Industrial Relations Commission New South Wales Medium Neutral Citation: Magenta Star Highfield v Health Secretary in respect of Northern New South Wales Local Health District [2022] NSWIRComm 1018 Hearing dates: On the papers Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The Commission declines to accept the Application for Relief in Relation to Unfair Dismissal out of time Legislation Cited: Industrial Relations Act 1996 (NSW) Category: Procedural rulings Parties: Magenta Star Highfield (Applicant) Health Secretary in respect of Northern New South Wales Local Health District (Respondent) Representation: Solicitors: Michael Vassili (Applicant) Bartier Perry (Respondent) File Number(s): 2021/296607 Publication restriction: Nil decision 1. This is an application pursuant to section 83(3) of the Industrial Relations Act 1996 (NSW) for the Commission to exercise a discretion to allow the late filing of an application that the dismissal of the applicant was unfair. 2. The applicant was dismissed from her employment with the respondent by letter dated 27 July 2021. The letter stated that the termination took effect on the date of the letter. 3. An application pursuant to section 84 of the Act was filed on 8 October 2021. 4. The respondent objected to the Commission accepting the application, as the application was filed more than 21 days after the employee was dismissed. 5. The respondent did not object to conciliation taking place prior to consideration of the jurisdiction. Conciliation was attempted on 5 and 11 November 2021, but this was not successful. 6. On 11 November 2021, orders were made for the filing of witness statements and submissions in respect of the application for the late acceptance of the substantive application. A decision was to be made on the papers, subject to any submission of the parties. No party sought to make oral submissions. Legal issues 1. Section s 85 of the Act prescribes the time for making applications for relief from an unfair dismissal. An application is to be made within 21 days of the date of dismissal, with two exceptions provided. In this case only subsection 85(3) is relevant. 2. Subsection 85(3) provides: (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. 1. The parties agreed that the onus to establish a "sufficient reason" is borne by the applicant. The parties also agreed that the Act does not prescribe what constitutes a sufficient reason, and accordingly the Commission must balance a range of considerations, which will differ from case to case. 2. The parties did agree, as is obvious from the wording of the section, that consideration must be given to the matters set out in each of paragraphs (a), (b) and (c). 3. The applicant submitted that to find a sufficient reason, it is not necessary that all three paragraphs of subsection (3) be enlivened. In my view, a sufficient reason may arise from the matters referred to in any one of paragraphs (a), (b) and (c), a combination of them or otherwise. It may indeed be a balance between factors for and against the exercise of discretion from the totality of the matters referred to in paragraphs (a), (b) and (c) of subsection (3), with or without other factors. 4. The respondent emphasised that the limitation period "… is not an arbitrary cut-off date unrelated to the demands or welfare of society. Rather, it represents the legislature's judgement that the welfare of society is best served by causes of action being litigated within a limited period …". 5. The respondent also submitted, as I consider is evident from the wording of the subsection, that the prima facie position is '… that an application out of time is excluded and the applicant bears the positive burden of demonstrating that the justice of the case requires an extension." 6. In short, the Commission should have specific regard to the matters in each of the paragraphs of subsection (3) but should be guided by the overall justice of the case. The onus is on the applicant to persuade the Commission that its discretion should be exercised in her favour. Timeline 1. The applicant last worked for the respondent on 8 November 2020. 2. On 23 December 2020, the applicant's lawyer wrote to the respondent concerning a then existing investigation into allegations against the applicant and raising the prospect that an unfair dismissal claim could be made against the respondent if they terminated the employment of the applicant. 3. Both the Application for Relief and the Employer's Reply nominated 26 July 2021 as the date of termination. 4. Despite the parties apparently agreeing that the date of termination was 26 July 2021, it was undisputed that the respondent first sent the letter of termination to the applicant, by way of registered mail, on 3 August 2021. 5. The respondent also provided evidence that it emailed the applicant a copy of the letter of termination on 4 August 2021. 6. The respondent provided evidence that the letter of termination was delivered to its intended address on 5 August 2021. That address was the one on record for the applicant with the respondent's HR system. It was clear from the evidence that this address was the applicant's family home. At the time the letter was received, the applicant's mother was resident at that address, but the applicant was ordinarily resident in Queensland. 7. In the initial Application for Relief, the applicant described receiving the letter of termination from her mother, during a visit to her mother's home, in "early August". 8. In the evidence filed by the applicant in support of this application, the applicant described receiving the letter of termination from her mother, during a visit to her mother's home, in "mid-August". 9. In neither account was a specific date nominated. The applicant gave evidence that she opened the letter at the time she received it from her mother. 