VanDrie v Central Coast Council [2025] NSWIRComm 1075

1. On 14 January 2019, the applicant commenced employment with the respondent in the position of Planning Engineer - Hydrology.
2. From 6 March 2020 until 19 February 2022 the applicant was working remotely from Indonesia due to his inability to return to Australia because of COVID-19 international travel restrictions.
3. In correspondence dated 22 October 2021, the CEO of the respondent informed all staff that they were required to be vaccinated against COVID-19 by 9 January 2022.
4. During a meeting held on 8 March 2022, the applicant informed the respondent that he was unable to be vaccinated due to a medical condition. The applicant was granted a temporary adjustment period which permitted him to work from until 23 March 2022. During this period, the applicant was to consult with a Dr Raffan with a view to discussing the applicant's suitability to become vaccinated against COVID-19.
5. On 24 March 2022, the applicant informed the respondent that he was unable to obtain a medical contraindication and had made a personal choice not to receive the COVID-19 vaccination.
6. In correspondence dated 29 March 2022, the applicant was informed that he was in breach of the respondent's COVIDsafe Policy and he was put on notice that his contract of employment will be terminated on 22 April 2022. In this correspondence, the applicant was invited to contact the respondent prior to 22 April 2022 should his circumstances change, and he wished to become vaccinated.
7. In accordance with the correspondence of 29 March 2022, the applicant's employment with the respondent terminated on 22 April 2022.

1. Subsection 85(3) of the Act provides the Commission with a discretion to accept applications beyond the 21 days and in considering whether that discretion should be exercised the Commission is required to have regard to a number of factors.
2. Those factors are:

(1) The reason for the length of delay in making the application.

(2) Any hardship that may be caused to the applicant or the employee if the application is or is not rejected.

(3) The conduct of the employer relating to the dismissal.

1. In considering these factors, Commissioner Murphy, in McDonald v Commissioner of Police [2017] NSWIRComm 1043, reviewed the relevant authorities of the Commission in relation to the exercise of this discretion and summarised the following relevant principles that fall from those authorities, at paragraph 33 of that decision. Those principles are:

(1) The prima facie position is that unfair dismissal applications made out of time will not be accepted by the Commission.

(2) An applicant who has made an application out of time bears the onus of persuading the Commission to accept such application.

(3) An out of time application will not be accepted unless the Commission is satisfied, having regard in particular to the reason for and the length of the delay in making the application, that a sufficient reason exists for the Commission to exercise its discretion in favour of the applicant.

(4) Whilst a lengthy delay in making an out of time application will militate against its acceptance by the Commission, it does not follow that an application made only one, two or a few days after the expiry of the 21 days will be accepted by the Commission without there being demonstrated by the applicant that there was a reason for delay which the Commission can accept as a sufficient reason.

(5) If hardship to the applicant is to be considered as a factor weighing in favour of acceptance of an out of time application, the hardship may be caused to the applicant, if the application is rejected, must be more than just the loss of opportunity to have the application considered by the Commission.

(6) If the conduct of the employer relating to the dismissal is to be considered as a factor weighing in favour of acceptance of an out of time application, such conduct needs to have some connection to the delay in making the application.

(7) The overarching principle, which guides the Commission's discretion, is the attainment of justice for the parties in the particular case.

1. In considering the application before the Commission to extend time under s 85(3), I have applied those principles as summarised by Commissioner Murphy falling from the case of McDonald.
2. I now turn to each of those matters which I must consider.

1. In effect, the substantive reason provided by the applicant was, as a result of his mental health arising from extreme levels of distress at the time of the dismissal and through to the filing of the application, he was unable to make cognitive decisions, such as the seeking of advice in relation to challenging his dismissal and the preparation and filing of his application for dismissal.
2. In terms of his mental health and any diagnosis, the applicant pointed the Commission to the general notes from Macksville and District Hospital to which he was admitted on 18 October 2024 and there is a reference in the bottom of these general notes which were printed on 9 November 2024. On the second page, under the note headed "Issues/impression" it states:

"Depression - reactive in nature, secondary to situational crisis. High risk features (male, later years, financial/relationship losses, isolated previous parasuicidal behaviour)"

1. That is the sole piece of evidence of a medical diagnosis of any mental health which has been provided by the applicant.
2. In terms of the stressors that the applicant advances as leaning towards his inability to be able to make cognitive decisions, he points to matters arising from his son, which included incarceration and admission into mental health facilities; the failing health of his father; and the sudden death of his mother.
3. The difficulty for the applicant, in terms of making out the reason, is that he bears the onus. In this particular matter, the applicant has not brought sufficient evidence to support the finding, that could buttress a finding by this Commission that he was suffering from a medical condition that would render him unable to seek advice and to also file an application, prepare and file an application for unfair dismissal for some 1,186 days.
4. In fact, the evidence points to the opposite, the applicant, in August of 2022, the applicant reached out to the Law Society seeking support in terms of challenging his dismissal. In those circumstances, I find that the onus borne by the applicant to make out the reason and support for the non-filing of his application within the stipulated 21 days has not been made out.

1. The next ground that is pressed by the applicant is that of hardship. In terms of hardship, the submissions of the applicant are effectively that his current position is quite difficult. He is a 60 year old engineer. I take that to mean that the applicant is in financial difficulty as a result of being unable to find alternative employment. He says also he raises the impact of his health, without pointing to any medical evidence as to how that is affected, nor did he make anything other than a submission that there is a massive impact on his confidence.
2. These are submissions, effectively, that have been made from the bar table. In terms of hardship, I find that the onus has not been made out beyond the level of financial hardship that is occasioned by all persons or most persons who are dismissed.

1. The applicant has made some submissions about conduct of particular employees of the respondent prior to the dismissal. As noted in the submissions of the respondent, the actions need to be actions of the respondent relating to the dismissal. Those actions that the applicant raises are unrelated to his dismissal. In those circumstances, I find that there is nothing under the matter of conduct of the employer which would have, as Commissioner Murphy found in McDonald, to have any role to play in terms of the failure of the applicant to file his application within 21 days.

(1) That the application made by the applicant to extend time pursuant to subs 85(3) to accept his application is refused.

(2) The application pursuant to s 84 of the Act filed by the applicant is dismissed.