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. Reasons 1. Dealing firstly with the reasons provided for the delay. Two were provided by the applicant in his unfair dismissal application which was electronically filed on 24 March 2023. 2. The first reason was, "I was shocked and highly traumatised due to the unjust act by Mr Anderson. I was in a psychologically vulnerable position to pursue with the matter". 3. The second reason was "I went overseas to see my ailing relatives and friends." 4. Bearing in mind the applicant bears the onus in making out these reasons, I note that in relation to the applicant's state of mind at the time, and that state of mind is - the relevant state of mind is from the date of the dismissal through to the filing of the application. 5. The applicant was in a state such that he sought the advice of the relevant union, the Teacher's Federation, after the dismissal of his employment and prior to the 21 days. 6. The effect of the evidence given by the applicant in relation to the that was that he was informed that he could seek to challenge the dismissal and that he was required to make such a challenge within 21 days. 7. He gave evidence that there was a second source of advice that he sought. That source of advice was unnamed, undetailed, however, the evidence was to the effect that the applicant had seen and read something online and then contacted this person who gave his advice to the effect that he could seek to challenge the dismissal but it was unclear as to whether that individual had also advised the applicant as to the 21 day time limit. 8. One would hazard - one could assume that in receiving such advice that it would have been the case that the applicant would have been advised about the 21 days as well. 9. Turning to the evidence, any medical evidence in support of the applicant's state of mind, the sole piece of medical evidence that was brought to the Commission's attention in support of that, was a medical certificate provided by Dr Danish Khan from Moorebank Family Medical Practice dated 12 May 2023. 10. Now, to the extent that it deals with the applicant's state of mind, I note that under the heading, "Patient's Assessment - Mental Health", it indicates that the applicant had a depressed mood. 11. That is the full extent of the medical evidence that is before the Commission other than the applicant indicating - providing evidence under cross examination that he had seen his medical practitioner either on the day of the dismissal, the day after and the extent of the evidence was that he had been referred off for some blood tests and for a prostate check and had indicated to the treating practitioner that he was in a depressed state. 12. Given the onus borne by the applicant to make out, for that reason I do not find that the applicant had made out that he was in such a state that he was unable to file his application within the 21 days. 13. The second reason provided by the applicant in his application, as read out earlier, was, he went overseas to see his ailing relatives and friends. In closing submissions the applicant stated that the reason for going overseas was in relation to seeing his ailing relatives and friends that was part of a process of clearing his mind and effectively healing such that when he came back that he might have been in a state to deal with the dismissal. 14. I do not find that that there is a sufficient reason to explain the lengthy delay. Hardship 1. The ground pressed by the applicant in terms of hardship is effectively that of financial and social impact upon himself and his family. 2. Turning firstly to that of financial impact, the applicant made some submissions from the Bar table that there was a level of financial hardship. 3. There is very little detail provided by the applicant other than having to borrow some money from his superannuation funds to keep going forward. However apart from an assertion made from the Bar table there was no evidence put before the Commission to support that assertion made by the applicant. 4. In terms of hardship, I find that the onus has not been made out beyond the level of financial hardship that is occasioned by all persons, or most persons, who are dismissed. Employer Conduct 1. The third factor I need to consider, is that of the conduct of the employer relating to the dismissal. The applicant's submission, with respect to the conduct of the employer, is that effectively an inability to challenge a decision of the employer, which the applicant claims is an unfair decision, would be further entrenched. 2. That really is not a matter that goes to the conduct of the employer such that it had an impact upon the applicant's inability to file his unfair dismissal claim. Findings and orders 1. Given the matters that I have just considered, in the circumstances I find that there is not sufficient reason to extend time and I am not minded and then shall not exercise my discretion under s 85(3) of the Industrial Act to extend time. Accordingly, I make the following orders: 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. ********** 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: 15 June 2023