10. The applicant's written statements in support of this application outline her engaging her solicitor to respond to the letter of termination in "late September", but do not nominate a specific date. 11. On 8 October 2021 the applicant's application for relief in relation to unfair dismissal was filed in the Industrial Registry. 12. On 11 November 2021, following unsuccessful conciliation, orders were made which included a timetable for filing of evidence and submissions as to the Commission exercising its discretion to allow the late filing of the substantive application. This timetable included the applicant filing her material by 2 December 2021 and the respondent its material by 23 December 2021. 13. On 6 December 2021 the applicant's solicitor emailed the Commission to advise a "… slight slippage on behalf of the applicant's evidence …" and seeking an extension of time for the applicant to 7 December 2021. That day the Commission amended the timetable, giving the applicant until 7 December 2021 to file its material. 14. Under cover of a letter dated 8 December 2021, the applicant's witness statement and written submissions were sent to the Commission by express post. 15. On 17 January 2022, the respondent filed its evidence and submissions, which was the date the respondent's material was due following amendments to the timetable made by the Commission on 6 December 2021. 16. On 31 January 2022, the date any material in reply from the applicant was due, the solicitor for the applicant emailed the Commission advising "… there has been a slight slippage in the preparation of material …". The Commission was advised to anticipate receipt of the applicant's material in reply by 3 February 2022. The solicitor for the applicant also " … [asked that] no decision [be made] prior to 3 February 2022." 17. On 4 February 2022, the solicitor for the applicant emailed the registry in purported filing of the applicant's material in reply. That email copied in the solicitor for the respondent. The solicitor for the applicant was advised that filing by email was not at that time permitted, and further advised that the material was deemed by the Registry not to have been filed. 18. On 7 February 2022 material in reply on behalf of the applicant was filed with the Commission. 19. On 10 February 2022 a further two copies of the applicant's material in reply were received by the Commission. Consideration The applicant's reasons for late filing 1. The applicant advanced three substantive reasons for the delay in filing her application, being: 1. the circumstances of service of the notice of termination; 2. the interaction between the impact of the correspondence and a mental health condition she describes experiencing; and 3. that "… on being made aware of the relevant 21-day period, … [she] … immediately sought to instruct solicitors to prepare and lodge a suitable application for unfair dismissal …". Circumstance of the service of the notice of termination 1. Based on the evidence before the Commission, it is unclear when the applicant received notice of termination. The applicant described receipt of the notice as being in "early August" in the initial application for relief but changed this to "mid-August" in evidence filed in support of this application. 2. Assuming an effective termination date of 27 July 2021, on the basis of the earlier of those times it is likely that the applicant received notice of termination just before the expiry of the 21 day period. Based on the latter time it is more likely than not the 21-day period had already expired. 3. As set out in the timeline above, the respondent's evidence was that despite the letter being dated 27 July 2021, the letter was not sent to the applicant until 3 August 2021. There was evidence that the letter of termination was received at the applicant's mother's home, the intended address of the letter, on 5 August 2021. 4. Curiously, the respondent's evidence was that the letter was sent to the applicant by email on 4 August 2021, despite the respondent also giving evidence that the account to which it had been sent had been deactivated by the respondent nearly 2 weeks earlier on 25 July 2021. To the extent it is relevant, I find that based on the respondent's own evidence the applicant did not receive the letter of termination by email. 5. Neither party made any submissions directly as to the termination being effective on any specific date, although both parties appeared to proceed on the basis that the termination was effective on 26 July 2021. It is not obvious to me that this is in fact the effective date of termination. In the absence of a specific award or contractual provision I do not think that the respondent simply drafting a letter, which on its own evidence it did not send for a further 8 days, can be effective to terminate the applicant's employment. Some communication, or at least attempted communication, of that decision must be required to effect that termination. 6. Had the applicant promptly attended to filing her application for relief from unfair dismissal after receiving the letter of termination, whether in early August, or mid August, this factor would have weighed very strongly in favour of granting the applicant any necessary extension. 7. Even allowing a full 21 days after receipt by the applicant of the notice of termination could get the applicant, on a generous basis, no later date than approximately 15 September 2021. I do not consider that it is obvious or automatic, without further consideration of the specific issues, that an applicant would be granted that full period. 8. Given that the application was not made until 8 October 2021, the delays arising from the circumstances of service of the notice of termination are not an adequate reason for the Commission to exercise its discretion on this basis alone. The applicant's health 1. The applicant's evidence was that she has a diagnosed condition, Hypothalamic Pituitary Axis Dysregulation, which when faced with stressful or anxious situations beyond a certain point, causes her to respond by effectively refusing to deal with or address the issues causing that stress or anxiety. 