Stephen York v NSW Department of Education and Communities - [2015] NSWIRComm 37 - NSWIRComm 2015 case summary — Zoe

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Stephen York v NSW Department of Education and Communities

[2015] NSWIRComm 37

Industrial Relations Commission (NSW)|2015-09-28|Before: Walton J, Harrison DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2015-09-28

Before

Walton J, Harrison DP

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

background

The factual background leading to the alleged dismissal of the appellant was summarised by the Commissioner in the impugned decision as follows (at [2]-[8]): 2 On 12 December 2012, the applicant signed a Temporary Teacher Engagement Notice (the Notice) for Brewarrina Central School (the School) for the period commencing 4 February 2013 to December 2013 inclusive. 3 In November 2013, the applicant asserts the School principal, Mr Peter Morgan, verbally offered him a teaching position for the 2014 school year. The applicant accepted the offer. He subsequently commenced a short period of workers' compensation. 4 On 28 November 2013, Mr Morgan sent an email to the applicant stating: Your current contract expires at the end of this year. I wish to advise you that I will not be offering you a new contract for 2014. I am notifying you now so that (you) have time to make the necessary arrangements. 5 The applicant claims he became aware of Mr Morgan's email on 3 December 2013. Upon his return to work on 12 December, the applicant maintains that he handed Mr Morgan a letter confirming his understanding that he had both been offered and had accepted the verbal offer made in November 2013 for a teaching position in 2014. Mr Morgan denied receiving this particular letter.
On 31 January 2014, the appellant filed an application for relief in relation to unfair dismissal. The claim was predicated, in essence, upon his contention that his acceptance of the alleged offer of employment for the 2014 school year by the Principal, Mr Morgan, constituted an employment contract with the respondent for that year. In accordance with that contention, the appellant claimed that the respondent had dismissed him from employment in breach of "the binding agreement previously agreed to". The appellant recognised that his application was filed late.
The respondent opposed the application upon the grounds that it was filed out of time and the reasons relied upon by the appellant for that delay were not sufficient for the Commission to exercise its discretion to accept an out of time application pursuant to s 85(3) of the Act.

[2]

application to bring further evidence

In the present proceedings, the appellant made an application to bring further evidence. That application was resisted by the respondent. At the hearing on 28 September 2015, the Full Bench invited the appellant to make oral submissions as to the evidence he sought to adduce. In response to that invitation, the appellant identified the following three classes of material: 1. A decision of Gibson J in the District Court concerning a defamation case prosecuted by the appellant against Mr Morgan which was said to reflect negatively on Mr Morgan's credibility; 2. The Disability Discrimination Act 1992 (version current at 25 March 2015); and 3. A series of WorkCover certificates relating to the appellant's psychological condition which were said to demonstrate the nature and extent of the same (these included certificates dated 10 April 2013, 29 July 2013, 11 December 2013 and 19 February 2014).
Leaving aside, for the moment, the question as to whether the first class of material represented evidence per se, the Full Bench declined to admit that material as we did not consider that the decision could be relied upon for the purpose or use that the appellant proposed to put it (to challenge the credibility of evidence in the proceedings below).
The second class of material was simply a reference to legislation to which we may have regard and, as such, there was no need for it to be admitted as evidence. We will consider the legislation later in this judgment.
Greater consideration of the third class of material was required to determine whether it should be admitted pursuant to s 191(2) of the Act.
The appellant contended that the WorkCover certificates he sought to adduce demonstrated that his psychological condition prevented or impeded him from bringing his application on time and, in consequence, provide a sufficient reason for the Commission to exercise its discretion to extend time. It was submitted, in that respect, that the Commissioner did not fully consider the impact of the appellant's psychological condition because he did not have a "full understanding" of the condition.
The respondent emphasised that the majority of the WorkCover certificates that the appellant sought to adduce into evidence pre-dated the hearing and were, thereby, available for the appellant to bring before the Commissioner. Moreover, it was contended that evidence of a pre-existing psychological condition does not disclose an impediment to the appellant bringing his application in time, particularly in circumstances where he had been certified fit to return to work.
The Full Bench admitted the third class of material into evidence for the purposes of the present proceedings as, in our view, special reasons did exist to do so pursuant to s 191(2) of the Act. The admission of such evidence facilitated the proper administration of justice and, in particular, proper consideration of whether the applicant was afflicted by a disability of a psychological nature which prevented him from bringing his application in time: see CCH Australia Ltd v Bowen (1998) 79 IR 206 at 211.
For completeness, it should also be noted that the appeal book filed by the appellant contained another class of material that was not before the Commissioner at first instance but was not identified by appellant in his oral submissions, namely, the statutory declarations of Ms Cathy Clark (the Deputy Principal and Mr York's partner at the time of his alleged dismissal) dated 8 July 2014 and Ms Georgi York (the appellant's niece) dated 18 August 2014. The appellant did not seek leave to admit that material and, as will be discussed below, it could have had only a marginal bearing upon the issues determined in this appeal in any event.

[4]

the impugned decision

In the impugned decision, the Commissioner stated that he was required to determine "two jurisdictional issues". Those issues were expressed in the following manner (at [11]): (1) Was the application out of time? If so, is there a sufficient reason to accept the out of time application? (2) Was the applicant dismissed - the element of dismissal is necessary to invoke the jurisdiction of the Commission.
The Commissioner approached the adjudication of those issues by, first, determining whether to allow the late application and, secondly, considering whether the applicant was, in fact, dismissed for the purposes of s 84 of the Act.
Ultimately, the Commissioner answered both questions in the negative. Before elaborating upon the findings made, in that respect, it should be noted that the Commissioner's determination as to whether the extend time was given in the exercise of the discretion reposed in the Commission under s 85(3) of the Act, while his consideration of the second question was of an entirely different character as it squarely raised the question of whether the Commission had jurisdiction to entertain the application. The Commissioner's Decision to Dismiss the Application to Extend Time
The Commissioner noted the following principles with respect to the Commission's discretion to accept a late application at [80]-[88]: 80 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, the IR Act does not define the term "sufficient reason". In Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 the Full Bench observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". … 82 The legal principles concerning the approach to be taken concerning out of time applications in this jurisdiction is well settled. In Director-General of Education and Training and Bond [2009] NSWIRComm 40, a Full Bench of the Commission observed:
The law applicable to applications such as the present is well settled. As the Full Bench observed in Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145 at [12] - [15]: [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 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 256(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". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 83 The rationale for imposing time limits on the filing of applications is that the respondent employer is entitled to know within a reasonable period of time whether the dismissal will be challenged and where challenged these matters need to be dealt with expeditiously. … 85 In Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 the Full Bench observed at paragraphs 25 and 26: An application for relief from unfair dismissal pursuant to Part 6 of Chapter 2 of the Act has time of the essence. The initial obligation is upon the applicant to file his or her application within 21 days. The discretion to be exercised by the Commission under s 85(3) must be viewed within the framework of the legislative intention expressed by that requirement. In considering the reason for delay, hardship to both applicant and respondent and the conduct of the employer, there may come a point when the length of delay outweighs in a substantial way other considerations. 86 In Herron v McGregor (1986) 6 NSWLR 246 at 254 McHugh JA observed: The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James [1978] AC 297 at 329 ... Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. 87 The principles associated with the legislative intention to fix time limits were also canvassed by McHugh J in Brisbane South Regional Health Authority at 553: 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 ... 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...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 the extension. 88 In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 the Full Bench stated at [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.
Upon those principles, the Commissioner concluded that there was insufficient reason to warrant the favourable exercise of the Commission's discretion to accept the out of time application in this matter. The relevant aspects of his analysis, in that respect, are discussed below.
The Commissioner made the following findings as to the length of and reason for the delay (at [89]-[91]): 89 The Commission must have regard to the length of and reason for the delay. I also accept that the Commission should be prepared to accept that it may be appropriate in some circumstances to grant an indulgence in procedural matters to unrepresented persons. 90 In this matter, the applicant has made two previous unfair dismissal applications against the respondent and given the particular circumstances of those cases, should have been aware of the 21 day time limitation. The length of the delay is 22 days. 91 The applicant's stated reasons for the delay, including the fact that he had been on workers compensation, are insufficient in my view to attract the beneficial exercise of the Commission's discretion.
As to the hardship occasioned to the appellant, the Commissioner observed: 92 When the legislation so clearly sets out time limits on the lodgement of applications, the prima facie position is that there should be strict compliance with those time limits. Otherwise the time limit imposed so clearly by legislation would be defeated. In this matter, the applicant was responsible for his application being filed late. 93 The Commission's consideration of the relative strength of the applicant's case is relevant as it is a measure of the disadvantage he may suffer if an extension of time is not granted. Against that backdrop, the High Court in Brisbane South Regional Health Authority at 553 observed the enactment of a limitation period "may often result in a good cause of action being defeated." 94 The applicant contended he would suffer economically in the event the out of time application is rejected. However, in such circumstances, the applicant is in a position no different to other applicants who have failed to persuade the Commission that a sufficient reason exists for not lodging their application within the 21 day time limitation.
The Commissioner noted that the respondent, by contrast, would suffer further hardship by way of legal costs if an extension of time was granted: [95].
As to the conduct of the respondent, the Commissioner held as follows: 96 I do not regard the respondent's conduct had any bearing on the lateness of the application. 97 In deciding this matter I have given consideration to the conduct of the respondent relating to the applicant's dismissal, all of the evidence and submissions of the parties before the Commission, the merits of the applicant's substantive application and his prospects of success. I am satisfied that the circumstances of this case when considered as a whole, with due regard to the balance of prejudice or hardship as between both parties, are insufficient to warrant the exercise of the Commission's discretion in favour of accepting the application lodged out of time.

