reasonable management action that he “properly” considered himself bound to make ([47], [49]), and in confining the unreasonable behaviour to the careless misdirection of the text message ([52]–[53]), without addressing evidence that:
(a) Ms Verinder told Mr Yu that starting the inquiry on his own initiative was inappropriate and that conduct inquiries should first be raised with her, so that any investigation could be run in accordance with the Department’s requirements (CB 294, [48]);
(b) Mr Yu accepted that inquiring by text message was not an appropriate way to investigate (T 29 April pp 86–87); and
(c) Mr Yu accepted that his question intended for the witness Mr Hutchison was a leading one (T 29 April pp 86–87).”
“6. Attendance correspondence
The Commissioner made an error in concluding that the Appellant was not bullied by the exchanges about his attendance at stage meetings ([82]–[89]), having recognised that the Appellant’s question could have been answered directly ([83]) and that, without the background of the Appellant’s own responses, there would have been a basis for a finding of bullying ([87]), without addressing: [evidence which Mr Nunes asserts put his responses in context, so as to support a finding of bullying].”
“7. The decision to start the support process
The Commissioner made an error, or did not give adequate reasons, in finding that the decision to place the Appellant on a support plan was reasonable management action that followed the usual process ([107]–[110]), without dealing with: [evidence which Mr Nunes asserts outweighed the evidence relied on by the Commissioner to find that the decision to place Mr Nunes on a support plan was reasonable].”
“8. Separate acts within the support process
As an additional or alternative argument, the Commissioner made an error in treating the support process as a single event when deciding whether there was repetition ([117]), without considering whether its separate acts on 18 and 19 November 2025, before the Appellant started sick leave ([7]), were themselves repeated unreasonable behaviour. Those acts were:
(a) the refusal on 18 November to provide the concerns in writing, followed by a renewed refusal on 19 November after the Appellant had explained why he needed the details in advance to prepare and take part safely (CB 127–129);
(b) the later decision at the meeting to put off giving him the written concerns, even though he asked for a copy after they were read out from the prepared script ([93]; T 29 April p 57); and
(c) going ahead with a support timetable, prepared before the Appellant had been heard, to start the next day without enough written detail or time to prepare ([111]–[112]; T 29 April pp 60–61, 64).”
“9. The whole course of conduct
The Commissioner made an error, or did not give adequate reasons, in deciding whether the whole course of conduct, taken together, was unreasonable and created a risk to health and safety ([17], [114]–[123]). Although the reasons looked at the two unreasonable events together, and said they considered all the events together, they do not properly explain how the two groups of events affected each other or their combined effect, including the ongoing effects identified in Ground 1 and the matters in Grounds 2 to 8.”
This ground is a little difficult to comprehend, however at base it appears to challenge the Commissioner’s findings that the two instances of unreasonable behaviour on the part of a group of individuals which he found did occur, were of a “sufficiently different character” that they did not constitute repeated behaviour; or that the combined effect of the events should have been considered when determining whether they constituted bullying.
As I apprehend the argument, Mr Nunes contends that the two instances of unreasonable behaviour were linked or “connected” and/or that they and the other events canvassed in the evidence, taken together, constituted bullying. In the paragraphs which follow the above paragraph, Mr Nunes sets out details of evidence which he contends supports such a finding. A single reference is made to the transcript, however it appears to be evidence, found only in the oral evidence, directed toward establishing one of the connections upon which Mr Nunes’ relies. On balance I accept that the transcript was necessary for Mr Nunes to articulate ground 9 in the manner in which it is articulated.
“10. Findings about whether concerns were raised, and the documents
The Commissioner made an error, or did not give adequate reasons, in deciding the main factual dispute, which was whether concerns about the Appellant’s teaching were raised with him as they came up ([97], [108]–[109]), by generally preferring the evidence of Ms Stroak and Ms Blake ([98]–[101]), without properly explaining how that fitted with the documents and the specific matters below.”
In the paragraphs which follow Mr Nunes sets out documentary and oral evidence, the latter by reference to the transcript, which he contends undermines the Commissioner’s factual finding that Mr Nunes had been told about the issues of concern with his teaching as they arose.
On the face of it, the seven items of oral evidence referred to is not evidence which directly supports Mr Nunes’ contention that he was not advised of concerns with this teachings as they arose, but rather is in the nature of evidence which, taken with other evidence, could raise doubts as to the accuracy of the evidence given on behalf of the Secretary. I accept that Mr Nunes would not have been able to fully formulate appeal ground 10 without the transcript.
I have found that Mr Nunes required the transcript in order to prepare appeal grounds 3, 5, 6, 7, 9 and 10. While it is the case, as Mr Nunes was aware at some stage prior to the deadline expiring, that he could have filed an application for leave to appeal and appeal within time, to articulate his appeal as he now has would have required him to apply to amend his application after he received the transcript, thereby causing delay in any event. Moreover, I accept that as a lay litigant he “wanted to see the transcript to check if there were sufficient grounds for an appeal to be successful.”
