Industrial Relations Commission of New South Wales CITATION : Rahman and Director-General NSW Department of Education and Training [2004] NSWIRComm 370 APPELLANT M Tabibar Rahman PARTIES : RESPONDENT Director-General New South Wales Department of Education and Training FILE NUMBER: IRC 3507 of 2004 CORAM: Sams DP; Staff J; Bishop C CATCHWORDS : Unfair dismissal - Appeal - Leave to appeal - Whether application out of time - Whether application should be accepted if found to be out of time - Exercise of discretion by Commissioner correct - Application filed out of time - Appellant declined to advance reasons why application should be accepted out of time - If leave to extend time refused unnecessary to resolve question of jurisdiction whether dismissal occurred - Leave to appeal refused - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Perrott v Xcellenet Australia Limited & Ors (1998) 84 IR 255 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 HEARING DATES: 10/15/2004 DATE OF JUDGMENT: 12/03/2004 APPELLANT M Tabibar Rahman In person LEGAL REPRESENTATIVES: RESPONDENT Mr J Fernan of counsel Solicitor: Mr P Quinn New South Wales Department of Education and Training JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP STAFF, J BISHOP, C 3 December 2004 Matter No IRC 3507 of 2004 M TABIBAR RAHMAN AND DIRECTOR-GENERAL NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING Application by M Tabibar Rahman for leave to appeal and appeal against a decision of Commissioner McKenna given on 3 June 2004 in matter no. IRC 5913 of 2003 DECISION OF THE FULL BENCH [2004] NSWIRComm 370 1 This is an application for leave to appeal, and appeal, pursuant to s 187 of the Industrial Relations Act 1996 ('the Act'), lodged by Mr M Tabibar Rahman ('the appellant') against a decision given by Commissioner D McKenna on 3 June 2004 in Matter No IRC 5913 of 2003. The proceedings at first instance concerned an application for relief in respect to unfair dismissal pursuant to s 84 of the Act. The Commissioner dismissed the application on two threshold grounds. BACKGROUND 2 The background to this matter may be shortly stated. The appellant was a casual teacher employed by the New South Wales Department of Education and Training ('the respondent'). He had lodged a s 84 unfair dismissal claim on 14 October 2003, alleging that he had been unfairly dismissed when he was refused further casual engagements by the respondent. That refusal came about by the respondent's conclusion that the appellant was not able to continue teaching because of his failure to obtain English language proficiency according to a Departmental requirement to pass an externally administered programme known as PEAT (Professional English Assessment for Teachers). 3 The appellant had failed the examination in October 2001, but the respondent did not revoke his conditional approval to teach casually. A series of extensions to his approval were granted, subject to specified conditions. The most recent approval for casual employment was dated 18 February 2003. It relevantly read: I am pleased to advise that you are eligible for casual employment as a teacher with the New South Wales Department of Education and Training until 4 July 2003. YOUR APPROVAL NO. IS: ... PROHIBITED EMPLOYMENT DECLARATION: Lodged TYPE OF EMPLOYMENT: Conditional Casual ACCREDITED TEACHING SUBJECTS: Science STATUS: Conditionally Certificated Four Years Trained RATE OF PAYMENT FOR CASUAL WORK: GA3 Please note that this letter does not constitute a promise of employment. This interim approval has been issued to enable you to undertake immediate casual employment. You are now eligible to undertake work as a casual teacher for which payment is made on a daily basis. ... This notice must be sighted by the school principal before you can undertake casual employment. This teaching approval letter will serve to verify your eligibility for casual employment at Sarah Redfern High School until 4 July 2003 and therefore should be retained in a secure place. An extension of this teaching approval will only be granted upon successful completion of a Professional English Assessment for Teachers (PEAT) examination prior to 4 July 2003. [Italics added]. ADDITIONAL CONDITIONS 1. That the period of employment is until 4 July 2003 school year only. 2. That the applicant is employed under the direct supervision of the Principal. 3. That the approval is limited to employment at Sarah Redfern High School. 4 It was not in dispute that the appellant did not successfully complete the PEAT examination and therefore did not comply with the requirement as set out in the above document. The respondent had argued that the appellant's employment had come to an end due to the effluxion of time and as a result, there was no dismissal such as to attract the Commission's jurisdiction. 