Richie Robles v Health Secretary in respect of Western Sydney Local Health District

Industrial Relations Commission (NSW)|2019-04-02|Before: Mr J

Judgment

Richie Robles was employed by the respondent as a registered nurse at Bungarribee House, an acute mental health unit at Blacktown, New South Wales. The facility falls under the auspices of the Western Sydney Local Health District ("WSLHD"), which in turn forms part of the NSW Ministry of Health.
On 23 January 2019 Mr Robles filed with the Industrial Registry an Application for Relief in Relation to Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). In the Application Mr Robles claims to have been dismissed on 10 January 2019.
At the conciliation stage of the proceedings the respondent raised three jurisdictional objections to the Application. Firstly, it contended that it did not dismiss Mr Robles, but that he resigned with effect from 12 November 2018. Secondly and in the alternative, it submitted that if Mr Robles was dismissed the Application was filed out of time. Thirdly and further in the alternative, it argued that at the time of the alleged dismissal Mr Robles was, on his own case, a casual employee and was therefore excluded from the Commission's unfair dismissal jurisdiction.
The hearing of the respondent's objections took place on 2 April 2019. Mr Robles was represented, with the leave of the Commission, by Mr J Cheetham, who is not a solicitor. The respondent was represented by Ms D Nambiar, who is employed by the respondent as a Senior Industrial Relations and Employee Relations Specialist.
As Mr Cheetham is not legally qualified I took particular care during the hearing to ensure that he had every opportunity to put the case for Mr Robles. This included allowing him to call additional evidence in chief and providing some latitude in the manner in which he cross-examined the respondent's witness. It should be acknowledged that Ms Nambiar was generally accommodating to the approach adopted by the Commission.
Mr Robles relied on a statement he had made dated 10 March 2019. He gave some additional evidence in chief, which was directed to why he felt that his dismissal by the respondent was unfair. Mr Robles was cross-examined by Ms Nambiar.

Background

The following summary of the factual background is uncontested.
On the evening of 5 and 6 December 2017 Mr Robles was rostered to work at Bungarribee House. During that shift a patient attempted to strangle herself with a telephone cord.
Following that incident the WSLHD arranged for an investigation to be conducted by an external consultant, which included an examination of the professional conduct of the employees rostered to work during the shift of 5 and 6 December 2017, including Mr Robles. Mr Robles was interviewed as part of the investigation in June 2018.
Based on the findings of that investigation the WSLHD commenced a disciplinary process against Mr Robles. He received a "letter of allegations" on 17 July 2018, to which he responded on 3 August 2018. Neither of those documents is in evidence before me.
In a letter dated 29 October 2018 Mr Robles wrote to Lisa Choi, the Nursing Services Manager for the WSLHD, in these terms: "I would like to request for a change of work arrangement that is different to my current working arrangement. I would like to start on a casual basis in Cumberland Hospital and terminate my full time position in Bungarribee House. I would like this working arrangement to start from 2 weeks of this letter or when there is a position available. I am making this request because it will help me care [for] my 3 young children. … I would appreciate your response to this request within 21 days of today's date. I am happy to discuss this matter at a time that is convenient."
On 31 October 2018 Mr Robles completed a "Separation Checklist" recording a "separation date" of 12 November 2018. On the same day he completed a "Separation Form" which again noted a "separation date" of 12 November 2018, but on which he checked a box stating "reverting to casual". Each of the Separation Checklist and Separation Form allowed for or required signature by Mr Robles' manager, but neither of the documents in evidence before me was signed by the manager.
The WSLHD took Mr Robles' letter of 29 October 2018 to be a resignation from his employment, to take effect from 12 November 2018.
Mr Robles received no response from the WSLHD to his letter of 29 October 2018.
Despite considering Mr Robles to have resigned, the WSLHD continued the disciplinary process against him. Ms Adair deposed that this was in compliance with NSW Health Policy, which she asserted required the process to continue to conclusion despite Mr Robles' alleged resignation.
On 1 November 2018 the WSLHD wrote to Mr Robles advising him that a preliminary determination had been made that his employment should be terminated and providing him with the opportunity to make any comments or provide any mitigating factors that he would like to have taken into account before a final decision was made about his employment. The letter requested a response by 12 November 2018.
Mr Robles requested and was granted an extension of time to respond, which he did on 16 November 2018.
It is not necessary for present purposes to detail the allegations against Mr Robles or his response. It is sufficient to note that Mr Robles concluded his letter of 16 November 2018 with this statement: "I would say to you that I very much love this job (as challenging as it may be) and any attempt to terminate my services would be vigorously defended for unfair dismissal."
The respondent's submissions assert that on 25 November 2018 the respondent paid to Mr Robles his "final pay inclusive of a payout of his accrued days off, annual leave and long service leave entitlements". The respondent adduced no evidence of this payment, although Mr Robles agreed in cross-examination that he received this payment "prior to Christmas 2018" (Tcpt, p 15 (42-47)).
In December 2018 Mr Robles applied for a position as a registered nurse in the Respiratory Ward at Blacktown Hospital, which is within the WSLHD. He was accepted for an interview for that position.
On 10 January 2019 the WSLHD wrote a letter to Mr Robles. The letter stated, in part: "I understand that you have since resigned from the service, effective 12 November, 2018. Having careful considered your response of 16 November, 2018, as well as all other information and evidence before me, I wish to advise that had you not already resigned from the employment of Western Sydney Local Health District, your employment would have been terminated, on the basis of proven allegations of misconduct and breaches of the NSW Health Code of Conduct and the WSLHD policy 'Mental Health Levels of Observation' (which was in force at the time of the incident)." (Emphasis in original)
The Application was filed on 23 January 2019.

