Industrial Relations Commission New South Wales Medium Neutral Citation: Doherty v Secretary of the Department of Education [2024] NSWIRComm 1019 Hearing dates: 12 March 2024 Date of orders: 12 March 2024 Decision date: 12 March 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: 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 Industrial Relations Act 1996 out of time is granted. Catchwords: UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - application granted. Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: McDonald v Commissioner of Police (2017) NSWIRC 1043 Texts Cited: NIL Category: Procedural rulings Parties: Timothy Doherty (Applicant) Secretary of the Department of Education (Respondent) Representation: Mr Timothy Doherty (Applicant) Solicitors: Mr B Edghill (Respondent) File Number(s): 2023/270915 Publication restriction: NIL EX TEMPORE decision 1. This is an application made by Timothy Doherty to extend time pursuant to subsection 85(3) of the Industrial Relations Act 1996. The application itself was filed on 24 August 2023. 2. The applicant has relied upon two lots of materials which include those that he served on 19 January 2024 and his reply material filed on 1 March 2024. Both lots of materials were relied upon by the applicant were received into evidence. Part of these materials were more in the nature of submissions and they were accepted as exhibits without any objection by the respondent. 3. In addition, the applicant has made some further oral submissions and he was cross-examined by the respondent and has sought to rely on some of the evidence that has fallen out by way of cross-examination. Unusually I have permitted cross-examination of the applicant following his oral submissions but that process took place with the consent of the applicant. 4. The respondent has relied upon statements of the following individuals: 1. Leah Anderson dated 14 February 2024; 2. Scott Dries dated 15 February 2024; 3. Jan Green, dated 14 February 2024; and 4. Joanne Pearson dated 14 February 2024. 1. In delivering this judgment, I have taken into consideration all the materials that I have referred to as well as the oral submissions and also the written submissions that have been relied upon by the respondent which were filed and served in advance of this application. 2. In terms of background to the application, the applicant had commenced employment with the respondent back in April 2001. He was employed as a classroom teacher at the Central Sydney Intensive English School. 3. The applicant had been absent from work from approximately November 2018 and during this period he was in receipt of payments, which appears to be Workers Compensation payments. The applicant was uncertain of whether the payments had come from the insurer or whether they came from the respondent. The applicant, in cross examination stated that he believed the payments were made by Treasury. I will accept that that the payments were made by the respondent and were in the nature of Workers Compensation payments. 4. On 8 May 2019 correspondence was forwarded to the applicant by the respondent putting the applicant on notice that his employment may well be terminated within 14 days on the basis of medical retirement, unless the applicant provided a response that would be considered before a decision was made. In short, it was a letter of warning. This correspondence was forwarded to the applicant's work email address and not his private email address. 5. On 23 May 2023 the respondent forwarded correspondence to the applicant's work email address again containing a letter confirming that his employment had come to an end by way of medical retirement. 6. There is also evidence that the respondent had sought to send a copy of the dismissal letter to the applicant's residential address by way of certified mail however, the evidence goes on to show that that correspondence had been returned to the post office and I draw a conclusion that it had not been received by the applicant. 7. The applicant on his part gave evidence that his regular communication with the respondent for the majority of the period that he had not been working was done by way of email to his personal email address and not his work email account. 8. The applicant goes on to give evidence that there is also a payment made to the applicant's bank account on or around 20 July 2023, that amount being $40,610.43 which is an amount post tax and took into account payments for accrued but untaken long service leave and vacation pay. 9. The applicant on his behalf says that he was not aware of his employment being terminated on 23 May 2023 until sometime after 20 July 2023. In his materials filed in the Commission both in the application and in the two documents which formed exhibits 1 and 3, there is no particularisation of the date on which he says that he first became aware that his employment was terminated. 10. The applicant has said that the way he discovered that his employment had came to an end was upon noticing the $40,610.43 at some time unknown and unspecified date after 20 July 2023. He further explained that several days later he thought to check what this payment was for and then he checked his work email address. In the process of that, discovered that his employment had been terminated with effect from 23 May 2023. 11. Further, the in oral submissions the applicant stated that his sole source of income was payments that were made either on or on behalf the respondent and in the period of time from which his employment was terminated, 23 May 2024 through to at least the date of the termination of his employment he was the sole income earner for the family and the family comprised himself, his wife and a dependent child. 12. He also gave evidence to the effect that there had been a number of significant bills that he had needed to take account of, those included but were not limited to as I understood the nature of the evidence, medical bills. 13. Sub-section 85(3) of the Act is in the following terms: (3) 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. 1. The respondent brought the Commission's attention to a number authorities in terms of the proper approach to considering whether the discretion under sub section 85(3) should be exercised including the finding of Commissioner Murphy in McDonald v Commissioner of Police (2017) NSWIRC 1043. In McDonald, the Commissioner summarised the appropriate principles at paragraph 33, which 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 the 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 be 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. 1. Now firstly, considering the explanation for the delay, of great concern to the Commission is that no specific date as to when he found out he was dismissed has been provided by the applicant. There was an attempt to do so during the course of today's proceedings by way of the applicant considering the date on which he lodged the application. It appeared to be an educated guess by the applicant at how many days prior to the filing that he had actually saw the relevant email. 2. In answer to a question by the respondent under cross-examination and confirmed by myself, the applicant admitted that he was making an assumption on the date on which he became aware of his dismissal on 23 May 2023. However, I also note that the applicant has given a credible explanation as to why he was not aware of the dismissal on or around the date 23 May 2023. That explanation, which he had been unshaken through cross-examination or direct evidence from the respondent, is that he regularly communicated with the respondent by way of his personal email address. 