Industrial Relations Commission of New South Wales CITATION: Syed Rizvi and South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084 APPLICANT PARTIES: Syed Muhammad Abbas Rizvi RESPONDENT South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): 1363 of 2009 CORAM: Bishop C Unfair dismissal - out of time application - initial application to AIRC - subsequent union negotiations with employer - negative result - application filed 126 days after cessation of employment - applicant aware of 21 day limit - jurisdictional issue of fixed term employee on a specified task also raised - extension of time CATCHWORDS: opposed - jurisdictional issue pressed. HELD - applicant had not made out a sufficient reason to exercise discretion and grant extension - viewed application as last resort - should have been first resort as Act intends - limited chance of success due to jurisdictional issue - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Bond v Director-General of Education and Training [2008] NSWIRComm 1131 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Green and Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109 CASES CITED: Howell v Red Australia Equipment [ 2002] NSWIRComm 119 Lucic v Nolan (1982) 45 ALR 411 Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 Robert Stanley Green and Mayne Nickless trading as Armaguard [2008] NSWIRComm 40 Stratford v Anglican Retirement Villages [2006] NSWIRComm 1166 HEARING DATES: 23 October 2009 DATE OF JUDGMENT: 27 October 2009 APPLICANT: Dr Syed Rizvi LEGAL REPRESENTATIVES: RESPONDENT: Ms K Leevers South Eastern Sydney and Illawarra Area Health Service DECISION: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 27 October 2009 Matter No IRC 1363 of 2009 Syed Muhammad Abbas Rizvi and South Eastern Sydney and Illawarra Area Health Service Application by Syed Muhammad Abbas Rizvi re unfair dismissal pursuant to section 84 of the Industrial relations Act DECISION [2009] NSWIRComm 1084 1 This matter concerns an application by Syed Muhammad Abbas Rizvi against the South Eastern Sydney and Illawarra Area Health Service (SESIAHS) for a remedy pursuant to s.84 of the Industrial Relations Act 1996. 2 Dr Rizvi's employment as a Senior Research Officer in the NSW Health Service, based at St George Hospital was concluded on the 28 February 2009. 3 Dr Rizvi filed his Part 6 application on the 2 September 2009. He sought reinstatement, re-employment or monetary compensation in lieu thereof. 4 The matter was listed for conciliation and directions before Commissioner Macdonald on the 28 September 2009, at which time conciliation was undertaken. As that conciliation was unsuccessful, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17 and the file returned to the Registry for future disposition. 5 On the 8 October 2009, the SESIAHS filed a Notice of Motion, together with an Affidavit deposed by Ms Cathryn Hellams, on behalf of the Director General of NSW Department of Health in respect of South Eastern Sydney and Illawarra Area Health Service, seeking as follows: 1 Vacate the Orders made at conciliation on 28 September 2009 regarding the filing of evidence; 2 Vacate the Hearing of the Applicant's Unfair Dismissal claim; 3 Dismiss the Applicant's Unfair Dismissal claim; 4 If 1-3 above are not accepted, to discreetly consider the jurisdictional issues of "Out Of Time" and "engagement for a specified period of time and specified task" prior to considering the substantive Unfair Dismissal claim. 6 The grounds and reasons were set out as follows: 1 The Applicant lodged the Unfair Dismissal claim significantly outside the 21 day time limit set out in s85(1) of the Industrial Relations Act 1996; 2 The Applicant knowingly delayed making the application, and has not provided sufficient reason for the delay; 3 The Applicant was engaged on a temporary employment contract for a specified period of time and for a specific task. Pursuant to s83(2)(a) of the Industrial Relations Act 1996, The Applicant is not eligible to bring about an unfair dismissal claim on jurisdictional grounds; 4 The Applicant was not "dismissed", rather his temporary contract came to a natural end. 7 Further directions were issued by Staff J, in Chambers, on the 16 October 2009, as to the filing and exchange of evidence in relation to the "Out Of Time" issue and the matter allocated to the Commission as currently constituted for hearing of that aspect of the Notice of Motion on the 23 October 2009. 8 At the hearing Dr Rizvi appeared on his own behalf and had filed two Affidavits (Exhibit 1 and 2). 9 Ms Leevers appeared on behalf of Director General of NSW Department of Health in respect of South Eastern Sydney and Illawarra Area Health Service and called Ms Cathryn Hellams, Manager Workforce Services SESIAHS, who had filed a further Affidavit, (Exhibit 3). 10 There was cross examination of both Dr Rizvi and Ms Hellams. Background and Chronology - based on the evidence filed. 11 Dr Rizvi first commenced in the temporary position of Research Assistant under a temporary contract for a specified period of time on 1 July 1997 (Exhibit 1 - Annexure 3). There then followed over succeeding years extensions of those temporary contracts. The extension of the temporary contract in 2004 noted that... "This position has been extended due to the availability of funding to continue research on the "Targeted Alpha Therapy for Metastatic Breast Cancer". 12 During this time Dr Rizvi completed his Ph.D with the Faculty of Medicine, University of New South Wales (this involved a period of full time study). 