Questions for determination

It is common ground that Mr Robles is no longer employed by the respondent.
It is also common ground that Mr Robles had never in fact been appointed by the WSLHD to a casual position after 12 November 2018. On that basis, it is not necessary to consider whether he is excluded by s 83(2)(c) of the Act from bringing an unfair dismissal claim.
It follows that the respondent's remaining jurisdictional objections require an answer to the following questions: 1. Was Mr Robles dismissed from his employment with the respondent, or did he resign? 2. If Mr Robles was dismissed: 1. when did this occur; and 2. was the Application filed within 21 days of the dismissal as required by s 85(1) of the Act? 1. If the answer to 2(b) is "no", should the Commission exercise its discretion to accept the Application out of time pursuant to s 85(3) of the Act?

Was Mr Robles dismissed?

It is a precondition to the Commission's jurisdiction under s 84 that an employee have been dismissed by their employer. The terms "dismissal" and "dismissed" are not defined in the Act.
In Allison v Bega Valley Council (1995) 63 IR 68 at 72 the Full Bench stated that the question to be posed is "did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment?"
To a similar effect, in Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 Sams DP stated at [96]: "The correct test is whether by the actions or inactions of the employer, it was the effective initiator of the termination of employment."
To establish a resignation, as opposed to a dismissal, it is necessary to demonstrate that Mr Robles voluntarily left his employment: Gunnedah Shire Council v Grout (1995) 62 IR 150.
The respondent contends that Mr Robles' letter of 29 October 2018, coupled with the Separation Checklist and the Separation Form, amounted to a resignation from his employment.
Ms Adair did not receive the letter of 29 October 2018, but rather seems to have proceeded on the premise that Mr Robles had resigned, having been told that this was the case. In her affidavit she deposed as follows: "15. Subsequent to this [the show cause] letter being issued, I became aware that Mr Robles had resigned from his permanent employment with NSW Health effective from 12 November 2018. I did not personally receive Mr Robles resignation on the basis that nurses' resignations are submitted to the Nursing Workforce office. … 17. Throughout this process, I had reason to speak to Mr Robles on a number of occasions. On or around 27 November, 2018, I had a discussion with Mr Robles by telephone, during which he mentioned his understanding that as part of his resignation, he had elected to move to the 'casual nursing pool', by way of ticking a box on the Separation Form at the time he resigned. He did not mention a letter but only mentioned the tick box on the form. 18. This tick box is a pro forma opportunity for departing nursing staff to express interest ln ongoing casual employment after they leave our service. I explained to Mr Robles on the phone that this was not an automatic process, and that it had not been actioned in his case. Mr Robles expressed surprise on the phone, but did not argue the matter or take the discussion any further at the time. 19. Mr Robles never received a letter confirming any casual employment, nor was he ever offered any casual shifts. There was no doubt during that phone conversation that Mr Robles had resigned and we were discussing his status post-resignation."
During the hearing there was the following exchange between Mr Cheetham and Ms Adair (Tcpt, p 18 (6-25)): "Q. Ms Adair can I take you to point 17 of your affidavit[?] Can you please explain the discussion you had with Mr Robles on and around 27 November? A. During the particular phone discussion that that was referring to, the matter arose on Mr Robles' part of the fact that he believed that he had or should have been moved to the casual pool in the organisation. That had not occurred and I had occasion to tell Mr Robles that that had not occurred, that he was not a member of the casual pool. He expressed surprise at that. He thought that he had been automatically moved to that pool and I had to reiterate to him that that had not occurred and that he was not employed in the casual pool of Western Sydney Local Health District. Q. In regards to Mr Robles' employment, was there anything further stated to you in that conversation? A. I'm not quite sure what that means. I'm not-- Q. At that point in time on 27 November what did you take Mr Robles' employment to be with-- A. Mr Robles was terminated - resigned sorry from his position and so he was no longer an employee of Western Sydney Local Health District. That was clear in that conversation."
