Industrial Relations Commission New South Wales Medium Neutral Citation: Briscoe-Hough v Edward River Council [2023] NSWIRComm 1046 Hearing dates: On the papers Date of orders: 16 May 2023 Decision date: 16 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: I make the following orders: (1) The applicant's employment by the respondent ended on 6 January 2023; (2) The application was not made within the time prescribed by s85(1) of the Industrial Relations Act 1996; and (3) The Commission declines to accept the application out of time. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Whether sufficient reason for acceptance out of time Legislation Cited: Industrial Relations Act 1996, ss 83, 85 Local Government Act 1993, ss 335 (h) and (i), 334 and 351(1) Cases Cited: Allison v Bega Valley Council (1995) 63 IR 68 Clark v Family And Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 Ristevski v Health Secretary in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1067 Category: Procedural rulings Parties: Gregory James Briscoe-Hough (Applicant) Edward River Council (Respondent) Representation: G Briscoe-Hough (Applicant, self-represented) Solicitors: Russell Kennedy Lawyers (Respondent) File Number(s): 2023/00041599 Publication restriction: Nil decision 1. On 7 February 2023, the applicant filed his Application for Relief in Relation to Unfair Dismissal (Application) via the Industrial Registry online process. 2. Following failed conciliation, the Commission made orders that, inter alia: "The application is prima facie out of time, so the applicant requires leave of the Commission for acceptance of the application." 1. The reason the Application is prima facie out of time is that in filing the Application, the applicant answered "Yes" to the question, "Is this application being filed more than 21 days after the date on which you believe you were dismissed?" 2. In answer to questions concerning employment start and end dates, the Application set out: "Date employment commenced 16/06/2021 Date of dismissal or threatened dismissal 06/01/2023 Last day of work if different to date of dismissal 20/01/2023" 1. In answer to the question "If yes, what are the reasons for the application being filed late?", the applicant answered: "I was on leave / working until at least 20/01/23. I was awaiting LEC decision and injunction and Council resolution of the matter. This now appears unlikely to be resolved and so I informed Council I will lodge unfair dismissal claim." 1. From the foregoing, two obvious possibilities appear to exist; the applicant was dismissed on 6 January 2023, or he was dismissed on 20 January 2023. In the first case, the Application is presumptively late, and requires the leave of the Commission to proceed. In the latter case, the Application is not late and can proceed without any need for leave. 2. Nothing set out in the Application as to why the applicant's dismissal was unfair clarified the date of dismissal. Unhelpfully to resolution of the issues, the matters set out raised a further possibility, being that his employment by the respondent had not ended. 3. The applicant's answer to why his dismissal was unfair referenced the dismissal being a "constructive dismissal". 4. The Employer's Response, filed on 17 February 2023, set out the respondent's position that: 1. The applicant resigned by email on 22 December 2022. The email left the effective date of the resignation for the respondent to choose; 2. The applicant and the respondent's CEO met and discussed the resignation on 22 December 2022, and the CEO sent a response to the applicant confirming this discussion and setting the applicant's last day of work as 6 January 2023; 3. The applicant was not dismissed within the meaning of s 83 of the Industrial Relations Act 1996 (IR Act), as he resigned; and 4. The application was late. 1. The parties filed the following documents setting out their evidence: 1. An affidavit of the applicant dated, 14 March 2023; 2. A witness statement of Shelley Jones, Director Corporate Services of the respondent, dated 28 March 2023; 3. A witness statement of Philip Stone, CEO of the respondent, dated 28 March 2023; and 4. A reply of the applicant, titled "Submission", dated 29 March 2023. 1. The applicant's two documents were a mixture of evidence and submission, which is understandable as a self-represented applicant. In my view the two aspects were straightforward to disentangle given how each document was set out. 2. The respondent filed a separate document titled "Submissions" dated 28 March 2023. The evidence 1. There was very little dispute as to the underlying facts. I have addressed those aspects which differ in the summary of facts below. 2. On 21 December 2022, the CEO of the respondent commenced a period of leave. The CEO sent an all-staff email advising of this leave, and stating that from 9 January 2023, a nominated Council officer would act as CEO until his return from leave. 3. The applicant formed the view that the CEO had taken leave in circumstances where the respondent had failed to validly appoint an acting CEO, as he asserted was legally required of the respondent. His view was that there was an absence of a CEO from 21 December 2022 until 9 January 2023, and that the CEO lacked legal authority to nominate the purported acting CEO from 9 January 2023. 