[7]

Leave to Appeal 1. Leave to appeal should be granted as "the Commissioner might have erred in the exercise of his discretion" in the impugned decision: House v The King (1936) 55 CLR 499 ('House v King'). That error caused the decision to be "unreasonable and unjust" and occasioned a "substantial injustice" to the appellant. An appeal is necessary to correct that injustice. 2. In particular, the appellant contended that the Commissioner made the following errors in the impugned decision: 1. Broadly speaking, the Commissioner did not properly consider all relevant material to the disposition of the discretion and, conversely, placed emphasis upon irrelevant matters, including facts about which he was mistaken; 2. Principally, as noted above, the Commissioner failed to give appropriate weight to the appellant's psychological condition. In that respect, the Commissioner should have had regard to the fact that "ordinary standards of 'reasonableness' are often not appropriate in relation to persons whose psychological injuries may be profound" when considering whether there was "sufficient reason" to extend time; 3. The Commissioner failed to give appropriate weight to the appellant's good character (as certified by letter from Ms Jeanette Barker), in circumstances where Mr Morgan did not provide any supporting documents as to his character or credibility; 4. The Commissioner placed too much emphasis on the evidence that the appellant had previously been before the Commission. In so doing, he "incorrectly drew a similarity between past matters and this matter", relying on notions of the appellant's propensity as a litigant, instead of properly considering the matter before him on its facts. The appellant's prior litigation in this jurisdiction is relevant only as evidence for the fact that the appellant did not understand the statutory time limitation prescribed by the Act which is a matter which tends to support the acceptance of his application; 5. Ultimately, the Commissioner declined to extend time to hear the application when, in the circumstances of the matter, "to not allow an extension of time would offend the concept of reasonableness"; and 6. The Commissioner erred in his determination that the appellant was not dismissed and incorrectly considered the appellant's contract for the 2013 school year, rather than that made for the 2014 school year to which the unfair dismissal application was directed.

[8]

Extension of Time 1. As to the merits of his case on the extension of time, the appellant divided the reason for the delay in filing the application into distinct periods of time: first, the appellant was on workers compensation leave (until 12 December 2013) and was not properly informed of his dismissal and, secondly, he was denied procedural fairness and continued to suffer "a state of mental incapacity sufficiently extreme for him to start any formal legal proceedings". In essence, two explanations for delay over that time were proffered, namely, the impact of the appellant's psychological condition and the alleged procedural unfairness on the part of the respondent. 2. The impact of the appellant's psychological condition was the primary justification for lateness advanced by the appellant on appeal. In that respect, he made the following submissions in these proceedings: 1. It was inappropriate, and against the respondent's policy, for it "to provide any notice of termination of employment while [the appellant] was on WorkCover" for a workplace injury. He was, at that time, unable to respond as he was unfit for work due to his psychological condition. 2. The appellant contended that, although he returned to work on 12 December 2013, his psychological condition persisted after that date such that it contributed to the delay in his application. The medical certificate he provided to the respondent on 12 December 2013 expressed the view of his doctor, Dr S Gudipalli, that he was "suffering from anxiety disorder/PTSD due to work place issues". He described that psychological condition as "an illness which renders persons, amongst other things, unable to act decisively even in their own interests" and contended that he had "no capacity to make important decisions to conduct litigation [and]…lacked the drive necessary to pursue matters effectively". He contended that he was unable to undertake "serious matters outside his normal routine", even after his return to work (save for taking the step of requesting a meeting with Mr Morgan which was not responded to). Thus, there "was a direct link with his health problems and the consequences of the out of time application". As soon as possible after returning to reasonable health, the appellant filed his application. 3. The Commissioner failed to consider s 52 of the Limitation Act 1969 which provides that the running of a limitation period is suspended for a person under a disability, including a mental illness, for the duration of that disability. Disability, in this context, is defined in the Disability Discrimination Act which the Commissioner also failed to consider. A substantial wrong occurred in declining to exercise the discretion to accept an out of time application as the Commissioner erred in law by failing to have regard to the suspension of the limitation period. 4. Ultimately, the Commissioner failed to take into account the impact of the appellant's psychological condition or correctly balance the relevant medical evidence in making his decision. 1. As to the procedural unfairness occasioned by the respondent, the appellant submitted that: 1. Mr Morgan dismissed him from employment for the 2014 school year via email. The use of email to inform the appellant of his dismissal was unreasonable: see Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855. The appellant was not provided with a formal letter or personal contact to inform him of his termination. 2. The email notice was "invalid and, thereby, denied [the appellant] the statutory time period legally required to challenge an unfair termination notice". In consequence of this procedural unfairness, the appellant was "disadvantaged in filing his unfair dismissal application". 3. The failure of Mr Morgan to meet with the appellant to discuss his employment after he sought a meeting (by way of a letter dated 28 November 2013) "was [a] denial of the appellant's fundamental rights (the hearing rule) and by such denial, the appellant was denied procedural fairness to address his unfair dismissal with the respondent" and his application was delayed for that reason. 4. Mr Morgan failed to inform the appellant of any rights that he may "have to appeal his decision making process." 5. The Commissioner failed to give appropriate weight to the failure of the respondent to adhere to the high standards of probity, ethics and fairness with which the respondent is expected to conduct itself. 6. The Commissioner also failed to consider that, in consequence of the procedural unfairness attending his dismissal, the delay "cannot be sheeted home" to the appellant. The conduct of the respondent was not reasonable in the circumstances and led to the delay in the application. 7. Finally, to the extent that the Commissioner preferred Mr Morgan's version of events, that is, that the appellant did not seek a meeting by the aforementioned letter on 12 December 2013, he erred. In that respect, the appellant made some submissions which were said to impeach Mr Morgan's credibility and noted that his own character was supported by a reference provided by Ms Barker. 1. In respect of each segment of time and the overall time, the appellant advanced a sufficient reason for the delay in filing his application. As such, the Commissioner was "incorrect" in his assessment that the appellant failed to advance a reason that was satisfactory under the Act. 2. While there is public interest in ensuring proceedings are brought without delay, there is a greater interest in allowing a person who has suffered at the hands of another "as much time as is necessary" to recover. 3. There is particular hardship against the appellant in this case. The appellant is 64 years old and to obtain other work will be difficult. That difficulty is exacerbated when it is considered that "he has been dismissed unfairly, unjustly and unreasonably in circumstances where due to illness he was not able to do more to defend himself". The fact that he worked in a small community reduces the availability of work and magnified the notoriety of his dismissal. This hardship has been borne out in the period since the dismissal as the appellant has not found employment due to those factors as well as the uncertainty of his employment status. 4. The hardship to the respondent was limited since it was on notice that the appellant would pursue litigation and the period of time that had elapsed was not long enough to cause the loss of records or memory. Further, the importance of this hardship must be diminished given that the respondent's conduct had a bearing on the lateness of the application.