During the hearing Ms Adair reiterated that Mr Robles could be taken to have resigned, as there was no automatic transfer from a permanent to a casual position. I had the following exchange with her: "Q. What is it in that letter that makes you believe that through this letter Mr Robles was resigning from his employment? A. I would read that when he says 'I would like to start on a casual basis in Cumberland Hospital and terminate my fulltime position [in] Bungarribee House'. So he is seeking that a termination - remember that this letter came accompanied by the forms-- Q. I'll get to the forms in a moment but is there not an alternative construction to put on that sentence to say that I want to maintain my employment albeit on a different basis? A. It could be but I think the people to whom it was addressed would not have seen it in that light, in fact accompanied by the forms it would not have been seen in that light either. Q. You don't know because you didn't see it. A. That's correct. Q. So you can't speak for what other people might have believed but my point is that on reading that letter it's not beyond the realms of possibility that Mr Robles was saying he wanted to maintain his employment albeit on a casual as opposed to a fulltime basis? A. I think that would be a very strange connotation to put on the letter considering it's not possible to continue on employment having resigned your temporary - sorry you're terminating the fulltime position. You have to be terminated. You have to resign from that position. Q. He resigned from that position. A. And then you would have to apply for - you would have to be appointed to a totally different position. Q. Would Mr Robles necessarily know that given his position and not being an HR professional? A. I don't know that I'm sorry."
On any reading, Mr Robles' letter of 29 October 2018 falls short of a statement of resignation. Clearly, he was relinquishing his full-time, permanent position, but there is no suggestion in the letter that he was seeking to terminate the employment relationship itself. In fact, it is to the contrary: he expected to be placed on the casual roster and continue his employment on that basis. This is apparent from the terms of the letter and is further evidenced by him ticking the box on the Separation Form that he was "reverting to casual".
Mr Robles' understanding and intentions were also made clear in the conversation that Ms Adair described herself as having with Mr Robles on 27 November 2018, as referred to at [32] and [33] above, during which Mr Robles "expressed surprise" that he had not been "automatically moved to" the casual pool.
I observe that Ms Adair clearly approached that conversation in the belief that Mr Robles had resigned, and put the position for WSLHD on the basis that this was fact. Simply asserting that view to Mr Robles does not of course mean that it is correct. Ms Adair does not suggest that during the conversation he agreed that he had intended to resign from his employment, much less that he had done so.
The respondent submitted that a "unilateral transfer process does not exist". It relied on the operation of relevant human resources processes to construe the letter of 29 October 2018 as a resignation. Even assuming that those processes operated in the manner in which the respondent asserts, there is no evidence that Mr Robles was or would have been aware of them. Relying on assumed knowledge of internal processes to construe Mr Robles' letter as a resignation, without having sought clarification of his intentions, was at the least imprudent and at worst opportunistic. This is particularly the case given the terms of the letter and the fact that the letter itself requested a response.
In any event, Mr Robles stated that he did not intend to resign from his employment. In his statement he deposed as follows: "10. I further say that it was never my intention to resign from WSLHD (only from Bungarribee House mental health unit). It well may [have] been naive of me but I was still expecting to be placed on the casual pool right up to the time I received the letter of 10 January 2019. …I make the statement that sometime between 29 October 2018 and 12 November I was spoken to by the Nursing Unit Manager who said words to the effect - 'when would you like to commence as a casual?' I said that I needed a break for awhile and told her probably not till after Christmas. Thus it was on my mind that I would eventually be able to work sometime later." [sic]
This evidence was unchallenged. Mr Robles' conversation with the Nursing Unit Manager is inconsistent with a finding that Mr Robles considered at the time of the conversation that his employment with the WSLHD would terminate at his volition on 12 November 2018.
The evidence also provides an explanation for the fact that while Mr Robles does not appear to have worked after 12 November 2018, he apparently did not seek or follow up casual placements after that date. Any inaction on his part to secure casual work from 12 November 2018 until he received the letter of 10 January 2019 should not be taken as demonstrating Mr Robles' understanding that he had resigned. It is explained by his stated desire to defer commencing casual work until early 2019.
This evidence further suggests that Mr Robles had reasonable grounds to believe that he had properly instigated a "transfer" from permanent to casual employment. The Nursing Unit Manager appears to have encouraged him in that view.
Other evidence inconsistent with a finding of resignation is Mr Robles' request for an extension of time to respond to the "show cause" letter of 1 November 2018, and the contents of his response, noting in particular the excerpt reproduced at [19] above.
In all of the circumstances I find that Mr Robles did not resign from his employment with the respondent. The evidence does not support a finding that he voluntarily left the employment. It follows that the employment relationship was brought to an end by the respondent. Acting on the false premise that Mr Robles had resigned, it was the respondent's conduct which was the real and effective initiator of the termination of the contract of employment.

