Vijayaratnam v. New South Wales Department of Education and Training [2010] NSWIRComm 1034

CATCHWORDS: termination of employment - teaching service - claim of unfair dismissal - claim lodged out-of-time - discretion to admit out-of-time application considered - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996 Teaching Service Act 1980

Bond v. Director-General of Education and Training [2008] NSWIRComm 1131 Brady v. Kennedy, trading as 'Sardines' (1999) 91 IR 258 Brodie-Hanns v. MTV Publishing Limited (1995) 67 IR 298 Burns v. Grigg (1967) VR 871 Director-General of Education and Training v. Bond [2009] CASES CITED: Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 Mitchelson v. Mitchelson (1979) 24 ALR 522 Sebastian v. Road and Traffic Authority of New South Wales (1995) 62 IR 190 Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Waine v. BHP Steel - unreported Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 119 NSWIRComm 40

APPLICANT unrepresented LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Shoba Vijayaratnam v. New South Wales Department of Education and Training

Application under S.84 of the Industrial Relations Act, 1996

1 Mrs Shoba Vijayaratnam was employed by the New South Wales Department of Education and Training as a probationary physics and science teacher at the Ryde High School. On Tuesday, 29 January, 2008 she had been appointed as a retrain teacher in science at the school. She was placed on an induction programme for probationary teachers when certain performance issues arose in her employment and on Monday, 8 September, 2008 she was placed on a teacher improvement program [TIP] which commenced on Monday, 22 September, 2008 and concluded on Wednesday, 17 December, 2008. It was the view of the Department that Mrs Vijayaratnam did not meet the appropriate teaching standard and the recommendation was made (on Tuesday, 31 March, 2009) that her appointment be annulled.

2 On Tuesday, 7 April, 2009 Mrs Vijayaratnam wrote seeking a review of the decision to annul her appointment but on Thursday, 23 July, 2009 she was informed that the Department was still considering the annulment of her appointment and adding her name to the confidential list of persons not to be employed in New South Wales government schools - the "Not To Be Employed" list [NTBE]. A further response from Mrs Vijayaratnam was provided on Monday, 24 August, 2009. But on Monday, 26 October, 2009 Ms Jane Thorpe, the Director of the Employee Performance and Conduct Directorate of the Department, wrote to her annulling her appointment and placing her in the NTBE list, viz:

"....I have decided to proceed with the annulment of your appointment. Pursuant to S.48(2) of the Teaching Service Act, 1980, I hereby annul your appointment. Furthermore, pursuant to S.48(3), you will cease to be employed as an officer in the New South Wales education teaching service effective from the date of receipt of this letter.

I wish to advise that your name will be placed on the confidential list of persons not to be employed in New South Wales government schools or TAFE colleges. This list is a confidential document regularly circulated to government school principals and TAFE institute directors. The reason for the inclusion of a name on the list is not indicated. Those whose names are on the list are ineligible for employment in any paid or voluntary capacity in the Department. A review of this decision to place your name on the list may be sought at any time by application to the Director, Staffing Services..." That letter was delivered to Mrs Vijayaratnam at a meeting on Monday, 2 November, 2010.

3 The letter is therefore in two parts: (i) the annulment of Mrs Vijayaratnam's appointment, ie her dismissal, and (ii) her placement on the NTBE list. The placement of a teacher's name on the NTBE list is, in my opinion, tantamount to a dismissal (or a constructive dismissal) on its own - see, for instance, my unreported preliminary decision of Thursday, 18 December, 2008 in Bond v. Director-General of Education and Training [Matter No.IRC 1024 of 2008], confirmed by the Full Bench of the Commission (Kavanagh and Staff JJ and Bishop C) in its decision of Thursday, 26 March, 2009 in Director-General of Education and Training v. Bond [Matter No.IRC 2423 of 2008]. Nevertheless, Ms Thorpe's letter also clearly confirms Mrs Vijaratnam's dismissal with the annulment of her appointment.

4 Mrs Vijayaratnam lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, claiming that the annulment of her appointment as a teacher was unfair and she has sought her reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof. But she did not do so until Friday, 19 March, 2010, ie ostensibly substantially outside the 21 day time limit prescribed by S.85(1) - a point taken by the Department to support its argument that that Mrs Vijayaratnam's Part 6 is beyond jurisdiction.

5 In her Part 6 application Mrs Vijayaratnam recorded that the date of her dismissal and the last day she actually worked for the Department was Monday, 2 November, 2009 - the day that the letter from Ms Thorpe was delivered to her by Ms Dail McGilchrist, the relieving school education director for the Lane Cove Network of the Department. However, she has now asserted that her services as a teacher were actually only finally terminated on Tuesday, 9 March, 2010 and therefore her Part 6 application is still within time. In any event, pursuant to S.85(3) it remains a matter which goes to the discretion of the Commission whether an out-of-time Part 6 application should be permitted to go forward to hearing.