[9]

Dismissal 1. The Commissioner erred in not properly addressing the contract alleged to have been made for the 2014 school year. The consideration of the 2013 school year contract was not relevant in the proceedings before the Commission. In this respect, the Commissioner addressed the wrong issue. 2. As to the existence of a contract for the 2014 school year, the appellant made submissions going to the credibility of Mr Morgan and to the evidence given during cross-examination by Ms Clark. In particular, the appellant submitted that Ms Clark did not deny that a contract had been made when she testified that Mr Morgan did not tell her "directly" that the appellant would be offered a position in 2014. The qualification "directly" has particular significance in that respect. She was told, as part of the executive Committee, that the appellant would be offered a position, as evidenced by her contemporaneous diary notes which were before the Commissioner (and the statutory declaration that the appellant sought to adduce in these proceedings). The appellant contended that the fact that Ms Clark was informed that he would be offered a position for the 2014 school year corroborated that an employment arrangement had been made by Mr Morgan with the appellant. Hence, the precise manner in which Ms Clark was informed of that arrangement (indirectly rather than individually) did not affect the value of her evidence in that respect. 3. The appellant emphasised that he was not made aware of the applicability of the provisions of the TS Act on his employment. 4. Nevertheless, the appellant considered that the application of s 50 of the TS Act had the effect of rendering the temporary engagement contract to be not of a fixed or outer limit nature. In that respect, the appellant sought to rely on the decision in USU on behalf Paul Parker & Newcastle City Council re dismissal [2014] NSWIRComm 1012 to support the proposition that a contract that contains a right to terminate by either party on notice in accordance with the award is "inconsistent with a notion of a contract for a fixed or specified period of time".

[12]

Extension of Time 1. To succeed on the merits of his appeal, the appellant must demonstrate that the Commissioner erred in not accepting his application out of time such that the Commissioner's discretion miscarried as he acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook facts, did not take into account some material consideration, or reached a conclusion on the facts that was unreasonable or plainly unjust and amounted to a substantial wrong: House v King at 502. The appellant has not demonstrated that any such error occurred. 2. The Commissioner did not err in finding that the appellant's psychological condition did not represent a sufficient reason to attract the favourable exercise of the Commission's discretion. His decision in that respect was "unsurprising" for the following reasons: 1. Mr Morgan's email of 28 November 2013 made it clear that the appellant's existing temporary contract would expire at the end of 2013 and that he would not be offered a new contract. Thus, the appellant was aware from 3 December 2013 that he would not be offered a contract for the 2014 school year; 2. The appellant was fit to return to work from 12 December 2013; 3. He returned to work on that date and continued working for the remainder of the 2013 school year; 4. The appellant did not rely on his psychological condition to explain the delay in filing his application at the first available opportunity; 5. The appellant brought no medical evidence to support his belated contention that, although he was fit to work, he was unfit for, to use his words, "serious matters outside his normal routine" such as filing an unfair dismissal application. 1. In that light, the appellant's reliance on the Disability Discrimination Act and the Limitation Act is misplaced. There was no evidence that the appellant was suffering a disability that prevented or impeded him from filing his application within the statutory time limit. As such, the Commissioner was correct not to have regard to that legislation. 2. The procedural unfairness alleged by the appellant could not represent a sufficient reason for the Commissioner to extend time because the appellant was obliged to file his application in time irrespective of the same. In particular, the form of the notice (email) and the failure of Mr Morgan to respond to an alleged request for a meeting, which he denies receiving, do not constitute a sufficient reason to extend time. 3. In any event, the Commissioner was correct in his finding that the respondent's conduct did not have any bearing on the lateness of the application. 4. The Commissioner's determination that the appellant's hardship was not dissimilar to that of other applicants who unsuccessfully sought extensions of time to bring unfair dismissal applications was correct. He was also correct to take into account the "prejudice or hardship" that the respondent would suffer if he exercised the Commission's discretion to extend time: at [97]. 5. Lastly, the Commissioner was correct to find that the appellant should have been aware of the statutory time limitation. The appellant had filed an unfair dismissal application in 2009 more than two months late and on 17 May 2011 some 130 days late. The latter application was dismissed as it was found that there was not a sufficient reason to have the out of time claim accepted. 6. To the extent that leave to appeal is granted, the appeal should be dismissed.

[13]

Dismissal 1. Whilst it was unnecessary for the Commissioner to consider the jurisdictional question, it is evident from the impugned decision that he did so. The conclusion that he reached in that respect was correct. 2. There was no dismissal of the appellant as his temporary employment contract was an "outer limit" contract that simply expired by the effluxion of time at the end of the 2013 school year rather than by termination at the initiative of the employer: Sarah Lunn v Department of Justice [2006] AIRC 756; see, also, Gardner v Secretary of Treasury (Department of Justice - Corrective Services NSW) [2014] NSWIRComm 52 at [20]. The appellant had been employed by the respondent in a temporary capacity on a number of occasions for 12 month periods and, thereby, may be expected to have been aware of the nature of his temporary contract. 3. There was no oral contract in place between the appellant and the respondent for the 2014 school year. 4. The appellant's attempts to retrospectively impeach the character of Mr Morgan appear to be directed to the factual dispute about whether an agreement was made (and, to a lesser extent, whether a letter seeking a meeting was provided to Mr Morgan). Attacks on Mr Morgan's character and credibility are not relevant as the Commissioner's decision did not turn upon an assessment of those matters. 5. Relatedly, in his written submissions the appellant contended that Ms Clark's evidence below demonstrated that she was informed by Mr Morgan that the appellant would be employed during the 2014 school year (albeit not directly). He sought to adduce a statutory declaration which purported to clarify the oral evidence given by Ms Clark in that respect. That material should not be admitted into evidence because Ms Clark was provided the opportunity to convey her evidence before the Commissioner, and she did so. (It may be noted that this submission went to material which was not relied on by the appellant in his oral submissions and was not ultimately before the Commission in these proceedings.) 6. In any event, the appellant's temporary contract of employment was made pursuant to the TS Act and could only be extended in accordance with the requirements set out in s 50(5)(a) of that Act. There is no suggestion that those requirements were met in this case.

[14]

Consideration

For reasons we shall elaborate upon below, we are of the view that, although the present proceedings may be fairly described as a 'borderline' case, leave to appeal should be granted in all the circumstances.
The principles in relation to the grant of leave were recently discussed in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 (at [5]). In that decision, the Full Bench referred to the judgment in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 wherein the Commission held (at [12]): The jurisprudence of the Commission concerning leave to appeal is well settled. It is nowhere more clearly set out than in the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 in which it was held, at [5]: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
Upon those principles, we propose to grant leave to appeal on the basis of the following four factors, each of which warrant particular consideration in these proceedings: 1. Having admitted further evidence as to the appellant's psychological condition, it is appropriate for the proper administration of justice that leave be granted to consider the merits of his case for an extension of time based upon that evidence; 2. The appeal raises two issues of some general importance to the jurisdiction of the Commission, as follows: 1. The impact of the delay in making the impugned decision on the Commissioner's disposition of the application; 2. Whether the appellant's prior knowledge or experience of out of time applications in this jurisdiction represented a factor that was relevant to the exercise of the Commission's discretion; and 1. Given that the Commissioner, in our view, dealt with the jurisdictional question discreetly, it is appropriate to consider the implications of that matter for the disposition of the appeal in relation to the discretion to extend time. However, it should be made clear, at this juncture, that, in conformity with the approach contended for by the respondent, we do not consider it necessary to adjudicate upon the jurisdictional question per se because of the conclusion we will reach with respect to the component of the appeal dealing with the appellant's out of time application. The Commission of course requires jurisdiction to consider the out of time question. However, that issue was never the subject of full argument in these proceedings. It is, therefore, appropriate and sufficient to address the out of time question, if, in fact, the consideration of that issue will finally resolve issues on the appeal and ultimately the application at first instance. Perhaps with some slight circularity, even if the application was within jurisdiction it may not be brought if time is not extended to permit the hearing of the application.
Having granted leave to do so, we propose to consider each of those matters in the merits of the appeal seriatim.