When did the dismissal occur?

There are four events which it could be argued date the termination of Mr Robles' employment, namely: 1. the letter from the WSLHD to Mr Robles dated 10 January 2019 informing him of the outcome of the investigation. This is the date for which Mr Robles contends. He claims that this was when it became clear to him that the WSLHD regarded the employment as having come to an end; 2. the conversation between Mr Robles and Ms Adair. On Ms Adair's evidence she made it clear during this conversation that the WSLHD considered Mr Robles as having "left the employ of Western Sydney Local Health District". Ms Adair recalled this conversation having occurred on 27 November 2018, although Mr Robles' recollection was that it took place on 17 or 18 December 2018; 3. the payment by the WSLHD of Mr Robles' "final pay" in late 2018, which might be said to be an action confirming termination of the employment relationship; or 4. the cessation of Mr Robles' permanent full-time work on 12 November 2018. This is the date for which the respondent contends, noting that it is tied to the respondent's contention that Mr Robles resigned with effect from that day.
The conversation between Mr Robles and Ms Adair was the first occasion on which he was advised that the WSLHD regarded the employment relationship as at an end and that he had "left its employ". For reasons which are set out at [74] - [77] below, I consider that there is room for doubt as to whether Mr Robles would have been clear as to how his employment had come to an end, but he should have been aware that the WSLHD was of the view that it had.
There is a factual dispute between Ms Adair and Mr Robles as to when the conversation occurred. In light of the conclusions I have reached in this matter, I will take the conversation as having occurred on 27 November 2018 as deposed to by Ms Adair. In the context of the present proceedings any later date would only be to Mr Robles' benefit.
Based on my comments at [46] above, I do not accept Mr Robles' submissions that the dismissal should be taken as having occurred through the respondent's letter of 10 January 2019.
In light of my observations at [41] above, I also do not accept the respondent's submissions that the dismissal should date from Mr Robles' last date of work on 12 November 2018.
It is difficult to rely on the payment by the WSLHD of Mr Robles' "final pay" in late 2018 as providing a date for dismissal, for two reasons. Firstly, there is no evidence as to when the payment was made. The respondent submits that this occurred on 25 November 2018, but did not adduce evidence of that fact. Mr Robles could only recall receiving it prior to Christmas 2018. A more precise date was not put to him.
Secondly, the payment of entitlements was based on a misunderstanding or error, namely that Mr Robles had resigned. I do not consider that a unilateral decision to make a payment of accrued entitlements to an employee (on a false premise) is, of itself, sufficient to terminate an employment relationship. The respondent would need to demonstrate that Mr Robles accepted the payment on that basis, and it has not done so.
While there is room for debate, I will date the dismissal from the conversation between Mr Robles and Ms Adair on 27 November 2018.