6 Mrs Vijayaratnam's Part 6 application was allocated to Ritchie C for conciliation on Friday, 16 April, 2010. Conciliation was unsuccessful and the file was allocated to me for arbitration on threshold issues of jurisdiction, ie to determine whether Mrs Vijayaratnam's Part 6 application is out-of-time and, if so, whether I should exercise my discretion to permit it to go forward to hearing. That matter was set down for hearing for that purpose on Friday, 18 June, 2010. Mrs Vijayaratnam was unrepresented in the hearing but she gave evidence under oath. Ms Brus represented the Department in the hearing, calling two witnesses for these preliminary proceedings: Ms McGilchrist and Ms Jennifer Martin, a client liaison officer for the Department.

Was Mrs Vijayaratnam's Part 6 Application Out-of-Time?

7 As I indicated earlier in this decision, a time limit - 21 days - is imposed on the lodging of applications over unfair dismissals. S.85(1) provides as follows:

"Any application under this Part must be made not later than 21 days after the dismissal."

8 There is a considerable body of correspondence from Mrs Vijayaratnam to the Department requesting a review of her position and seeking that her name be removed from the NTBE list but for present purposes it is sufficient to say that Mrs Vijayaratnam wrote to the Department on Thursday, 18 February, 2010 requesting a further appeal concerning her teaching position. The Department's response in a letter dated Tuesday, 9 March, 2010 to Mrs Vijayaratnam was as follows:

"....Due to the recency of your unresolved efficiency matters, I advise that your request to be granted a teaching approval with the Department is declined. This means you are not authorised to work as a teacher in New South Wales government schools and that any claim for payment that you might submit will not be paid..."

However, whilst Mrs Vijayaratnam was to remain on the NTBE list, an offer the Department had already made to her that she may apply for administrative and clerical positions in the Department was confirmed.

9 Mrs Vijayaratnam has relied on that correspondence from the Department as the effective date for the termination of her services and therefore, she argues that her Part 6 application, lodged on Friday, 19 March, 2010 - ten days later - is within the time limits imposed by S.85(1). That is an unsustainable submission, in my opinion. In her Part 6 application Mrs Vijayaratnam appears to have acknowledged that the actual date of the termination of her services was Monday, 2 November, 2009 when she was handed the letter annulling her appointment as a teacher in unambiguous terms. That is the date she recorded in the relevant space in the Part 6 application. Mrs Vijayaratnam suggested in her evidence in the hearing that she accepted that Monday, 2 November, 2009 was the date she was threatened with dismissal but from that date she was taken off the payroll and has performed no more teaching work for the Department. I do not believe that she can categorise what happened to her on Monday, 2 November, 2009 as merely a threat that she was to be dismissed.

10 The correspondence that she has provided to the Department since Monday, 2 November, 2009 sought a review of the decision to place her on the NTBE list that the Department had already taken and communicated to her. As Ms Brus submitted in the hearing, the review was confined to Mrs Vijayaratnam's placement on the NTBE list alone. The decision to annul her appointment was not subject to any ongoing review. The letter dated Tuesday, 9 March, 2010 which the Department forwarded to Mrs Vijayaratnam was confirmation of her continued placement on the NTBE list. It did not have the status of an actual termination of her services: that is something that occurred from Monday, 2 November, 2009. Therefore Mrs Vijaratnam's Part 6 application is substantially out-of-time - over four months.

Should Mrs Vijaratnam's Part 6 Application Proceed to Hearing on its Merits?

11 Under S.85(3) I hold a discretion to accept an out-of-time Part 6 application if I consider that there is sufficient reasons for doing so. In determining whether there is sufficient reason to hear an out-of-time Part 6 application, S.85(3) directs me to have regard to a number of specific matters: (i) the reason for, and the length of, the delay, (ii) any hardship that may be caused to the applicant if the claim is denied or the employer if it is progressed and (iii) the conduct of the employer. 12 All relevant considerations should be taken into account in determining whether to grant an application out of time to proceed but the prima facie position is that there should be compliance with the time limit imposed [Brodie-Hanns v. MTV Publishing Limited (1995) 67 IR 298]. As Walton J - Vice President of the Commission indicated in Brady v. Kennedy, trading as 'Sardines' (1999) 91 IR 258 at p.272:

"....There is a public interest in the prompt institution and prosecution of litigation. The discretion of the Commission to extend time to appeal should not be exercised lightly or automatically, although it should be carried out in a manner which does justice between the parties..."

13 The question therefore is whether I should exercise my discretion under S.85(3) to permit Mrs Vijaratnam's Part 6 application to go forward to hearing on its merits. As I see the situation, the determination of that issue turns to a large extent on what actually occurred at the meeting Ms McGilchrist had with her on Monday, 2 November, 2009 when she handed over Ms Thorpe's letter of Monday, 26 October, 2009 annulling her appointment and placing her on the NTBE list. The letter suggests a review of the decision to place Mrs Vijaratnam's name on the NTBE list may be sought by application to the Director of Staffing Services of the Department. It makes no mention of any action under Part 6. That was confirmed by Ms McGilchrist who, according to Mrs Vijaratnam, said:

"You can write to the Director of Staffing Services showing your strengths and get your name removed from the list of persons not to be employed."

