Sholo v Secretary, Department of Education

Ignorance of the 21 day time limit and resignation from the PSA

1. Following a consideration of the Full Bench's decision in Hurrell, a different Full Bench in York v NSW Department of Education and Communities [2015] NSWIRComm 37 ("York") accepted that "true ignorance of the law may be a factor to be taken into account in the exercise of the discretion to accept a late application": at [85]
2. Relevantly, in Hurrell, the Full Bench said: 12. …a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. 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 Limited 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) 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 256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 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".
3. In the Applicant's February Statement, the applicant says that she resigned from the PSA on 6 May 2018 the day before she sent an email to Dr Curry tendering her resignation effective immediately. The applicant says in the Applicant's February Statement: When I release the school principals were not taking any necessary steps to ensures that workplace was free from harassment, bullying and unlawful discrimination that when I joined the PSA (Public Service Association of New South Wales early April 2017. The association never help me or talk to the school on my behalf about what was happening regarding the discrimination, bullying and denied access to the LMB art training to further my career. The PSA did not help me, all they did is by taking fortnight payment from my account without been supported, after a year and half with PSA I was not getting anywhere and the issues at workplace were getting works on 6 May 2018 I did and my membership with them.
4. However, in the Application, the applicant states: On 4/06/2017, I terminated my membership of the association, as their communicational assistances was not facilitating a mediative resolution to my discrimination and bullying matter with the school.
5. The applicant has not provided any documentary evidence supporting the date of her resignation from the PSA. Nor has the applicant filed any specific evidence on the nature and content of the advice she received from the PSA regarding her legal rights. The PSA is a large and well-resourced trade union well experienced in the Commission and in respect of the Act. In the absence of evidence about the advice sought and given by the PSA the respondent submits that an inference is available to the Commission that the applicant asked the PSA about the circumstances of her resignation and her rights to challenge her "constructive dismissal" and consequently cannot rely on an argument that she was ignorant of the 21 day time limit.
6. I have considered the applicant's assertion that the PSA did not provide her with advice about her right to commence an unfair dismissal claim. The inconsistency in the applicant's evidence about the date she ceased to be a member of the PSA strongly supports an inference that the applicant has not provided complete details about her interactions with the PSA, which then allows for an inference, as submitted by the respondent, that the applicant asked the PSA about the circumstances of her resignation and her rights to challenge her "constructive dismissal".
7. Although I consider that it is open to me to infer that the PSA informed the applicant of her right to make an unfair dismissal claim and the requirement to do so within 21 days, I have not done so. Nevertheless, there is a discrepancy in the applicant's evidence regarding the time when she became aware of her right to make an unfair dismissal application.
8. In the Applicant's February Statement, the applicant asserts she became aware of her rights on the flight back from her mother's funeral in the Democratic Republic of Congo after speaking to an unidentified passenger. The applicant did not give a date for this flight but on the basis of the material produced in response to the Summons to Produce this would be 17 or 18 September 2018. In the Applicant's April Statement and Submissions the applicant states that she returned from the Democratic Republic of Congo on 19 September 2018 but became aware of her right to make an unfair dismissal application on 5 September 2018.
9. The inconsistency in the applicant's evidence as to the date on which she was informed of the existence and powers of the Commission undermines the reliability of her evidence on this point.
10. Further, the applicant has not explained why, other than her evidence about her medical condition which is addressed below, even after she became aware of her right to make an unfair dismissal application on 5 September 2018 or 19 September 2018, her claim was not made until 7 November 2018. The applicant has not given any evidence about steps she took after her return to Australia to have been informed of her right to make an unfair dismissal application. She has provided no evidence about whether she contacted the Commission or viewed the Commission's website or the Act or spoke with a solicitor or industrial advocate about her rights. The applicant has not presented sufficient evidence to demonstrate that she acted reasonably and appropriately to ascertain and prosecute her rights after being informed while in Africa of her ability to make an unfair dismissal claim. As set out above at paragraph [34] an inference is available that the applicant prepared the Application in September 2018 and did not file it until November 2018; however, I have not given this inference any weight.

