Industrial Relations Commission of New South Wales CITATION: Vijayaratnam v Director General, Department of Education and Training [2010] NSWIRComm 153 PARTIES: Shoba Vijayaratnam (Appellant) Director General, Department of Education and Training (Respondent) FILE NUMBER(S): IRC 686 of 2010 CORAM: Walton J Vice-President; Marks J; Bishop C CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL AND APPEAL – appeal against decision and orders of Commissioner Connor – unfair dismissal application out of time – whether error in failure to exercise discretion to accept application out of time – leave to appeal refused – appeal dismissed LEGISLATION CITED: Industrial Relations Act 1996 – s 84, s 85, s 188 House v R [1936] HCA 40; (1936) 55 CLR 499 CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 HEARING DATES: 1 November 2010 DATE OF JUDGMENT: 12 November 2010 Shoba Vijayaratnam in person (Appellant) LEGAL REPRESENTATIVES: Ms E Brus of counsel (Respondent) NSW Department of Education and Training JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice President Marks J Bishop C Friday 12 November 2010 Matter No IRC 686 of 2010 Shoba Vijayaratnam and Director General, Department of Education and Training Application by Shoba Vijayaratnam for leave to appeal and appeal against a decision of Commissioner Connor given 9.7.2010 in matter no. IRC 199 2010 DECISION [2010] NSWIRComm 153 1 In this matter the appellant, Shoba Vijayaratnam, seeks leave to appeal and, if so granted, to appeal against a decision of Connor C made on 9 July 2010 when he refused to allow an application for unfair dismissal lodged out of time to proceed. Background 2 The following facts are taken from the evidence admitted in the proceedings before Connor C. 3 Mrs Vijayaratnam was first employed by the Department of Education and Training as a retrained teacher in physics and science on probation at Ryde Secondary College on 29 January 2008. 4 After various issues were identified with the appellant's teaching performance, she was placed on an induction program for probationary teachers and offered informal teaching support. On 27 August 2008, the Principal of Ryde Secondary College wrote to the appellant and arranged a meeting to further discuss these matters. Mrs Vijayaratnam was placed on a Teacher Improvement Program which commenced on 22 September 2008 and ceased on 17 December 2008. 5 At the conclusion of the Teacher Improvement Program, the appellant was found to fall short of the required teaching standard. After receiving a response from the appellant on 17 March 2009, a report by the School Education Director, dated 31 March 2009, recommended that the appellant's position be annulled and that her name be placed on the Not To Be Employed List ("NTBE"). Following this, Ms Jane Thorpe, Director of Employee Performance and Conduct Directorate, wrote to the appellant on 26 October 2009 confirming that her position was thereby annulled and that she would, in fact, also be placed on the Not To Be Employed List ("NTBE"). This letter was received by her on 2 November 2009. 6 The appellant then sought to have the decision reviewed. A letter from the Director, Staffing Services, dated 15 February 2010, indicates that the decision to annul Mrs Vijayaratnam's employment remained unchanged, however, her name would be removed from the NTBE list enabling her to apply for any administrative and clerical positions within the Department. A further letter from the Department dated 9 March 2010 stated that the Director, Staffing Services was still, after further examination of the matter, of the opinion that the appellant was unfit for employment purposes in any teaching capacity. 7 The appellant lodged an application in this Commission on 19 March 2010 under s 84 of the Industrial Relations Act 1996 ("the Act") seeking relief against her dismissal. By s 85(1) of the Act it was required to be made no later than 21 days after the dismissal. 8 The respondent argued that the application was filed out of time. 9 Pursuant to s 85(3) of the Act, the Commission holds a discretion to accept a late application provided there are sufficient reasons to do so. 10 Section 85(3) is in the following terms: 85 Time for making applications … (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. 11 In a decision published on 9 July 2010, Connor C declined to accept the application which had been made well outside the 21 day limit. Connor C noted in his reasons that the appellant appeared to acknowledge in her application that her employment came to an end when, on 2 November 2009, she attended a meeting with the Department and received the relevant letter dated 26 October 2009. It was only in her evidence in the course of the hearing that Mrs Vijayaratnam purported to rely on the fact that as at 2 November 2009, she was only threatened with dismissal and that she was, in fact, dismissed in the 9 March letter. It was submitted by counsel for the respondent, and Connor C agreed, that the correspondence after 2 November 2009 was confined to seeking a review of the decision to place the appellant's name on the Not To Be Employed list, as distinct from the decision to annul her employment. 12 The appellant asserted before Connor C that she was told by two of the respondent's employees not to file an application with the Industrial Relations Commission. Those two employees gave evidence about their participation in a meeting with the appellant. They denied the appellant's assertion. The Commissioner accepted their evidence in preference to the evidence of the appellant. This is a finding that was open to Connor C on the evidence. 13 Connor C concluded that the application was substantially out-of-time and that the appellant had not established any persuasive arguments as to why he should exercise his discretion in her favour. He commented that he had doubts concerning the merits of the appellant's application. We do not express any conclusion about the merits of the unfair dismissal application on the material that is before us. Should leave to appeal be granted? 14 Under s 188 of the Act, an appeal against a decision of a member of the Commission may only proceed with leave. It is well established that leave to appeal will not be granted lightly (Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381). 15 The principles applying to a consideration of the exercise of discretion such as a discretion to refuse to extend a time limit were succinctly stated by the High Court of Australia in House v R [1936] HCA 40; (1936) 55 CLR 499. In the seminal judgment of Dixon, Evatt and McTiernan JJ, their honours said at 504: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. 16 We received detailed written submissions from the appellant in support of her application for leave to appeal and these were supplemented orally at the hearing before us. 17 In her Application for Leave to Appeal, the appellant advanced, as a reason, that she was unaware of the 21 day restriction imposed on lodging claims of this nature and that, because her employer failed to inform her of this, she should now be permitted to proceed. She appeared to concede in her written submissions, filed for the purpose of these proceedings, that 2 November 2009 was the correct date of her dismissal. Although she argued that she was discouraged from applying to the Commission, she accepted that she was aware of this as an avenue for recourse. This was evidence that emerged in cross-examination in the proceedings before Connor C. Accordingly, in our opinion, this submission cannot be sustained as there was nothing to prevent the appellant from making application to the Commission of her own volition. 18 Another argument advanced by the appellant is related to the hardship she would face if her claim is denied. She has submitted that due to the fact that she is the sole carer of her husband and son and currently living and supporting them both from Centrelink benefits alone, she will suffer undue pressure and hardship. Further, the appellant included in her submissions a significant amount of material that appears to go to the merits of her case rather than any actual error made in the exercise of the Commissioner's discretion. Whilst we have some sympathy for the appellant's predicament, the principles outlined in House v R, clearly circumscribe those circumstances in which the exercise of discretion will be reversed on appeal. 19 Counsel for the respondent submitted that the appellant knew of her rights to apply to the Commission as at 2 November 2009 and that the reason she failed to do so was due to the fact that she was content to gain employment with the respondent in a clerical and administrative position. 20 We agree with the conclusion of Connor C that the actual date of dismissal was 2 November 2009 when the appellant received the letter from Ms Jane Thorpe, dated 26 October 2009. Thus, her application was lodged some four months late, which substantially exceeds the time restrictions imposed by the Act. We consider that no error has been demonstrated in the decision of Connor C and, in particular, his conclusion that there were inadequate reasons provided by the appellant as to why the application should be accepted out of time. 21 There is no warrant to disturb Connor C's decision, nor is there any other matter which would warrant the grant of leave. Orders 22 Leave to appeal is refused. 23 The appeal 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.