[15]

The Appellant's Psychological Condition

As noted above, it was apparent from the appellant's submissions that the primary ground of his appeal was that the Commissioner should have accepted the ongoing impact of his psychological condition as an explanation of the lateness of his application and, in consequence, extended time to hear the same. However, as the appellant acknowledged, his submissions as to the impact of his psychological condition below were made late in the proceedings and, to use his words, were submissions to which he did not attach "emphasis". Thus, the matter was raised in a substantial way on appeal for the first time.
The Commissioner had before him limited evidence as to the appellant's psychological condition itself, namely, a medical certificate dated 27 November 2013 by which the appellant was diagnosed with "anxiety disorder/PTSD due to work place issues" and which certified the appellant as having an incapacity for work from that date until 11 December 2013 (at which time the appellant was to be subject to "review").
Although the Commissioner did not specifically address that evidence, he reached the following conclusion as to the impact of the appellant's psychological condition (at [91]): The applicant's stated reasons for the delay, including the fact that he had been on workers compensation, are insufficient in my view to attract the beneficial exercise of the Commission's discretion.
The paucity of the Commissioner's reasons in that respect may to some extent reflect the limits of the appellant's case as to that issue below, although the Commissioner was required to provide at least brief reasons for his consideration. (It may be noted that the appellant did not argue that the Commissioner erred by failing to give adequate or sufficient reasons.)
We will attend first to the evidence at first instance.
The evidence before the Commissioner disclosed that, from 27 November 2013 until 11 December 2013, the appellant had a psychological injury by reason of which he was incapacitated for work. There was no evidence of that incapacity extending beyond 11 December 2013. Indeed, the certificate foreshadowed a review on 11 December 2013 and begged the question as to whether the appellant was subject to that review and, if so, the outcome of the same.
That deficiency is significant because, as outlined above, the statutory limitation period of 21 days covered a period from 3 to 24 December 2013 or 20 December 2013 to 10 January 2014 upon the view of the appellant and the respondent respectively. The appellant's application was ultimately filed on 31 January 2014. Thus, in order to provide an explanation for the delay, the appellant's psychological condition must have prevented or impeded him from filing an application between, on his own case, 3 December 2013 to 31 January 2014 ('the relevant period'). Even if the medical certificate attesting to work incapacity between 27 November and 11 December 2013 was accepted as disclosing the reason for the appellant's failure to file an application between those dates, it could not certify or account for any incapacity beyond 11 December 2013 and thereby fails to provide any justification for the delay during the balance of the relevant period (a period of 51 days).
However, that medical evidence did not actually demonstrate that the psychological condition suffered by the appellant during the period from 27 November to 11 December 2013 would have prevented or impeded him from filing an application during that period in any event. The certificate certified only that the appellant did not have a capacity for work. It provided no description as to the nature of his condition or the impact of that condition upon his capacity to file an application in proceedings of this kind either between the dates of the certificate or during the balance of the relevant period.
The only further evidence before the Commissioner was that, as the respondent noted, the appellant did, in fact, return to work on 12 December 2013 without any evidence of impediment. The respondent argued correctly that the medical explanation advanced by the appellant for the lateness of his application diminished in its significance in circumstances where he returned to work before the end of the relevant period (in the absence of evidence attesting to why the persistence of the condition prevented or impeded his ability to file an application within the statutory time limit despite not rendering him unfit for work).
In our view, the evidence before the Commissioner was plainly unable to support the appellant's contentions as to the impact of his psychological condition upon his lateness in bringing his application.
The medical evidence advanced before the Full Bench consisted of medical certificates which were said to support the appellant's contention that he was prevented or impeded from filing his application within the statutory time limit due to his psychological condition by establishing the duration of his condition was greater than that disclosed before the Commissioner.
Two of the certificates before the Full Bench, dated 10 April and 29 July 2013, predated the hearing below. The first concerned an unrelated "head injury" incurred at work which resulted in "recurrent headaches". It was not entirely clear from the terms of the certificate, but it appeared to suggest that the appellant had no work capacity until 20 April 2013. The second diagnosed work related to "situational anxiety" and certified no work capacity from 29 July to 5 August 2013. Neither of those certificates temporally related to the relevant period (being that they certified incapacity well prior to his alleged dismissal). Nor did the latter disclose details of the condition that would support the contention that the appellant would have been unable to file an application in legal proceedings in consequence of the same.
Only one of the medical certificates introduced into evidence before the Full Bench concerned the relevant period, namely, the certificate dated 11 December 2013. That certificate was written in consequence of a review on that date, which was, it would appear, the review foreshadowed in the 27 November 2013 certificate before the Commissioner. Upon that review, the appellant was diagnosed with "anxiety disorder/PTSD due [sic] work place issues" but certified "fit for pre-injury duties". The next review date was set as 8 January 2014 (although there was no evidence as to a review occurring at that time in these proceedings).
Whilst that certificate maintained the diagnosis of the appellant's psychological condition, it did not identify any constraint to his capacity whatsoever or prescribe any limitations or conditions for his return to work arising from that condition. It may be inferred that certificate was the basis upon which the appellant returned to service. In confirming his capacity to work from 11 December 2013 to 7 January 2014 without limitation, the certificate does not provide support for the appellant's contention that he suffered debilitating effects from his psychological condition.
The final certificate before the Full Bench was dated 19 February 2014, after the hearing below. By that certificate, the diagnosis of his psychological condition was maintained and a referral to attend upon a counsellor, Mr Rolf Reed, for assistance with "anxiety" was attached. However, the appellant was again certified "fit for pre-injury duties" with no limitation or condition. In any event, that evidence does not temporally relate to the relevant period and does not certify that the appellant was previously medically unable to file an application within time. No further evidence was adduced to retrospectively certify that the appellant's psychological condition prevented or impeded him from filing an application during the relevant period.
The only evidence before us that might provide some support for the appellant's contention that his psychological condition impeded his ability to bring an application within the statutory time limit was that for a certain period during which the condition giving rise to that condition rendered him unfit for work (being the time described by the appellant as the first period while he was on leave from work). However, there was no medical evidence that during that period of work incapacity the appellant was such that, by his condition, he was or could have been prevented or impeded from filing an application.
Further, the appellant's certified medical incapacity for work arising from his condition ended by 11 December 2013, leaving 51 days before he filed his out of time application (being the time described by the appellant as the second period after he returned to work). The appellant provided no evidence that his condition, which persisted during that time, adversely affected his capacity to work (to the contrary, he was certified fully fit for work), to attend to matters relating thereto or to other aspects of life including taking steps to initiate proceedings where he contended he had been dismissed from engagement for the 2014 school year. The appellant described a "direct link" between his psychological condition and the lateness of his application but did not provide evidence of any such link.
Those difficulties are not overcome by last minute submissions made to the Commissioner on such an important issue or oral submissions made to the Full Bench attempting to explain how the appellant's psychological condition may have prevented or impeded him from acting in his own interests when there was either an absence of evidence to support those contentions or, as we have discussed, contradictory evidence.
Additionally, there was evidence acting contrary to his explanation for the lateness of his application. First, on the evidence before us, the appellant's psychological condition clearly varied in its severity and duration, relevantly in the current context occasioning his resumption of full duties.
Secondly, the respondent referred to a letter sent by the appellant to Mr Morgan on 22 January 2014, by which he threatened Mr Morgan with legal proceedings. The respondent correctly contended that the letter, which was in evidence before the Commissioner below, constituted an evidentiary basis upon which a conclusion may be drawn that the appellant had the capacity to address his legal position during the relevant period. The respondent submitted that there was inconsistency with the appellant's contention that he was not in a position to file an application and his threat to bring legal proceedings. This was described by counsel for the respondent as "approbating and reprobating".
On balance, neither the evidence before the Commissioner below nor that admitted in these proceedings would permit us to accept the appellant's contention that the ongoing impact of his psychological condition prevented or impeded him from filing his application on time. Thus, in our view, his contention in that respect does not represent a sufficient reason to accept his out of time application pursuant to s 85(3) of the Act and the Commissioner's conclusion as to the same was correct.
The appellant referred to the Limitation Act or the Disability Discrimination Act in advancing his contentions as to the impact of his psychological condition. We will address the import of that legislation in turn.
As to the Limitation Act, the appellant argued that, pursuant to s 52, the "running of time is suspended for the duration of the disability, if under a disability". That submission cannot be accepted for the reasons which follow.
