Mullins v Department of Education and Training [2008] NSWIRComm 115

Industrial Relations Commission of New South Wales

CITATION: Mullins v Department of Education and Training [2008] NSWIRComm 115

KEITH MULLINS Appellant PARTIES: DEPARTMENT OF EDUCATION AND TRAINING Respondent

FILE NUMBER(S): IRC 440 of 2008

CORAM: Schmidt J

CATCHWORDS: Appeal - leave to extend time to appeal a decision of a Full Bench of the Commission - leave opposed - section 187 and section 179 of Industrial Relations Act 1996 - application refused

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Mullins v Dept of Education and Training [2006] NSWIRComm 1136 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298

HEARING DATES: 15 May 2008

DATE OF JUDGMENT: 10 June 2008

APPELLANT: No appearance LEGAL REPRESENTATIVES: RESPONDENT: Mr S Benson of counsel

JUDGMENT:

- 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Schmidt J

10 June 2008

Matter No IRC 440 of 2008

KEITH MULLINS AND DEPARTMENT OF EDUCATION AND TRAINING

Application by Keith Mullins to extend time to appeal and leave to appeal and appeal against a decision of Commissioner Ritchie given on 8.9.2006 in matter no. IRC 5948 of 2005 and from a result of the Full Bench in matter no. IRC 3116 of 2006 given on 4.12.2006

JUDGMENT

[2008] NSWIRComm 115

1 Mr Keith Mullins seeks an order under s 191 of the Industrial Relations Act 1996 ('the Act'), extending time to appeal a decision of a Full Bench of the Commission, given on 4 December 2006, allowing Mr Mullins to discontinue an appeal which he had brought against a decision given by Commissioner Ritchie, on 8 September 2006 (see Mullins v Dept of Education and Training [2006] NSWIRComm 1136). 2 Commissioner Ritchie's decision concerned an application Mr Mullins had brought under s 93 of the Act, seeking reinstatement in his employment with the Department of Education and Training ('the Department'). Mr Mullins' case was that he had been constructively dismissed. The Commissioner concluded that there had been neither a termination of Mr Mullins' employment by the Department, or by him. In those circumstances, the Commissioner concluded that the Commission lacked jurisdiction to hear the application for reinstatement. 3 When Mr Mullins' appeal from Commissioner Ritchie's decision came before the Full Bench on 4 December 2006, Mr Mullins sought leave to discontinue the proceedings. That leave was granted. 4 In his application for extension of time to appeal, Mr Mullins referred to the circumstances in which he had sought a discontinuance of the appeal proceedings, which included advice which he had then received from his solicitor and that he had later been dismissed from his employment in January 2008. 5 This matter was listed for hearing on 15 May. There was no appearance for Mr Mullins, who could not be contacted by the Court. He later explained that he had not appeared, because he had taken a teaching position in Orange. He asked for the matter to be relisted in July, so that his application could be pressed. That request was refused, but Mr Mullins was given a further opportunity to make a written submission, in support of his application. By letter of 29 May, Mr Mullins submitted, amongst other things, that: