Shao v Department of Aging Disability and Home Care

Contract for a specified period of time

1. Section 83 of the Act relevantly provides as follows: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or …………………… (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task,
2. Regulation 6 of the Regulation relevantly provides as follows: 6 Other exemptions from unfair dismissal provisions (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, ……………………..
3. The letter of offer of employment to Ms Shao contained the following provisions: I am pleased to offer you temporary employment within the Department of Family and Community Services in accordance with the Government Sector Employment Act 2013. ………………………. Entry on duty: 4 May 2015 End date: 1 November 2015 ………………………… It is important to note that this offer of temporary employment does not constitute ongoing employment, and your employment will cease effective from the above mentioned end date unless otherwise notified. Your temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where: • work is no longer available • funds are no longer available • performance of duties is unsatisfactory It is noted that this offer of employment is not as a result of selection on merit in accordance with the Government Sector Employment Act 2013.
4. Ms Shao signed a document entitled "Confirmation of Acceptance" which contained the following provisions: I, Yongxin Lucy Shao, hereby accept the offer of temporary employment within the Department of Family and Community Services, based on the following conditions of employment. …………………………… Entry on duty: 4 May 2015 End date: 1 November 2015 …………………………… I understand that this offer of temporary employment does not constitute ongoing employment, and my employment will cease effective from the above mentioned end date unless otherwise notified. My temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where: • work is no longer available • funds are no longer available • performance of duties are unsatisfactory I assert that any qualifications and other documents produced in support of my application are genuine, and I understand that if they are found to be false or misleading, my employment may be terminated. I understand that this offer of employment is not as a result of selection on merit in accordance with the Government Sector Employment Act 2013.
5. It is apparent, on the face of the contractual documents set out immediately above, that Ms Shao was offered and accepted employment with the Department on the basis that the period of employment would be from 4 May to 1 November 2015. Prima facie, Ms Shao was engaged under a contract of employment for a specified period of time which was less than six months.
6. However, this contract of employment also contained a provision which invests the agency head with discretion to terminate the contract prior to 1 November 2015 in certain circumstances, including where work or funds are no longer available or the performance of duties is unsatisfactory. The issue which arises for consideration is whether or not the inclusion of this provision in the contract of employment between Ms Shao and the Department has the effect that the contract is not a contract of employment for a specified period of time. The ultimate question for determination is whether or not this contract of employment is excluded from the unfair dismissal provisions of the Act by virtue of the operation of subsection 83(2)(a) of the Act and regulation 6 of the Regulation.
7. In Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) ([2014] NSWIRComm 48) a Full Bench of the Commission (Walton J, President, Boland AJ and Tabbaa C) heard an appeal from a decision of Newall C in which the Commissioner held that the applicant, Ms Custovic, had been engaged by the respondent Department on a contract of employment for "specified period of time" which was less than six months. Newall C dismissed the applicant's unfair dismissal application on the basis that she was excluded by virtue of subsection 83(2)(a) of the Act and regulation 6 of the Regulation from the unfair dismissal provisions of the Act (Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 1007).
