Muller v Secretary, Department of Education [2022] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Muller v Secretary, Department of Education [2022] NSWIRComm 1022 Hearing dates: 31 March 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application accepted out of time Catchwords: UNFAIR DISMISSAL – application filed out of time – similar application filed under Commonwealth law and withdrawn – sufficient reason to accept application filed out of time. Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Michelle Muller (Applicant)

Secretary, Department of Education (Respondent) Representation: The Applicant represented herself

Ms L Shanahan, Legal Practitioner, Kingston Reid (Respondent) File Number(s): 2022/00072733 Publication restriction: Nil

EX TEMPORE decision 1. Before the Commission is an unfair dismissal application by Michelle Muller, formerly employed as a mathematics teacher at the Young High School. Ms Muller was dismissed from her employment with effect from 11 January 2022 on the basis of sustained allegations of misconduct, being: 1. Failing to comply with the directions issued by Ms Yvette Cachia, Chief People Officer, on 22 October 2021 and 1 November 2021 to "show your principal a copy of your vaccination evidence by 8 November 2021. 2. Failing to meet the conditions of your employment as set out in the determination made by Ms Georgina Harrison, Secretary Department of Education, on 18 October 2021, that an employee must provide either (a) vaccination evidence or (b) a medical contraindication certificate. 1. Ms Muller's unfair dismissal application was filed in this Commission on 1 March 2022, 28 days outside the 21 day time limit provided by s 85 of the Industrial Relations Act 1996. However, prior to that, on 27 January 2022, Ms Muller filed a similar application in the Fair Work Commission and that was within the time specified under the Fair Work Act 2009 (Cth). She was subsequently notified on a number of occasions in February 2022 that there were jurisdictional issues concerning her application in the Fair Work Commission which led her ultimately to file the application currently before this Commission on 1 March 2022. She did not withdraw her application in the Fair Work Commission until 23 March 2022. 2. Under ss 85(2) of the Industrial Relations Act, 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, under ss 85(2)(a) "the similar application was made within the time required by that Commonwealth law", I interpose to state that in this case that provision has been satisfied; and, under ss 85(2)(b) "the similar application has not been settled or determined", I interpose to state that that provision has also been satisfied; and, under ss 85(2)(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". As previously indicated, the application by Ms Muller in the Fair Work Commission was not withdrawn until 23 March 2022 which was some 22 days after she had filed her application in this jurisdiction. 3. Ms Shanahan, solicitor, who appeared for the respondent, the Secretary, Department of Education, has submitted that ss 85(2)(c) has not been satisfied because the application in the Fair Work Commission was withdrawn after Ms Muller had filed her application in this Commission, rather than not later than 21 days after the application in the Fair Work Commission had been withdrawn. 4. I disagree. The situation is that, if Ms Muller was to file an application in this Commission today, that application could be accepted by the Commission pursuant to ss 85(2). To dismiss the application that has been filed on 1 March this year, in light of the fact that an application filed today could be accepted, to me would be to accept an argument of form over substance, the sort of argument that this Commission has historically rejected. 5. If I am wrong about that, I am prepared to exercise the Commission's discretion to accept Ms Muller's application out of time pursuant to ss 85(3) of the Industrial Relations Act on the basis that there is sufficient reason to do so, having regard to: "(a) the reason for, and the length of, the delay in making the application", being, in this case, 28 days, which I do not regard as excessive on the basis that the respondent in this matter has been on notice, at least since 27 January 2022, that Ms Muller was contesting her dismissal: and "(b) "any hardship that may be caused to the applicant or the employer if the application is or is not rejected". 6. In this case it has been put that Ms Muller's application has little chance of success on the basis of the reasons for her dismissal. I note in that respect that, on the face of her application, Ms Muller is not seeking reinstatement or re-employment, but simply seeking compensation. If that be the case, then issues concerning the impact of public health orders or the condition of employment that has been determined by the Secretary of the Department of Health requiring employees to be vaccinated would not appear to arise. I am not prepared to say that a claim for compensation in the order of some $80,000 is, based on the face of the material before the Commission at the moment, so without merit as to not warrant the exercise of the Commission's discretion in favour of Ms Muller. 7. Subsection 85(3)(c), "the conduct of the employer relating to the dismissal" does not arise in this case. 8. So, on either ss 85(2) or ss 85(3) of the Industrial Relations Act, the unfair dismissal application filed by Ms Muller on 1 March 2022 is accepted out of time. 9. I so order. John Murphy Commissioner