And further Mrs Vijayaratnam asserted that Ms McGilchrist advised her to write to the Director of Staffing first. Ms Martin, who attended the meeting as Mrs Vijayratnam's support officer, together with another support person (Ms Carol Howard, who is a representative of the Teachers Federation of New South Wales) also allegedly advised her in those terms:

14 Neither Ms McGilchrist nor Ms Martin recall Mrs Vijayaratnam raising the prospect of proceeding before the Commission during the meeting and Ms McGilchrist and Ms Martin denied that she had encouraged Mrs Vijayaratnam to write any letter to the Director of Staffing to have her name removed from the NTBE list as an alternative, and preliminary step, to commencing proceedings in the Commission. Ms McGilchrist claimed in her evidence that she was only in the meeting briefly - no more than ten minutes - and certainly not sufficient time to make the comments which Mrs Vijayaratnam attributes to her. She left the meeting to permit Ms Martin and Ms Howard to assist Mrs Vijayaratnam, who understandably was somewhat emotional at the time. 15 Ms Martin recalls Mrs Vijayaratnam asking about the prospect of administrative and clerical work. Ms Martin responded to that enquiry by informing Ms Vijayaratnam that she would need to apply for such work and such application would be considered on its merits. Ms Martin cannot recall Mrs Vijayatnam speaking at anytime about the prospect of proceeding before the Commission and she denied that she informed Mrs Vijayaratnam not to proceed before the Commission until she had made application to the Director of Staffing Services.

16 Ms Martin did leave the meeting briefly to obtain a cab-charge docket to permit Mrs Vijayaratnam to go home after the meeting - an offer which Mrs Vijayaratnam declined. But in the written statement which Mrs Vijayaratnam provided to support her evidence, she claimed that they - meaning Ms Martin and Ms Howard together - told her to write to the Director of Staffing before she proceeded before the Commission. It was not just one of her support persons alone whom she alleges gave that advice.

17 I accept the evidence of Ms McGilchrist and Ms Martin on this issue. No doubt the meeting was a very stressful one for Mrs Vijaratnam and I believe that she is simply mistaken in her belief that she was being advised by Ms McGilchrist, Ms Martin or Ms Howard not to proceed with a Part 6 application at that time. The evidence before me does not support such a claim, in my opinion.

18 As I indicated in my unreported preliminary decision of Wednesday, 12 November, 2008 in Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [Matter No.IRC 1409 of 2008 at p.5]

"...The rights of employees to pursue claims for unfair dismissal, and the 21 day time limit for such claims, have been a feature of the industrial landscape for at least seventeen years. I would therefore expect that by this time the general nature of the unfair dismissal regime would be common knowledge. But the legal maxim ignorantia juris quod quisque scire tenetur non excusat (ie ignorance is no defence) has not been accepted as a factor in the Part 6 jurisdiction [ Hurrell v. Queensland Cotton Corporation Limited (2003) 125 IR 145 at p.148.

That having been said, I would still regard, as the prima facie position, that Part 6 applicants be obliged to follow the 21 day time limit prescribed by S.85(1): it is a clear instruction of the legislature that such a time limit be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [ Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. Otherwise the time limit in S.85(1) would be meaningless..."

I do not believe that Mrs Vijayaratnam has established any good reason for her delay in proceeding with her Part 6 application. 19 Also in my unreported decision of Monday, 8 October, 2001 in Waine v. BHP Steel [Matter No.IRC 3138 of 2001] I commented on an out of time Part 6 application (at p.4) that:

"…whilst it is not specifically referred to in S.85(3), it seems to me that one of the factors which I must take into account in determining whether or not to exercise my discretion and admit an out of time Part 6 application, is the prospect of such a Part 6 application ultimately succeeding if it is considered on its merits. That is a common approach by courts and tribunals [ Burns v. Grigg (1967) VR 871 at p.872 and Mitchelson v. Mitchelson (1979) 24 ALR 522 at p.524]. Essentially, if an out of time Part 6 applicant is unlikely to succeed, it goes without saying that to refuse his claim will not, in fact, constitute the type of hardship to the dismissed employee referred to in S.85(3). It would do nothing more than delay the inevitable and (avoid) considerable cost and inconvenience to both parties…"

More authoritatively, I also note in that respect comments of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and McKenna C) in Hurrell v. Queensland Cotton Corporation Limited (at pp.151 and 152):

"...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 Traffic Authority of New South Wales (1995) 62 IR 190 at pp.193 to 194. 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..."

20 I would not wish to reach any definitive conclusion with respect to the merits of Mrs Vijayaratnam's Part 6 application but I note that the decision to annul her appointment and placement on the NTBE list was taken following Mrs Vijayaratnam's unsuccessful completion of a TIP. In those circumstances, it is doubtful that any good purpose would be served for her Part 6 application to go forward to hearing.

21 In those circumstances, I do not believe that Mrs Vijayaratnam has established any reasons to support her claim that I should exercise the discretion I hold under S.85(3) to permit her Part 6 application to go forward to hearing. I dismiss Mrs Vijayaratnam's Part 6 application.

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