8. The facts of this case were set out in the first instance decision of Newall C as follows: 4 The relevant facts were largely not in contest. They can be summarised as follows. 5 Ms Custovic was first offered employment by the respondent on 11 July 2007. 6 That offer was in writing. The employment offered was said to be temporary employment pursuant to s.27 of the Public Sector Employment and Management Act 2002, ('the PSEM Act') for the period 30 July 2007 to 26 October 2007. 7 Ms Custovic accepted the offer on 15 July 2007 and commenced work with the respondent at its Blacktown office on the terms offered on 30 July 2007. 8 On or about the end date of the initial contract to which I refer above, on 26 October 2007, she was offered and she accepted a further contract of temporary full-time employment for a period of 3 months, on relevantly similar terms to the initial contract. 9 That process of offer and acceptance of short-term contracts continued for a number of years. On Ms Custovic's evidence during that time she was allocated four weeks' recreation leave each year and twelve days' study leave each year; she was paid accrued annual leave on the termination of her employment in 2013. 10 The effect of this arrangement was that Ms Custovic carried out work uninterruptedly for the respondent, although she changed the location of that work from Blacktown to Liverpool in August 2010, until 27 August 2013, on which day she was told in writing that her employment would end on that day. 11 At the date of her dismissal from employment, 27 August 2013, Ms Custovic had most recently been provided with a letter of offer of temporary employment for a period of three months from 27 July 2013 to 23 September 2013. That letter was provided to her only on 18 August 2013, although she had continued to work for the respondent from 27 July 2013, on which date her previous temporary contract had expired, onward. 12 The evidence discloses that Ms Custovic was provided with a series of back-to-back contracts of temporary employment of three months' duration each. It is not certain from the evidence whether in each case those further temporary contracts were offered and accepted before the expiry of the existing temporary contract. In some cases they were; in some cases they certainly were not; for example, the respondent offered Ms Custovic a temporary contract extending from 2 August 2010 to 31 October 2010 by way of a letter dated 5 August 2010. Ms Custovic nevertheless worked and was treated as an employee for all purposes on 2, 3 and 4 August 2010, which were working days. 13 The question is confused by the respondent placing in evidence, by way of attachments to an affidavit of Grant McClafferty, copies of letters to Ms Custovic which bear dates that the Department later submitted were not the correct dates of the letters, but the dates on which copies were printed for the purposes of making the affidavit. This carelessness in record-keeping does not assist in accurate findings of fact, although it has not ultimately served to obscure the facts here. 14 The factual circumstances immediately preceding the termination of Ms Custovic's employment were as follows. 15 On 29 June 2013 Ms Custovic was offered in writing a temporary contract extending from 28 June 2013 to 26 July 2013. 16 After the expiration of that contract - that is, on and from 27 July 2013 - Ms Custovic continued to carry out work for the respondent and be paid for her work. On 18 August 2013 Ms Custovic was advised in writing that 'approval has been given' for her temporary employment from 26 July 2013 to 27 September 2013. Having received that letter Ms Custovic continued to carry out her duties.
9. It appears from the above recitation of the facts of this case by Newall C, that Ms Custovic had, at the time of the termination of her employment, been engaged under a series of temporary contracts of employment for a continuous period of approximately 6 years.
10. The last letter of offer of employment, which was accepted by Ms Custovic, contained the following provision: I am pleased to advise that approval has been given for your Temporary Full Time employment to the position of Client Service Officer, position number 20035988, for a period from 26.07.2013 up to 27.09.2013 in terms of section 27 of the Public Sector Employment & Management Act 2002. You will be paid salary at $67,010 p.a. and your contract hours will be 35.00 hours per week. Your employment will be reviewed during this period and your continued employment will depend on your satisfactory conduct and work performance and on the availability of work. If your temporary employment will be terminated earlier, you will be given one (1) weeks' notice. Please note that your temporary employment does not guarantee permanent appointment to the position. Please confirm acceptance of the position and conditions and salary stated by signing the attached copy of this letter and returning it to....
11. At the time of the termination of Ms Custovic's employment, the relevant statutory framework for the employment of temporary employees in the public service was established by the Public Sector Employment and Management Act 2002. The statute which governed the temporary employment of Ms Shao is the Government Sector Employment Act 2013 ("the GSE Act"). I do not apprehend that the change in the legislative framework has had any significant bearing upon the nature of the issues which were decided in Custovic and which arise for determination in the present matter.
12. The plurality of the Full Bench in Custovic (Boland AJ and Tabbaa C) stated as follows: 49 The Commissioner at first instance found that the contract of employment between the appellant and respondent came into existence on 18 August 2013 (when the appellant received the letter dated 16 August 2013 and continued to work without reservation or objection). The Commissioner found that the contract of employment was still in operation on 27 August 2013 (the date of termination). The contract of employment contained a specified period of employment from 26 July 2013 to 27 September 2013. 50 The specified period of the contract of employment between the appellant and respondent was less than six months. It was three months. The appellant's employment did not continue for the period of the contract, but came to an end on 27 August 2013 by virtue of the operation of a provision in the contract, which provided: Your employment will be reviewed during this period and your continued employment will depend upon your satisfactory conduct and work performance and on the availability of work. If your temporary employment will be terminated earlier, you will be given one week's notice. 51 The reason given for the termination of the appellant's employment was "poor performance and conduct". It appears the appellant was given two weeks' pay in lieu of notice. We note the termination of the appellant's employment occurred after some six consecutive years of back-to-back contracts of temporary employment of three months' duration each.