5 The appellant, who appeared in person, believed that he should be exempted from the PEAT examination, given the nature of his tertiary studies, earlier English language accreditation and employment history in English speaking countries. On 2 September 2003 the appellant wrote to the respondent seeking a review of the PEAT requirement. By letter dated 26 September 2003, the respondent advised that it could not issue a further approval to teach until the appellant had demonstrated that his English language skills met the required standard. The appellant believed he had been the subject of unfair and unlawful treatment and that he had been effectively dismissed by the respondent on 26 September 2003. Decision at first instance 6 It is readily apparent that the Commissioner's decision did not deal with the merits of the applicant's claim. Rather, the Commissioner, correctly in our view, identified the two threshold issues requiring determination by the Commission. Those issues were identified in the decision this way: The purpose of the proceedings on 27 May 2004, as is the focus of this decision, was to determine two threshold issues raised by the respondent. The first was a jurisdictional issue, namely, whether the termination of employment amounted to a dismissal within the meaning of Ch 2 Pt 6 of the Act. The second issue was whether the application had been made outside the 21 days time-frame specified in s 85(1) of the Act and, if so, whether the application should be accepted out of time. 7 As to the first threshold matter, the Commissioner determined at 6, 7: On one view, the circumstances of the termination of employment may have involved an effective dismissal in the sense that the applicant worked for the respondent under a series of extensions of conditional approvals to teach, and the employment/teaching approval ceased solely as a result of a condition imposed on the applicant by the respondent - being a condition the applicant considered unwarranted. Each case turns on its own facts and, in this matter, the applicant was aware of the terms of his conditional, casual employment. In the absence of some supervening circumstances, the applicant could not, given the letters and discussions between the parties, reasonably have expected an extension of teaching approval and ongoing casual employment after 4 July 2003 unless he met the PEAT condition specified by the respondent. The period of casual employment at the school was both conditional and for a defined period of time. The period of employment came to its conclusion on 4 July 2003 and, by that date, the applicant had not taken the steps that would have formed the necessary basis for ongoing teaching approval. As such, I accept the respondent's contention that the termination of employment was not such as would attract the unfair dismissals jurisdiction of Ch2 Pt6 of the Act. 8 As to the out of time issue, the Commissioner determined at 8, 9: Despite the applicant's view that the application was made within time, the evidence and submissions lead, inexorably in my view, to the conclusion the application was made outside the timeframe of 21 days specified in s 85(1) of the Act. The applicant was resolute in his opinion that the application had been filed within time and, for that reason, declined to advance any reasons at all why the application should be accepted out of time. I stated to the applicant that, in the event I found against his primary submission that the application was made within time, I would need to consider the matters within s85(3)(a)-(c) of the Act. The respondent developed various grounds and reasons why the application should not be accepted out of time. The respondent was the only party to address on the late acceptance of the application and those submissions were uncontested; the applicant did not take the opportunity to advance reasons why the application should be accepted out of time, given the resoluteness of his view that the application was made within time. Applicants have an onus to discharge in relation to the acceptance of late applications, but the applicant did not, when given the opportunity to do so, advance anything to support a finding that there would be a sufficient reason to accept the late application. As such, it is not open to consider finding in favour of accepting the late application. For the forgoing reasons, the application is dismissed and the proceedings are now concluded. THE APPEAL PROCEEDINGS Appellant's Submissions 9 The appellant filed a significant amount of material, the bulk of which went to the merits of his case. The appellant spoke to his submissions on 15 October 2004, but did not raise any relevant issues in addition to the material he had earlier filed. 10 The appellant claimed that the Commissioner had failed to take into account his performance and other criteria which overrode the respondent's requirement for the appellant to pass the PEAT examination. He reiterated his extensive work experience and qualifications. He claimed he was not on a conditional or fixed term contract of employment and that his employment was annulled by the respondent on 26 September 2003. His application for relief from unfair dismissal, it was contended, was therefore lodged within the 21 day time limit. 11 The appellant further contended that the Commissioner did not take into account the entirety of his case and it was therefore in the public interest to have his case decided. 