Parsifal v Secretary, Department of Education

Texts Cited: Nil

Category: Procedural rulings

Parties: Appellant:
Ms Whisht Parsifal
Respondent:
Secretary, Department of Education

Representation: Applicant:
Self-Represented
Counsel:
Solicitors:
Ms F Edwards, Sparke Helmore Lawyers

File Number(s): 2026/ 237735

Publication restriction: Nil

DECISION

1. On 9 June 2026, the Appellant, Ms Whisht Parsifal, filed an application for leave to appeal and appeal (the Application) from a decision of Commissioner Muir published on 13 May 2026 (Parsifal v Secretary, NSW Department of Education [2026] NSWIRComm 1041, hereafter the Decision). An appeal to a Full Bench “must be made within 21 days after the date of the decision appealed against”, unless time is extended [1] . The Application was filed 6 days out of time. This decision deals with the Appellant’s application to extend time to appeal.

BACKGROUND

2. Commissioner Muir dismissed an application by the Appellant to extend time to enable her to bring an application under s 84 of the Industrial Relations Act 1996 (the IR Act), alleging that her dismissal from the Teaching Service in July 2024 was harsh, unjust and/or unreasonable. That application had also been filed outside the 21-day time limit for an application of that kind [2] . Without traversing unnecessary detail, the background to the decision of Commissioner Muir (as described in an affidavit of the Respondent’s solicitor, Ms Felicity Edwards, read on this application to extend time [3] ) was as follows:

3. The Appellant was a permanent employee under the Teaching Service Act 1980 (NSW) from 2001 [4] .

4. She was placed on a Teacher Improvement Program in 2023, which she failed. Due to a restriction arising from a medical incapacity, the Appellant was not advised of the outcome of the TIP until May 2024. The TIP was the subject of an “independent review” that concluded in a letter dated 1 July 2024 confirming the initial decision that the Appellant had not passed the TIP [5] .

5. In July 2024 the Appellant was invited to show cause why she should not be dismissed [6] .

6. By way of letter dated 19 July 2024 (which I infer from Ms Edwards’ affidavit may have been provided to the Appellant on 23 July 2024), the Appellant was directed to resign her position in the Teaching Service [7] . She did not resign. The Appellant was dismissed on 30 July 2024 [8] .

7. The Appellant filed her application under s 84 of the IR Act on 9 March 2026 [9] .

8. Having been dismissed effective 30 July 2024, the Appellant should have brought her application under s 84 of the IR Act by 20 August 2024. She filed her application on 9 March 2026. At first instance, the Appellant sought to have the Commissioner extend time by 566 days, the application having been filed 587 days after the dismissal.

9. The Commissioner identified a delay of 566 days was “strongly against” an extension being granted. He dealt with the only cognizable explanation for delay, namely that the Appellant had a clinically significant mental health condition, observing the medical report (of a Dr Simpson) relied upon “says nothing of Mr Parsifal’s medical condition for the year and a half following her dismissal” and saying at [31]:

[31] Any suggestion I should draw an inference, based on Dr Smason’s [sic Dr Simpson’s] letter, that Ms Parsifal was medically unable to address the Application for 587 days would require an unreasonable level of speculation. Any such speculation must also be weighed against the evidence that Ms Parsifal engaged in other legal proceedings during that period.

5. The absence of any proper explanation for the delay was “strongly against accepting the Application” (at [32]). He found no hardship to the Appellant if the extension was refused. He accepted the Respondent would be materially prejudiced because the whereabouts and availability of a ‘key witness’ was unknown (at [34]). He addressed the prospects of the application being successful, appropriately forming only an “impressionistic view”, concluding (at [44]): “The prospects of the substantive case do not support accepting the Application.”

6. The Commissioner concluded by saying “none of the factors to which the Commission is to “have particular regard” …[in s 85(3) of the IR Act] …suggest the Application should be accepted.” (at [43]).

APPLICATION TO EXTEND TIME TO APPEAL

7. The Application was filed 6 days out of time. The principles applicable to the exercise of the discretion contemplated by s 189(1) of the IR Act are well established: see Ters v Health Secretary, in respect of the Sydney Children’s Hospitals Network [2025] NSWIRComm 1100 at [35] – [38], referring to Workcover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299–300; Carvacuiti v Toyota Motor Corporation Australia Ltd (2002) 122 IR 247; [2002] NSWIRComm 341 at [40]–[43]. For present purposes it is sufficient to note the following:

8. The sole purpose for exercising a discretion to allow an appeal out of time is to enable justice to be done between the parties.

9. The applicant for an extension of time bares the burden of satisfying the Commission that his or her case justifies an extension being granted.

10. Factors relevant to the exercise of the discretion include:

(a) the extent of the delay; (b) 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; (c) the extent of any prejudice that would be suffered by the parties by reason of extending time or refusing to extend time; and (d) the prospects of success on appeal.

8. An assessment of prospects of success must also take into account that the Appellant requires a grant of leave to appeal: see Kumari v State of New South Wales, NSW Treasury [2025] NSWIRComm 13 at [25] – [27].

9. The principles relevant to the determination of leave to appeal are well settled and were recently restated by the Full Bench in Shahin v Industrial Relations Secretary on behalf of Multicultural NSW (No.2) [2026] NSWIRComm 11 at [8] – [12] and Abaid v Health Secretary in respect of Northern Sydney Local Health District (No 2) [2026] NSWIRComm 12 at [20] – [25]. Noting an extension of time under s 85(3) of the IR Act is a discretionary decision on a question of practice and procedure, I am also mindful that such appeals “should be discouraged”. That is a matter of some importance when considering whether leave to appeal ought be granted in the public interest [10] .

