Set aside by Appeal : Industrial Relations Commission of New South Wales CITATION: Simjanovska v. Roads and Traffic Authority of New South Wales [2006] NSWIRComm 1041 APPLICANT Elka Simjanovska PARTIES: RESPONDENT Roads and Traffic Authority of New South Wales FILE NUMBER(S): IRC 4554 of 2005 CORAM: Connor C CATCHWORDS: allegation of victimisation in employment - notice of motion that matter beyond jurisdiction - application for adjournment refused - Practice Direction No.17 - claims determined to be beyond jurisdiction - application out-of-time - matter dismissed LEGISLATION CITED: Industrial Relations Act 1996 Burns v. Grigg (1967) VR 871 Gu v. Nature's Care Manufacture Pty Limited [2006] NSWIR Comm 39 CASES CITED: Mitchelson v. Mitchelson (1979) 24 ALR 522 Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 Skelly v. Proud Jewellers Pty Limited (1994) 53 IR 3 Waine v. BHP Steel - unreported HEARING DATES: 02/02/2006 DATE OF JUDGMENT: 03/24/2006 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Stephen Doran Roads and Traffic Authority of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 24 March, 2006 Matter No IRC 4554 of 2005 Elka Simjanovska and the Roads and Traffic Authority of New South Wales Application under S.213 of the Industrial Relations Act, 1996 DECISION ON NOTICE OF MOTION [2006] NSWIRComm 1041 1 On Wednesday, 31 August, 2005 Ms Elka Simjanovska lodged an application under Part 1, Principles of Association, of Chapter 5, Industrial Organisations [S.209 to 214] of the 1996 Industrial Relations Act against her employer, the Roads and Traffic Authority of New South Wales, alleging victimisation in employment. Ms Simjanovska is employed as a senior programme officer. She had been suspended from duties with pay between Tuesday, 14 June, 2005 and Friday, 12 August, 2005 whilst the RTA investigated allegations made against her. She has also asserted a threat to victimise her on Tuesday, 6 April, 2004 (when she was the subject of a formal performance appraisal) and on Thursday, 8 July, 2004 (when she received a warning letter over her failure to attend a meeting over her staff appraisal and immediately after she had indicated her intention to make a formal complaint about RTA management). 2 Ms Simjanovska has sought orders against the RTA, ie that it: (i) not carry out a threat to victimise her or not make any further such threat; (ii) withdraw particular documents - a memorandum and the warning letter - issued by the RTA; and (iii) arrange that a review of a medical report be undertaken by the RTA. And she seeks medical and legal expenses from the RTA. Those orders are unusual and the RTA contends, accurately in my opinion, that they are beyond jurisdiction. 3 The matter came before McKenna C for a conferences on Friday, 23 September, 2005 and Monday, 10 October, 2005. It was stood out of the list by McKenna C and returned to the Registry staff on Monday, 16 January, 2006 in accordance with the instructions given to her in the light of foreshadowed changes to procedure for the case management of files which has now been formalised in Practice Direction No.17. Whilst the file has remained inactive, a series of notices of motions by Ms Simjanovska and the RTA went unresolved. Ultimately the matter was allocated to me on Monday, 20 February, 2006 for hearing on Thursday, 2 March, 2006. The whole process has become somewhat convoluted, I have to say. 4 Firstly, on Wednesday, 7 December, 2005 the RTA filed a notice of motion that Ms Simjanovska's application for alleged victimisation be dismissed on jurisdictional grounds. On Monday, 12 December, 2005 Ms Simjanovska lodged a notice of motion in response seeking an adjournment of the hearing of the notice of motion by the RTA. Ms Simjanovska has also summonsed the RTA to produce certain documents on Wednesday, 15 February, 2006. In the light of the jurisdictional issues the RTA has raised, it is not prepared to make that documentary material available at this time. Argument over that material is reserved. 5 On Monday, 20 February, 2006 the RTA renewed its notice of motion, asserting that Ms Simjanovska's claim was outside jurisdiction and that notice of motion be heard as a threshold issue. Ms Simjanovska responded with a notice of motion of her own on Monday, 27 February, 2006 the effect of which was that I adjourn the RTA notice of motion so that any issue of jurisdiction be heard at the same time as the substantive issue. 6 The hearing before me on Thursday, 2 March, 2006 was confined to consider only the threshold issue of jurisdiction, ie the notice of motion by the RTA that I dismiss Ms Simjanovska's application for alleged victimisation on jurisdictional grounds. That is all that Registry staff have actually allocated to me, in any event. I also hear Ms Simjanovska's application for adjournment which I believe is properly before me at the same time. In the hearing Ms Simjanovska was unrepresented and Mr Doran represented the RTA. 7 It is not uncommon for matters going to jurisdiction to also be determined in a single hearing when substantive issues are decided. But in this case I consider that I am bound to reject Ms Simjanovska's notice of motion that I adjourn the hearing of the matter. I note in that respect that Clause 13(b) of Practice Direction No.17 provides: "The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member . It should be understood that adjournment applications will be granted only on clear and compelling grounds." 8 Ms Simjanovska's application for adjournment of the hearing over the RTA's notice of motion was not heard by a Presidential Member in accordance with Clause 13(b) but, in fact, heard (and rejected) by me at the commencement of the hearing on Thursday, 2 March, 2006. Practice Direction No.17 is directed to applications for unfair dismissal under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] and not applications alleging victimisation in employment and therefore presumably there is no reason why the notice of motion by Ms Simjanovska may not be heard and determined by me, albeit that the file has been provided to me in accordance with the procedure and protocols developed by virtue of Practice Direction No.17. But, in any event, in doing so, I should have regard to the spirit behind Practice Direction No.17 and its greater emphasis on stricter case management which I believe should apply to all cases before the Commission. 