13 Extensions of the temporary contracts for specified periods of time continued in similar terms as above until December 2007, however there does not appear to have been a contract for the year 2008. 14 By correspondence of the 30 December 2008, Dr Rizvi was offered (and appears to have accepted) the position of Senior Research Officer in the NSW Health Service on a fixed term basis commencing 1 January 2009 and up to and including the 28 February 2009 (Exhibit 1 - Annexure 3). The letter of offer noted: This temporary position is only required whilst funding is available and accordingly is exempt from the conditions of the Health Industry Status of Employment Interim (State) Award. 15 On 14 January 2009, Dr Rizvi attended a meeting with Professor John Kearsley, Director Cancer Services, Ms Anne Donnelly, Clinical Group Manager Cancer Services and Ms Collette Murphy, Senior Human Resources Consultant, at which he was advised that his employment contract due to expire on the 28 February 2009, would not be extended beyond this date. 16 This advice was confirmed in writing by correspondence of 9 February 2009 from Ms Whitehurst, General Manager Central Network SESIAHS (Exhibit 1 - Annexure 3). 17 Dr Rizvi duly concluded his employment on 28 February 2009. The Evidence 18 Dr Rizvi deposed that he was forced to accept non-continuation of his employment which was a "dismissal" and that was harsh, unjust and unfair. The matter was discussed with the Health Services Union (HSU) and on the 27 February 2009, an e-mail was sent to Lachlan Gilchrist of the HSU (Exhibit 1- Annexure 1 - Email 2) providing background detail and requesting as follows: ......I request you to please take the case up with the hospital as you did for Jim Fang. If appropriate, please take this case with Industrial Relations Commission as well or advise me about it. I have already asked Collette for a copy of my file and waiting for a response from her............ 19 Further emails were exchanged between Dr Rizvi and the HSU ( as detailed in Exhibit 1 - Annexure 1), in which Dr Rizvi sought information as to whether there had been any progress, with Lachlan Gilchrist responding by email (Exhibit 1- Annexure 1 - Email 7) on 13 March as follows: Thanks Syed. Just going through all the information. It will be raised at a peak level meeting. Ill (sic) try to get something today. 20 On the 25 March 2009 he sent a further email to Lachlan Gilchrist in which he sought "help and advise" whether he "should lodge a case with the IRC or through the HSU or wait until your efforts lead to something". (Exhibit 1 - Annexure 1- Email 8) 21 Dr Rizvi deposed that he was not advised of, and was unaware of the 21 day time limit until 25 March 2009. He first became aware of the 21-day time restriction when he began the AIRC form lodgement process. 22 On the 25 March 2009, Lachlan Gilchrist emailed Dr Rizvi (Exhibit 1 - Annexure 1 - Email 8) as follows: Syed would it be possible to contact you by phone. Representations by hsu lead organiser Kerrie Seymour have been made to HR and the outcome was not positive. 23 Dr Rizvi deposed that in March 2009 he filed an unfair dismissal application in the Sydney Registry of the Australian Industrial Relations Commission (U2009/297) which he subsequently sought to discontinue and Orders were issued by the AIRC on 22 April 2009 on the basis of ".......On the request of the Applicant on 21 April 2009, the application is dismissed for want of jurisdiction." 24 On the 22 April 2009, Dr Rizvi sent an email to Lachlan Gilchrist (Exhibit 1- Annexure 1 - Email 9) about that AIRC application as follows: Dear Lachlan, following our conversation and looking at Jim's case, I believed that I have a strong case for permanency. As a result, I went to the AIRC by myself and as it happened in Jim's case - the Hospital lodged a jurisdictional objection on the AIRC saying that I am a NSW State Employee. In my response to the AIRC, the Commissioner is going to issue an order dismissing the application on my request. This allows me to lodge the case with the NSW IRC. Before that I want you to step in and take up the case with the Area Health Service as you did for Jim.................................. 25 On 23 April 2009, Dr Rizvi sent a further detailed email to Lachlan Gilchrist (copied to Kerrie Seymour, also with the HSU) (Exhibit 1 - Annexure 1- Email 10) which concluded: Please advise me, whether you are willing to take up the case with the Hospital or not (in a more authoritative and forceful way); as this advise (sic) will determine the coarse (sic) of my next action (lodgement of the case with NSW IRC by tomorrow, the maximum). 26 That same day Lachlan Gilchrist emailed Dr Rizvi (Exhibit 1 - Annexure 1 - Email 11) as follows: As I said in our conversation yesterday were (sic) prepared to take another look at it. I would ask you though that you don't lodge it in the IRC tomorrow if you would like us to represent you. We need to be able to go through it. I understand your frustrations but I can assure you its not the case of me arguing on the side of the employer its a case of me getting my opinion on the information I have as well as that of my colleagues. Ill (sic) discuss this as a priority and get back to you. 27 On the 29 April 2009 Dr Rizvi sent a further detailed email to Lachlan Gilchrist (Exhibit 1 - Annexure 1- Email 12) which commenced as follows: Dear Lachlan, My case against the hospital is ready (as mentioned earlier) for NSW IRC and is based on three grounds. In brief: ................ 