13. Ultimately the Full Bench held as follows: 66 It seems to us that a contract that contains a term allowing one or both parties the unqualified right to terminate the contract is inconsistent with the concept of a contract for "a specified period of time". A contract for a specified period of time will attract the exemption under reg 6(1)(a) of the Regulation. If such a contract is held to attract the exemption notwithstanding that it may be terminated by one or other party at any time, it undermines completely an employee's right to access relief for unfair dismissal. An employer could simply make a contract for a "specified period of time"; with a clause inserted to give an unqualified right to give notice of termination at any time, and an employee who is a party to the contract would be precluded from making an application under s 84 of the IR Act. 67 We do not regard the exemption in reg 6(1)(a) of the Regulation as absolute in the sense that an exemption may be accomplished simply by placing a commencement date and cessation date in the contract of employment thereby preventing any scrutiny of the contract under the legislation's unfair dismissal provisions, which is what the respondent appeared to be contending. And later: 93 Turning back to the circumstances under consideration in the present appeal, the contract reserved a right to the respondent to terminate the contract prior to the end date of the specified period where the appellant's conduct and work performance was not satisfactory and where work for the appellant was no longer available. The contract further provided that "If your temporary employment will be terminated earlier, you will be given one (1) weeks' notice." The appellant's employment was terminated, pursuant to the contract, "due to your continued poor performance and conduct" on a date prior to the cessation date of the contract. 94 Given these facts, the employment of the appellant was terminable by the unilateral act of the respondent. The employment was not terminable by agreement of the employer and employee. It was not terminable by effluxion of the period of time specified in the contract of employment. On the approach discussed by Northrop J in Cooper, the appellant's contract was not a contract for a specified period of time and the termination of the employment contract by the employer without the consent of the employee would fall within the meaning of "dismissal" in Pt 6 of Ch 2 of the IR Act. 95 The appellant's contract was terminated because she failed to adhere to a term of the contract that her conduct and work performance was to be satisfactory. It was not contended, either before Newall C or on appeal, that the appellant's contract was terminated for breach. However, in this case it does not matter whether there was a termination for breach or not. That is not the question. The question is whether the contract was for a specified period of time. 96 The appellant's contract was not one for a specified period of time because it contained a term that allowed the employer to unilaterally terminate the contract where work for the appellant was no longer available. The contract specifically contemplated termination prior to the end of the specified period. As we earlier observed, a contract that purports to be a contract for a specified period, which provides for it to be terminated by the employer without the employee's consent prior to the end date of the specified period on the basis of some future event or circumstance occurring, the timing of the happening of which is uncertain or unknown when the contract is made, is not a contract "for" a specified period of time. 97 In our opinion, the appellant's contract of employment was not one for a specified period of time such that the exemption in reg 6(1)(a) of the Regulation applied.
14. I have considerable reservations about the correctness of the decision of the Full Bench in Custovic. It appears to me that the consideration of the Full Bench in that matter was influenced by the fact that the applicant in that case had been engaged on a series of temporary contracts of employment which extended over a continuous period in excess of six years. At first instance in that case, it was asserted on behalf of the applicant, that the use of such a series of temporary employment contracts could allow "employers to use inappropriate technical forms to contract out of the Act".
15. No such consideration arises in the present matter. There is no suggestion that the engagement of Ms Shao on a contract of employment for a specified period of time which was less than six months, was anything other than the legitimate utilisation of temporary employment in the public service, which is provided for under the GSE Act. There is no suggestion that the engagement of Ms Shao in this manner was designed to avoid the unfair dismissal provisions of the Act.