9 Staff J explained the position in his unreported ex tempore decision of Monday, 13 February, 2006 in Gu v. Nature's Care Manufacture Pty Limited [Matter. No.IRC 5403 of 2005 at p.3]: "...Practice Direction No.17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Absent clear and compelling grounds, applications for adjournment will be declined. I am of the firm view that the respondent has not acted in a way commensurate with its obligations and its own interests in seeking an adjournment of the proceedings in such close proximity to the hearing..." 10 Ms Simjanovska has known that the RTA would be seeking to dismiss her application for alleged victimisation on jurisdictional grounds from the outset of the proceedings before McKenna C. It is hardly an ambush for her. And any argument she proposes to mount over jurisdictional issues will not be improved if it is heard together with the substantive issues in the dispute. Her position will not be prejudiced in any way that I can see. I accept that she has always expressed her opposition to the RTA's notice of motion to that effect. But I believe that it is more convenient for both parties that the questions of jurisdiction raised by the RTA be heard as threshold issues and thereby avoid the unnecessary cost and inconvenience to both Ms Simjanovska and the RTA in mounting a substantive case if it should emerge that the RTA is correct in its argument that I hold no jurisdiction to entertain Ms Simjanovska's claims. And, in my opinion, the RTA is correct in its assertions. I rejected Ms Simjanovska's application for adjournment. 11 It does not appear that Ms Simjanovska appreciates the extent and the limitations on any application made under Part 1. It is contained under a section of the Act dealing principally with freedom of association (ie membership, or conscientious objection to membership) and any application made under Part 1 should be considered in that context. Clearly, certain activities by an employer or a trade union, set out in S.210(1), are unlawful on the grounds that they constitute victimisation, viz: "An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees; (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation: (c) refuses to engage in industrial action; (d) exercises functions conferred under this Act; (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument; (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument; (g) participates, or proposes to participate, in proceedings relating to an industrial matter; (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties); (i) informs any person of an alleged breach of the Protection of the Environment Operations Act, 1997; or (j) makes a complaint about a workplace matter that a person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act, 2000." The protection afforded under Part 1 is not therefore available for each and every claim that an employee may chose to make over his or her alleged victimisation in the workplace. It is confined to what is set out in S.210(1). As Mr Doran suggested in his submissions, S.210(1) is an exhaustive list. 12 In written submissions which Ms Simjanovska provided as the basis for her argument as to the Commission's jurisdiction to entertain her claim, she wrote (in the third person) that she: "...considers herself inflicted, punished and hurt by the RTA when some of the RTA managers attempted to victimise (her) by forcing her to accept an unjustified request for formal performance management... (She) considers that this request was deliberately created to impose serious consequences on her professional reputation, the future prospects of her career, and to prevent (her) to proceed further with her findings of work related problems associated to her field of expertise. The request for a formal performance management was issued by (her) manager...at the time when (she) reported identified problems with the management of the section where she was employed, including problems with the management of important practices relating to her field of expertise. (She) has also emphasised the problem with the absence of the appropriately qualified resources to perform engineering function in the section where she was employed..." 13 Ms Simjanovska has mounted her claim principally under Ss.210(1)(e), (f) and (g), viz: 1. Ms Simjanovska has claimed that her suspension occurred immediately after she had demanded an explanation of why she should not be covered under the Professional Engineers (Roads and Traffic Authority) Enterprise Agreement instead of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Conditions of Employment) Award under which she was initially employed following her letter of appointment. That, she argues, falls under S.210(1)(e), ie she "...claims a benefit to which the person is entitled under...an industrial instrument...". It is the letter of appointment which governs her employment - and the Crown Award flows from that letter of appointment. Of course, Ms Simjanovska is free to pursue a claim for an improvement in her salary at any time, but prima facie the "industrial instrument" under which her entitlements flow is dictated by her letter of appointment and the Crown Award that flows from it. 2. As far as S.210(1)(f) is concerned - "...informs any person of an alleged breach by an employer of the industrial relations legislation or an industrial instrument..." - Ms Simjanovska asserts in her written submissions that the performance review "...contains invented and incorrect information..." which "...has been created with the intention to punish, inflict and victimise her...". She suggests that may constitute a potential breach of S.267 providing a penalty for the intention on the part of an officer of a State organisation to deceive or defraud - a