The applicant's medical condition

1. In the Applicant's April Statement and Submissions she states: (h) I was not aware at all prior to the 5th September 2018 that I could seek help through the IRC when face with a work related dismissal issues. (i) During this time, I was feeling fatigue, having difficulty concentrating, unable to properly care for even myself or my daughter, I worried, anxiety and in a dark place. (j) During this time, my condition did not permit me to reasonably to prepare a claim.
2. From the context, it is not apparent whether the applicant is referring to the period before 5 September 2018 or before 7 November 2018. In an effort to comply with my obligations set out at paragraph [6] I have used the interpretation most favourable to the applicant, being the period until 7 November 2018.
3. The original medical evidence filed by the applicant was a medical certificate from her treating General Practitioner, Dr Maria Li dated 23 November 2018, a letter from Dr Li dated 22 January 2019 and a letter from the applicant's treating psychologist, Ms Kathryn Humby dated 14 November 2018. This material does not support the applicant's assertion that she suffered from a medical condition during the period from 7 May 2018 to 28 May 2018 or 5 July 2018 to 26 July 2018 which explains the applicant's delay in filing the Application.
4. The applicant filed additional letters from Dr Li dated 7 June 2019 and Ms Humby dated 5 June 2019 and a letter from Karina Alouisa dated 11 May 2019.
5. The letter from Dr Li dated 7 June 2019 states: Ms Yemma Sholo has suffered acute anxiety disorder as described in the letter dated 23rd November 2018 and her condition escalated at the end of 2018 and into early 2019. In October 2018, she was commenced on medication in addition to having psychological therapy. When someone is unwell with anxiety disorders, they do not have the mental capacity to be able to process and make decisions in the normal manner and hence the delay with lodging her applications. She is still suffering anxiety and continues her medication and therapy today.
6. The evidence from Dr Li from June 2019 must be considered together with the letter from Dr Li dated 23 November 2018 which states: Ms Sholo did seek professional therapy from a psychologist in May 2017 and has continues [sic] to see them to this day. There was a delay in her seeking help from Industrial Relations as she was not aware that this issue is under their jurisdiction, and despite joining the union (Public Service Association of NSW) and seeking help from them, none was forthcoming. It was only by chance that Ms Sholo was informed by a fellow plane passenger on the way back from her mother's funeral (in Congo) that she can seek help through the Industrial Relations Commission. Hence, her plea now.
7. Dr Li did not identify the applicant's condition amongst the reasons for the applicant's delay in filing the Application in her letter of 23 November 2018, and as Dr Li asserts that the condition escalated at the end of 2018, the evidence from Dr Li does not support the applicant's assertion that her medical condition during the period between 7 May 2018 and 28 May 2018 or 5 July 2018 and 26 July 2018 was the reason for her not filing within the statutorily defined period of 21 days.
8. The additional letter from Ms Humby does not support the applicant's assertion that she suffered from a medical condition which explains the applicant's delay in filing the Application.
9. The letter from Ms Alouisa states that the applicant was referred to Ms Alouisa on 16 April 2019. Ms Alouisa's assessment has been based on information given to her by the applicant during the assessment which took place: 12 months after the applicant notified her resignation; over 10 months from the date the applicant asserts her employment with the respondent ended; and, at best, over nine months from the relevant date pursuant to s 85(1) of the Act that would have seen the Application filed in time.
10. Ms Alouisa states that the applicant's "reported symptoms are suggestive of the presence of a Major Depressive Disorder and Generalised Anxiety Disorders outlined in Diagnostic and Statistical manual of Mental Disorders". Ms Alouisa does not offer any opinion as to whether this suggested disorder was a cause of the delay in the applicant filing the application in May, June or July 2018.
11. The applicant has not satisfied the Commission that her medical condition was the, or a, reason for her not filing the Application within 21 days from either 7 May 2018 or 5 June 2018.
12. Further, there is insufficient independent medical evidence to support the applicant's claim that she suffered a medical condition which precluded her filing the Application in the period after her return from the Democratic Republic of the Congo until 7 November 2018.