The combined effect of s 52(1)(a) and (b) of the Limitation Act is that the waiver or suspension of the limitation period prescribed by s 52(1)(d) only operates with respect to a cause of action for which a limitation period is fixed by that Act. The action by the appellant under Pt 6 of Ch 2 of the Act is not a cause of action for which a limitation is fixed by the Limitation Act. That conclusion is not altered by s 20 of the Limitation Act as it may be doubted that arbitration undertaken pursuant to the terms of s 87 of the Act constitute an arbitration for the purposes of that provision since it is confined to "an action on a cause of action to enforce an award of an arbitrator".
Further, s 7 of the Act precludes the operation of the Limitation Act in certain circumstances. Section 7 is in the following terms: 7 Other limitations Nothing in this Act: (a) applies to an action or arbitration for which a limitation period is fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act), or (b) applies to an action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be fixed by or under an enactment other than this Act or by or under an Imperial enactment (not being an enactment or an Imperial enactment repealed or omitted by this Act).
Upon that provision, limitation periods fixed by or under an enactment other than the Limitation Act itself, such as, for example, the Act, are not subject to the operation of the Limitation Act. Hence, the provisions of the Limitation Act which enable the waiver or suspension of a limitation period could not operate upon the period of limitation set by the Act for making an application under Pt 6 of Ch 2. Thus, irrespective of the fact that, as discussed above, s 52 of the Limitation Act is confined to causes of action with limitation periods fixed by that Act, that provision is not applicable in the present proceedings by virtue of s 7.
In any event, the "running of the limitation period is suspended for the duration of the disability" pursuant to s 52(1)(d). Section 52(2) confirms that the provision applies "whenever a person is under a disability". The Limitation Act defines a time that a person is under a disability to include, inter alia, "while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of… any disease or any impairment of his or her physical or mental condition": s 11(3)(b)(i). As discussed above, no evidence was before the Commission in these proceedings that would sustain the proposition that the appellant met that definition during the relevant period since it was not demonstrated that he was incapable or, or substantially impeded in, the management of his affairs in relation to his alleged unfair dismissal during the statutory limitation period by reason of his psychological condition (his work incapacity for part of the relevant period does not alter that conclusion).
The appellant did not articulate with clarity the manner in which he contended that the provisions of the Disability Discrimination Act would assist his case. It is tolerably clear, however, that he sought to challenge the decision below as being either discriminatory in itself or inconsistent with the Disability Discrimination Act. Whilst he did not expressly state as such, it may be inferred that the appellant sought to argue that the Commissioner's upholding of the statutory time limit (being a "requirement or condition" pursuant to s 6(1) of the Act) was discriminatory or inconsistent with the Disability Discrimination Act in circumstances where he contended that the effect of his disability put him at a disadvantage for filing his application within that limit. The appellant's submissions on that issue did not make clear whether he contended that the discrimination or inconsistency arose from the fact that the Commissioner refused to exercise the discretion of the Commission to extend time per se or from the consequence of that decision, namely, the foreclosure of the unfair dismissal jurisdiction of the Commission as an avenue for review of the appellant's alleged dismissal. (In either case, the appellant accepted that, in making his decision, the Commissioner was exercising power under s 85(3) of the Act.)
In order to make good that submission, the appellant first sought to demonstrate that he fell within the definition of disability outlined in s 4 of that Act. That the appellant fell within the definition of disability may be readily accepted as that definition includes "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour" even if it "previously existed but no longer exists": s 4.
The appellant then drew attention to the definitions of both direct and indirect discrimination under the Act (ss 5 and 6 respectively). As foreshadowed above, it would appear from his written submissions that he intended to direct particular attention to s 6(1) (particularly subsection (c) thereof), which is in the following terms: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
Upon close analysis of the appellant's submission in that respect, it is apparent that in order for his contention that the Commissioner's decision was discriminatory or inconsistent with the Disability Discrimination Act to be accepted the appellant would have to sustain the proposition that the exercise of statutory power under s 85(3) of the Act or, even more improbably, that reasons given in the exercise of a discretion for the purposes of that provision collided with the provisions of that Act. The submission must fail for three reasons: 1. First, although the definition of indirect disability discrimination is provided in s 6 of the Disability Discrimination Act, that provision does not, of itself, prescribe a prohibition on indirect disability discrimination. The prohibition against such discrimination is set out in Pt 2 of that Act. Those provisions outline various areas in which disability discrimination is not permissible (such as in work and education). Those areas confine the operation of indirect disability discrimination such that disability discrimination is not prohibited under the Act unless it falls within one of the areas identified in Pt 2. The decision of the Commissioner does not fall within any of the areas identified in Pt 2 of the Disability Discrimination Act in which disability discrimination is prohibited. 2. Secondly, even if a decision of a Commissioner was subject to prohibition by the Disability Discrimination Act, it is not clear how the appellant could have been disadvantaged in the Commissioner's decision not to accept his out of time application by virtue of a disability as he has presented no medical evidence that his psychological condition impacted upon his compliance with the requirement to file his application in time. 3. Thirdly, although the parties did not rehearse any argument as to the exemptions in the legislation, it may be noted that s 47(2) provides that Pt 2 of the Disability Discrimination Act "does not render unlawful anything done by a person in direct compliance with a prescribed law". Whilst it is unnecessary to decide whether the decision of the Commissioner would be covered by that exemption, given the above reasoning, it may be noted that his decision was made in direct compliance with the Act and there would, thereby, seem to be a reasonable basis to conclude that it would fall within the exemption prescribed by s 47(2) of the Disability Discrimination Act.
Thus, the Disability Discrimination Act does not assist the appellant in these proceedings.
For completeness, although the appellant did not make reference to the Anti-Discrimination Act 1977 (NSW), we consider it appropriate to briefly consider that legislation, as the Commission must, in the exercise of its functions, take into account the principles contained therein pursuant to s 169(1) of the Act.
Generally speaking, disability discrimination is caught by the terms of that Act. Under the Anti-Discrimination Act, 'disability' includes "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour": s 4. It includes a reference to a disability "that a person had in the past, or is thought to have had in the past: s 49A(c). It would appear that the appellant's psychological condition would meet the above definition.
Section 169 has been held to impose a mandatory obligation to take into account the principles in the Anti-Discrimination Act but not to dictate any particular outcome or result: New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 at [8]. Upon that provision, the principles of the Anti-Discrimination Act are to be treated as a fundamental consideration in the decision-making process: Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 ('Nursing Homes and Nurses' Award'). It is the 'principles' of the Anti-Discrimination Act that are to be taken into account under s 169(1). Given that Act does not contain any provisions which are in terms described as its principles, nor is the word 'principles' a term commonly used in law to refer to the provisions of a statute or any particular part of a statute, the use of the word in s 169(1) seems directed at picking up the foundational concepts of the Anti-Discrimination Act, that is both the express provisions of the Act and the broader conceptual framework: Nursing Homes and Nurses' Award.
For similar reasons to those outlined above with respect to the Disability Discrimination Act, the provisions of the Anti-Discrimination Act do not, in terms, apply to affect the determination of the Commissioner. However, in terms of the principles contained therein, it plainly condemns discrimination on the basis of disability.
Nevertheless, that principle is not applicable in the present case as there is no demonstrated connection between the appellant's psychological condition (or disability) and his failure to file his application within the statutory time limit. It is difficult to see how an allegation of disability discrimination under the Act could be sustained in circumstances where there has been no evidence to support a difficulty with compliance with a requirement or condition on the grounds of disability in the present case (since, to use the words of s 49B(1), there is no reason why a substantially higher proportion of people without the disability would be able to comply with that requirement when the appellant was not affected by the disability at the time compliance was required and did not demonstrate that his psychological condition has such an effect in any event).
The Commissioner did not refer to the principles of the Anti-Discrimination Act in his reasoning, although he was concerned to consider whether the appellant's psychological condition had an impact upon the lateness of his application. In our later consideration of how the discretion under s 85(3) of the Act might be properly exercised in this matter, we will take into account the principles of the Anti-Discrimination Act pursuant to s 169 of the Act.
The provisions of the Anti-Discrimination Act do not, therefore, advance the appellant's application.
Ultimately, as we have found, the evidence before the Commission in these proceedings does not support the appellant's contention that the ongoing impact of his psychological condition prevented him from filing his application on time such that it constituted a "sufficient reason" to accept the out of time application and, in that respect, no error is disclosed in the impugned decision.

