Tolley v Secretary, NSW Ministry of Health in respect of Northern NSW Local Health District

Obligation to follow precedent and the Commission's jurisprudence

1. As I made it clear to the parties in the course of proceedings, the question before the Commission must be decided according to law. I am, I must say, sympathetic to Mrs Tolley. I do not wish to discuss her personal circumstances in a public decision, a person's privacy is important. But without canvassing the merits of the decision to dismiss her, which was not to any degree in evidence before me, it is clear that losing her employment with the respondent has placed her in a difficult position. She wishes to continue nursing in NSW. I did not doubt her passion for nursing, and I read carefully, and accepted, the 2012 references that speak to her being a good and caring clinician.
2. As an industrial tribunal, the Commission is regularly required to determine questions that have a significant effect on individual people's lives. As I went to considerable lengths to make clear on the day, it does not and cannot decide questions before it on the basis of personal sympathies. The parliament has provided an Act and there is a body of case law which binds the Commission, particularly first-instance decisionmakers. The Act must be applied and the precedents which establish the law and the jurisprudence of the Commission must be followed and applied consistently to do justice to all parties, both the parties in this matter and the parties in other matters of a like kind.
3. Accordingly, I turn to decide this application pursuant to law. The decision that follows is necessarily expressed in legal terms and with reference to statutes and decisions because it is a decision that follows law and precedent.

Time

1. Mrs Tolley was employed by the respondent on a part-time basis as a Registered Nurse. She was dismissed from that employment on 19 November 2015. The application before the Commission was lodged on 20 May 2016. The present application is therefore 161 days, that is approximately five and a half months, out of time.

Statutory framework

1. It is useful here to set out the relevant legislative provisions. Section 85 of the Act provides as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.
2. It is immediately apparent that the Act makes it mandatory that applications pursuant to s.84 be made within 21 days of the dismissal occurring.
3. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission.
4. Subsection (3), in contrast to subsection (2), provides no more than that the Commission 'may' - that is as a matter of discretion - accept an application which is made out of time but which is not required to be accepted for the reasons set out in subsection (2). As I set out in more detail below, the onus is on the person making the late application to persuade the Commission that it should be admitted.
5. I first turn to the question of whether the application is one that the commission is required to accept pursuant to subsection 85(2). Mrs Tolley told me, and I believe her even though the documentary evidence is very scant, that she lodged a claim regarding her dismissal with the Fair Work Commission on 11 December 2015, that is, within the statutory time period for that tribunal. The first limb of subsection 85(2) is therefore met. However, Mrs Tolley told me that she was informed by the Fair Work Commission that it had no jurisdiction about a week after 4 January 2016, that is, she said, on or about 11 January 2016. Noting that her application to this Commission was lodged on 20 May 2016, more than four months after that date, the third limb of the test, that provided by subsection 85(2) (c) is not met.
6. The consequence is that the Commission is not required, pursuant to subsection 85(2), to accept the application Mrs Tolley filed on 20 May 2016.
7. That means that the matter falls to be determined solely under subsection 85(3) of the Act.
8. The discretion exercisable under subsection 85(3) is not unfettered. Its exercise in favour of an application requires that the Commission consider that there is 'a sufficient reason to do so' before accepting an application that is out of time. That discretion in turn is not at large, but is a guided discretion, in that the Commission is directed, in considering whether there is a 'sufficient reason to do so', to have regard in particular to the matters set out in subsection 85(3) (a), (b) and (c).
9. Each case in which subsection 85(3) is invoked is decided on its own facts and circumstances. Previous decisions are authorities not on factual circumstances, but on principles: Jess v Scott (1986) 12 FCR 187 at 195. Consistent with that premise, there is no prescription in the statute or in decided cases as to what constitutes a 'sufficient reason to do so': Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190.
10. What is clear is this; given that the prima facie position is that an application brought out of time is excluded by subsection 85(1), an applicant bears the positive burden of demonstrating that the justice of the case requires an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; Lucic v Nolan (1982) 45 ALR 411 at 416. If an applicant cannot demonstrate that the justice of the case requires that an extension is required, the prima facie position will prevail, that is, the application remains excluded.
11. The law as to the approach to the exercise of the discretion under subsection 85(3) is well settled: Director-General of Education and Training v Bond [2009] NSWIRComm 40 at [14], citing what was said in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 at [12] - [13]: [12].... The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President, in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".
12. It should at this point be noted that the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40].
13. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra.
14. Fundamental to consideration of the statutory structure within which the discretion is to be exercised is this: the Parliament has chosen to identify 21 days as the period in which a claim under s.84 is to be made. This limitation period, as limitation periods generally, is not an arbitrary cut-off date unrelated to the demands of justice or the welfare of society.
15. Rather, '[i]t represents the legislature's judgment that that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.' Brisbane South Regional Health Authority v Taylor loc cit at 553. What that means is that even a case which on its face appears to involve an unfair dismissal, even a significantly unfair dismissal, is not for that reason guaranteed acceptance out of time. The statutory tests must be applied, and applied consistently.

