Stella v Industrial Relations Secretary on behalf of the Department of Communities and Justice

Procedural history

1. On 7 July 2020 Mr Stella filed with the Office of the Industrial Registrar 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 Stella: 1. claimed that on 6 February 2020 he had been "constructively dismissed"; 2. acknowledged that the Application was filed more than 21 days after the date of his alleged dismissal and set out the reasons for it having been filed late; and 3. sought monetary compensation for the allegedly harsh, unreasonable or unjust termination of his employment.
2. In an Employer's Reply ("Reply") filed on 15 July 2020 the Department submitted that Mr Stella had not been constructively dismissed. Rather, Mr Stella was said to have resigned voluntarily. The Department further challenged the jurisdiction of the Commission to determine the Application on the basis that it had been filed out of time.
3. The matter was listed for conciliation before me on 22 July 2020. Mr Stella was represented by Mr M Shumsky of Stacks Collins Thompson. The Department was represented by Mr S Cosgrove, an HR Advisor - Industrial Relations employed in the Department.
4. In light of the contents of the Reply, at the outset of the conciliation I drew the parties' attention to cl 6 of the Commission's Practice Note 17A. In the course of the ensuing discussion Mr Cosgrove stated that the Department in fact had three objections to the Commission determining the Application, namely: 1. Mr Stella was exempted from Ch 2 Pt 6 of the Act on the basis that he was engaged under a contract of employment for a specified period of time or a specific task, within the meaning of s 83(2)(a) of the Act; 2. even were he not so exempted, Mr Stella was not dismissed; and 3. even had he been dismissed, the Application was brought out of time.
5. After hearing from Mr Shumsky and Mr Cosgrove, I stated: [2] "So on the basis of that discussion, pursuant to cl 6 of practice note 17A I determine that the threshold jurisdictional issues that have been raised by the respondent should be resolved prior to any attempt is [sic - being] made to resolve this matter by conciliation. To allow for those issues to be determined, I direct that the applicant file and serve any evidence and submissions on which he intends to rely in respect of the threshold issues by 4pm on 7 August 2020. I direct that the respondent file and serve any evidence and submissions on which it intends to rely in respect of the jurisdictional issues by 21 August 2020. I direct the applicant to file and serve any evidence and submissions in reply by 28 August 2020. I will proceed tentatively on the assumption that the jurisdictional issues that have been raised by the respondent will be determined by me on the papers, however that is only a tentative view. If, having seen each other's material, the parties or either of them come to a view that a hearing of this matter is to be preferred, I grant them liberty to apply to seek the necessary directions."
6. The Commission subsequently received the following documents: 1. a document filed on behalf of Mr Stella on 7 August 2020 titled "Submissions on Jurisdictional Objections raised at or before Conciliation", attaching: 1. a role description for the position of Principal Engagement Manager; 2. a copy of Mr Stella's employment contract with the Department dated 3 July 2018; and 3. a copy of the letter from Mr Coutts-Trotter to Mr Stella of 1 June 2020 referred to at [10] above; 1. a document filed on behalf of the Department on 24 August 2020 titled "Outline of Respondent's Submissions", attaching: 1. a copy of the email from Michael Duffy to Mr Stella sent on 5 February 2020 referred to at [5] above; and 2. a copy of the email from Thomas Pacey to Cathryn Hellams sent on 14 May 2020 referred to at [9] above; and 1. a document filed on behalf of Mr Stella on 28 August 2020 titled "Reply to Respondent's Submission regarding Jurisdictional Objections raised at or before Conciliation", attaching: 1. a copy of an email from Michael Van Den Bos, Senior Statutory Officer, Geographical Names Board, Spatial Services in the Department of Customer Service, to Mr Stella sent on 16 August 2019; 2. a copy of an email chain between involving Mr Van Den Bos, Clare Hewitt, a Statutory Officer with the Geographical Names Board, Lisa Powell, a Places Names Manager with the Geographical Names Board and Narelle Underwood, whose position was not provided, sent between 9 and 11 August 2019; 3. a copy of the email sent by Mr Stella on 22 January 2020 referred to at [4] above; 4. a copy of an email exchange between Mr Stella and Steven Terzis on 5 and 6 February 2020, including the email referred to at [6] above; and 5. a further copy of the letter to Mr Stella from Mr Coutts-Trotter dated 1 June 2020.
7. Neither party requested an opportunity to be heard on their submissions. For an abundance of caution, on 3 September 2020 I arranged for the Registry to send to the parties an email in the following terms: "Commissioner Sloan has now received the submissions that have been filed by the parties on the jurisdictional issues. On 22 July 2020 the Commissioner directed that the issues would be determined 'on the papers', subject to either party having liberty to apply if they considered that a hearing was required. Neither party has requested a hearing. On that basis the Commissioner will proceed to determine the respondent's jurisdictional objections and publish his decision in this regard as soon as possible."
8. The Commission received no response to this email. I have determined the matter on the basis of the material outlined at [16] above.