[16]

Delay

In Lee v Ausgrid (No 6) [2013] NSWIRComm 62 ('Lee'), the Full Bench considered the principles as to delay outlined in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 as follows: 28 In NAIS, the High Court considered the unfairness that can arise as a result of delay in delivering a decision. Gleeson CJ at [9] and [10] pointed to the risk that a delayed decision could be flawed because it affected the decision-maker's capacity to make a proper assessment of the witnesses. His Honour observed that if unreasonable delay created a real and substantial risk that the decision-maker's capacity for competent evaluation was diminished, it was not fair that an appellant should be at that risk: see also Gummow J at [44] and [55]. 30 Kirby J stated at [85]-[88]: [85] Relevance of delay: The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial". [86] In a particular case, more may be at stake than distinguishing between the credibility of parties and other witnesses. Thus, in litigation involving detailed and complex evidence, protracted delay in the provision of a reasoned decision may undermine acceptance by the parties and the community that the decision-maker has given careful consideration to all of the evidence, viewed in its context, and remembered its detail when finally putting the decision on paper. Even appellate judges, like myself, who are cautious about the significance of demeanour in the assessment of truth-telling, willingly accord to primary decision-makers significant advantages derived from their function in considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced. Such advantages, together with those which demeanour is conventionally held to accord to primary decision-makers, are lost, or significantly reduced, by protracted delay in providing a reasoned decision. [87] In addition to these considerations, there is another factor that is repeatedly mentioned in authority concerned with judicial delay. It is equally applicable to decision-making by members of quasi-judicial tribunals, such as the Tribunal. Extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution. In Expectation Pty Ltd v PRD Realty Pty Ltd, the Full Court of the Federal Court, in an appeal against delayed judicial reasons, explained the problem in terms of the increasing pressure which prolonged delay occasions to publish a decision. That pressure will bear upon the decision-maker as time passes, leading to the possibility that: [t]hat pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. These comments are addressed to a human propensity. They are not confined by the legal character of the body in which the propensity may be manifested. [88] Where there is a possibility that the foregoing might have occurred, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance. Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed. See also Hayne J at [13] and [136], and Callinan and Heydon JJ at [166]-[168].
Upon those principles, the Full Bench in Lee determined that the "lengthy delay" in delivering the decision below (some 11 months) "undermined the acceptability of the credit assessments and other factual findings made by the Commissioner": [11] and [28]. That conclusion was said (at [33]) to be predicated upon the same doubt that the majority of the Full Court of the Federal Court of Australia had about a Commissioner's credit findings in Fox v Australian Industrial Relations Commission (2007) 161 FCR 263; (2007) 166 IR 85, namely, whether a Commissioner has the capacity to recall observations and impressions about witnesses after a delay of about 12 months between the hearing and the decision..
In the present case, although there was a delay of some eight months between the hearing before the Commissioner and the decision being handed down, that delay cannot be said to have affected the validity of the impugned decision. The consideration of whether to accept the appellant's out of time application did not rely upon the assessment of the truthfulness or credibility of witnesses (if the jurisdictional issue was treated, as we will treat it, as one going to the prospects of success of the appellant's case), nor was the matter was in the nature of detailed and complex litigation. As such, as the respondent noted, this was not "a case where the Commission may have suffered from some fading memory in terms of the determination of the matter". Finally, there is no indication that the Commissioner was seeking to expedite the decision and thus adopted an "easy resolution". Hence, while regrettable, the delay occasioned in the proceedings below did not infect the impugned decision.

[17]

The Significance of the Appellant's Previous Experience in bringing Out of Time Applications in the Jurisdiction

The respondent submitted that it may be inferred that the appellant had particular knowledge of the statutory time limitation as he had experience as a repeat litigant in the jurisdiction (with two previous late applications resulting in some ruling on an extension of time). It was contended that he should not, therefore, be afforded leniency as to the lateness of his application.
The Commissioner noted (at [90]) that, in consequence of the appellant's two previous unfair dismissal applications, he "should have been aware of the 21 day time limitation". The Commissioner did not, however, identify whether, or in what manner, that finding as to the appellant's experience in the jurisdiction contributed to the exercise of his discretion.
By contrast, the appellant made the somewhat curious submission that his two previous failures to file unfair dismissal applications on time were demonstrative of his ignorance of the time limit. That submission, taken alone, lacks credibility.
The Full Bench discussed the import of the knowledge of the limitation period in Hurrell and Others v Queensland Cotton Corporation [2003] NSWIRComm 139 at [12]-[14] ('Hurrell'), which was extracted above at [23].
The principles set out in Hurrell are well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14].
Whilst it is clear, upon those principles, 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, it does not follow that the converse is true, that is, that knowledge or particular knowledge of the statutory time limit is a matter which would properly bear upon the exercise of the discretion. We do not consider that knowledge of the statutory time limit or experience in bringing applications for an extension of time in an unfair dismissal matter should result in a greater burden being placed on an applicant possessed of the experience or knowledge than that placed upon any other applicant seeking an extension of time. This would place an unacceptable gloss on the provisions of that Act and would result in an additional and erroneous hurdle being placed upon such an applicant. The obligation to make out a case for an extension of time under s 85(3) of the Act cannot be greater for those with such experience or knowledge. (This may be contrasted to the fact of such knowledge or experience weighing against a submission based on ignorance of the law.)
Whilst the Commissioner's expression was unclear, we do not apprehend that he approached the matter in the manner that the respondent encouraged on appeal. The Commissioner had regard to the relevant principles and extracted critical passages from the decision in Hurrell at [82] and [88]. It would not appear that he placed any greater requirement upon the appellant or that the consideration of his prior experience in the jurisdiction was given undue weight. Nor do we perceive the comments of the Commissioner as to the appellant's history of litigation in this jurisdiction as being directed, as the appellant averred, to the consideration of "propensity evidence" or reasoning of that nature. Rather, we understand the Commissioner to be properly noting that ignorance of the law could not be argued by the appellant in this case in light of his experience seeking an extension of time. In our view, when seen in that way, there was no error in the Commissioner's decision in that respect.

[18]

Jurisdictional Question

There was a contest as to whether the Commission had jurisdiction in this matter in both the present proceedings and those below, although, as the respondent noted, the parties did not advance full argument as to that issue in either proceedings.
As we have found above, and in conformity with the submissions of the parties, it was apparent that the Commissioner purported to resolve that contest by making a determination that the Commission did not have jurisdiction under Pt 6 of Ch 2 of the Act in this matter in the proceedings below as, in his view, the appellant was not 'dismissed' for the purposes of that Part (see s 84).
It is conceivable that the Commissioner may have resolved both the jurisdictional and out of time questions as independent considerations in the proceedings below, although presumably a conclusion that the Commission had no jurisdiction to hear the appellant's application would represent an overwhelming factor in favour of refusing to extend time to hear the same. This, along with our earlier discussion as to reviewing the out of time question, reflects the interconnection between the two questions posed by the Commissioner in the impugned proceedings.
We pause to reflect that the preferable approach to the jurisdictional question was that outlined by the Full Bench of the Commission in Hurrell (at [151] and [152]) as follows: …In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospect of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a "sufficient reason" has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits. Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion… Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary consideration: Sebastian v Roads and Traffıc Authority of New South Wales (1995) 62 IR 190 at pp.193 to194. It should be emphasized, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature…
This authority demonstrates that questions that are jurisdictional in nature cannot be wholly quarantined from the exercise of the discretion to allow an out of time application since the latter necessarily comprises some assessment of the prospects of the application (albeit in a very preliminary way).
In this case, the Commissioner did not describe what bearing his determination as to the jurisdictional question had on the exercise of the discretion under s 85(3).
It is not clear just why the Commissioner ultimately proceeded down the path taken in the decision. In the proceedings below he attempted to confine the parties to debate on the out of time question alone (this corresponds to the respondent's submissions that it never fully developed submissions on the jurisdictional question). As such, it would have been reasonable for the parties to apprehend that the out of time question would be central to the Commissioner's decision and that the jurisdictional question would, to the extent considered, merely be tangential to that issue.
However, those procedural difficulties were relatively minor when compared to the Commissioner's actual approach to the disposition of the respective issues. We will commence that discussion by reviewing the Commissioner's finding that there was no jurisdiction to bring the application at first instance.
Perhaps as a by-product of the confinement of debate during the hearing, the Commissioner failed to address the appellant's case thesis on the jurisdictional question in his decision. Whilst he adopted part of the respondent's submissions vis-à-vis the jurisdictional question (and particularly the impact of the TS Act), in doing so he failed to consider the case brought by the appellant.
The controversy over jurisdiction raised in the proceedings below may be properly described in the following manner: assuming that it could be sustained that an agreement was reached between the appellant and Mr Morgan as to the appellant's service for the 2014 school year, could a contract be found to exist between the appellant and the respondent such that, if that contract was not fulfilled, it would constitute a termination of employment for the purposes of s 84 of the Act, notwithstanding s 50 of the TS Act. The Commissioner did not resolve that issue. In failing to resolve the dispute as framed by the parties the decision of the Commissioner was attended by error of a House v King kind.
The counterpart to that deficiency is the manner in which the Commissioner considered the out of time question. That consideration would ordinarily involve a preliminary assessment of the prospects of success of an applicant's case as discussed in Hurrell above. It was appropriate to do so in this case. There is no particular reason why the jurisdictional question could not represent a factor in an assessment of that nature, although, as mentioned earlier, in a particular case the jurisdictional question might be such as to overwhelm other factors to be considered in the exercise of the discretion of the Commission to extend time pursuant to s 85(3) of the Act. We do not think this is such a matter.
Whilst we have concluded that the Commissioner's decision was attended by error in this respect, we should not be taken as making an affirmative jurisdictional finding in the appellant's favour or that the prospects of his case in that respect are strong. Even if a contract was found to have been entered into for the 2014 school year, there must be doubt about whether an arrangement entered by the Principal of the school of the kind contended by the appellant could constitute an appointment for the purposes of the TS Act.
Before completing this aspect of our discussion, we note that two statutory declarations were included in the material filed by the appellant which seem to have a connection with the jurisdictional question in the sense that they were directed to proving that a contract was entered into between the appellant and Mr Morgan for the 2014 school year. We do not consider that material could alter the conclusions reached in the consideration of the out of time issue in the appeal for the following reasons: 1. The appellant did not seek leave to adduce the material in question on the appeal, nor did he rely upon it in his oral submissions as to the significance of that material to the issues under consideration in these proceedings; 2. Evidence intended to impeach Mr Morgan's credibility could only have a marginal intersection with issues on this aspect of the appeal. We have proceeded on the basis that the prospect of the existence of an agreement between the appellant and Mr Morgan constitutes the basis to find an arguable case for the purposes of the out of time question, although the contention is attended by legal difficulties arising from s 50 of the TS Act. The actual proof of the agreement (and the challenge to Mr Morgan's denial of the same) would only necessarily arise in the hearing of an application after time was extended during which full argument may be received as to the jurisdictional question.