4. On 22 December 2022, the applicant sent an email to the CEO in which he unequivocally resigned, albeit leaving open the date the resignation would take effect. The relevant section of the email said: "After discussing this with my wife, I wish to advise that I can, after discussions with Shelley yesterday, no longer hold my position in good conscience and tender my resignation at a date of your choosing." 1. Later that day he met in person with the CEO, at the CEO's home. The material now before the Commission does not set out the events of the meeting in detail. It is sufficient for current purposes that the CEO set out in his evidence that: 1. During the meeting the CEO suggested the employment end 2 weeks from the date of the resignation letter. The applicant indicated he preferred a later date, and the CEO agreed to consider this request; 2. During a phone call on 22 December, and after the meeting, the CEO conveyed to the applicant that the CEO did not agree to a later end date for the applicant's employment; and 3. At 6.16 pm on 22 December 2022, the CEO sent the applicant an email which stated that 6 January 2023 would be the applicant's last day with the respondent. The later email relevantly set out: "We will take your last day of work as 6 January 2023." 1. On 9 January 2023, the applicant emailed Shelley Jones at the respondent, the terms of which were, relevantly: "Dear Shelley Just to advise that reports of my resignation are premature. As no general manager was in place after the Wednesday closure my 'resignation' - as self reported to OLG - could not be validly tendered or accepted, as you should appreciate based on my consistent advice. This and other matters will be addressed this week. For the time being I will continue on annual leave as discussed in earlier emails." 1. The respondent's evidence was that this email was the first time it became aware that the applicant took the view that his employment had not ended on 6 January 2023. The applicant gave no evidence of a basis for any contrary position, even in his reply of 29 March 2023. 2. Subsequent to 9 January 2023 a series of communications was exchanged between the applicant and respondent, the substance of which related to the applicant's position that the Council had failed in its legal obligation to appoint an acting CEO while the CEO was on approved leave. It appears that the respondent did not share the applicant's view. In any event, the respondent did not agree to a course of action acceptable to the applicant, such as making an appointment as pressed for by the applicant. 3. The applicant issued proceedings in the Land and Environment Court on 18 January 2023, seeking orders which would have required the respondent's elected councillors to take steps to, inter alia, appoint an acting CEO. 4. The applicant appears to have obtained leave for an expedited hearing of his application in the Land and Environment Court, conditional on service of the relevant papers on the elected councillors at the respondent's offices on an urgent basis. This service was effected and the matter came before the Court on 20 January 2023. 5. The respondent's CEO returned to work to address the Land and Environment Court proceedings. As what the applicant sought from the Land and Environment Court was an order for the respondent's elected councillors to formally meet to appoint an acting CEO, and the CEO had returned to work, the Land and Environment Court proceedings became otiose. 6. In its evidence, the respondent included an outcome it says is the order made by the Land and Environment Court in the proceedings launched by the applicant. The applicant did not challenge that document as the formal outcome. 7. The outcome sets out the orders made by the Court. These were the withdrawal by the applicant of his motion, and that the matter in the Land and Environment Court was discontinued by the applicant. It included the withdrawal of an unspecified motion by the Council. Neither party provided any submissions to the Commission as to the second motion. 8. The applicant submitted that the Land and Environment Court granted him injunctive relief in the proceedings. No document was put to the Commission which supported this contention. 9. The respondent's submission in response was that no such document could exist as the outcome it provided was the only outcome of the proceeding. The applicant did not address this submission in his reply. 10. On 7 February 2023, the applicant filed his claim for relief from unfair dismissal in the Commission. Preliminary considerations 1. Before the Commission can address the question of leave for the applicant to proceed outside the presumptive time allowed for an unfair dismissal claim, several other matters will need to be addressed. 2. An application for relief from an unfair dismissal can only invoke the jurisdiction of the Commission if the applicant was dismissed. 3. Foundational to such a circumstance is that the applicant is no longer employed by their (former) employer. If the employee remains employed, the Commission has no jurisdiction under Part 6 of Chapter 2, except as to a threatened dismissal. Such a claim is not a part of the Application. 