Wang v Health Secretary in respect of Sydney Local Health District

Background

1. The Applicant was employed by the respondent from 8 September 2008 to 19 January 2022 (about 13 and a half years).
2. The respondent dismissed the applicant from her employment because she did comply with: 1. Public Health (COVID-19 Vaccination of Health Care Workers) Order (No. 3) 2021 and its predecessor Public Health Orders; and 2. The Health Secretary's Determination 33 of 2021 dated 12 November 2021 (Determination) under s 116A of the Health Services Act 1997 (NSW) (the HS Act), which made vaccination against COVID-19 a condition of employment in the NSW Health Service (collectively, the Vaccination Requirements)
3. At the time of termination, the applicant held the substantive position of Assistant Accountant at Royal Prince Alfred (RPA) Hospital of Sydney Local Health District (SLHD) in the classification of Health Manager Level 1.
4. The applicant was employed by the Government of New South Wales in the service of the Crown as part of the New South Wales Health Service (NSW Health Service) (sections 115 and 116 of the HS Act). The Respondent is a 'public health organisation' pursuant to s 7 of the HS Act.
5. The applicant was employed as an Assistant Accountant and worked in the provision of a 'health service' pursuant to the HS Act.
6. It follows the applicant was a 'health care worker' within the meaning of Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PH Order 1) which applied from 26 August 2021 to 22 October 2021 and Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (No. 2) (PH Order 2) which applied from 22 October 2021 to 23 December 2021; and was also a 'stage 1 health care worker' within the meaning of Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (No. 3) (PH Order 3) and Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (No. 4) (PH Order 4).
7. The applicant had not complied with the COVID-19 Vaccination Requirements set out in the PH Orders; was unable to lawfully perform any work for the respondent because the applicant had not complied with her obligations as a 'health care worker' under the PH Order and has been unable to do so since 30 September 2021 (when the first vaccine dose was due). Further, the applicant did not satisfy the requirements of the Determination and was not able to be employed or remain employed by the respondent because the applicant did not meet the mandatory condition of employment.

Onus on Applicant

1. The prima facie position is that an application brought out of time is excluded by subs 85 (1) of the Act.
2. The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application.
3. In order to determine if sufficient reason exists for the Commission to exercise its discretion to accept the application out of time, the Commission must consider the matters set out in subsections (a) to (c) of subs 85 (3) of the Act. I turn to consider these elements in the context of this matter.

Reason for, and the length of, the delay in making the application

1. The application is brought 153 days (about 5 months) out of time. In the context of the statutory requirement to lodge the unfair dismissal application within 21 days, the delay is not trivial.
2. In respect of the reasons for the delay, the applicant stated in the application: ''I forwarded the termination letter to HSU immediately following termination for advice and act on my behalf but I was not advised of the need for lodging an application nor the deadline to lodge such an application."
3. Further, in the applicant's statement filed on 2 August 2022 (at para 2.12-3), she stated: "I forwarded the Termination Letter to HSU on 19/01/22 immediately following the termination for advice and to act on my behalf, during the consultation there had been no advice provided as to the need for lodging an application for unfair dismissal nor the deadline for lodging such an application."
4. Further, under the heading "Summary" in the applicant's statement filed 2 August 2022, she stated: "HSU which I reasonably expected them to provide me proper advice on the matter was also not helpful due to its inactivity, rather it seemed to hinder my entitlement, they should advise and provide me a chance to do my choice, rather than their assertives (sic) and making decisions for me."
5. The applicant annexed incomplete email exchanges between herself and representatives of the Health Services Union of NSW (HSU) being Ms Chelsea Barker (Assistant Industrial Officer); Ms Jeanette Frost (Industrial Services Officer) and Ms Josephine Zammit (Industrial Services Officer).
6. The applicant's evidence demonstrates that when she first approached the HSU with a copy of the termination letter dated 19 January 2022, she was advised " ...the Union decided not to run an unfair dismissal claim on your behalf''. This was subsequently confirmed in an email from Ms Barker to the applicant on 24 March 2022 (64 days after the termination of her employment) when Ms Barker wrote: "This email serves as a final correspondence and summary of our advice.
7. The email then went on to state: "….. As the HSU has not received any evidence of a valid medical exemption to support your unfair dismissal claim, it is not likely to be successful. For that reason, the Union decided not to run an unfair dismissal claim on your behalf. This was communicated to you by myself and another Industrial Officer on several occasions when you first approached the Union with your termination. … With this correspondence, I have closed the active case notes you have with the HSU regarding bullying and unfair dismissal."
8. The applicant's evidence demonstrates she was advised by the HSU shortly following her termination from respondent to "seek alternative advice or make an application yourself. This was iterated to you on multiple occasions shortly following your termination."
9. The applicant gave evidence that after she received the email of 24 March 2022 and before she contacted the HSU again on 14 June 2022, she approached several lawyers and conducted her own research in respect of the process for lodging an unfair dismissal process. Her evidence was to the effect that she understood through those enquiries that her application was already out of time.
10. On 14 June 2022, the applicant wrote to Ms Barker of the HSU in the following terms: "Hi Chelsea, I was not given any advice on the need for a claim for dismissal nor the urgent deadline of lodging such a claim, I forwarded you the Termination Letter immediately following the termination, and you firstly came to me in Mar-22 after my multiple follow-ups with the mere advice that the employer did right in absence of a valid contraindication, then kept convincing me of your this opinion during our later discussions, again please clarify with me in the termination is valid when the employee is on sick leaves regardless of vaccination." (quoted as appears in the evidence)
11. On 14 June 2022, in response to the email sent by the applicant to Ms Barker of the HSU, the applicant was provided with a weblink to further information on unfair dismissals.
12. The applicant's own evidence clearly demonstrated that she was aware of an "urgent deadline of lodging such a claim" when she emailed Ms Barker on 14 June 2022. However, she still waited a further 27 days to file her application on 11 July 2022.
13. During the hearing, the applicant was provided with an opportunity to explain why she did not act quickly once she did learn of the time limitations on unfair dismissal matters to lodge her application. Although there were aspects of her evidence in this regard that were inconsistent, she gave evidence and submissions to the effect that: 1. She tried to get a lawyer but none would take her case for reasons including that she was out of time. 2. She conducted her own research and she found it confusing where to lodge the application. 3. She was also hunting for a job. 4. She found dealing with the matter to be stressful. 5. She has a health condition impacting upon her during the relevant times.
14. The applicant said that she "tried her best."
15. It is relevant that the applicant is self-represented and therefore may not have been aware of the time within which she needed to lodge her application at the outset of her termination. I must observe that it seems highly improbable that she was not advised prior to 24 March 2022 that there was a requirement to lodge her unfair dismissal application within 21 days of her termination, given her access to both the Union and a lawyer assisting her with a workers compensation claim. However, even on her own evidence, she became aware of the time limit at a time between 24 March and 14 June 2022.
16. The explanations provided by the applicant with respect to the reasons she did not act quickly to lodge the application once she learned of the time limit are inadequate. The applicant did not rely upon or produce any evidence to support her assertion that she had a medical condition impacting upon her capacity to lodge the application in a timely fashion. The applicant was given an opportunity to do so, right up until the time that she was delivering her final submissions before this Commission.
17. The fact that the applicant was job hunting and found the process stressful is not an adequate explanation, particularly given the length of time that elapsed between the applicant learning the HSU would not take on her matter and when she ultimately lodged the application.