3. The letter of dismissal was not sent to the applicant's personal email address and that the way that he became aware of the dismissal was through the discovery of the amount of $40,610.43 approximate, sometime following the payment into his account. 4. I also accept the applicant's evidence that it was following an investigation into the source of the payment, noting that he had thought that he would be paid some monies from Medicare that some investigation was required and he ultimately discovered that email of 23 May 2023. Having said that, that provides an explanation why the application was not filed within the twenty-one days from 23 May 2023. 5. However, I cannot accept the explanation provided by the applicant that he did not become aware of the payment of $40,610,43 due to the failure to receive any payments into his nominated bank account from at least 23 May 2023 until 20 July 2023 which is a period of approximately eight to ten weeks, and then following that, a period of another ten days to two weeks of the payment of $40,610.43 in circumstances where, on his own evidence, he was the sole breadwinner and his accounts were dwindling. 6. In those circumstances, I am prepared to accept that there is a plausible explanation of why the application was not filed with the twenty-one days but there is not a plausible explanation as to the actual time from the date that the applicant became aware of this dismissal through to the filing of the application. 7. I further note that the applicant bears the onus in regards to providing a reason for and the length of the delay. The difficulty that I have is not so much the reason but the length of the delay. Now this is not what one would call a lengthy delay, even on the respondent's submissions. It would be even if the applicant had become aware of the dismissal one or two days after the transfer of the termination payments, the delay of 23 July through to 24 August is only approximately one week even on the respondent's submissions. 8. The next factor for consideration is whether there is any hardship that maybe occasioned to the applicant should there not be acceptance of the application. As noted by Commissioner Murphy in McDonald, the hardship has got to be more than just one but is the reduction of a loss of opportunity. Again, I note the onus which is borne by the applicant in setting out what that hardship is. 9. I accept as a matter of common sense in circumstances where the applicant is the sole breadwinner for the family that the hardship that may be occasioned to the applicant not having the time extended is more than just the capacity to run the case but any damages that may arise from a successful outcome for the applicant. 10. I also note the submissions of the respondent on this point which is that there is hardship occasioned to the respondent should the time be extended. I was taken to evidence that the substantive role that was being performed by the applicant had only just recently been filled 30 January 2024. The respondent made submissions to the effect that the Commission should be able to draw an inference that should the applicant be successful in this matter then the respondent may need to bring either the employment or the successful applicant in that position be moved to a different role. This is in circumstances where they may well not have filled that role of the application had been brought in time such that they were on notice that the applicant may be returning to work. 11. Turning now to the issue of conduct, as stated in Mc Donald, 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. 12. Now I understand that that is a submission that is made by the applicant in circumstances where he submits that the respondent should have known that the primary means of communication with the applicant was to his private email address and that any correspondence should have been sent to a PO box which is referred to in his evidence-in-chief. 13. On behalf of the respondent, the respondent points also to the conduct of itself that it is not a factor that counts against but actually weighs in favour of the respondent against the application to extend time which is that the respondent had taken a number of reasonable steps to notify the applicant of his dismissal which included references to telephone calls on, sending of the email on 23 May 2023, sending of an additional notification to the email address on 12 July 2023. Both of those documents were sent to the applicant's work email address, not his private and then also it is referred to earlier when I summed up the background of the evidence, attempting to send a letter by registered post on 23 May 2023. The respondent also has made submissions to the effect that considering whether the discretion to extend time should be exercised, the Commission should have regard to the overall prospects of success of the applicant and his unfair dismissal claim and in that regard, I note the submissions of the respondent and drawing the attention of the Commission to the evidence as to the basis for the medical retirement was relied on and the submissions were to the effect that there was a proper and rational basis: I noted the words, "There was a valid reason for the dismissal," which is a term that not always one that has a role to play in this jurisdiction, but more so but I understand the force and effect of the submission. 14. The Commission's attention was drawn to medical evidence not only from what is said to be an IME but also from the applicant's treating practitioner, a Dr Lee back in 2022 and I also note the other submission of the respondent that even of the applicant was successful in terms of a finding of unfairness then in all probability the Commission would not exercise its discretion to grant a remedy of reinstatement or reemployment or payment. 15. Having noted that, in terms of that particular criteria or - matter for consideration by the Commission I formed the view that on the basis of the information currently before the Commission and noting the applicant is self-represented it appears to me that the strength of the applicant's case should it go through to hearing and determination is one of procedural fairness in that the applicant was not put on notice prior to his employment coming to an end that there would be a period of fourteen days. 16. It is very difficult to speculate what evidence the applicant may or may not be able to bring on a final hearing of this matter. Balancing all the matters, I do have some concerns about some aspects of the applicant's evidence that he has given but I accept that an explanation for the delay has been provided. 17. I am not necessarily satisfied about the length of the delay, that is uncertain but I do not make a finding that the applicant has sought to mislead the Commission, bearing in mind the hardship that may be occasioned to the applicant, the lateness of filing the application is due in some not small part on behalf of the conduct of the respondent and bearing in mind that the applicant on the face of it has a basis of an argument that may well be successful. 18. In those circumstances, I exercise my discretion to grant an extension of time to the applicant pursuant to s 85 (3) of the Industrial Relations Act 1996. ********** Amendments 26 March 2024 - Corrections made to cover sheet 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: 26 March 2024