2. The applicant's evidence was that, when laid on top of the investigation period, the circumstances in which the notice of termination was served on her, together with it being unexpected, was so stressful that she was medically unable to process or deal with the termination of her employment. 3. In support of this she attached to her witness statement a letter from Paula Gilding, in which Ms Gilding's letterhead describes herself as a psychotherapist and accredited mental health social worker. The letter is dated 3 October 2021 and is expressed to be in support of the applicant's late application. 4. The letter describes the applicant attending sessions with Ms Gilding in February and March 2021. It describes recommendations and a treatment plan involving various strategies which Ms Gilding recommended the applicant use in managing stress and anxiety. 5. Ms Gilding's letter refers to the applicant "[advising Ms Gilding] on 1 October 2021 that [the applicant had] been overwhelmed since 27 July 2021 due to being advised of her employment dismissal." The letter sets out in more detail the description the applicant gave to Ms Gilding of the stress and anxiety the applicant experienced, and the ways in which she had responded to that distress. 6. The letter describes the applicant " …[continuing] to experience Hypothalamic Pituitary Axis Dysregulation …", although it does not express this to be a diagnosis of Ms Gilding. It is not clear from the letter if this was simply a report from the applicant to Ms Gilding. 7. Nowhere in Ms Gilding's letter is there a clear statement by Ms Gilding that she or any other identified person has diagnosed the applicant with Hypothalamic Pituitary Axis Dysregulation. 8. I observe that both in the applicant's first submissions and witness statement in support of this interlocutory application, the applicant described Ms Gilding as a psychologist. In its submissions, the respondent took issue with Ms Gilding being described as a psychologist. In submissions and evidence in reply, the applicant described Ms Gilding as a psychotherapist, in accordance with the letterhead on Ms Gilding's letter. 9. I am unable to place any significant weight on the supporting letter from Ms Gilding in so far as it is produced as evidence that the applicant has a diagnosis of Hypothalamic Pituitary Axis Dysregulation or that this explains the delay in filing her substantive unfair dismissal application. There are several reasons, and in order from most to least significant they are: 1. No witness statement in this application was filed by Ms Gilding; 2. No evidence was provided to the Commission as to the qualifications of Ms Gilding to provide the assessment which is set out in the letter; 3. The letter does not specifically attest to Ms Gilding having diagnosed the applicant with Hypothalamic Pituitary Axis Dysregulation. Nor does it set out in sufficient detail the symptoms of Hypothalamic Pituitary Axis Dysregulation and how this would impact the ability of the applicant to have addressed the notice of termination promptly; and 4. The letter is unsigned, and incomplete as attached. In this respect I note that it refers to an annexure to the letter marked "A", but this annexure is not present in the copy attached to the witness statement of the applicant. 1. None of the matters set out in [52] should be taken as a reflection on Ms Gilding. They simply set out that the Commission was not provided this information. 2. Naturally, the applicant will have found being terminated from her employment distressing. However, nothing in the material filed with the Commission is sufficient to explain the period of at least 42 days between the applicant becoming aware of the termination of her employment and the filing of her unfair dismissal application. Promptly attended to filing after being made aware of the time limits 1. The applicant submits that she attended promptly to the filing of an unfair dismissal application on becoming aware of the existence of a 21 day time limit. 2. The applicant's evidence was that " … on or about late September 2021, I had a conference with my solicitors. I recall being advised to the effect of the time limit for the filing of the unfair dismissal application made 21 days from the date of dismissal." 3. Oddly, despite being represented by an Australian legal practitioner, the date of the meeting at which the applicant was advised by her solicitors of the time limits has not been specified. 4. Noting that 25 and 26 September 2021 were a Saturday and Sunday respectively, and taking any date before 25 September to be earlier than "late September", the meeting with the applicant's solicitor could on the applicant's evidence have been on 27, 28, 29, or 30 September. 5. At least 8, and possibly as many as 11, days pass from the day the applicant gives evidence that she consulted her solicitor before the unfair dismissal application is filed. 6. In addition to the formal aspects of the unfair dismissal application, such as the identifying details of the parties, the application filed on 8 October 2021 contained 4 short paragraphs as to the late filing, and approximately two thirds of a page as to the basis on which the dismissal was said to be unfair. As the applicant was represented, so the application was signed by her representative. The application was filed in the Industrial Registry by email in accordance with the then accepted practice. 7. No explanation was provided as to the at least 8-day gap between the applicant seeking legal advice and the filing of the unfair dismissal application. 