Public Service Association of NSW (o/b Morawsky) v Department of Justice

Judgment 1. This is an application, styled as an application for relief from victimisation, but which is in fact, under the Industrial Relations Act 1996 an application for enforcement of the provisions of s 210 of the Act, which is brought by the Public Service Association of New South Wales on behalf of its member Mr Tony Morawsky. Mr Morawsky has, on undisputed evidence, been a member of the Association for a considerable period and a delegate for some time. 2. The Association on his behalf sought two enforcement orders from the Commission. First it sought an order, which was said to be pursuant to subs 213(2)(e) of the Act, to have a reprimand letter dated 11 April 2017 removed from Mr Morawsky's personnel file. The second order sought was "such other orders as the Commission deems fit". 3. So the order sought, the sharp point of the application for enforcement, was an order that a letter dated 11 April 2017 be removed from Mr Morawsky's file. I will return to that matter. But it is clear that the act of victimisation which is complained of, and in respect of which the enforcement procedure is sought, is the letter dated 11 April, which I readily accept on all the evidence was seen for the first time by Mr Morawsky on 22 May 2017. The reason for the delay between 11 April and 22 May has been debated. I do not make any finding about who is at fault in that regard, but I do proceed on the basis that the asserted act of victimisation in relation to which relief by way of enforcement is here sought took place on 22 May 2017 and that is, as I say, a letter of reprimand to Mr Morawsky, which tells him that future breaches of the Code of Conduct may attract disciplinary action. 4. I understand that the Public Service Association argue that this was the latest manifestation of a process of victimisation which goes back some four years, in respect of which, I note, no earlier applications seeking enforcement of the provisions of s 210 have been brought. The letter given to Mr Morawsky on 22 May 2017 is the most recent in time and that is the act, asserted to be an act of victimisation, in relation to which enforcement is sought. 5. That means that, given that the Act provides expressly at subs 213(3) that an application for an order under this section must be made within 21 days after the contravention concerned, that his application is some 32 days out of time. I will return to the question of an undertaking given by the employer to the Public Service Association later, but the bare fact on the face of the matter is that the application filed in the Commission on 14 July 2017, seeking orders, is 32 days out of time. 6. I understand the argument advanced by Mr Allen on behalf of the Public Service Association that the effect of the letter extends into the future, and I will return to address that question. But the Act, in terms of the time limitations under s 213, necessarily addresses the act of victimisation at the time it occurred, not its ongoing effects. So time runs from the time of the act of victimisation which is complained of: see Prehm v Department of Environment and Conservation [2006] NSWIRComm 222. And the Commission is obliged to address the question of an application being out of time. It cannot be overlooked. It must be addressed because the prima facie position is, under the Act, pursuant to subs 213(3), that the application is excluded for being out of time. There is, prima facie, no valid application before the Commission. 7. I emphasise that this interlocutory decision is not an inquiry into the merits of Mr Morawsky's conduct or the reprimand letter at all. There is some ability to consider that matter in the question to which I will turn, that is to say, the discretionary question of whether the Commission ought admit the application out of time, but this hearing today is not an inquiry into the correctness or otherwise of Mr Morawsky's conduct and the correctness or otherwise of the department's conduct in reprimanding him. It is an examination into whether the discretion vested in the Commission under the Act to admit a matter which is on its face, excluded, should be exercised in favour of the applicant. There is, unsurprisingly, case law on this matter. 8. As I have said, the Act makes it clear that an enforcement application must be made within 21 days of the alleged contravention of s 210. But a discretion, which is a guided discretion, not an open discretion, guided in the sense that the Act provides the bases on which the Commission is to consider the exercise of its discretion, at subs 213(4), exists to admit applications brought out of time. 9. The general principles applying to waiver of time limits for filing of civil claims at least, which this is, was canvassed as some length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR at 541. There McHugh J said, in a passage which has been accepted repeatedly by that Court and other Courts since: "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that where there is delay, the whole quality of justice deteriorates". 