serious matter indeed. Ms Simjanovska is drawing a very long bow here and it is one that is directed towards an officer of a "State organisation", ie an industrial organisation of employees or employers and not the RTA. 2. Ms Simjanovska has asserted that her performance review was an "...industrial matter", ie in terms of the definition in S.61 a matter "...relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry...". She argues that consequently S.210(1)(g) is relevant to her claim, ie "...participates, or proposes to participate, in proceedings relating to an industrial matter...". S.210(1)(g) is concerned with "proceedings" of an industrial character. Whilst the current proceedings on Ms Simjanovska's application for alleged victimisation obviously would have that character, they came out of the allegations she has made; they are not themselves "proceedings" for the purpose of S.210(1)(g) but part of the process she has put in train subsequently. As far as I can see Ms Simjanovska was not involved in any such proceedings at the time of the performance review. 14 The range of remedies available if there is victimisation of the type described in S.210(1) is also limited. They are set out in S.213: "(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee; (b) order the employer to promote or otherwise advance an employee in his or her employment; (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone; (d) order the employer to employ a prospective employee; (e) order the employer not to carry out a threat to victimise an employee or not to take any further such threat; (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity; or (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is 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 other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought." 15 In the circumstances, I am satisfied that Ms Simjanovska's claim before me in this hearing must ultimately fail on a number of grounds. Firstly, for the reasons I have outlined earlier in this decision, I am satisfied that the victimisation by the RTA which she alleges does not fall under any of the grounds set out in S.210(1). Secondly, none of the remedies described in S.213(2) appear to be what Ms Simjanovska is actually seeking. She has neither been dismissed to make her reinstatement an option [S.213(2)(a)]; nor refused promotion to make an order for advancement in employment a remedy for her [S.213(b)]; as far as I can see, she has not foregone any remuneration or other financial benefit to be seeking an order for recoupment of such remuneration or financial benefit: her medical expenses would not fall under that heading [S.213(2)(c)]; she is not seeking employment with the RTA - she is already employed by it [S.213(2)(d)]; there is no current, or possible future, threat to victimise her as far as I can deduce [S.213(2)(e)]. Ms Simjanovska has argued that the Commission is empowered by S.213(1)(g) to "...make consequential orders..." but in consequence of what? The word "consequential" suggests that the orders would need to flow from something that had already proceeded it and there is nothing of that nature on which to attach any consequential orders. Such orders under S.213(1)(g) cannot stand alone, in my opinion. 16 Also insofar as Ms Simjanovska's claim also goes to issues on Tuesday, 6 April, 2004 (the staff appraisal) and Thursday, 8 July, 2004 (the warning letter), her claim is stale and exceeds the 21 day time limit prescribed in S.213(3) by a considerable amount of time. By virtue of S.213(4) I hold a discretion to admit an out-of-time claim in certain circumstances. Primarily, in considering whether to admit an out-of-time claim, it is a question of determining where the convenience lays: whether a late applicant employee should be denied a remedy or the respondent employer be put to the considerable, and unnecessary, inconvenience which may arise for it from a late application. 17 In Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 I considered the terms of a similar discretion in S.85(3) for unfair dismissal claims and stated (at p.101) that: "…in my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)…" Nevertheless, the prima facie position is where a time limit is provided for litigation it should be followed: it is a clear instruction of the legislature that the time limit should be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [ Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. 18 Moreover, in my opinion, one other issue should always be considered when an exercise of discretion of this nature arises for a member of the Commission - the prospect of ultimate success in the litigation. In my unreported decision of Monday, 8 October, 2001 in Waine v. BHP Steel [Matter No.IRC 3138 of 2001] I commented on an out-of-time unfair dismissal claim (at p.4), viz: "…Whilst it is not specifically referred to in S.85(3), it seems to me that one of the factors which I must take into account in determining whether or not to exercise my discretion and admit an out-of-time...application, is the prospect of such an application ultimately succeeding if it is considered on its merits. That is a common approach by courts and tribunals [ Burns v. Grigg (1967) VR 871 at p.872 and Mitchelson v. Mitchelson (1979) 24 ALR 522 at p.524]. Essentially, if an out-of-time applicant is unlikely to succeed, it goes without saying that to refuse his claim will not, in fact, constitute the type of hardship to the dismissed employee referred to in S.85(3). It would do nothing more than delay the inevitable and (avoid) considerable cost and inconvenience to both parties…" 19 For the reasons I have outlined in this decision, I see no good purpose being served by permitting this matter to go forward to hearing in the interests of either Ms Simjanovska or the RTA. I propose to dismiss it. However, I stress to Ms Simjanovska that I have not addressed the merit of her claim, just that it is not a matter properly before me on jurisdictional grounds. P J CONNOR Commissioner 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.