Chowdhury v Secretary, NSW Department of Education [2023] NSWIRComm 1058

Industrial Relations Commission New South Wales Medium Neutral Citation: Chowdhury v Secretary, NSW Department of Education [2023] NSWIRComm 1058 Hearing dates: 2 June 2023 Date of orders: 2 June 2023 Decision date: 02 June 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: 1. The application made by the applicant pursuant to s 85(3) of the Act that the Commission accept the application pursuant to s 84 of the Act out of time is refused. 2. The application pursuant to s 84 of the Act filed by Dr Chowdhury on 2 March 2023 is dismissed. Catchwords: UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - extension of time refused – application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: McDonald v Commissioner of Police [2017] NSWIRCOM 1043 Texts Cited: NIL Category: Procedural rulings Parties: Khairul Haque Chowdhury (applicant)

Secretary, NSW Department of Education Representation: Self represented (applicant)

Counsel:

Mr A Britt (respondent)

Solicitors:

Ms M Buchanan (respondent) File Number(s): 2023/0070051 Publication restriction: NIL

EX TEMPORE decision 1. This is an application under subs 85(3) of the Industrial Relations Act 1996 (NSW) (the "Act") by Dr Chowdhury to extend time beyond the 21 days for the filing of his unfair dismissal claim. 2. The background to the application is that Dr Chowdhury tendered his resignation on 7 November 2022 in response to a direction made by the respondent. This was following Dr Chowdhury undertaking a performance improvement plan. I make no findings as to the adequacy or otherwise of the improvement plan. I need not. Dr Chowdhury filed his unfair dismissal application on 2 March 2023 which is 94 days beyond the 21 days as required by subs 85(1). 3. Subsection 85(3) of the Act gives the Commission discretion to accept applications beyond the 21 days and in considering whether that discretion should be exercised the Commission is required to have regard to a number of factors. 4. Dr Chowdhury is self-represented and I gave him an opportunity to address me on each of those three points and I read these out to him prior to his closing submissions. These matters are: 1. the reason for the length of the delay in making the application; 2. any hardship that may be caused to the applicant or the employee if the application is or is not rejected; and 3. the conduct of the employer relating to the dismissal. 1. The approach that I have taken in relation to considering this application is that set out by Commissioner Murphy in McDonald v Commissioner of Police [2017] NSWIRCOM 1043, in which he sets out the relevant principles following a review of the authorities of the Commission in relation to the exercise of this discretion. 2. Those principles are found at para [33] of McDonald, which I read out to the applicant, prior to him making his submissions and are as follows: 1. The prima facie position is that unfair dismissal applications made out of time will not be accepted by the Commission. 2. An applicant who has made an application out of time bears the onus of persuading the Commission to accept such application. 3. An out of time application will not be accepted unless the Commission is satisfied, having regard in particular to the reason for and the length of the delay in making the application, that a sufficient reason exists for the Commission to exercise its discretion in favour of the applicant. 4. Whilst a lengthy delay in making an out of time application will militate against its acceptance by the Commission, it does not follow that an application made only one, two or a few days after the expiry of the 21 days will be accepted by the Commission without there being demonstrated by the applicant that there was a reason for delay which the Commission can accept as a sufficient reason. 5. 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 may be caused to the applicant, if the application is rejected, must be more than just the loss of opportunity to have the application considered by the Commission. 6. 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. 7. The overarching principle, which guides the Commission's discretion, is the attainment of justice for the parties in the particular case.