Prehn v Department of Environment and Conservation

Industrial Relations Act 1996 LEGISLATION CITED: Protection of the Environment Operations Act 1997 Occupational Health and Safety Act 2000

Martin v Nominal Defendant (1957) 74 WN (NSW) 121 Lucic v Nolan (1982) 45 ALR 411 Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (1993) 51 IR 186 CASES CITED: Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brady v Kennedy t/as "Sardines" (1999) 91 IR 258 Hurrell v Queensland Cotton Corporation (2002) 125 IR 145 Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202

Applicant in person LEGAL REPRESENTATIVES: Mr S Prince of counsel instructed by Crown Solicitor (Mr B Davies)

• 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Annette Prehn and Department of Environment and Conservation

Application by Annette Prehn for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

1 This matter proceeds by way of the employer's motion to dismiss the originating process namely, an application for relief from victimisation as being out of time or in the alternative, on the grounds that the application does not identify any act of victimisation or any causative connection between any alleged act of victimisation and any of the protected acts set out in s 210 (1) of the Industrial Relations Act 1996 (the Act). 2 The application for relief which was filed on 17 February 2005 and substantially amended on 24 March 2005 centres on a series of matters which may be briefly described as follows:

· An allegation that on 2, 8 and 12 May 2003, Ms Prehn informed her supervisor of a breach of the Protection of the Environment Operations Act 1997 · An allegation that on 4 May 2003 Ms Prehn was directed by her supervisor to proceed unlawfully and/or unreasonably with the installation of a hybrid or pit toilet system in Thirlmere Lakes National Park

· An allegation that Ms Prehn took protected actions for the purposes of s 210 (1) (j) of the Act on 2 and 8 April 2003 and on 22 May 2003 by making various complaints about occupational health and safety matters. · An allegation that the employer victimised Ms Prehn on 22 May 2003 by subjecting her to verbal abuse and humiliation in the course of a meeting and by then requiring her to leave the meeting · An allegation that the employer victimised Ms Prehn on 17 July 2003 by instituting a disciplinary process which was substantively and procedurally unfair. The disciplinary process resulted in Ms Prehn losing one week's pay and being required to submit to remedial action in the form a transfer to the employer's Parramatta Office 3 There is a further allegation contained in Ms Prehn's affidavit filed 22 March 2006 but not pleaded in the amended application, that the employer's failure to accede to an application she made on 24 November 2002 for progression to a higher level in the Ranger classification structure constitutes victimisation. The competency assessment system by which such applications are processed by the employer identified certain shortcomings in Ms Prehn's application and her application was refused. 4 No allegation is made in the affidavit material relied upon that this alleged act of victimisation is causally grounded in one or another of the proscribed reasons set out in s 210 of the Act and as with other elements of Ms Prehn's case, such matters are left to speculation. 5 The provisions of the Act are relevantly as follows: SECTION 210 Freedom from victimisation 210 (1) [Reasons for victimisation] An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

(b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or

(d) exercises functions conferred under this Act, or

(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or

(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

(h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or

(i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 210 (2) [Rebuttal presumption] In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