Any hardship that may be caused to the applicant or the employer if the application is or is not rejected

1. The applicant expressed that the hardship she will experience if the application is not accepted is that she will not get an opportunity to have her matter heard. She will effectively be denied the opportunity to have her matter determined. In my view this is relevant, and I have given it weight in my decision-making.
2. However, while it is not appropriate or possible to determine the merits of the applicant's claim at this stage of the proceedings, it the context of considering the prejudice the dismissal of the application will have on the applicant, I observe that she faces significant challenges in arguing that her dismissal was unfair.
3. On the other hand, I observe that there no evidence to suggest that the respondent will be prejudiced by the delay in terms of their capacity to respond to the case through evidence and submissions. However, it is important to note that as a general proposition, where a time limitation exists within which to bring a claim, a party who might be a respondent to that claim is entitled to regard themselves as free from suit once the time limit has passed: Katsantonis v Inner West Council [2017] NSWIRComm 1015 at 34.

The conduct of the employer relating to the dismissal

1. The 'conduct of the employer' within the meaning of subs 85 (3)(c) of the Act is the conduct of the employer so far as it might be relevant to the delay in the applicant filing her application pursuant to s 84 of the Act. This subsection does not invite - or allow - an exercise of discretion in favour of an application for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Green v Mayne Nickless t/as Armagudrd (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998); Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. Even if the egregiousness of the decision were relevant, I have not been able to find any credible evidence to support this at this preliminary stage of the matter.
2. The applicant has not asserted that the respondent contributed to the delay in her submitting her application. Accordingly, I find that this factor is neutral. It does not assist the applicant in her application before me.

Conclusion

1. The law as to the approach to the exercise of the discretion under subs 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 Frauds 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'."
2. Having carefully considered all of the factual material available to the Commission, I have decided that the applicant has not discharged her onus to persuade the Commission that it is in the interest of justice to admit her application out of time.
3. As concluded in A v B [2021] NSWIRComm 1058 at [131]: "Parliament has chosen to condition the discretion to extend the time for making an application. A 'sufficient reason' has been mandated. That said, it must follow that Parliament has legislated on the basis that the employee who is aggrieved at being dismissed is expected to seek out information on any available remedy in a timely fashion such that any delay on account of ignorance of the statutory time limit is not, of itself, a 'sufficient reason'."
4. I have given consideration to the applicant's reasons for delay, the length of that delay, the conduct of the respondent relating to the dismissal and all of the evidence and written submissions before the Commission relevant to the consideration of this application. I have also considered the applicant's claims about the respondent's conduct in her application.
5. In the circumstances of this case, I am satisfied that when considered as a whole, with due regard to the balance of prejudice or hardship between both parties, there is insufficient reason to warrant the exercise of the Commission's discretion pursuant to subs 85(3) of the Act in favour of accepting the application lodged out of time.

Orders

1. I make the following orders: 1. The application made by the applicant pursuant to s 85 of the Act that the Commission accept the application pursuant to s 84 of the Act out of time is refused. 2. The application made by the applicant pursuant to s 84 of the Act is dismissed for reason that it is not brought within time.

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: 08 September 2022