Objection 1 - Exemption from Ch 2 Pt 6

1. In its submissions the Department did not maintain its contention that Mr Stella was exempted from Ch 2 Pt 6 by virtue of s 83(2)(a) of the Act. I take that objection to have been abandoned.
2. I observe in any event that the Department could not have made out the objection. Clauses 6(1)(a) and (b) of the Industrial Relations (General) Regulation 2015 (NSW) (being the Regulation which applied at the time of Mr Stella's employment and when the Application was filed) respectively provide that for the purposes of s 83(2)(a) a person will be exempted if their contract was for a period of less than six months or was for a specific task. On its face Mr Stella's contract was for a period of almost two years. Nothing in the contract or Mr Stella's position description suggested that he was employed to perform a specific task.

Objection 2 - No dismissal

1. It is a precondition to the Commission's jurisdiction under Ch 2 Pt 6 of the Act that an employee have been dismissed by their employer. The terms "dismissal" and "dismissed" are not defined in the Act.
2. A dismissal occurs when an employee is "sent away or removed" from employment by the employer: Smith v Director General of Education (1993) 51 IR 204 at 219. However, even where - as in the present case - the employee is not sent away or removed by the employer, but tenders a resignation which is accepted, the situation may still be regarded as one of dismissal.
3. In Allison v Bega Valley Council (1995) 63 IR 68 at 72 the Full Bench observed: "There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a 'constructive dismissal', that is in effect the employer has brought about the termination of the contract of employment. Although the term 'constructive dismissal' is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. 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 and was this so despite on the face of it the employee appears to have given his or her resignation?"
4. The essence of Mr Stella's argument on this ground is contained in the following passages in the submissions he filed on 7 August 2020: "4. The Applicant submits he was forced to resign under threat of serious consequences and implied threat of dismissal after the Applicant was presented with an unreasonable and unconscionable ultimatum by his line Manager Mr Michael Duffy that the Applicant in effect forcing the Applicant to promise to never again report any concerns of illegal action. … 11. The Applicant prepared for the meeting on 6 February knowing that he would be asked to give 'assurances' that he would never again put in writing any good-faith belief that some aspect of the Department's conduct was unlawful. He recognised that, if he was indeed asked to give this assertion in the meeting, he would have no choice but to resign." (Sic)
5. Paragraph 4 of the submissions was said to be the effect of the email of 5 February 2020 referred to at [5] above.
6. In his submissions filed on 28 August 2020 Mr Stella further contended: "23. Messrs Duffy and Taylor arranged the meeting with the sole purpose of seeking an assurance from the Applicant that he would not in future put serious concerns in writing if they might be embarrassing to Mr Severin. 24. The Applicant tendered his resignation during the meeting, having confirmed the substance of the demands being made of him. …"
7. The reference in the email of 5 February 2020 to Mr Stella "refraining from the expression of inappropriate negative opinions" must be seen in the context in which it arose. This includes in particular Mr Stella's email of 22 January 2020. There are four observations to make about that email: 1. it accuses Commissioner Severin of acting in "disregard of expert advice". This carries the inferences that "expert advice" had been obtained to the effect that the proposed names not be adopted (about which there is no evidence); the Commissioner was aware of that advice; and, the Commissioner made the decision to act contrary to it; 2. it further infers that Commissioner Severin was aware that his decision would result in the Department acting "unlawfully"; 3. the comment that Commissioner Severin had awarded Francis Greenway a posthumous knighthood was gratuitous and could reasonably have been regarded as impertinent; and 4. Mr Stella's use of the term "profoundly inappropriate" in purporting to summarise GNB "standards" appears to be his own gloss.
8. Mr Stella submitted that there was a legitimate basis for the concerns underlying his email and that he held those views in good faith. That may be the case, but it is not to the point. Viewed in context, the Department had reason to contend that Mr Stella had expressed his concerns in inappropriate terms. The email of 5 February 2020 reflects that. The issue raised in the email appears not so much to be whether Mr Stella had a difference of opinion, but how and to whom that difference was expressed.
9. There is nothing on the face of the email of 5 February 2020 to suggest that the Department sought to prevent Mr Stella from raising any legitimate concerns, including "about planned courses of action that are potentially unlawful, wasteful and/or injurious to [the Department's] reputation" as he had asserted to Mr Terzis. Moreover, there is no evidence that either Mr Duffy or Mr Taylor sought an assurance from Mr Stella "that he would not in future put serious concerns in writing if they might be embarrassing to Mr Severin". The highest Mr Stella's case gets is that during the meeting he "confirmed the substance of the demands being made of him". How he did so is not explained.
10. Further, nothing in the email of 5 February 2020 could properly be construed as suggesting that Mr Stella was facing the prospect of immediate dismissal.
11. It follows that I do not accept that Mr Stella had no choice but to resign. I find that it was Mr Stella's conduct, and not that of the Department, which was "the real and effective initiator of the termination of the contract of employment".
12. Mr Stella was not dismissed.