4. Also fundamental to the jurisdiction of the Commission is that the applicant is no longer employed by their (former) employer because of the action or decision of the employer. It is trite that it is possible for an ostensible resignation by an employee to be at the initiative of the employer. Indeed, that is the claim of the applicant here. The respondent has explicitly set out its position that the applicant resigned, and that the resignation was not a "constructive dismissal". 5. Given the evidence before the Commission to this point, it is not possible to determine whether the applicant was dismissed. This is not unusual or a matter of concern. 6. For current purposes it is sufficient that the claim of the applicant is that his resignation was because of the conduct of the respondent. Were there no issue of the Application being out of time, the Application is one which the Commission should in my view accept. This is because the dispute as to whether the applicant was dismissed is one which could only be determined by hearing sufficient evidence that it would be difficult to determine that question separately from the overall merits of the Application. 7. For reasons I set out, I find that the applicant is no longer employed by the respondent: 1. The applicant resigned, leaving only the date of effect to be determined; 2. The respondent, through its CEO set a date for the applicant's employment to end, and on the evidence before the Commission the applicant did nothing to challenge that until after the date set; and 3. The applicant has filed a claim, asserting he has been unfairly dismissed. This claim makes no assertion of a threatened dismissal. 1. I observe that in the applicant's Statement in Reply, he identifies himself as "Manager Governance and Compliance" with Quilpie Shire Council, a different council from the respondent in this application. This is further evidence that the applicant accepts his employment by the respondent has ended. 2. Only the second of the reasons set out above at [35] was met by a challenge from the applicant. This challenge was in the form of his assertion that the CEO was on leave and unable to accept his resignation. The applicant pointed to sections of the Local Government Act 1993 (LG Act) in support of this submission. The applicant went as far as to assert the office of the General Manager of the respondent was "vacant" because the CEO was on leave. 3. I observe that the title of CEO is used by the respondent, but it is common ground that for the purposes of the LG Act, the CEO is the general manager of the respondent. 4. The respondent did not assist by making any submissions which answered the applicant's submissions that the respondent's CEO was on leave and therefore unable to accept his resignation. 5. The applicant pointed to ss 335 (h) and (i), 334 and 351(1) of the LG Act as to why the CEO was not able to "accept" his resignation. 6. In considering these sections of the LG Act, I exercise the powers of the Commission pursuant to s 175 of the IR Act, for the purpose of determining whether the applicant's employment has ended, and for the further purpose of determining the date that employment ended, because this is necessary for the exercise of the Commission's jurisdiction and powers under Part 6 of Chapter 2 of the IR Act. 7. Section 334(1) of the LG Act relevantly provides that: "A council must appoint a person to be its general manager. …" 1. Sections 335(1) (h) and (i) of the LG Act provide that: "The general manager of a council has the following functions— … (h) to appoint staff in accordance with the organisation structure determined under this Chapter and the resources approved by the council, (i) to direct and dismiss staff," 1. Section 351(1) of the LG Act provides that: "(1) If a position (including a senior staff position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent— (a) the council, in the case of the general manager's position, … may appoint a person to the position temporarily." 1. It was not in issue that the respondent had complied with s 334(1). 2. The difficulty with the applicant's submissions as to the relevance of ss 335(1)(h) and (j) of the LG Act are that the CEO did neither of the things covered by those paragraphs. It cannot even be said he accepted the offer of the applicant to resign, as the applicant expressed that he resigned, not that he was offering to resign. 3. It is clear from the definition of a "senior officer" in the LG Act that it includes a general manager. Section 351 (1) of the LG Act is therefore, and given its content, applicable if the general manager "is suspended from duty, sick or absent". In this case, only the question of absence is relevant. 4. Before considering what constitutes "absence", I observe that the section is empowering, not mandating. It provides that a council "may" not that it "must". This contrasts with s 336 covering circumstances where a council "must immediately appoint … a person to act in the vacant position [of general manager]." 5. Section 336 of the LG Act defines a "vacancy" to mean a set of circumstances in which the general manager has permanently ceased to perform that role, such as death, resignation, or removal by council. Section 336 applies only to the general manager position. 6. This also disposes of the applicant's submission that there was a vacancy in the position of the general manager while the CEO was on leave. The LG Act definition of vacancy is exhaustive and does not include being on leave. 