[19]

Remaining Issues in the Appeal

The appellant raised several matters in his written submissions which were not addressed in his oral argument or resolved by our consideration of the four issues above. It is convenient to dispose of those matters presently.
In the impugned decision, the Commissioner found that "the applicant was responsible for his application being filed late" (at [92]) and did not accept that the conduct of the respondent "had any bearing on the lateness of the application" (at [96]). In these proceedings, the appellant again contended that he was not responsible for the delay and that the conduct of the respondent, chiefly the alleged denial of procedural fairness, was to blame for the lateness of his application (as well as making his dismissal harsh, unreasonable or unjust for the purposes of s 84(1) of the Act).
As the respondent submitted, the conduct of the respondent in the circumstances of this matter did not alter the obligation on the appellant to file his application within the statutory time limit. Thus, the appellant was obliged to file his application on time irrespective of the procedural unfairness he alleged. The fact that an element of his submissions as to procedural fairness concerned ambiguity over the date of dismissal and the appellant's expectation of an opportunity to discuss his dismissal does not detract from that conclusion since, as the respondent correctly noted, the email sent by Mr Morgan to the appellant on 3 December 2013 clearly conveyed that the appellant's contract for the 2013 school year would cease at the end of that period and evinced his intention that the appellant would not be employed at the school in 2014. Upon a fair reading of Mr Morgan's email, his invitation to discuss his message could not be read as obscuring the meaning of that correspondence. Similarly, Mr Morgan's failure to respond to a letter from the applicant seeking a meeting (if such a letter was received) would not diminish the requirement upon the appellant to file his application within the statutory time limit.
The appellant also contended that there was public interest in having his application heard. In particular, he argued that there was a public interest in giving someone in his position "as much time as is necessary" to prosecute their case.
Although there is certainly public interest in doing justice in a given case, there is, as the Commissioner noted, also public interest in complaints being lodged and dealt with "as expeditiously as possible": see Birkett v James [1978] AC 297 at 329. The Commissioner quoted McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 ('Brisbane South Regional Health Authority') as follows (at [87]): 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 ... 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...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 the extension.
Upon the above authority, there is plainly public interest in favour of the statutory time limitation being applied, except in circumstances where the dictates of justice necessitate its extension and the factors identified for consideration in s 85(3) of the Act suggest such a course. In light of the terms of the Act, and in particular s 85(3) thereof, it is apparent that the legislature has determined that the dictates of justice necessitate the time limit being extended in circumstances where the Commission determines that there is "sufficient reason" to do so, considering, inter alia, the matters identified in that provision. It is apparent that the appellant did not discharge the burden of demonstrating that the justice of the case required the extension of time before the Commissioner. Save for the approach as to the jurisdictional question and associated issues, we have found no error in his reasoning. Indeed, we have found the Commissioner was entitled to find that the appellant had not established a sufficient reason to extend time. The appellant's contentions about the public interest in hearing his case below must be considered in that context.
In the present proceedings, we have again considered the public interest as it relates to the delay identified by the appellant and the question of leave (although we ultimately determined to grant leave in order to consider the factors outlined above, not because it was in the public interest pursuant to s 188(2) of the Act). The appellant did not explain how the public interest was otherwise relevant to the disposition of the appeal. Thus, there was no reason to alter the Commissioner's conclusion as to public interest upon the material before the Full Bench.
Finally, we address the appellant's submissions as to the hardship he suffered in consequence of the Commissioner's decision to extend time.
Hardship is identified in s 85(3)(b) of the Act as a factor to be taken into account in the exercise of the discretion to extend time. The Commissioner expressly took into account the fact that economic hardship would be suffered by the appellant if he did not extend the time to bring his application, but concluded that hardship did not represent a reason to extend time in the circumstances as the appellant was "in a position no different to other applicants who have failed to persuade the Commission that a sufficient reason exists for not lodging their application within the 21 day time limitation" in that respect (at [94]).
That view may be seen as consistent with the authority in Brisbane South Regional Health Authority, where 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.
We accept that, as a general proposition, hardship will inevitably affect applicants who have been refused an extension of time to hear an unfair dismissal application (particularly economic hardship, which was the focus of the appellant's contention in these proceedings and below). It is apparent that, in the Commissioner's view, the hardship of that nature suffered by the appellant did not provide a sufficient reason to exercise the discretion under s 85(3) in his favour.
In these proceedings, the appellant contended for the first time that he suffered particular or exceptional hardship. That contention was predicated upon three factors: his age (65 years old), his remote geographical location and the fact that he was unfairly dismissed whilst unfit for work due to his psychological condition. The appellant argued that as an older worker in a small community it would be difficult to find alternative employment, particularly in circumstances where he was attended by stigma associated with his dismissal and psychological condition.
He emphasised that he had not found work since he ceased employment with the respondent, but also attributed this, at least in part, to his uncertain employment status during the conduct of these proceedings. The appellant submitted that the Commissioner was in error in so far as he failed to have regard to the particular hardship that he would suffer (and, indeed, did suffer) as a result of the exercise of the discretion not to extend time to hear his application.
Upon the authority in Hurrell, '''hardship' as identified in s 85(3) of the Act is, in its context, to be construed broadly so as to include both individual disadvantage and more broadly understood notions of prejudice to the respective parties": at [16]. The factors identified by the appellant in these proceedings constitute hardship within that broad definition as they were said to lead to individual economic disadvantage.
However, in our view, the Commissioner's conclusion with respect to the hardship suffered by the appellant was open to him for the following reasons: 1. Given that the onus was on the appellant to convince the Commission it should exercise its discretion in his favour, it was incumbent upon the appellant to bring positive evidence to demonstrate hardship: see Bimalananda Maity and Express Publications Pty Ltd [2001] NSWIRComm 169 ('Bimalananda') at [21]. Merely asserting hardship is "not good enough": Bimalananda at [21]. In the proceedings before the Commissioner, the appellant contended that he would suffer from hardship if time was not extended to hear his application, but did not elaborate upon the nature of that hardship or how it would arise. Nor did he make submissions as to whether his hardship was any different to that ordinarily experienced by applicant's whose out of time applications are refused. 2. Hardship is "merely one of the factors that need to be considered" in an application of this kind: Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [55]. The appellant did not demonstrate that the hardship he described constituted a "sufficient reason" for the Commissioner to exercise his discretion in a manner favourable to the appellant, in circumstances where the Commissioner was also required to have regard to other factors including, inter alia, hardship to the respondent.
In these proceedings, the appellant sought to articulate additional and different grounds to establish hardship (predicated upon the three factors identified above). However, in our view, the appellant still did not demonstrate that hardship represented a "sufficient reason" to extend time for the purposes of s 85(3) of the Act. This requires, as we will do in one moment, considering the appellant's case for an extension of time to hear his application, but there are some matters particular to his new submissions on hardship which should be considered at this juncture. Those matters are as follows: 1. Although the appellant did not expressly develop his submission as to hardship based on age in these proceedings, it was tolerably clear from his approach that he contended it could be more difficult for a 65 year old worker to find employment. We accept that, in certain circumstances, that is the case. Broadly speaking, that factor may be taken into account in the exercise of the Commission's discretion. However, the appellant did not identify with any precision the manner in which his age was said to be a factor in precluding him from employment in positions he was seeking either generally or with respect to his occupation as a teacher. 2. The appellant provided no evidence as to the impact of his geographical location upon his search for employment. It would appear that he continues to reside in Brewarrina, in northern New South Wales (although that was not made clear on the evidence before us). He did not develop his submission as to the manner in which that location was a factor in precluding him from employment in positions he was seeking and gave no evidence as to his mobility around northern New South Wales or elsewhere. 3. Finally, the appellant contended that he suffered hardship in that he was unfairly dismissed whilst unfit for work due to his psychological condition. It was apparent from his submissions that, in his view, the cessation of his employment in that manner led to stigma by reason of which it would be difficult to find work. He led no evidence to support that view. Further, no evidence or submission was brought as to the impact of his psychological injury on his capacity to work. To the extent that his submission was directed to that factor, it could not be accepted in any event since, as discussed above, the most current medical evidence before the Commission certifies the appellant fit for work. 4. The appellant also drew attention to the difficulties obtaining employment occasioned by the uncertainty of his existing employment status. In the absence of evidence to the contrary, it may be inferred that the hardship described in that submission is an outcome of the continuation of litigation in this jurisdiction rather than the decision of the Commissioner not to extend time.
For the reasons outlined above, we have formed the view in these proceedings, in conformity with the decision of the Commissioner below, that a hardship would be experienced by the appellant in consequence of the Commission refusing to extend time. That hardship is common to all litigants facing such an outcome excepting that, on the evidence before us, the potential impact of his age may potentially produce a greater hardship than that suffered by the ordinary applicant. As such, the appellant's hardship must be recognised as a factor relevant to the disposition of the application below. The Commissioner balanced that consideration against other relevant findings required for consideration under s 85(3) of the Act. In our view, it was, as we discuss below, ultimately open to him to conclude on the material before him that there was no "sufficient reason" to extend time.