Objection 3 - Application out of time

1. For completeness, even were I to have been satisfied that Mr Stella had been constructively dismissed on 6 February 2020 I would not have exercised my discretion to accept the Application out of time and would have dismissed it on that basis. As any views I express in this regard are necessarily obiter I will only shortly state my reasons.
2. Section 85(1) of the Act makes it mandatory that applications pursuant to s 84 be made within 21 days after the dismissal of the employee. The prima facie position is that an application made out of time is excluded.
3. In the circumstances of this case the Application could only be accepted pursuant to s 85(3), which confers on the Commission a fettered discretion to accept an application which 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 applicant's stated reasons for the delay in filing; any hardship that may be caused to the applicant and/or the respondent; and the conduct of the employer relating to the dismissal: Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054 at [25].
4. 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. The exercise of the Commission's discretion is governed by the requirements of justice in a particular case: Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145; [2003] NSWIRComm 139 at [12]-[13].
5. 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. The applicant must 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: Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 10 (McHugh J).
6. It is apparent that in light of my finding at [32] any analysis as to whether Mr Stella has an arguable case or as to his prospects of success is moot. That notwithstanding, I do not consider that Mr Stella has proffered a sufficient explanation for the delay in filing the Application.
7. Assuming a dismissal on 6 February 2020 the Application was required to have been filed by 27 February 2020. It was not in fact filed until 7 July 2020, some 130 days late. On any analysis, that is a substantial delay.
8. In the Application Mr Stella claimed that there were two causes for the delay: firstly, his alleged "ongoing mental illness (depression), caused by issues and events at work"; and, secondly "the lack of provision of information from the Department of Community and Justice and the length of time it took the Department to respond to my questions confirming constructive unfair dismissal".
9. At the outset, I observe that there is no suggestion that Mr Stella was not at all relevant times aware that an unfair dismissal application would need to be filed within 21 days after the dismissal.
10. There is no evidence before the Commission as to Mr Stella's medical condition or, more pertinently, how that condition contributed to the delay in the filing of the Application. There is consequently no basis on which I could find that the delay was caused, in whole or in part, by any medical incapacity.
11. In considering the delay I have regard to the following facts in particular: 1. Mr Stella apparently did not seek to raise with the Department any concerns as to the circumstances of his departure until 24 March 2020, nearly a month after the time within which the Application should have been filed. Nothing would have precluded him from commencing proceedings within the time limit while also seeking to have discussions with the Department. Indeed, the processes of the Commission and their emphasis on conciliation would have facilitated such discussions; 2. Mr Stella was informed by Mr Pacey on 14 May 2020 that the Department did not intend to compensate him as a consequence of his resignation. There was no reason for Mr Stella to wait until he had received written confirmation before filing the Application; and 3. having received the letter from Mr Coutts-Trotter on or soon after 1 June 2020, no explanation has been given for the further delay until 7 July 2020. This delay in itself is in excess of the time limit in s 85(1).
12. There was some delay between the Department receiving Mr Stella's letter of 24 March 2020 and providing its written response on 1 June 2020. However, by 24 March 2020 the Application was already out of time. Even were the time taken for the Department to provide a response a material consideration, the Department cannot be held responsible for the delays before 24 March 2020 and after 14 May 2020 or 1 June 2020. I am not satisfied that the Department's conduct had any, or any material, bearing on the lateness of the Application.
13. Mr Stella made submissions as to the hardship that he would suffer if the Application were not accepted out of time, while contending that the Department would suffer no hardship. Mr Stella further submitted that there were public interest grounds on which the Commission should accept the Application. Suffice it to say, the submissions would not have persuaded me to exercise my discretion to accept the Application out of time.
14. Section 85(3) of the Act does not exhaustively list the matters to which the Commission can have regard in determining whether or not to exercise its discretion. I do not consider that the evidence and submissions disclose any other basis on which the Commission could properly have concluded that there was a sufficient reason to accept the Application out of time.

Direction and Orders

1. I have found that Mr Stella was not dismissed. It follows that there is no basis on which he could bring an application under Ch 2 Pt 6 of the Act.
2. The appropriate order is that the Application be dismissed. I so order. Damian Sloan Commissioner

Endnotes

1. Application for Relief in relation to Unfair Dismissal, Q34
2. Tcpt, 22 July 2020, pp 11(43)-12(9) 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: 16 October 2020