7. A complete analysis of the interaction between the sections isn't needed for the Commission to undertake the task now before me. It is sufficiently clear for the Commission's purposes that "absent" has a temporary character, and that it is something of a catch all for circumstances other than the general manager being suspended or sick. 8. I am not persuaded by the applicant's submission that the overall effect of the various provisions of the LG Act are that the respondent had no general manager on 22 December 2022. 9. Clearly, being suspended is a binary state in so far as being able to perform work; a general manager is suspended, or they are not. Being sick is different, and a general manager may be so sick they cannot leave their bed, sufficiently sick it would be imprudent to perform complex tasks, or so mildly sick as to be merely an inconvenience. It seems to me that being absent should be understood in the same, broad and variable context as being sick, especially as it appears to be a catch all for circumstances where the general manager is unavailable to perform their tasks. 10. I am reinforced in view this by the use of "may" in the section. A council may decide that it can proceed without an acting holder of the position of general manager contextually upon the circumstances. This might be based on the length of time the general manager is absent or sick, or based on the physical availability of the general manager to perform tasks, whether sick or absent. 11. The facts before the Commission show that the general manager was on leave, but that he attended to some duties which fall to a person at his senior level. This is consistent with him not purporting to delegate his duties between 21 December 2022 and 9 January 2023. He was therefore not absent. 12. Accordingly, the applicant's employment with the respondent has ended. It is clear to me from the foregoing that it ended on 6 January 2023. 13. The application is therefore outside the presumptive time for filing, and the applicant requires the leave of the Commission to proceed. Leave to proceed out of time 1. The respondent set out the overarching issues as to acceptance of an unfair dismissal application which is presumptively out of time, as follows: "10 Section 85(1) of the IR Act provides that an unfair dismissal application must be made no later than 21 days after the dismissal. 11 Sections 85(2) and 85(3) set out the circumstances, respectively, when the Commission is required to accept an out of time application, and when it may accept an application made out of time. 12 Section 85(2) is not relied upon by the Applicant. 13 The Applicant relies upon section 85(3) in respect of his out of time application. Section 85(3) provides that: 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 14 Applications that are made out of time are prima face excluded by section 85 of the IR Act. The Applicant bears the burden of demonstrating that the extension is justified. 15 In considering the factors in section 85(3) of the IR Act, it is apparent from case law in the Commission that an assessment as to whether the Commission will accept a late submission is based on the application of a series of principles rather than comparing one case to another. Specifically, the Commission has held that 'each case under the subsection is decided on its own facts and circumstances and previous decisions, while they may be informative are authorities on principles, not factual circumstances' [1] ." [Emphasis and footnotes in original] 1. Nothing submitted by the applicant contradicted this, and I adopt this aspect of the respondent's submission as the proper basis on which to proceed. 2. The applicant addressed each aspect of s 85(3) of the IR Act directly, submitting that: 1. His delay is "not significant in the scheme of an adjudicated matter" and was "related to impacts of" the proceeding he commenced in the Land and Environment Court; 2. "It is hard to envisage any hardship the relatively short delay would have on [the respondent], however, in addition to the primary consideration of what is in the interest of justice and procedural fairness, the trauma of expending many thousands of dollars on injunctive relief in a superior court" should weigh in consideration of hardship to him; and 3. The respondent acted unlawfully, and it was "repugnant" the end of his employment did not await the completion of leave. 1. More generally, the applicant submitted that: 1. A limitation period should not be seen as an arbitrary cut off unrelated to the demands of justice; 2. The Commission should allow the application to proceed for the benefit of the wider local government sector, presumably to be able to prosecute his position that the elected councillors acted in breach of the LG Act by not appointing an acting general manager; 3. Refusing leave would allow the respondent to avoid dealing with the merits of the matter; and 4. The relative likelihood of the substantial application being successful, although this appeared to proceed on the basis of the applicant's assertion that the Land and Environment Court had made particular findings and issued an injunction. 1. I have disregarded two other submissions by the applicant, being: 1. One which I consider trespassed without prejudice discussions, and is inappropriate for repeating here, let alone taking into account. 