16. The clear policy enshrined in the Act and the Regulation is that employees who are engaged under contracts of employment for specified periods of time of less than six months are excluded from the unfair dismissal provisions of the Act. It does not seem to me that an approach which avoids the effect of this exclusion by reference to the contractual right of the employer, in certain circumstances, to dismiss an unsatisfactory employee during the specified period of the contract, is consistent with the clear intendment of the legislation.
17. There is nothing in the terms of the contract of employment to which Ms Shao was a party which would suggest that she was not entitled to exercise the usually accepted right of an employee to resign from employment prior to the nominated end date of the contract, without finding herself exposed to a claim of breach of contract. The existence of, and exercise of, such a right to resign from employment could not be said to render such a contract other than a contract of employment for a specified period of time. If it were otherwise it would seem that subsection 83(2)(a) of the Act and regulation 6 of the Regulation would have little, if any, work to do.
18. Nevertheless, I am unable to discern any relevant distinction between the terms of the contract of employment which was considered by the Full Bench in Custovic and those of the contract of employment under which Ms Shao was engaged. Obliged as I am to follow binding Full Bench authority which is on point, I determine that Ms Shao is not precluded by the operation of subsection 83(2)(a) of the Act and regulation 6 of the Regulation, from pursuing relief under the Act in relation to her dismissal.
19. The first of the two jurisdictional objections raised by the Department, which is that Ms Shao is excluded from the unfair dismissal provisions of the Act on the basis that she had been engaged under a contract of employment for a specified period of time of less than six months, is rejected.

Application filed out of time

1. The second jurisdictional objection raised by the Department relates to the fact that Ms Shao's employment was terminated on 1 October 2015 but her unfair dismissal application was not filed in the registry until 25 August 2016.
2. 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.
3. Section 85 of the Act was recently considered by Newall C in Katsantonis v Inner West Council ([2017] NSWIRComm 1015). In that decision, the Commissioner stated as follows: 4. It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal. 5. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. 6. I observe that Ms Katsantonis did not lodge any application with the Fair Work Commission in relation to her dismissal. The consequence is that this matter falls to be determined solely under subsection 85(3) of the Act. 7. That subsection provides no more than that the Commission 'may' - that is, as a matter of discretion - accept an application which is made out of time but which is not required to be accepted for the reasons set out in sub-section (2). 8. The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3). 9. It is apparent from the wording of subsection 85(3) that the matters set out in sub-subsections 85(3) (a), (b) and (c) are not an exhaustive list of the matters that may go toward the exercise of the discretion involved in determining whether there is 'a sufficient reason' to admit a late application, but rather are only those matters to which the Commission is to have particular regard. 10. Each case in which subsection 85(3) is invoked is 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. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190. 11. Given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. 12. The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 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) 52 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 2.564(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". 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]; Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998); Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [[2013] NSWIRComm 1012. 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. 15. The overarching principle is therefore 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, is paramount: Hurrell at [13]. 16. And fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society. Rather, '[i]t 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.' Brisbane South Regional Health Authority v Taylor loc cit at 553.
4. I am assisted by the principles which govern the exercise of the Commission's discretion in matters such as this, as are set out in the authorities referred to by Newall C in Katsantonis.
5. In a document filed by Ms Shao in the registry on the 31 January 2017, Ms Shao stated as follows: (a) The reason for the delay I have been suffering anxiety and depression caused by the workplace bullying and harassment when I worked in a group home in ADHC since November 2014. I resigned my duty as the Disability Support Worker in March 2015. Then I went back to work as a Business Support Assistant role in roster unit in ADHC in May 2015, and later ADHC dismissed me on the 30th Sep 2015. My symptoms of anxiety and depression were getting worse after the dismissal. I did not go to the doctors immediately, though. After being encouraged and prompted by classmates and teachers in an HR course in TAFE, and considerable efforts, I finally went to legal aid, and went to doctors after six months of the dismissal on the 1st of April 2016. Doctor Wong diagnosed me with anxiety and depression. It does not mean I only started the illness at the moment I went to the doctor; I did not go to doctors early only because I could not, I felt it was unsafe to go out or communicate with others, I had a great fear. Many people who have mental illness find it difficult to seek help from others including doctors and other professionals; concerns prevent them from talking about the problems. Kate Middleton has approved these in her recent speech, and those were similar to what have happened to me. Luckily I have taken my first step out by enrolling in an HR course, and unfair dismissal was one of the topics, I finally went out and sought professional treatment. The delay demonstrated how seriously the damages were, and how significantly it has impacted my family and me, and I am still feeling the pain, therefore, I need compensating. Please refer to my treating doctor's certificate and psychologist's statement attached.