Length of and reason for the delay

1. First, the Commission must have regard to the length of and reason for the delay.
2. The application is brought 161 days, or nearly five and a half months, out of time. In circumstances where the legislature has chosen to set a relatively short time period of 21 days, that delay is very considerable. It stands on its face against the application being admitted.
3. Doing my best to summarise fairly the reasons Mrs Tolley gave for the delay, the first was that she had wrongly filed in the Fair Work Commission in the genuine belief that that was the proper tribunal. That is in my view understandable. She said, and I accept, that Fair Work told her that it had no jurisdiction on or about 11 January 2016. There was no evidence of what was said in any detail at all. In my experience when the Fair Work Commission refuses jurisdiction for reason that a matter ought properly be brought in the NSW Commission, it advises an applicant of that reason, although in the absence of any evidence on the point I am not prepared to draw the certain conclusion that Mrs Tolley was told that she could apply to the NSW Commission at that time.
4. Further, in January 2016 she was obliged to leave her home, and was rendered effectively homeless. She then had to appear before the Nurses' Registration Board in February; immediately following that hearing she went to Kalgoorlie, Western Australia, to take up a position there.
5. As I understand her evidence she lost that position and instituted proceedings in the Fair Work Commission concerning that loss. While she was in Perth preparing for those proceedings, or in the course of her involvement in those proceedings, she came upon documents which led her to understand that her dismissal by the Respondent could have been challenged in this Commission. She did not make an application immediately then, but waited until her return to NSW. Within a fortnight of her return from WA to NSW, in early May 2016, Mrs Tolley filed the instant proceedings.
6. Mrs Tolley also pointed to the shock of losing her position as affecting her ability to find out about the Commission and make any application.
7. However, during the time between her dismissal by the respondent and filing her application she filed an application in Fair Work. She wrote extensively to ICAC - an initial report and 30 subsequent emails in a five-week period in December and January - and to the Health Care Complaints Commission, in both communications describing in detail the unfairness of her dismissal.
8. On 7 December she wrote to the respondent advising that she had legal representation at that time.
9. In her application to this Commission in May 2016 she advised that she was a member of an industrial association, HPARA, and had a solicitor.
10. Apart from those matters I have set out above, Mrs Tolley provides a number of reasons for her lateness, including particular domestic difficulties, and financial hardship.
11. I return to the assessment of all of these matters below.

Hardship to the applicant

1. The Commission is required to have regard, pursuant to subsection 85(3)(b), to any hardship that may be caused both to the applicant and to the employer if the application is or is not rejected.
2. The hardship to the applicant if the application is rejected is that she will not be able to pursue her unfair dismissal claim. It is a hardship, of course, which every out of time applicant suffers whose application is rejected. Mrs Tolley says she wants her job back, and that she has a passion for nursing. I accept that both things are true.
3. It is in the context of this sub-section that it is proper to consider the strength of Mrs Tolley's case, as it is one measure of the disadvantage she may suffer if her application is not accepted. I say that noting again what the High Court held in Brisbane South Regional Health Authority v Taylor loc cit at 553, that is, that an applicant with an arguable or even a good case is not for that reason alone guaranteed admission of a late application.
4. I say nothing here about the merits or otherwise of the dismissal itself, because there is a supervening factor which in my view is important. That is this; that no matter what view is taken of the dismissal, so far as her case goes to the primary remedies of reinstatement or re-employment, Mrs Tolley does not have good prospects. I say again, I do not make any finding of fairness or unfairness, and nor do I disbelieve anything Mrs Tolley told me. I well understand that Mrs Tolley has a very keen sense of injustice arising out of the circumstances of her dismissal.
5. But it is apparent that the relationship between the parties is irreparable. On the evidence I was given, things have been said, written and published, both during the life of the employment relationship and more particularly after it, that stand, in my view, entirely against any opportunity of restoring the relationship.
6. Of course the employment relationship is capable of sustaining some stresses and strains: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. However, and without canvassing all the events and communications concerned, it is clear to me that they were of such a nature that they effectively prevent the restoration of a relationship that must be based on mutual trust and confidence.
7. I emphasise that there is no criticism of Mrs Tolley's clinical skills; on the evidence, they have been praised and I accept that evidence. But on a personal level it is impossible to see that the necessary relationship of trust and confidence, which must flow both ways, could be restored.