Application out of time

The Application was filed on 23 January 2019. Deducting the period during which the Industrial Registry was closed (from 1.00pm on 21 December 2018 until 10 January 2019) the Application was filed 38 days after the dismissal.
Section 85 of the Act is in the following terms: 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. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (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.
Subsection 85(1) makes it mandatory that applications pursuant to s 84 be made within 21 days after the dismissal of the employee. An application made outside that time limit must or can only be accepted by the Commission subject to ss 85(2) and (3).
Subsection 85(2) has no application in the present case.
Subsection 85(3) confers on the Commission the discretion to accept an application under s 84 which is made out of time. This discretion is not unfettered. The Commission may only accept an application that is made out of time if it considers that there is "a sufficient reason" to do so. In considering whether such a sufficient reason exists the Commission is required to have regard "in particular", but not exclusively, to the matters set out in s 85(3)(a), (b) and (c).
The Act does not provide a definition as to what constitutes a "sufficient reason". It is not appropriate to attempt to formulate any such definition: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. Each case in which the Commission is asked to exercise its discretion under s 85(3) must be decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195.
The prima facie position is that an application made out of time is excluded by s 85(1). An applicant seeking to invoke s 85(3) bears the onus of demonstrating that the justice of the case requires the Commission to exercise its discretion in his or her favour: Lucic v Nolan (1982) 45 ALR 411 at 416.
As stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9-10: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." (Footnote omitted)
In Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 the Full Bench held 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) 51 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 s 246(4)(a) to (d). 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 Prouds 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'."
In Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Commissioner Newall made these observations: "13. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. That has a particular relevance to his application, as Ms Isaac's case before the Commission in these interlocutory proceedings was argued in good part, although not wholly, on the basis that the Department had failed correctly to follow its own policy document, Procedures for managing non-work related injuries or health conditions, in the process which led to Ms Isaac's dismissal. 14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others. 15. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13]."

Length of and reason for the delay - s 85(3)(a)

The Application is 17 days out of time. Given that the legislature has set a time period of 21 days, such a delay is not inconsiderable.
The central issue is the reason for the delay: Clark v Family and Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [22].
Mr Robles did not claim to be under any impediment in filing the Application. Rather, the question was more one of becoming aware that his employment had ended. He gave evidence that despite his conversation with Ms Adair on 27 November 2018 he still considered that he would be placed in the casual pool and offered work. It was only when he received the letter of 10 January 2019 was it clear to him that his employment had ended.
It is relevant in this regard that the Application was filed thirteen days after Mr Robles received the letter of 10 January 2019.
As stated at [46] above, given the terms of his conversation with Ms Adair, I consider that Mr Robles would have been aware on 27 November 2018 that the WSLHD regarded his employment as having come to an end. However, for the reasons which are set out at [74] - [77] below, I accept that Mr Robles would not necessarily have comprehended the basis on which the WSLHD contended that this had occurred. This would include whether he understood that he had been "dismissed" by the respondent at that time, in a manner which enlivened his rights to commence proceedings under s 84 of the Act. This offers some explanation for the delay.

Hardship to the applicant or the respondent - s 85(3)(b)

Mr Robles adduced only limited evidence regarding hardship. He asserted in his statement that: "…extreme hardship has been afforded me in that my career as a registered nurse would be severely jeopardised by dismissal in that in over 11 years of nursing never have I been charged or involved in any other detrimental incident."
Obviously, if the Application is rejected Mr Robles will suffer the additional hardship of not being able to pursue his unfair dismissal claim, but that is a hardship suffered by any applicant whose out of time application is rejected.
It is in this context that it would ordinarily be proper to consider the strength of Mr Robles' case, as it is one measure of the disadvantage he may suffer if his application is not accepted: Isaac at [31].
There is only limited evidence before me regarding the merits of Mr Robles' substantive case. It is clear that the case would require a close examination of the events of 5 and 6 December 2017 and the extent to which Mr Robles was responsible or accountable for them. I do not consider that there is sufficient evidence to allow me to form a view, even on a preliminary basis, on these matters.
The respondent adduced no evidence regarding hardship. Its submissions on the matter were as follows: "[The respondent] should not be visited with the costs and impost on management and resources defending an unfair dismissal claim, and should be then able to re-employ and commit its resources and management to the essential health service duties of NSW Health."
While I have considered the evidence and submissions relied on by both parties, the question of hardship has not weighed heavily on my decision.