6. Attached to this document was a photocopy of a handwritten statement by Dr Wong of Dyvest Health Care Pty Ltd dated 29 April 2016. That statement is in the following terms: This is to confirm that Mrs Yongxin Shao - suffers from Anxiety and Depression. Since she was fired from her job > 6/12 ago. She is experiencing symptoms of depression and anxiety. She has disrupted sleeping patterns, with depressed mood, depressed motivation, and suicidal ideation, with no active intent. She needs psychological counselling and cognitive behaviour therapy. Yours faithfully Dr Wong
7. Also attached to the document which Ms Shao filed in the registry on 31 January 2017, was part of a document dated 15 June 2016 which contained a number of questions which had been directed to Dr Wong and to Ms Ingrid Pollard, Ms Shao's treating Clinical Psychologist. A number of the questions directed to, and answers from, Dr Wong are set out below: 10) Are you aware of any concurrent life stressors for Ms Shao or factors associated with her usual personality that may have made her vulnerable to distress? If so, please provide details. Ms Shao is a single parent with financial obligations including a mortgage. Her limited English also restricts her employment prospects. 11) In your opinion is Ms Shao currently capable of working? If not what needs to occur prior to this. Ms Shao has recently gained employment in a rental car firm.
8. A number of the questions directed to, and answers from, Ms Pollard are set out below: 10) Are you aware of any concurrent life stressors for Ms Shao or factors associated with her usual personality that may have made her vulnerable to distress? If so, please provide details. Not applicable as stressors managed without psychological issues presenting. 11) In your opinion is Ms Shao currently capable of working? If not what needs to occur prior to this. Ms Shao is currently working for a car and truck leasing company. However she is struggling to do her role and has concerns her employment will be terminated. Ms Shao requires ongoing treatment and support to enable her to continue to work.
9. On 3 April 2017, Ms Shao again filed in the registry the statement set out at paragraph 29 above.
10. On 13 April 2017, Ms Shao filed in registry a further document which contained the following: 5. In response to the respondent's argument about the 21 days delay, I think I have given enough evidence to prove the reason. Not many people understand how struggling people with anxiety and depression, the greatest fear affect every single aspect of life. I was suggested to study English by the job provider, I picked up a full time HR course so that I did not have to meet centre link requirement which was to apply ten jobs fortnightly, because any kind of communications was huge effort to me after the dismiss, as I was suffering post traumatic stress. For example, I have always wondered whom I could put as my referrer from my most recent supervisors, and I have to leave that part empty. During the HR course, I learned unfair dismissal; I visited many web sites, I also learned WHS Acts, and Workers Comp. As I was suggested by Legal Aid that I have missed the 21 days requirement, then I logged Workers Comp claim, when it was finally declined by August 2016, I logged the unfair dismissal claim, as I believe it was unfair, and I could provide the adequate reason for the delay.
