Industrial Relations Commission New South Wales Medium Neutral Citation: Nyman v Secretary of the Department of Education [2022] NSWIRComm 1060 Hearing dates: Determined on the papers Date of orders: 28 July 2022 Decision date: 28 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Dismissal – Application for Public Sector Disciplinary Appeal – jurisdictional objections – whether appellant employed under a contract of employment for a specified period less than six months – whether application filed out of time Legislation Cited: Industrial Relations Act 1996 ss 97, 98, 100B Cases Cited: Beattie v Commonwealth Bank of Australia (2006) 155 IR 295; [2006] NSWIRComm 238 Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; [2015] NSWIRComm 8 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 Unuafe v Commissioner of Police [2015] NSWIRComm 1007 Texts Cited: Nil Category: Procedural rulings Parties: John Peter Nyman (Appellant) Secretary of the Department of Education (Respondent) Representation: John Nyman (Self-represented) A Britt of Counsel (Respondent) File Number(s): 2022/00142038 Publication restriction: No decision 1. On 13 May 2022 John Nyman filed an Application for Public Sector Disciplinary Appeal ("Application") pursuant to s 98 of the Industrial Relations Act 1996 ("Act"). In the Application, Mr Nyman described "the type of disciplinary decision being appealed against" as his dismissal as a teacher. He stated that his employment had commenced on 12 July 2021 and that the last day he had worked was 25 August 2021. He stated that he had received notice of "the decision being appealed against" on 21 April 2022. He sought reinstatement, his removal from the "Not to be Employed list" ("NTBE list"), a formal apology and compensation for lost income. 2. In her Employer's Response to the Application, the Secretary of the Department of Education ("Secretary") challenged the jurisdiction of the Commission to hear and determine the Application. She further set out the grounds on which she contended that the Application was otherwise without merit. 3. The matter came before me for conciliation on 2 June 2022. At that time, the Secretary agreed to attempt to negotiate a resolution to the proceedings, without prejudice to her rights to press her jurisdictional objections if no settlement could be reached. When it became clear that the matter was unlikely to be resolved through conciliation, and after conferring with the parties, I made directions to allow for the determination of the Secretary's objections. They were to the effect that the parties were to file and serve the evidence and submissions on which they wished to rely on the question of jurisdiction by particular dates, and that the Secretary's jurisdictional objections would subsequently be determined by me "on the papers". 4. In accordance with those directions, on 23 June 2022 the Secretary filed with the Industrial Registry an affidavit of Daryl Peter Currie, the Executive Director of the Professional and Ethical Standards directorate of the Department of Education, affirmed on 23 June 2022, and an outline of written submissions on the jurisdictional objections. 5. On 20 July 2022, the Industrial Registry received a letter from Peter Rogers, a Legal Officer in the Professional and Ethical Standards directorate, which stated in part: "By email dated 18 July 2022, the Applicant advised the Respondent that he does not intend to file submissions or evidence on the question of jurisdiction. Accordingly, I write to advise that the Respondent will not be filing any material in reply pursuant to Order 4." 1. I arranged for a member of staff in the Registry to make contact with Mr Nyman during the afternoon of 20 July 2022 to confirm his intentions. I was informed that Mr Nyman stated that "he will not be filing any further documents in the matter". Principles to apply 1. The principles to apply in determining the Objections have been set out in several decisions of the Commission. In Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; [2015] NSWIRComm 8 the Full Bench observed: "23. As the respondent submitted, in Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311, a Full Bench of the Commission, having referred to the approach in Nagle v Tilburg (1993) 51 IR 8 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, observed at 319: 'Thus, for the Commission to grant a motion seeking the preliminary dismissal of an application for an award for want of jurisdiction, the Commission would need to be satisfied that no relevant award or order could be made in the circumstances of the case. To paraphrase the approach in General Steel, there must be 'no possibility that there can be a good cause of action'. This is the criterion which must be satisfied for a motion seeking the preliminary dismissal of an application for want of jurisdiction to succeed. 