12 The appellant submitted that various provisions of the Department's General Conditions of Employment and the Teaching Services Act 1980 had been ignored by the Commissioner and the respondent. The Commissioner and the respondent had also failed to have regard to the provisions of the Act and the Employment Protection Act 1982. Respondent's Submissions 13 Mr J W Fernan, of counsel, observed that no written outline of submissions had been filed by the appellant on the issue of leave to appeal. The material filed by the appellant did not address the decision at first instance on the two threshold issues determined by the Commissioner. Rather, the appellant sought to re-argue the merits of his case de novo. 14 Mr Fernan submitted that the appeal raised no issues of public interest and the Commissioner had not erred in exercising her discretion under s 85(3) of the Act to refuse to allow the appellant's claim to proceed. Leave to appeal should therefore be refused. Consideration 15 It is appropriate that we firstly consider the submissions dealing with the out of time issue. 16 The appellant contended that the application was filed within time and again declined, as he had done before the Commissioner, to advance any reasons why the application should be accepted if found to be out of time. The difficulty with this submission is, if incorrect, which we believe it to be, then the only possible way to sustain the application was to mount a case for the exercise of the Commission's discretion to extend time, which the appellant declined to do. 17 Mr Fernan submitted that the application for alleged unfair dismissal, lodged on 14 October 2003, was clearly out of time as the appellant's teaching approval lapsed on 4 July 2003. It was submitted that this was the effective date of termination and that while there were three days of subsequent casual teaching up to 28 August, this was due to administrative error. In any event, this would still place the application out of time. 18 Mr Fernan noted that in the proceedings below, the Commissioner invited the appellant to address the issues required to be considered under s 85(3) of the Act. As he failed to do so, the Commissioner was left with no alternative but to find that no sufficient reason was advanced such as to justify the exercise of discretion to allow the application to be accepted. 19 In our view, the Commissioner's exercise of discretion in considering the out of time application was correct and is beyond challenge. The application was filed 46 days after the last day of casual engagement of the appellant. 20 It follows that it is unnecessary to resolve the question of jurisdiction being whether a dismissal of Mr Rahman occurred on either 4 July 2003 or 28 August 2003 because if the application is out of time and leave to extend time is not granted, there is no appeal. This is not to say the Commissioner was wrong. It is unnecessary, in light of the decision which we have reached, to express any view on this aspect of the appeal and we decline to do so. Leave To Appeal 21 These proceedings are governed by s 188 of the Act. An appeal to the Full Bench of the Commission will only lie upon the grant of leave to appeal. By virtue of s 188(2) of the Act, leave to appeal is to be granted, if in the opinion of the Full Bench, the matter is "of such importance that in the public interest, leave should be granted". These provisions have been considered on many occasions by the Commission and the principles to be applied should now be accepted as well settled. 22 We note, however in Perrott v Xcellenet Australia Limited & Ors (1998) 84 IR 255 at 265-256 the Full Bench observed that: ...it is not to say leave will lightly or automatically be granted by the Full Bench; a proper case must be made out. 23 Further, in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, three issues of importance to the question of leave to appeal were distilled by the Full Bench: a. Whether the decision appealed from was inconsistent with established law and principle. b. Whether the appellant has brought a substantially different case in the appeal. If so, this may constitute the basis for refusing leave to appeal. c. Whether the appeal raises substantial and important considerations evaluated in the light of: The nature of the issues raised in the appeal, including "whether the appeal raises substantial issues of principle or law or has widespread implications for the jurisprudence of this Commission, including whether the decision has widespread practical application". 24 We have come to the conclusion, after a careful consideration of the Commissioner's decision, the material to which the appellant referred and his submissions that there has been no discernable error in the exercise of discretion by the Commissioner. 25 We are also unable to discern any public interest in these proceedings which would warrant the grant of leave or sustain a conclusion that a substantial injustice would result if leave to appeal were refused. It follows that leave to appeal should be refused. 26 We make a final observation. It was accepted by Mr Fernan for the respondent that if, in the future, the appellant successfully completed the PEAT examination, the Department would restore his approval to teach and offer him casual employment. We would encourage him to take up this offer to attempt the PEAT examination. His future with the respondent rests entirely in his own hands. ORDERS 1. Leave to appeal refused. 2. Appeal 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.