Hardship to the employer

1. Hardship to the employer is a matter which I am also obliged under the statute to address. There is a degree of potential hardship; if proceedings were to go ahead, they would be more than a year after the dismissal. Memories will have faded, and I was told that some potential witnesses no longer work for the Respondent. Overall, however, I regard hardship to the employer in this particular case as a negligible consideration in the overall decision.
2. I have regard to the conduct of the employer related to the dismissal. That is, as I set out above, to be viewed insofar as it has any bearing on the lateness of the application. The applicant was dismissed in writing and given the award payment due in lieu of notice.

Further matters

1. As I set out above, the Commission is not confined in the exercise of its discretion only to the matters to which it is 'particularly' to have regard under subsections 85(3) (a), (b) and (c), although it must have regard to those matters.
2. It emerged that Mrs Tolley is now living and working, albeit firstly on a part-time basis as an agency nurse, which I accept is not necessarily secure or reliable employment, and secondly in another venture which has only just begun to operate, in Queensland. Mrs Tolley was emphatic that she wished to return to NSW and conduct her case, and wished to press for the return of her job with the respondent.
3. I am as I say sympathetic to Mrs Tolley. I am frankly troubled that in circumstances where the remedy of reinstatement or reemployment seems to me entirely unlikely of success, the disruption, stress and distraction of conducting a case here in NSW, with, I emphasise, those very restricted prospects of success, may not be in Mrs Tolley's best interests. Of course ultimately that is a decision for her, not for me, but in considering whether to admit an application out of time the overall utility of permitting the proceedings to go ahead is very much a matter that the Commission must consider.

Consideration

1. I emphasise again that I do not call into question Mrs Tolley's strongly-held belief that her dismissal itself was unfair, and her desire to pursue that matter and hold people to account for their wrongdoing. I emphasise once again, the fairness of the decision to dismiss is not what I have to decide here. Rather, what I have to decide here is whether, in all of the circumstances, having regard to the tests in subsection 85(3) and also broader considerations, this particular late application ought be admitted.
2. The first consideration is the length of the delay. A 161-day delay is very considerable measured against the 21-day limitation that the parliament has seen fit to impose. A delay of that length itself stands strongly against the discretion being exercised to admit the application.
3. As to the reasons for the delay, I readily accept that Mrs Tolley was in very difficult personal circumstances, although the most disruptive elements of those - the loss of her home, particularly - occurred in January 2016, after the time for the application had passed. I am less prepared to accept that during a period when Mrs Tolley applied to the Fair Work Commission, made detailed written representations to ICAC and the HCCC and others emphasising her dismissal, and had told her employer that she would pursue the matter in 'every available commission', she was justified in leaving her approach to this Commission until 20 May 2016.
4. That is the more so when on her own evidence Mrs Tolley obtained from this Commission a number of pro forma documents and applications and filled them out, even if she did not file them, no later than 25 April 2016. They included a Public Sector Disciplinary Appeal application, an application for relief from victimisation under s.213, and a s.204 request. I find it difficult to accept that a person having access to those materials, and having that level of understanding of the existence and functions of this Commission, did not move to file an unfair dismissal application until a month after addressing these forms.
5. And that is the more so yet when on her own evidence Mrs Tolley was a member of an industrial organisation and had, as she told her employer at around the time of the dismissal and later this Commission, a solicitor acting for her.
6. The length of the delay is, as I observe, a period of approximately eight times the time limit the parliament has chosen to fix. Reading them as generously as I can, the reasons for the delay are simply not sufficient to offset a delay of that length.
7. That means that Mrs Tolley has not discharged her onus to persuade the Commission to admit her application, and the Commission's guided discretion must in this case be exercised to decline to disturb the prima facie position, that is, that the application is excluded.
8. I say once more, this is not a decision about the fairness or otherwise of the dismissal. I do not rule that Mrs Tolley is wrong, or that the dismissal was fair; that is not the case I have to decide. The case before the Commission is simply whether the tests allow the application to be accepted late, and the answer is that they do not.

Orders

1. The application made by Mrs Evelyn Tolley pursuant to s.84 of the Act is dismissed for reason that it is not brought within time. PETER NEWALL Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2016