28 The grounds then detailed in the email were "precedence" (offering of permanent employment to other employees in similar positions as his), that funding was still available and the project was not finished, and also his services and achievements during the 12 years. He also indicated that the remedies he sought were reinstatement to his original position so he could continue his work (his preferred option), or re-employment in any other hospital laboratory area, or compensation in terms of his career loss ( an amount equivalent to voluntary redundancy). 29 Dr Rizvi deposed that his preparation with regard to lodging the case with the NSW IRC was more or less the same as has formed the grounds of this current out-of-time application under consideration. 30 Dr Rivski attached to his Affidavit (Exhibit 1- Annexure 1) a number of emails to and from the HSU, and from the HSU to and from SESIAHS over the ensuing months that concerned the setting up of a Disputes Committee concerning Dr Rizvi's situation. 31 On the 22nd of July 2009, Dr Rizvi sent an email to Kerrie Seymour (Exhibit 1 - Annexure 1- Email 33) as follows: Dear Kerrie, I think we have a strong case in IRC, as from day one, the contract issue was not the principal position I was taking - rather it is the precedents, Chand Raja, Jim............................... we need to look at it in depth as I do not intend to leave and if it comes down to "not getting anything", it will have to come from a fight that (sic) in the IRC. Attached is a summary of what I prepared many weeks earlier (it will be refined and used as a basis for the fight in IRC). 32 Dr Rizvi deposed that he wanted to have every possible avenue explored, prior to lodging the case with the IRC, by working the dispute through the HSU. The respondent was aware of such efforts and was directly involved as a party in those efforts. He also maintained that at times the matter was delayed by the HSU representatives or by the respondent, as was evident from the various emails dated in July that he had attached to his Affidavits. 33 On the 11 August 2009, Kerrie Seymour emailed Dr Rizvi (Exhibit 1 - Annexure 1 - Email 35) as follows: My apologies for the delay in responding sooner. I have sought advice from our industrial relations Manager regarding the information that you and H/r have provided to date. Unfortunately Glenn's view is the same as mine that we do not believe that there is a strong industrial case in order to substantiate the claim to permanency on this occasion. I have included Glenn's response to me regarding the reasons as to why the HSU have formed this view. Whilst we have persued (sic) other claims previously, they were clearly in line with breaches within the award. In light of our findings, but HSU will not be persuing (sic) a claim in the Industrial Relations Commission. 34 That same day, Dr Rizvi emailed in reply that he "will be lodging the case with IRC today afternoon or Friday" (Exhibit 1 - Annexure 1 - Email 36). 35 Dr Rizvi acknowledged in evidence that he was aware of the 21 day time limit by the 27 March 2009. He was also aware on the 25 March of the negative outcome of representations the HSU had made to SESIAHS in relation to his initial application to the AIRC. 36 He thought that filing an application in the NSW IRC would jeopardise the efforts of the HSU. In his opinion it was not appropriate to lodge "a last resort" application, pending the outcome of the efforts of HSU on his behalf. He believed that another case pursued by the HSU involving similar circumstances had been successful. 37 The process with the HSU was commenced on the 23 April 2009 and finished on the 12 August 2009. He considered it inappropriate to lodge an unfair dismissal application while that process was being undertaken with the employer. However he lodged the application within 21 days of the 12 August. 38 Once he had gone past the 21 day limit he did not consider the actual amount of the additional delay became any more relevant. 39 Ms Hellams deposed as to the responsibilities involved in her position. She indicated that SESIAHS objected to the Commission accepting Dr Rizvi's unfair dismissal application as his application was significantly out of time and he had not provided sufficient reason for his application to be accepted. 40 Ms Hellams' Affidavit evidence can be summarised as follows: § Dr Rizvi was engaged for a specified period of time and for a specific task and as such was precluded from making an unfair dismissal claim. He was engaged via temporary employment contracts as a Senior Research Officer from 18 November 2002 up to 28 February 2009 when his employment came to a "natural end". § The temporary research position was subject to the availability of research grant funding to carry out specific research projects. No such funds were available after 28 February 2009. § Dr Rizvi did not file his unfair dismissal application until 2 September 2009, in excess of six months after his temporary employment contract came to a natural end on 28 February 2009 and this was well beyond the 21 day timeframe set out in the Act and represented a period of approximately 8 times the prescribed limit of 21 days. § The length of the delay in filing was excessive. Reliance was placed on decisions where the Commission declined to exercise its discretion in applications involving lesser periods of delay viz. Howell v Red Australia Equipment [2002] NSWIRcomm 119 - 30 days and Robert