CONSIDERATION

10. The Application does not clearly identify and articulate any alleged error of fact or law. It is largely unintelligible. To the extent the Applicant says anything resembling the identification of error, the Application appears to say that Commissioner Muir mistook the date of dismissal (and I gather misunderstood the facts of essential relevance to the extension of time issue), asserting that the “Evidence indicates employee until 20 June 2026”.

11. That assertion by the Appellant is, with respect, obviously wrong:

12. the s 84 application itself alleging the Appellant was unfairly dismissed, was stamped Filed by the Registry on 9 March 2026 (and was signed by the Appellant, then applicant, on 7 March 2026);

13. that application, prepared by the Appellant (then applicant) and filed on 9 March 2026, identifies the “Date of dismissal or threatened dismissal” as “24/06/2023” (not 24 June 2024, as identified in the Decision at [7]); and

14. the impugned decision itself was published on 13 May 2026.

15. Suffice it to say, the Appellant has pointed to no evidence before Commissioner Muir or on this application to extend time, that could have established a dismissal date of 20 June 2026.

16. The impugned decision does contain a few rather obvious typographical errors in identifying relevant dates ([2026] NSWIRComm 1041 at [7], [8] and [9]), but none of those errors records 20 June 2026 as a relevant date. The Commissioner did otherwise correctly identify the relevant date of dismissal at [1], and perhaps most importantly for present purposes, did correctly calculate the number of days for which an extension of time would have been required to bring the application.

17. Conscious the Appellant is self-represented, I received the material she had attempted to file on this application via an Appeal Book (behind Tab 3) received from the Respondent and marked Ex1 on this application. I thank the Respondent’s solicitors for preparing that bundle, and it’s approach to receipt of the Appellant’s material despite it not being appropriately filed. In addition, in the course of the hearing on 12 August 2026 I gave the Appellant the opportunity to say anything further she may wish to say on how she says Commissioner Muir erred in the Decision.

18. The Appellant referred to a Certificate of Determination – Consent Orders issued by Personal Injury Commission member Turner on 5 June 2025, as reflecting on both the date of dismissal and the fairness of the dismissal. Those proceedings before the Personal Injury Commission are, as I understand it, the “other legal proceedings” referred to by Commissioner Muir at [31] extracted above. The evidence before me [11] includes a note from a Mr Ross Hanrahan of Counsel, describing the amicable resolution of proceedings before the Personal Injury Commission involving, amongst other things (as recorded in the Certificate of Determination), weekly benefits of compensation in a fixed amount would be payable to the Appellant for a closed period between May 2024 and June 2025. I do not accept Ms Parsifal’s submission that the outcome of those proceedings before the Personal Injury Commission bares at all on the issues that arise on the application to extend time currently before me.

19. The Application was 6 days out of time, only marginally beyond the time ordinarily allowed by s 189(1) for such an application. The Respondent, quite appropriately, does not assert any prejudice arising from that brief delay (it did of course, as Commissioner Muir accepted, point to prejudice in dealing with the underlying unfair dismissal application due to the absence of an important witness, but that is a different matter). The limited length of the extension and the absence of prejudice weigh in favour of a grant of the extension of time.

20. The Applicant has provided information that appears to indicate she attempted to file an application for leave to appeal and appeal within time, but that attempt was rejected by the Registry as being deficient with the Rules (for various reasons). She has, however been self-represented throughout. It would ordinarily be appropriate to afford her a degree of leniency in some formal matters of practice and procedure. Additionally, if an extension of time is not granted she will be denied the opportunity to pursue the Application. That will in turn foreclose any opportunity to argue her dismissal was harsh, unjust or unreasonable.

21. Nonetheless, taking all those matters into account, even on a preliminary assessment of prospects of success (it would not be appropriate to do more on an application such as this), the impugned decision reflects an entirely orthodox application of well-established principle to a discretionary decision on facts that were not in issue. With respect to Ms Parsifal, the application for leave to appeal and appeal appears devoid of merit.

22. The period of the delay is short and the Respondent suffered no relevant prejudice. However, the discretion to extend time is to be exercised for the sole purpose of enabling justice to be done between the parties. I am not satisfied an extension of time to appeal is warranted in the interests of justice.

ORDERS

20. The Commission makes the following Orders:

21. The application by Ms Whisht Parsifal to extend time to enable her to bring an application for leave to appeal and appeal against the decision of Commissioner Muir published 22 May 2026 is dismissed.

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Endnotes

IR Act, s 189(1)

IR Act, s 85

Tab 5 of the Bundle marked Ex1 on the application to extend time to appeal

Ex 1 Tab 5 pg 49 at [5(a)]

Ex 1 Tab 5 pg 49 – 50 at [5(b) – (e)]

Ex 1 Tab 5 pg 50 at [5(e)]

Ex 1 Tab 5 pg 50 at [5(f)]

Ex 1 Tab 5 pg 50 at [5(g)] and FE4 pg 71

Ex 1 Tab 5 pg 50 at [7]

Abaid v Health Secretary in respect of Northern Sydney Local Health District (No 2) [2026] NSWIRComm 12 at [22] – [24]

All of which is to be found behind Tab 3 of Ex 1

Amendments

14 August 2026

“June” in first line changed to “July” in paragraph 2(4)