2. A second which appeared to set out various bases on which an appeal might proceed. If my decision is alleged to be infected by error an appeal may of course be filed, and by either party. That is not a matter which should be taken into account in my decision. Section 85(3)(a) 1. On the applicant's own evidence, he was aware of his right to apply to the Commission claiming to have been unfairly dismissed from the date of his resignation. As set out in his affidavit of 14 March 2023: "10. On 22 December 2022 I put on notice the respondent's agents of my intention to pursue an unfair (constructive) dismissal claim. …" 1. On 13 January 2023, in an email to Shelley Jones, the applicant referenced "IRC constructive dismissal" proceedings [2] . 2. These demonstrate a relatively sophisticated understanding of both the existence of a right to apply to the Commission, and the basis on which an ostensible resignation might form the basis for a successful application. 3. But the applicant did not apply to the Commission. He pursued proceedings in the Land and Environment Court, apparently at significant personal expense. He was able to issue those proceedings, obtain orders for truncated service, and obtain an expedited listing of his Land and Environment Court application. The matter concluded on 20 January 2023. 4. By 20 January 2023, the applicant still had 7 days to file an on time application with the Commission. 5. As set out above at [5], the applicant's reasons as set out in his application for filing outside the presumptive timeframe was: "I was on leave / working until at least 20/01/23. I was awaiting LEC decision and injunction and Council resolution of the matter. This now appears unlikely to be resolved and so I informed Council I will lodge unfair dismissal claim." 1. I have determined that the first paragraph is not correct. In any event, that paragraph does not address any explanation for inaction between 20 January 2023 and 27 January 2023. 2. I understand the second paragraph to refer to waiting for resolution of the "LEC decision and injunction and Council resolution of the matter". By 20 January 2023, this was complete. The Land and Environment Court proceedings had ended and the respondent's CEO was no longer on leave. 3. The applicant made reference to s 90 of the IR Act as "precluding hearing a matter whilst other avenues are afoot." Combined with a similar reference by the applicant in opening hearing at the listing of the matter before the Commission on 21 February 2023, I understand this to express the applicant's misunderstanding of the effect of s 90 of the IR Act. 4. His submission appears to be that while he was pursuing proceedings in the Land and Environment Court, which it appears may have included seeking annulment of the termination of his employment, he was precluded from applying to the Commission. 5. It is not necessary to engage with why this submission misunderstands s 90 of the IR Act. It is sufficient to observe that, on the applicant's understanding of the purpose of s 90, the applicant has not explained his failure to apply to the Commission in the time between the Land and Environment Court proceedings ending, and 27 January 2023. This explanation really amounts to nothing different from pursuing the Land and Environment Court proceedings as such. 6. As to the length of the delay, the respondent points to the lateness of 11 days being just over half the presumptive time set by the legislature for filing applications. The applicant's reply to the respondent's submission is that, after receiving the applicant's initial submissions, the respondent took 14 days to file its evidence and submission on the issues now before the Commission. 7. This submission from the applicant has three substantive failings: 1. Firstly, the 14 days were as ordered by the Commission. The respondent met the timetable set; 2. Secondly, that the material filed in those 14 days was substantially more detailed and complex than the material required to apply to the Commission. The Application was, as is permitted, a very short document; and 3. Most importantly, it provides no explanation of the applicant's own conduct. 1. The applicant's reply submitted that he was able to file that reply within 24 hours of receiving the respondent's evidence and submissions. This is commendable and a positive reflection on his diligence in attending to the proceeding under way in the Commission. It does demonstrate that the applicant has the capacity to attend to complex matters in a timely and coherent fashion. 2. In totality, the applicant has not provided a satisfactory reason for the delay. Neither has he satisfactorily addressed the length of the delay, particularly in the context of the reason he has advanced. I find that each submission of the applicant falls well short of a providing a sufficient reason. Section 85(3)(b) 1. The first part of the applicant's submission, at its highest, does little to advance a sufficient reason for the grant of leave. 2. I observe that the respondent only advanced an argument that they would be disadvantaged because of the merits of the applicant's case and because the applicant would be able to proceed late. These in fairness add little to the matter in terms of hardship to the respondent. 