and 213(3) [Application for an order] An application for an order under this section must be made within 21 days after the contravention concerned. 213(4) [Application made out of time] The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) the hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought 6 If one assumes that the prescribed reasons sought to be relied upon by Ms Prehn are those set out in s 210 (1) (e), (i) and (j) above and if one then takes the allegations of victimisation as being the detrimental actions I have described above, then as the employer submitted, it is unclear from the pleadings and the filed material how the alleged detriments are said to be related to any of the prohibited grounds set out in s 210 (1) of the Act. 7 What is clear on the employer's submission, however, is that the allegation of a protected act latest in time is 22 May 2003 and that the allegation of a prohibited act latest in time is 17 July 2003 being the initiation of disciplinary action against Ms Prehn. 8 On the face of it therefore, the application for relief from victimisation which was filed by Ms Prehn on 17 February 2005 does not comply with s 213 (3) of the Act and is out of time and it does not on the employer's argument, allege a causative connection between the alleged acts of victimisation and any of the matters protected by s 210 (1) of the Act. 9 It is on those essential grounds that the employer moves the Commission to dismiss Ms Prehn's application. 10 For her part, Ms Prehn resists the proposition that her application is out of time on the basis that the acts of alleged victimisation are ongoing in their effect and therefore, cannot be said as the employer contends, to have occurred more than a year before the application for relief was filed. 11 Ms Prehn further argues that her continuing pursuit of complaints about the employer's conduct by way of the departmental grievance procedure in some way prevented her from commencing victimisation proceedings at any earlier time. This submission goes to an explanation for the delay in filing the victimisation application and appears to be based on the notion that having embarked upon the grievance procedure course, Ms Prehn was bound to see it through to finality and to the exclusion until its finality of other or different forms of remedy such as those provided by the Act under the freedom from victimisation provisions. This suggests and it not contended otherwise by Ms Prehn who was at one stage at least, represented by the Public Service Association of NSW, that there was no lack of awareness on her part of the requirement to commence proceedings in a timely way. 12 Mr Prince for the employer submits, correctly in my view, that pursuit of other avenues of review such as internal grievances will not preclude the operation of the time limitation nor of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). 13 As to whether the alleged acts of victimisation have ongoing effect and are therefore such as to bring the application within time, the acceptance of such a submission would in my view render the time limitation provisions otiose. As Mr Prince submits and I agree, it is the act of victimisation itself and not the continuing effects of that act with which the statute is concerned and the time limitation as with all time limitations, fixes upon the point in time when the cause of action and the consequent right to approach the Commission crystallises. As a matter of pure logic, there has to be a point in time by reference to which the time limitation operates. 14 In the course of argument, the Commission was taken to the decision of his Honour Sams DP in Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 in which numerous appellate and other authorities on the question of delay were collected and discussed (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hurrell v Queensland Cotton Corporation (2002) 125 IR 145; Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (1993) 51 IR 186; Lucic v Nolan (1982) 45 ALR 411; Martin v Nominal Defendant (1957) 74 WN (NSW) 121; Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 and Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. These and other cases emphasise the effect of delay on the quality of justice; the four broad rationales for the enactment of limitation period; the positive burden borne by applicants seeking to extend time of demonstrating that the justice of the case requires the extension and the paramountcy to be given to the interests of justice in guiding the exercise of discretion. (See especially Brisbane South Regional Health Authority at pp 551, 552 and 553) 15 In my opinion, and having regard to the evidence and the competing contentions, the application for relief from victimisation is plainly and substantially out of time and to the extent that Ms Prehn in resisting the employer's motion, seeks to extend time her arguments fall well short of discharging the burden she bears. It follows that I do not accept the reason she has advanced as a valid reason or as an adequate explanation for the delay in filing her application and I consider the length of delay in filing the application to be a significant factor in militating against extension of time. As to hardship, it is as Mr Prince submitted, a necessary element of any application for relief from alleged victimisation that there be some detriment suffered by the applicant. In this case, however, the detriment of being disciplined and humiliated by the employer and if the amended application were to be further amended to plead the detriment of failing a ranger competency assessment, would not on balance be sufficient to justify such a substantial extension of time given, as the employer's evidence reveals, the significant issues going to the scope and cost of proceedings and the uncertainty as to the availability and I infer, the probative value of evidence reaching back so far into past events. 16 In seeking to bolster her case or at least that aspect of it which resists the notion that she is out of time, Ms Prehn sought to characterise a letter forwarded to her by the employer's Director General on 27 January 2005 as the last act of victimisation and therefore one which of itself is within time thus in some way bringing earlier alleged acts of victimisation within time. Not only does this not follow on a proper construction of s 213 (3) of the Act which requires proceedings to be brought within 21 days of each contravention or alleged act of victimisation relied upon but also nowhere in the amended application for relief nor in the particularisation of Ms Prehn's claim, has the Director General's letter been relied upon as a prohibited act. 17 Moreover and as Mr Prince submitted, it has been clearly alleged by Ms Prehn that it was the instigation of the disciplinary action against her in 2003 which constituted the prohibited act and it was therefore open to Ms Prehn to commence victimisation proceedings at that time. On a proper reading of the Director General's letter to Ms Prehn of 27 January 2005, it is firstly a response to Ms Prehn's earlier letter seeking to persuade the Director General to intervene in the outcome of the disciplinary process: Secondly, it is a recitation by the Director General of the state of affairs as she viewed them (including the observation that Ms Prehn had commenced proceedings in the Government and Related Employees Appeals Tribunal seeking the same remedy) and thirdly, it is advice that Ms Prehn had advanced no new material which would warrant the Director General's intervention. 18 In my opinion, it cannot be said without more, that the Director General's letter constituted a separate or discrete act of victimisation given that its effect was no more or less than a refusal to intervene in or disturb the 2003 disciplinary process and it cannot therefore be relevant to the determination of when time commences to run for the filing of an application for relief from victimisation. One could otherwise imagine disputing parties entering into continuing and fruitless correspondence seeking to alter an earlier course of events and thus, extending time indefinitely, in a way which would render the statutory time limitation meaningless. 19 Having carefully considered the facts and matters submitted, I am of the view that no sufficient grounds exist for the extension of time for the filing of the substantive application for relief in these proceedings. The application is therefore incompetent and is accordingly dismissed.

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