Ristevski v Health Secretary in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1067

Industrial Relations Commission New South Wales Medium Neutral Citation: Ristevski v Health Secretary in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1067 Hearing dates: 14 June 2022 Date of orders: 19 August 2022 Decision date: 19 August 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Application to extend time for filing of section 85(3) application is declined Legislation Cited: Industrial Relations Act 1996 (NSW) sections 84 and 85 Cases Cited: Lisa Marija Botic v Health Secretary in respect of NSW Health Pathology [2022] NSWIRComm 1036 Macdonald v Commissioner of Police [2017] NSWIRComm 1043 Texts Cited: NIL Category: Procedural rulings Parties: Dushan Ristevski (applicant)

Health Secretary in respect of South Eastern Sydney Local Health District (respondent) Representation: Solicitors: File Number(s): 2022/75271 Publication restriction: NIL

decision 1. This decision relates to a notice of motion filed on 20 April 2022 by the respondent (the "Motion") which opposes an application pursuant to sub-section 85(3) of the Industrial Relations Act 1996 (the "Act") that an out of time unfair dismissal application be accepted by the Commission.

Background 1. The applicant was employed by the respondent in the position of Mental Health Counsellor which came to an end on 22 December 2021 by way of termination by the respondent. 2. On 12 January 2022, the applicant filed an unfair dismissal application under the provisions of the Fair Work Act 2009 with the Fair Work Commission. 3. On 2 February 2022 the applicant was informed by the Fair Work Commission that his application had been rejected. 4. On 10 March 2022, the applicant filed an unfair dismissal application with this Commission which was dated 6 March 2022 (the "Application"). 5. The respondent filed a response to the Application on 25 March 2022 (the "Response"), in which, amongst other things, the respondent opposed the Commission accepting the late Application. 6. The Application was the subject of an unsuccessful conciliation before myself on 28 March 2022 and at the conclusion, directions were made for the filing and serving of a notice of motion by the respondent and evidence and outlines of submissions by both parties. 7. The following materials were filed and served by the parties in accordance with the directions: 1. On 22 April 2022 the respondent's notice of motion along with a supporting affidavit of John Counter and outline of submissions on 20 April 2022; 2. On 17 May 2022 the applicant's material entitled "EVIDENCE FOR FILING LATE APPLICATION"; and 3. On 1 June 2022 the respondent's outline of submissions in reply. 1. The matter was listed for hearing before me on 14 June 2022 and the affidavit of John Counter and the applicant's filed material was tendered and accepted into evidence. 2. Both parties relied upon their filed material and made further oral submissions.