3. The respondent submitted, citing Ristevski v Health Secretary in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1067 at [20], that: "If hardship to the applicant is to be considered as a factor weighing in favour of acceptance of an out of time application, the hardship that may be caused to the applicant if the application is rejected must be more than just the loss of the opportunity to have the application considered by the Commission." 1. The respondent submitted that what the applicant has advanced is just that, the mere loss of opportunity to have his application heard by the Commission. 2. I adopt the logic that the hardship must be more than the mere loss of opportunity to pursue his application for it to have weight as a sufficient reason under s 85(3)(b). 3. To the extent that he has advanced the expense incurred by him in pursing the Land and Environment Court proceedings, I can see no logical connection to the proceedings in the Commission. As the applicant submitted in his submissions in reply, the respondent before the Commission was not a party to the Land and Environment Court proceedings he issued. 4. The applicant has therefore advanced no reason for him suffering hardship that amounts to a sufficient reason to grant leave to accept the Application out of time. Section 85(3)(c) 1. The respondent again cited Ristevski, at [20]: "If the conduct of the employer relating to the dismissal is to be considered as a factor weighing in favour of acceptance of an out of time application, such conduct needs to have some connection to the delay in making the application." 1. Again, I adopt the logic and reasoning set out in Ristevski. 2. Nothing advanced by the applicant says anything about the conduct of the employer having any impact on the applicant making a timely application to the Commission. Indeed, everything advanced by the applicant as to delay was the doing of the applicant. The applicant referenced the alleged illegal and improper conduct of the respondent as employer, but all of that goes to the substance of the applicant's claim. 3. Nothing advanced by the applicant as to hardship can amount to a sufficient reason to grant leave to proceed out of time. Other considerations 1. I accept the applicant's submission that a "limitation period should not be seen as an arbitrary cut off unrelated to the demands of justice". That is precisely why the provisions of s 85(3) of the IR Act exist, and why consideration is being given to the submissions of the parties. I consider that the interests of justice are the matters being addressed in this decision. 2. I consider that little weight can be given to the submission that it would be in the wider interest of the local government sector for the application to proceed. As far as I am able to discern from the submission of the applicant, these are matters that concern the governance of local governments, and the operation of the Local Government Act 1993. This is not the purpose of Part 6 of Chapter 2 of the IR Act or the role of the Commission. 3. The applicant's submission that refusing "leave would allow the respondent to avoid dealing with the merits of the matter" can be dealt with shortly. This is simply a different way of expressing the loss to the applicant of his opportunity to have his case heard. I have addressed this submission above. 4. The relative likelihood of the substantial claim succeeding is in my view the strongest point available to the applicant, but only to the extent already set out above at [34]. On the material before the Commission to this point, the applicant has advanced a basis on which a "constructive dismissal" application could be put and might succeed, but no higher. 5. The respondent has submitted that the applicant's "claim has no reasonable prosects of success because it cannot be said he was constructively dismissed." It does so, citing the well-known decision in Allison v Bega Valley Council. [3] The respondent may be correct, but such a determination could likely only follow the hearing of the parties' evidence on the substance of the claim. 6. While I do not accept the respondent's submissions on the prospects of the application, I am nonetheless left short of finding the substantial merits of the Application amount to a sufficient reason to grant leave to proceed out of time. Consideration of this issue was more closely balanced than other bases put forward by the applicant, but it was still short of a sufficient reason. Summary 1. In totality, no single basis submitted by the applicant amounts to a sufficient reason, with all except one basis falling well short of amounting to a sufficient reason. 2. Accordingly, in totality the submissions of the applicant do not persuade me that the Commission should accept the Application out of time. Orders: 1. I make the following orders: 1. The applicant's employment by the respondent ended on 6 January 2023; 2. The application was not made within the time prescribed by s85(1) of the Industrial Relations Act 1996; and 3. The Commission declines to accept the application out of time. C Muir Commissioner ********** Endnotes 1. Clark v Family And Community Services - Ageing, Disability and Home Care Services [2014] NSWIRComm 1022 at [6]. 2. Exhibit SJ-4 to the witness statement of Shelley Jones 3. (1995) 63 IR 68 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: 16 May 2023