The conduct of the employer relating to the dismissal - s 85(3)(c)

The respondent submitted as follows: "The Respondent has been scrupulously fair to the applicant in all dealings since his resignation and providing information indicating that he did not hold casual employment with the Respondent."
I am not entirely convinced that the evidence bears out this submission. I repeat my observations at [38].
I also note in particular the following: 1. the WSLHD did not directly respond to Mr Robles' letter of 29 October 2018, despite the letter calling for a response; 2. between 29 October 2018 and 12 November 2018 the Nursing Unit Manager had indicated to Mr Robles that casual work would be made available to him; 3. the disciplinary proceedings involving Mr Robles continued, with his involvement, after 12 November 2018. For someone in Mr Robles' position, this might reasonably have been seen as inconsistent with the employment relationship having come to an end; 4. Mr Robles' letter of 16 November 2018 clearly suggested that he regarded his employment as ongoing, and yet nothing was apparently done in direct response to this letter to clarify the WSLHD's understanding (or Mr Robles' intentions); 5. it was not until 27 November 2018 that Ms Adair sought to clarify the WSLHD's understanding. I note that this appears to have arisen indirectly, in the context of a discussion concerning the ongoing disciplinary process against Mr Robles; and 6. in December 2018 the WSLHD accepted Mr Robles for an interview for the position of registered nurse in the Respiratory Ward at Blacktown Hospital. I acknowledge the submissions made by the respondent that "all recruitment processes are independent of each other and occur at the wards level". However, to Mr Robles, who was not shown to have particular familiarity with the WSLHD's recruitment processes, his acceptance for interview may well have been inconsistent with the assertion that he was regarded as no longer in the employ of the WSLHD.
I have already found that from 27 November 2018 Mr Robles should have been aware that his employment with the respondent had come to an end. However, in the circumstances it is entirely likely that Mr Robles was unclear as to how this had occurred. While Ms Adair told him that he was regarded as having resigned, it would have been reasonable for him to question how this had occurred. This in turn could well have created uncertainty or confusion as to what, if any, rights Mr Robles may have had to challenge the respondent's position. I consider that the WSLHD bears significant responsibility for any uncertainty or confusion on Mr Robles' part. This would further mitigate the delay in Mr Robles commencing proceedings.

Conclusions

Having regard to all of the circumstances and the totality of the evidence and submissions, I am persuaded on balance that Mr Robles has demonstrated that the justice of the case requires the Commission to exercise its discretion under s 85(3) and accept the Application out of time. I will make an order to that effect.

Non-publication order

During the hearing on 2 April 2019 the respondent pressed a notice of motion it had filed with the Industrial Registry on 18 March 2019. The motion sought orders seeking to exclude particular evidence which Mr Robles had adduced and non-disclosure orders under s 164A of the Act.
Mr Robles consented to the exclusion of, and did not seek to tender, the evidence to which the respondent had taken exception. On that basis no orders on those issues were necessary.
The non-disclosure orders centred on suppressing the identity of the patient who had attempted to strangle herself on the night of 5 and 6 December 2017. As it transpired, those events were not traversed before me and it has not been necessary to make reference to that patient.
However, Mr Robles consented to the making of the non-disclosure orders. Taking that into account and not then knowing how the evidence might unfold, I determined at the hearing to make the orders sought. I note that the events of 5 and 6 December 2017 are likely to be examined in some detail at any future arbitration of the Application.

Proper name of the Respondent

A final matter to deal with is the proper description of the respondent in these proceedings. The respondent was described as the "Crown in Right of the State of New South Wales (Secretary, NSW Ministry of Health) in respect of Western Sydney Local Health District". The correct name of the respondent, for the purposes of industrial proceedings, is the Health Secretary: Health Services Act 1997 (NSW) s 116. I will make an order amending the name of the respondent.

Orders

The application made by Richie Robles pursuant to s 84 of the Industrial Relations Act 1996 (NSW) is accepted.
The name of the respondent to these proceedings be amended to: "Health Secretary in respect of Western Sydney Local Health District".
Pursuant to s 164A of the Industrial Relations Act 1996 (NSW): 1. There must be no publication of the name, address, picture or any other material that identifies or may lead to the identification of any patient of the respondent, and in particular the patient of the respondent at Bungarribee House who attempted self-harm during the night of 5 and 6 December 2017. 2. To the extent that it is necessary to refer to that patient in these proceedings, the patient is to be referred to by the pseudonym "Patient X". 3. The parties may redact in documentary evidence, and do such other things as reasonably necessary, to prevent the disclosure of the identity of Patient X.
The matter is listed for directions at 9.30am on 10 May 2019. Damian Sloan Commissioner

Amendments 26 April 2019 - In paragraph 49 deleted the words "the findings" and replaced with "my observations" 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: 26 April 2019

Industrial Relations Act 1991(NSW)

Industrial Relations Act 1996(NSW)ss 84, 85, 164A

Health Services Act 1997(NSW)s 116, s 116.

At a glance

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Judgment (14 paragraphs)

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