1. His Honour goes on, and without reading the whole of the quote, to identify bases from which that central proposition flows, including of course, that people should be able to arrange their affairs on the basis that claims cannot be made once the time period has passed; that has an effect on, particularly, public institutions such as the respondent, which are ultimately taxpayer-funded. 2. His Honour goes on to say that a limitation period is not to be seen as an arbitrary cut-off point, but that it will be the case that even a good case may not be able to run if it is brought out of time and there is no proper basis on which the discretion to admit it should be exercised. 3. In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a sufficient reason has been made out by the applicant. The term "sufficient reason" is not defined in the Act. The Full Commission in Griffith Ex-Services Club v Federated Liquor and Allied Industries Employees Union (1993) 51 IR 186 said that it was not appropriate to attempt to formulate a definition of what constitutes a sufficient reason. What that means is that the Commission must then decide whether or not to exercise its discretion in a matter of this kind on the balancing of a range of considerations, including those set out in subs 213(4) of the Act. 4. It is perfectly clear that the prima facie position is that an application brought out of time is excluded and therefore that an applicant bears the positive burden of demonstrating that the justice of the case requires an extension. If an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail, that is the application remains excluded, as the Commission recently held in Tolley v Secretary of New South Wales Ministry of Health [2016] NSWIRComm 1043. 5. So when one looks at what the statute provides to guide the Commissioner's discretion of the sub-section, there are essentially three matters, all within the rubric of whether there is sufficient reason to do so. The first is the reason for and length of the delay, the second being hardship to either party and the third being the conduct in relation to which the order is sought, that here being the provision of the reprimand letter to Mr Morawsky. 6. I turn first to the reason for and a length of the delay. 32 days is a significant period when one considers that the parliament has seen fit to fix 21 days as a statutory time limit, beyond which applications are excluded. But it is not only the length of the delay that is to be considered, but the reason for it and in part, that delay can be addressed by the undertaking not to oppose a late claim, clearly given to the PSA by the employer in writing. I am perfectly satisfied that that undertaking was given in response to correspondence from the PSA which spoke of an intention to bring a case under s 213. Even though that was misdescribed as a dispute, it could not possibly have been misunderstood and I am entirely satisfied that the undertaking was given in relation to an expressed intention to bring a case of the kind brought here. 7. That does not bring the act of victimisation closer to the cut-off date, as Mr Allen argued. It does not make the matter only two days out of time. The application remains 32 days out of time, but it does give a reason for a good part of the delay. The strength of that falls away somewhat after 21 June when the department made it clear that its reconsideration had led to no change in the position and said so in writing. It would certainly have been prudent to act promptly then, remembering that only the Commission has the discretion to admit a matter late, not one side or the other in the case, and that is apparent from the face of the statute. But certainly, when one considers the reason for the delay, a satisfactory reason for it in good part is that the department undertook, at least up to 21 June 2017, that it would not oppose a late application, were one to be made. The department gave that undertaking at a senior level and knowing what it was doing, I have to assume, given the identity if the person giving the undertaking. 8. The hardship to the applicant, effectively Mr Morawsky, is, as Mr Allen put it very squarely and quite correctly, the loss of the opportunity to run his case. I will return to that. The hardship to the employer is, at its highest, that it has to appear in and expend resources on a case which, on its face is brought late and therefore is excluded. Then there is a question of the conduct complained of, which is the victimisation, that is, the reprimand letter which is characterised as being a piece of victimisation. On its face, the issuing of the reprimand letter is not obviously and egregiously wrong. I am not required to make a detailed finding about that at this interlocutory stage. Indeed I cannot, because I do not have evidence about that, quite properly. Nothing about the letter makes it apparent that it is an egregious act of victimisation. I do not form any view about it more precisely than that. It may be entirely warranted, but I accept that it has been advanced as a piece of victimisation and that is the way in which the case is put. I approach it on that basis. 