24. That statement of the law needs no additional gloss." 1. See also Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 at [9] and Beattie v Commonwealth Bank of Australia (2006) 155 IR 295; [2006] NSWIRComm 238 at [28]-[31]. 2. Whether or not the Commission has jurisdiction in a particular matter is a conclusion which is to be formed at the ordinary level of persuasion, not at any heightened level of certainty: Unuafe v Commissioner of Police [2015] NSWIRComm 1007 at [11]. Relevant facts 1. To the extent that I consider his affidavit to be directly relevant to a determination of the Secretary's jurisdictional objections, Mr Currie deposed that: 1. on 13 July 2021 Mr Nyman commenced full-time teaching at Cowra High School, pursuant to a "Temporary Teacher Engagement Contract" which was stated to be for the period 12 July 2021 to 4 October 2021 inclusive; 2. on 24 August 2021 Mr Currie prepared a letter addressed to Mr Nyman. In that letter, Mr Currie stated that as a consequence of allegations that had been made regarding Mr Nyman's conduct, his employment as a temporary teacher at Cowra High School was to be terminated "effective from the date of receipt of this letter". The letter further stated that Mr Nyman's name was to be placed on the NTBE list pending the outcome of an investigation into the allegations against him; 3. he had seen correspondence which evidenced the fact that on 25 August 2021 Mr Nyman attended a meeting with the Principal of the Cowra High School during which he had been handed a copy of Mr Currie's letter of 24 August 2021 and had its terms read out to him; and 4. in a letter to Mr Nyman dated 17 April 2022 Mr Currie stated that he had determined to place Mr Nyman's name permanently on the NTBE list. Determination 1. The Secretary raises four grounds on which it is said that the Commission ought to dismiss the Application for want of jurisdiction. I am satisfied that two of them identify insurmountable obstacles for Mr Nyman. I will address those briefly below. I am less certain that the remaining grounds are properly made out, at least in so far as they challenge jurisdiction. However, in light of my other findings it is not necessary that those matters be traversed. 2. The Secretary contends that Mr Nyman is precluded by s 98(3)(a)(i) of the Act from bringing the Application. That section provides that an employee engaged under a contract of employment for "a specified period of time that is less than 6 months" cannot appeal to the Commission against an appealable decision. 3. The evidence before me is that Mr Nyman was working under a contract of employment for a specified period of slightly less than three months, namely 12 July 2021 to 4 October 2021. It follows that he has no right of appeal under s 98 of the Act. That is sufficient to dispose of the matter. 4. While it is not strictly necessary to do so, I will address the second of the Secretary's contentions, namely that the Application was filed out of time. Pursuant to s 100B(2) of the Act, notice of a disciplinary appeal must be lodged within 28 days after the employee is notified of the decision against which the appeal is to be made. 5. On the evidence, the decision to terminate Mr Nyman's employment was made on 24 August 2021. Mr Nyman was informed of that decision the following day. In his Application, Mr Nyman appears to acknowledge that his employment came to an end on 25 August 2021, as that is the date identified as being his "last day worked". The Application was filed nearly nine months later. 6. However, the Application states that Mr Nyman was informed of the "decision being appealed against" on 21 April 2022. It appears to me that Mr Nyman may be confusing the date on which he was notified of his dismissal with that on which he (presumably) received Mr Currie's letter of 17 April 2022 informing him that he was to remain on the NTBE list. That decision is not the subject of the Application, and is not in any event an appealable decision under s 97(1) of the Act. 7. The language of s 100B(2) of the Act is mandatory. The Commission has no discretion to extend the 28 day time limit or to accept the Application out of time. As the Application was not filed within 28 days after Mr Nyman was informed of the termination of his employment on 25 August 2021, it cannot be accepted. 8. For these reasons, the only proper order is that the proceedings be dismissed. I so order. Damian Sloan Commissioner ********** 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: 28 July 2022