Hardship to the applicant and/or the respondent

1. In the Applicant's April Statement and Submissions the applicant claims a variety of hardships may be caused to her if the Commission does not accept the Application: (a) Defamation of my professional character; (b) Loss of confidence and zester about life and work; (c) It will affect my mental state as I am already suffering from anxiety and depression. (d) Financial loss (e) Loss of my dignity and reputation (f) Fearful for my future (g) Poor quality of my life following this psychological injury (h) It will leave me under skilled and in a disadvantaged position to advance further in my career in future.
2. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ("Taylor") Toohey and Gummow JJ observed as follows at 459: … in one sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised.
3. The respondent submits that none of the hardships that the applicant claims are different to the vast majority of unfair dismissal claims. To a great extent this is true. However, I have given weight to each of the matters asserted by the applicant, in particular the applicant's psychological condition and the evidence of her treating practitioners. I have also given weight to the fact that the applicant has now withdrawn her complaint to the Australian Human Rights Commission. The Commission must balance these hardships against other factors, including the hardship to the respondent.
4. The respondent says that he will be put to hardship as: he is entitled to regard himself as free from unfair dismissal application once the time limit has passed; the applicant did not put him on notice that she contested the dismissal or even that she considered herself dismissed rather than having resigned until the Application was filed on 7 November 2018; as a result of the significant delay in bringing the Application, a number of witnesses may no longer be associated with the Department of Education and their memories may have faded.
5. In the Applicant's April Statement and Submissions, the applicant says: (f) From the time that I cease working at Conservatorium High School until 7th of April 2017, I had discussion in attempt to resolve my employment issues with Ian Barker the Principal of School in 2017 and Robert Curry School Principal on 21st of August 2017.
6. This statement refers to attempts by the applicant to resolve issues after she "cease working" with the respondent. It does not contradict the respondent's submission that the applicant did not put him on notice that she contested the dismissal as despite the use of the term "cease working", the dates pre-date the end of the employment relationship. I accept that the applicant did not contest the dismissal at any time from notifying her resignation until 7 November 2018.
7. I accept the other matters that the respondent submits will cause hardship to him. These matters give rise to the usual effects of delay including the oppressiveness which may be caused in allowing an action to be brought long after the circumstances which gave rise to the claim occurred, the proposition that people should be able to arrange their affairs and resources on the basis that claims will no longer be made, and the public interest in the quick resolution of matters.

Conduct of the employer relating to the dismissal

1. As Commissioner Newall held in Isaac v Department of Family and Community Services [2018] NSWIRComm 1008: 13. … 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. … 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.
2. There is no suggestion that any conduct of the respondent relating to the applicant's dismissal played any part in the delay in the applicant filing her unfair dismissal application.
3. The applicant has not alleged that the respondent's conduct affected her filing her application out of time. Accordingly this consideration is a neutral factor in the exercise of discretion in this matter.

Other relevant matters

1. I consider that it is relevant to the exercise of the Commission's discretion that the applicant tendered her resignation, and for the Application to succeed, the applicant must establish that the termination of employment was a dismissal at the initiative of the respondent, referred to by the applicant as a "constructive dismissal". However, as this jurisdictional issue has been dealt with "on the papers", and the applicant has not had an opportunity to address me on this matter specifically, I have given this consideration little weight.

Consideration and decision

1. 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].
2. The onus is on the applicant to convince the Commission to exercise the discretion in her favour: Taylor per McHugh J at 554; York at paragraph [114].
3. The applicant has not discharged her onus to persuade the Commission to admit her application, at a minimum of 101 days beyond the 21 day time limit for the filing of such an application, and 63 days after she says she became aware of her right to bring an unfair dismissal claim pursuant to the Act.

Orders

1. I make the following orders: 1. The application made by Ms Yemma Christine Sholo pursuant to s 85 of the Act that her application pursuant to s 84 of the Act be accepted out of time is refused. 2. The application made by Ms Yemma Christine Sholo pursuant to s 84 of the Act is dismissed for reason that it is not brought within time. N J Constant Commissioner

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: 28 August 2019