[20]

COnclusion

Whilst we have substantially found no error in the Commissioner's decision, we have found error in relation to his disposition of the out of time question. That conclusion necessarily calls attention to the proper disposition of the appeal and, in particular, whether it is appropriate for the Full Bench to uphold the appeal and substitute its own decision for that of the Commissioner in the impugned decision. In that context, we make mention of the following authority.
It is apparent upon the authority in T D Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285 ('Preece') that the Full Bench is entitled to set aside the decision of the Commissioner and substitute our own decision if the appeal is upheld. In Preece, Spigelman CJ observed as follows at [40]-[41]: The power to vary an order is expressly conferred by s 192(1)(a). Although the nature of the hearing is not a hearing de novo, that does not mean that the Full Bench cannot, after identifying error, proceed to find unfairness on an alternative basis that has been properly raised. The Full Bench is entitled to 'substitute its decision' for that of a trial judge. That is what an appeal, capable of leading to a variation of the order, is for. Section 191(3) affirms a traditional form of restraint upon the exercise of an appellate function with respect to discretionary decisions. It does not prevent the Full Bench from determining the appeal on a basis different from that of the trial judge.
That authority was recently followed in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [38].
On balance, we do not consider that the errors in the decision at first instance should result in us upholding the appeal and substituting a different decision. This is because we consider that the conclusion the Commissioner ultimately reached was correct in the disposition of the matter at first instance and that, in the exercise of our own discretion in the matter. We would, for the reasons provided below, reach no different conclusion to that reached at first instance regarding the application to extend time to hear the appeal, namely, the refusal of the application.
Thus, notwithstanding the above identified errors of the Commissioner, we do not consider the Commissioner's ultimate conclusion as to the out of time question to be incorrect as the dictates of justice did not require the extension of time in the circumstances of the case. In consequence, there is no reason to uphold this appeal as we would dismiss the appeal in any event: see McDonald's Australia Holdings Ltd & Anor v Industrial Relations Commission of NSW & 2 Ors [2005] NSWCA 286.
In coming to that conclusion, we have had regard to the following factors concerning the out of time application: 1. The statute provides a time limit for the bringing of an unfair dismissal application and a discretion in the Commission to extend time in circumstances where there is a "sufficient reason" to do so pursuant to s 85(3). Although Hungerford and Cullen JJ and Kelly C observed in Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 that "[i]t is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason"" (at 190), the exercise of the discretion reposed in the Commission under s 85(3) is well settled in this jurisdiction. As noted in Hurrell, the proper exercise of the discretion involves taking into account all relevant factors, including the evidence in the proceedings before the Commissioner: at [12]. As was noted in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258 "the ultimate exercise of discretion is governed by the requirements of justice in a particular case" having taken the relevant factors into account. 2. When considering the requirements of justice in a given case, the Commission should view the statutory time limit as representing the judgment of the legislature that the welfare of society would be best served by causes of action being litigated within that period, notwithstanding that limitation may result in a good cause of action being defeated: see Brisbane South Regional Health Authority at 553 per McHugh J and Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 at [25] and [26]. In this case, the dictates of justice are governed by the terms of s 85(3) of the Act. 3. The lateness in this case was not insignificant (on either the appellant's or the respondent's case). 4. The primary reason for lateness articulated by the appellant, namely, his psychological condition, was not supported by the evidence as a reason for his application being out of time and cannot, therefore, constitute a "sufficient reason" for the purposes of s 85(3) of the Act. 5. The appellant's prior experience in the jurisdiction must have alerted him to the statutory time limit, so he could not plead ignorance of the same. 6. Although the appellant did have an arguable case on the question of jurisdiction (and perhaps, in that respect, a subsequent case on merit which corresponded to the consideration that his employment was really for a fixed period), albeit plainly attended by some real difficulty. 7. Although the hardship suffered by the appellant may have provided a reason to extend time, the hardship identified does not represent a "sufficient reason" to extend time pursuant to s 85(3) of the Act particularly since it must be balanced against the prejudice to the respondent. The conclusion of the Commissioner in that respect was correct. 8. In the result, the only factors in the appellant's favour were that he had a moderately arguable case on jurisdiction and experienced hardship as a result of the Commissioner's decision. In our view, those considerations do not represent a "sufficient reason" to extend time for the purposes of s 85(3) of the Act in light of the balancing of considerations required by that provision including our earlier discussion as to hardship and, in particular, in the absence of an adequate explanation for the delay in filing his application.

Parties

Applicant/Plaintiff:

Stephen York

Respondent/Defendant:

NSW Department of Education and Communities

Legislation Cited (2)

Industrial Relations Act 1991(NSW)

Anti-Discrimination Act 1977(NSW)

Cases Cited (38)

NSWIRComm 169 Birkett v James [1978] AC 297 Brady v Kennedy (t/as Sardines) (1999) 91 IR 258 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CCH Australia Ltd v Bowen (1998) 79 IR 206 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Fox v Australian Industrial Relations Commission (2007) 161 FCR 263; (2007) 166 IR 85 Gardner v Secretary of Treasury (Department of Justice - Corrective Services NSW) [2014] NSWIRComm 52 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 House v The King (1936) 55 CLR 499 Hurrell and Others v Queensland Cotton Corporation [2003] NSWIRComm 139 Lee v Ausgrid (No 6) [2013] NSWIRComm 62 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855 McDonald's Australia Holdings Ltd & Anor v Industrial Relations Commission of NSW & 2 Ors [2005] NSWCA 286 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 Sarah Lunn v Department of Justice [2006] AIRC 756 Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011 T D Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285 USU on behalf Paul Parker & Newcastle City Council re dismissal [2014] NSWIRComm 1012 Category: Principal judgment Parties: Stephen York (Appellant) Secretary, Department of Education and Communities (Respondent) Representation: Counsel: Appellant in person Mr P Ginters (Respondent)

[2006] AIRC 756

(1999) 91 IR 258

(1996) 186 CLR 541

(1998) 79 IR 206

(2007) 161 FCR 263

(2007) 166 IR 85

(1993) 51 IR 186

(1936) 55 CLR 499

(2002) 112 IR 212

(2005) 228 CLR 470

(2003) 125 IR 145

(1982) 45 ALR 411