On balance, but only on balance, I am satisfied that Mr Nunes has provided a reasonable explanation for the delay in filing his Application. I stress however, that delay in obtaining transcript per se will usually not amount to a reasonable explanation. I am only satisfied in this case that it does because:
Mr Nunes is unrepresented and understandably wished to read over what occurred at the hearing before determining whether to lodge an appeal;
Mr Nunes took immediate steps to order the transcript, filed his appeal within 3 days of receiving the transcript and the overall delay was only six days;
the difficulties Mr Nunes encountered in obtaining the transcript were not the usual delays in obtaining transcript which Allsop P in Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14] noted are “well known”, but rather, difficulties in placing orders for transcript online, which were not Mr Nunes’ fault, and where his inexperience as a lay litigant may have exacerbated the problems; and
where the six of the ten grounds of appeal expressly reference and rely upon oral evidence, for which transcript was required.
As noted above, in respect of an application for an extension of time in which to appeal under s 189 of the IR Act, the Commission must consider whether it is fairly arguable that the appellant will obtain leave to appeal by virtue of s 188 of the IR Act and if so, whether the appeal is fairly arguable. In making this assessment as a preliminary question, the Commission will not make a detailed evaluation of the merits of the appellant’s application for leave to appeal or of the appeal proper. In particular, when determining an application for an extension of time as a preliminary question, the Commission will be mindful not to pre-empt a Full Bench’s determination as to whether leave to appeal should in fact be granted.
As at the time of writing there have only been six first instance decisions concerning Chapter 3A, Part 1 – Stop bullying at work, including the Primary Decision. [7] The Primary Decision includes at least two significant findings that have not been the subject of any previous decisions of this Commission. These findings are the subject of at least two of Mr Nunes’ grounds of appeal, namely:
for an employee to have been bullied at work within the meaning of s 144C of the IR Act, they must have been subjected to two or more instances of unreasonable behaviour which are sufficiently similar in character (or not sufficiently different) in order to constitute repeated behaviour of the kind required by s 144C [8] ; and
the circumstances known, or which ought reasonably to have been known, about the individuals concerned, including their physical and emotional circumstances, form part of the objective assessment as to whether conduct is “unreasonable”. [9]
In relation to the first finding, there is no reference in the definition of “bullied at work” in s 144C to the need for the relevant events to be of a similar nature or character.
In relation to the second finding, the Primary Decision references the decision of Corney v State of Queensland (Queensland Health) [2024] QIRC 226 at [15] – [23] as authority, however it does not appear to be authority for the proposition as expressed in the Primary Decision. I note however that Commissioner Roe in The Applicant v General Manager and Company C [2014] FWC 3940; 244 IR 155 made the following statement at [66] in a decision regarding an application for an order to stop bullying under s 789FD of the Fair Work Act 2009 (Cth):
“I agree with the Respondent that determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. The General Manager had no reason on 30 October to believe that the Applicant was suffering from any illness or was particularly vulnerable.”
I consider that it is fairly arguable that a Full Bench may regard the questions raised by at least appeal grounds 1 and 2, which concern the two findings referred to above, to be of such importance, especially given the dearth of decisions regarding the meaning of being “bullied at work” in s 144C that, in the public interest, leave should be granted. Whether leave to appeal is granted is of course a matter entirely for a Full Bench.
I further consider, on the face of the Application and my reading of the Primary Decision only, that each of the grounds of appeal are fairly arguable. Whether they ultimately succeed following a careful examination of the written and oral evidence upon which Mr Nunes relies, and consideration of the parties’ arguments, will again be a matter entirely for a Full Bench.
If I do not grant Mr Nunes’ application for an extension of time he will suffer prejudice as he will not be able to pursue his appeal, which has sufficient prospects of success, and he will lose the ability to potentially obtain stop bullying orders pursuant to s 144G of the IR Act arising from the conduct the subject of the Primary Decision.
As noted above the Respondents did not object to Mr Nunes’ application for an extension of time and consequently did not identify any particular prejudice to them if an extension of time were granted. They also consented to the application being determined on the papers. In the circumstances the prejudice Mr Nunes will suffer outweighs any prejudice to the Respondents.
The applicant is granted an extension of six days in which to bring his appeal, such that his Application for Leave to Appeal and Appeal filed on 28 September 2026 has been filed within time.
**********
Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100 at [35]; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.
R v Lesser (1940) 27 Cr App R 69 at 71; [1939] 3 WLUK 32, cited with approval in Ters v Health Secretary, in respect of the Sydney Children's Hospitals Network [2025] NSWIRComm 1100 at [36].
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [23], cited with approval in Charisse Cachuela v Commissioner of Police [2025] NSWIRComm 1 at [20].
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [23],
Charisse Cachuela v Commissioner of Police [2025] NSWIRComm 1 at [21].
Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [15]; see also El-Hanania v Vella [2019] NSWCA 167.
Heslop v Secretary, Ministry of Health in respect of Central Coast Local Health District and Anor [2026] NSWIRComm 1094; Nunes v Verinder [2026] NSWIRComm 1084; Heslop v Foley [2026] NSWIRComm 1072; Haigh v Thaler [2026] NSWIRComm 1053; Het v Health Secretary in respect of Health Share NSW [2026] NSWIRComm 1068; Toma v Commissioner of Police & Ors [2026] NSWIRComm 1057.
Primary Decision at [18], [115], [117] and [119].
Primary Decision at [12(1)(a)].
Nunes
Verinder
[2024] QIRC 226
[2026] NSWIRComm 1094
[2026] NSWIRComm 1084
[2026] NSWIRComm 1072
[2026] NSWIRComm 1053
[2026] NSWIRComm 1068
[2026] NSWIRComm 1057
(2002) 122 IR 247
(1996) 70 IR 298