11. In addition, on the day of the hearing of the Department's jurisdictional objections, 26 May 2017, Ms Shao handed up to the Commission a document which was in the following terms: My explanation to why I have delayed such long 329 days, and I hope this 329 days restrain can be waived. 1. No one told me about the 21days requirement for unfair dismissal claim, then how could I know. If I have been told by ADHC HR department at the date I was dismissed, ie. 30 Sep 2015, I could make my claim and much easier, and cost efficient. Therefore, ADHC cannot avoid this responsible. 2. After the dismissal, I stayed home, scared, suffering the post traumatic stress. Until February 2016, I enrolled a HR course, I learned the term of unfair dismissal. 3. In April, I went to Legal Aid to seek legal advice. I was told that it was too late to claim unfair dismissal. I explained why I did not claim early, and then I was suggested to see doctor. 4. The doctor diagnosed me having anxiety and depression. I started the treatment and seeing psychologist, and I rely on them. 5. I continuously seek advice from Legal Aid and Law Society. 6. In 2nd of May 2016, I started the workers compensation claim, but I was declined on 28 June 2016. I was encouraged for a review, but declined again in August. 7. On 25th August 2016, I lodged unfair dismissal claim, as I believed that my dismissal was truly unfair, unjust and unreasonable, after 21days, the truth and the fact do not change. The 21days should not be used as an excuse to make any innocence permanent. If this is happening, then it's the shame of our legal system, as our legal system should be designed for justice and fairness. To adjust wrong doings, to protect vulnerable, to punish bad behaviours. 8. 21 days might be enough for a merchandise cooling period, but it is definitely not enough for someone who has been suffering post traumatic stress to take legal actions to against a large government organisation that has every legal position and legal representative in place, to against their former hard working employees, to make them vulnerable. 9. I have to say my entire mental problem was caused by ADHC's unhealthy working environment, misconduct, and ill working relationship; the careless and the negligence. I have provided lots of facts previously, not only about the dismissal, also how I was treated prior to my final day working there. 10. We know that ADHC has already started privatising. Why is this happening? My case could be a very good explanation. I was the employee who has been trying hard to protect this organisation's interests. For instance, I was working extremely hard to adjust the leave forms, the timesheets, to get the payroll process accurate, to reduce wastes. 11. I believe everyone in this room knows that I'm innocent; the dismissal has made me vulnerable in my finance, reputation and employment perspective. I also believe no one wants to make any wrong decision or judgement. I learned from the case Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW), and it was overturned in the appeal.
12. Nothing more was put before the Commission to explain why it took Ms Shao 327 days from the date of her dismissal to file her unfair dismissal application.
13. Having regard to the principles set out by Newall C in Katsantonis, Ms Shao has failed to establish a "sufficient reason" for the Commission to accept her application out of time.
14. The specific factors which I have taken into account in coming to this determination are as follows: (a) The employment of Ms Shao was short term in nature. She commenced in her role on 4 May 2015 and was dismissed with effect from 1 October 2015, a period of less than five months. Had Ms Shao not been dismissed, her contract of employment would have come to an end one month later on 1 November 2015 by the effluxion of time. (b) The length of period of time, 306 days, after the last day for the filing of her application in accordance with the Act, is extreme. By contrast, the applicant in Katsantonis filed her application only 16 days out of time, but it was still dismissed by Newall C for being out of time. (c) The various reasons for the delay put forward by Ms Shao fall well short of providing a satisfactory explanation for such a lengthy period of time taken to file her application. The opinions of Dr Wong and Ms Pollard do not support the conclusion that Ms Shao was incapable of filing an unfair dismissal application within the required time, or at any other time prior to 25 August 2016, by reason of mental illness. According to Ms Shao, she "learned of the term of unfair dismissal" in February 2016, having enrolled in a HR course, and yet she did not file her application for another six months, approximately. Again, according to Ms Shao, she commenced a workers compensation claim on 2 May 2016 which was declined on 28 June 2016. She learned in August 2016 that a review of that decision had been unsuccessful. No explanation was provided as to why she could not have made her unfair dismissal application during this period when she was pursuing her workers compensation claim. (d) Whilst this decision will, no doubt, cause some hardship to Ms Shao, this must be balanced against the likelihood that her employment would have, in any event, ended only one month after the date on which she was dismissed. Consideration must also be given to the unfairness to the Department which would necessarily flow from requiring it to now defend an application involving events which occurred two years ago.

Order

1. The application made by Ms Yongxin Shao pursuant to section 84 of the Act is dismissed for reason that it was not brought within time. Commissioner John Murphy

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: 17 August 2017