Ristevski v Health Secretary in respect of South Eastern Sydney Local Health District

Background

1. The applicant was employed by the respondent in the position of Mental Health Counsellor which came to an end on 22 December 2021 by way of termination by the respondent.
2. On 12 January 2022, the applicant filed an unfair dismissal application under the provisions of the Fair Work Act 2009 with the Fair Work Commission.
3. On 2 February 2022 the applicant was informed by the Fair Work Commission that his application had been rejected.
4. On 10 March 2022, the applicant filed an unfair dismissal application with this Commission which was dated 6 March 2022 (the "Application").
5. The respondent filed a response to the Application on 25 March 2022 (the "Response"), in which, amongst other things, the respondent opposed the Commission accepting the late Application.
6. The Application was the subject of an unsuccessful conciliation before myself on 28 March 2022 and at the conclusion, directions were made for the filing and serving of a notice of motion by the respondent and evidence and outlines of submissions by both parties.
7. The following materials were filed and served by the parties in accordance with the directions: 1. On 22 April 2022 the respondent's notice of motion along with a supporting affidavit of John Counter and outline of submissions on 20 April 2022; 2. On 17 May 2022 the applicant's material entitled "EVIDENCE FOR FILING LATE APPLICATION"; and 3. On 1 June 2022 the respondent's outline of submissions in reply.
8. The matter was listed for hearing before me on 14 June 2022 and the affidavit of John Counter and the applicant's filed material was tendered and accepted into evidence.
9. Both parties relied upon their filed material and made further oral submissions.

Submissions

1. In his written materials the applicant provided the following reasons as to why he did not file the Application within the requisite time: The dismissal on 22 December 2021 affected his mental health very adversely; He was treated as an outcast in an inhumane and unethical manner; He feels professionally and financially ruined; He made numerous futile attempts to get help from the respondents Employment Assistance Program, his GP and Legal Aid; Due to increasing despair, in December 2021 he went to a cabin on Mt Kosciusko which did not have internet access; He had limited contact with his family members who at times spend time with him to provide psychological and financial support; He has no trust in authorities, including the legal system; His self esteem has hit rock bottom; and When he faced the fact that his life was about to get ruined, he was not able to think and plan about his future.
2. The applicant provided further detail of these reasons and also that he was suffering financial hardship arising from the loss of employment in his oral submissions, however he did not tender any documents in support of the asserted reasons and hardship.
3. The respondent submitted that the applicant had failed to adduce any evidence to support the asserted reasons as to why the Application was made 36 days' after the Fair Work Application was discontinued and 78 days after the termination of the employment.
4. The respondent also pointed to the requirements under section 85 of the Act and the circumstances in which the Commission can exercise its' discretion to extend time. In doing so, reliance was placed on the recent decision of Commissioner Muir in Lisa Marija Botic v Health Secretary NSW Health Pathology [2022] NSWIRComm 1036.
5. Then the position of the respondent was conveniently distilled in the following passage from transcript: In conclusion Commissioner, we would say that in the commission looking at and applying section 85 of the Industrial Relations Act, section 85(2), the test therein, Mr Ristevski's application fails because it does not comply with the cumulative effect of sections 85(2)(a), (b) and (c) and then if the commission turns to s 85(3), that when the commission reviews the material that's currently before it, that there is not a sufficient reason for the delay or the length of the delay, nor is there any extraordinary circumstances, being the language used in the Fair Work Commission cases for the hardship caused to the applicant and the conduct of the employer relating to the dismissal is as set out in the termination letter of 22 December 2021. On that basis, we would say that the commission can safely exercise its discretion not to accept the application out of time.

Consideration

1. Subsection 85(1) requires an application for unfair dismissal to be filed within 21 days of the dismissal, however, an effective extension is provided under subsection 85(2) if the application is incorrectly filed within 21 days under the provisions of the Fair Work Act 2009 (Cth).
2. The Commission was not taken to any authority on the overall effect of subsections 85(1) and (2). The position adopted by the respondent, which is consistent with a plain reading of subsection 85(2) is that the Applicant was required to file his application within 21 days of being informed by the Fair Work Commission that his unfair dismissal application had been rejected.
3. There is a discretion provided to the Commission by subsection 85(3) of the Act to accept an application filed outside of the time limits set out in subsections 85(1) and (2).
4. As the application was filed 36 days after the applicant was informed by the Fair Work Commission that it had been rejected, I am required to determine whether it is appropriate to exercise the discretion under subsection 85(3) to extend the time for acceptance of the application and in doing so, consider those matters listed in paragraphs 85(3)(a)-(c).
5. Commissioner Murphy in Macdonald v Commissioner of Police [2017] NSWIRComm 1043, reviewed the various authorities of this Commission in relation to the exercise of the discretion and provided the following summary of the relevant principles at [33}:
6. The prima facie position is that unfair dismissal applications made out of time will not be accepted by the Commission.
7. An applicant who has made an application out of time bears the onus of persuading the Commission to accept such application.
8. An out of time application will not be accepted unless the Commission is satisfied, having regard in particular to the reason for, and the length of, the delay in making the application, that a "sufficient reason" exists for the Commission to exercise its discretion in favour of the applicant.
9. Whilst a lengthy delay in making an out of time application will militate against its acceptance by the Commission, it does not follow that an application made only one, two or a few days after the expiry of the 21 day time limit will be accepted by the Commission without there being demonstrated by the applicant that there was a reason for delay which the Commission can accept as a "sufficient reason" to accept the application out of time.
10. If hardship to the applicant is to be considered as a factor weighing in favour of acceptance of an out of time application, the hardship that may be caused to the applicant if the application is rejected must be more than just the loss of the opportunity to have the application considered by the Commission.
11. If the conduct of the employer relating to the dismissal is to be considered as a factor weighing in favour of acceptance of an out of time application, such conduct needs to have some connection to the delay in making the application.
12. The overarching principle which guides the Commission's discretion is the attainment of justice for the parties in the particular case.
13. In relation to the asserted reasons advanced by the applicant as to why he did not file within the requisite time, none of those provided an impediment to the applicant filing an application with the Fair Work Commission within 21 days of the termination of his employment.
14. In particular I note that the applicant went to the cabin on Mt Kosciusko that allegedly had no internet coverage prior to him filing the application with the Fair Work Commission. Similarly, he saw his general practitioner who allegedly referred him to a psychologist on a number of occasions prior to leaving Sydney.
15. As to financial hardship, the applicant provided no details of this other than he had a "bit of a mortgage".
16. Finally, there was no suggestion by the applicant that the respondent's conduct had any role to play in the late filing of his application.
17. In the circumstances I am not satisfied that there is not a proper basis for the discretion under subsection 85(3) to be exercised.

Decision

1. The application to extend time for filing of section 85(3) application is declined.

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: 19 August 2022