9. One more thing I would say and that is this. Looking at the history of the matter as a whole, I am far from satisfied that the department has carried out all of its administrative steps in a thoroughly prompt and efficient manner. It must be recognised that when an employee is to be disciplined, that will be difficult and stressful for the employee. Of course an employer, every employer, has to investigate matters it legitimately perceives as misconduct. It cannot do otherwise. And persons who commit misconduct have to accept that they are going to be investigated and that cannot be otherwise. But there is a proper course in doing these things quickly and efficiently and it is not perfectly clear to me that that has been done in the most rapid and efficient way in this case. That is not to say that there has been victimisation and this case does not turn on that, but this issue was agitated at some length by Mr Allen and I think it warrants comment. 10. What is critical to this application is this. As I have said, the application is out of time and on the authorities, the onus falls on an applicant to persuade the Commission to override that prima facie position and admit the matter. With all that entails; that is, conducting a case on evidence before this tribunal, before which parties will have to appear and be cross-examined and which the Commission must determine. The Commission's resources will be taken up and a decision will have to be issued, which may be subject to appeal. 11. That leads to this. The significant discretionary question in this case is the question of hardship. In my view, the list of matters provided at subs 213(2) headed "Enforcement", is a comprehensive code. It is important to note that subs 213(1) provides this: "The Commission may by order enforce the provisions of this part on the application of an industrial organisation". 1. The power given to the Commission is to enforce the provisions of, particularly, s 210; certainly sections 209, 210, 211 and 212 in whole, but s.210 particularly, is not to "grant relief" or to "inquire into", it is to "enforce". That is why the steps which are set out in the sub-sub-sections to sub-section 213(2) must be seen as a comprehensive code of the Commission's relevant powers. The Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that. 2. What the Commission has been asked to do in this case is to make an order that a reprimand letter, the letter which was given to Mr Morawksy on 22 May 2017, be removed from his personnel file. However one might read the provisions of subs 213(2), and I do not confine Mr Allen to his submission that the relevant subsection is subs. 213(2)(e), but rather look at all of the sub-sections, those sub-sections do not give the power to the Commission to do that which has been sought from the Commission. It is the one thing of substance that has been asked of the Commission, to order the department to remove this letter from Mr Morawsky's file. As I suggested at the directions hearing, I cannot see that it is able to be done under the powers granted under the Act. I understand the submission that a letter of this kind may bear on future events. I understand that perfectly well. But the letter does not articulate or constitute a threat to victimise Mr Morawsky. The ability to order an employer not to carry out a threat to victimise an employee simply does not give the Commission the power to direct the employer to change its records historically, to remove a document from a personnel file. 3. The hardship to Mr Morawsky, as Mr Allen put it, quite correctly, is to lose the chance to have his application heard. But what it is in truth, when one considers that the Commission simply could not give the relief that is sought, is to lose the chance to have his association run a case that it cannot win. That is no hardship. It is a hardship to the employer and more, a hardship to the long suffering taxpayer, to have a case run by a public authority before this tribunal that cannot give rise to the result the association seeks. 4. The Commission too, is funded by the taxpayer and to use the Commission's resources to hear a case that cannot be won, is entirely contrary to the objects of the Act, and is entirely contrary to the obligations placed on the Commission and the parties under s 56 of the Civil Procedure Act 2005 which provides that there is an overriding objective to deal with matters before the Commission, quickly, justly and cheaply. To run a case before the Commission with the devotion of resources that is required, not just involving the member of the Commission hearing it, but the support staff, the registry, the allocation of a court and time, at the cost of another case that could be run, that actually would have a purpose, is unjustified. 5. It has been put that Mr Morawsky wants his day in court. I understand that. I understand the grievance that he feels and I understand why he says he is aggrieved. But the satisfaction of ventilating a matter to relieve that grievance, without any prospect of actually winning the case, is not the basis on which the Commission can devote resources. I say again, the prima facie position is this application is excluded. I am not able to exercise the discretion to admit it out of time for the reasons I have just given. I am not able properly to exercise the discretion to overturn the prima facie position and allow the application for enforcement in. 6. Accordingly, the application brought by the Public Service Association on behalf of Mr Morawsky, pursuant to s 213 of the Act, is rejected on the basis that it is brought out of time.