8. This reason is accordingly not persuasive. Hardship to either party 1. The applicant submitted that she experienced hardship from a range of factors including: 1. the length of the investigation; 2. having to relocate interstate to find work; 3. being placed on the New South Wales Service Check Register; 4. the process of termination having impacted her mental health. 1. The applicant submitted that the respondent would suffer no prejudice as it had already conducted an investigation into the applicant and collated witness statements and documentary evidence in that process on which it would rely on at any hearing. 2. The respondent submitted that any hardship experienced by the applicant was no greater than that experienced by any employee who has their employment terminated. 3. On balance this factor marginally favours the applicant, but it is insufficient to overcome the excessive delay in filing her unfair dismissal application. Prospects of the claim succeeding 1. The applicant submitted that it could not be said that her application has no or minimal prospects of success. She referred to the "extraordinarily long investigative process" which on the facts agreed between the parties was in excess of 9 months. She also referred to her previous record and lack of disciplinary issues. 2. The respondent described the investigative process as thorough and submitted that it had resulted in substantiating 6 allegations. 3. On the material available at this early stage of the unfair dismissal claim, the respondent has a strong claim to have conducted a procedurally fair termination. 4. Against that is the absolute denial by the applicant of the facts which form the basis of the reasons for the respondent terminating the employment of the applicant. As the respondent bears the onus of proving that these events actually occurred, I agree with the applicant's submission that it cannot be said she has no or minimal prospects of success. 5. In totality, on the material available at this early stage this is not a matter in which either party has a clearly stronger case. 6. Given that the applicant took at least 6 weeks after she learnt of the termination of her employment to file an unfair dismissal application, for the prospects of the application succeeding to be a factor in her favour I would have needed to be persuaded that the applicant had at least a strong prospect of success. Conduct of the employer 1. The applicant rightly points to the circumstances in which she was served with the notice of the termination of her employment. There is no way that the respondent can seriously claim that it effected service of the notice of termination on the applicant satisfactorily. 2. As I have already noted, 8 days elapsed between the respondent purportedly effecting the termination and the respondent sending the letter which effected that termination. 3. As I have also already noted, had the applicant expeditiously submitted her unfair dismissal application upon receiving notice of the termination of her employment I would have readily exercised the Commission's discretion to allow the late filing of her application. 4. Unfortunately, the applicant did not expeditiously file an unfair dismissal application on receiving the notice of termination of her employment. 5. In the circumstances, the conduct of the employer has been effectively cured by the grossly excessive delay of the applicant in filing her unfair dismissal application. Other factors 1. I wish to note a small number of other factors which I consider reinforce the foregoing conclusions. 2. Most important of these factors is that the applicant's witness statements and submissions in support of her application for late filing, and her material in reply to the respondent's submissions, were themselves filed after the time set by the Commission. They were indeed later even than the time advised by the applicant's solicitor when seeking the indulgence of the Commission to file the respective documents later than the time set down by the Commission. 3. Neither of the witness statements filed as the applicant's evidence were signed as is usual for evidence given by witness statements in the Commission. This is despite the applicant's solicitor observing that the documents were unsigned and advising the Commission that signed statements in the same form would subsequently be filed. 4. The applicant's witness statement and submissions filed as primary submissions in support of her late application identified Ms Gilding as a psychologist, when the document filed from Ms Gilding clearly identified her as a psychotherapist. 5. The initial unfair dismissal application identified early August was identified as the time at which the applicant received the letter advising the termination of employment, and yet in giving evidence in support of her late application this was stated to have been mid-August. No explanation was provided for the difference. 6. In combination these four factors, while falling short of a basis to make an adverse finding against the credit of the applicant as a witness, do demonstrate a basis to conclude a lack of concern by the applicant to treat these proceedings with proper gravity. 7. This conclusion has not formed the fundamental basis for this decision. However, it does reinforce that the conclusion I have reached is the correct one. Outcome 1. Individually, no single factor strongly favoured the Commission exercising its discretion to allow the late application to proceed. 2. The totality of all the factors strongly favours the Commission declining to exercise its discretion to allow the late application to proceed. Decision 1. The Commission declines to accept the Application for Relief in Relation to Unfair Dismissal out of time. ********** Amendments 30 March 2022 - Coversheet amended. 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: 30 March 2022