Stanley Green and Mayne Nicholas trading as Armaguard [2008] NSWIRComm 40 - 40 days. § The applicant carried the onus of proof to satisfy the Commission to accept an application out of time as well as the burden of showing why the Commission should exercise its discretion to grant such an extension (Lucic v Nolan (1982) 45 ALR 411). § Dr Rizvi had failed to provide sufficient reason to explain the significant 4.5 month delay in filing. He had filed an unfair dismissal claim in the AIRC in March which was dismissed on 22 April 2009 for want of jurisdiction. She assumed that he became aware at this time that the NSW IRC was the correct jurisdiction. § He had access to professional industrial advice for a significant period of time prior to filing his unfair dismissal claim and acknowledged he sought advice from and was represented by the HSU during the period when his temporary contract expired and August 2009. § Based on her knowledge and experience, the HSU worked regularly in the field of industrial relations and were aware of the relevant time limits provided for in s.85. She also believed that the HSU knew that employers of the NSW Health Service fell within the NSW State industrial jurisdiction not the Federal jurisdiction. § Based on her knowledge and experience in previous matters involving the HSU she found it difficult to accept that the HSU did not advise him of the time limitations and the importance of abiding by them. It would have been prudent for him to file his application at the same time as the HSU attempted to deal with these issues. § The decision not to lodge the application within the prescribed time appears to a been taken by him deliberately and with full knowledge of the statutory time limits. § The delay in lodging the application did not appear to be due to any inadvertence, ignorance or misfortune. § There was no conduct on the part of the SESIAHS that could be seen as interfering with his capacity to make a claim within the 21 day limit. It was onerous to require the SESIAHS to now answer his unfair dismissal claim some seven months after his temporary employment contract came to a natural end. To answer the claim also placed undue pressure on SESIAHS resources. § Dr Rizvi was engaged on a temporary employment contract for a specified period of time on a specific task and therefore pursuant to s.83(2)(a) of the Act he was ineligible to bring an unfair dismissal claim. § He was engaged for a specified period of time on a temporary employment contract which had a fixed end date of 28 February 2009. That temporary contract came to a natural end on 28 February 2009 and therefore could not be viewed as a dismissal. He was advised in the meeting on 14 January 2009 and by letter of 9 February 2009 that his employment contract would not be extended past 28 February 2009. § In his employment contracts it was made clear that those contracts were available due to, and subject to, the availability of funding to conduct research into specific cancer projects. 41 Ms Hellams confirmed in evidence that she was aware of negotiations concerning Dr Rizvi going on between HSU and SESIAHS in July/August. 42 She believed Dr Rizvi would have been aware of his jurisdictional avenues and that the HSU would have advised that NSW was the appropriate jurisdiction and he should have lodged his application in NSW. She was not aware of the particular advice that the HSU had given to Dr Rizvi. 43 The decision about allocation and availability of funding would have been made by the General Manager Central Network in consultation with the relevant senior staff and the funding bodies. Submissions 44 Dr Rizvi generally reiterated the issues that he raised in evidence, that he had sought to resolve the matter with the respondent through the representations of the HSU and did not consider it appropriate to lodge an application whilst those representations were being made. The respondent was well aware of those efforts. He had lodged his application within 21 days of the HSU advising that that avenue was unsuccessful. During that time he had consulted with his family and supporters. 45 The respondent was incorrect to say he was an exempt employee. He had been continuously employed since 1997. There was still funding available, the research work was still there for him to do and he was supported in that view by his Director, Professor Barry Allen. 46 It would be unfair if he could not carry on in his chosen career and he would suffer considerable hardship as a consequence. 47 Dr Rizvi referred to decisions where members of the Commission had allowed applications out of the time see Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 and Bond v Director General of Education and Training [2008] NSWIRComm 1131, in support of his submissions. 48 Ms Leevers also generally reiterated the points raised in the Affidavit of Ms Hellams. 49 Dr Rizvi had filed his application in excess of six months following the cessation of an employment contract that had a specific end date. During this time he was represented by the HSU from the 27 February to the 11 August. He was aware of the 21 day timeframe soon after he filed with the AIRC in March. He chose instead to explore other avenues. 50 Dr Rizvi had not made out a sufficient reason to explain the delay in filing. Although the HSU advised him on the 11th of August of the unsuccessful outcome of representations with the SESIAHS and he advised the HSU on the 12th of August that he would file an application, he still took three weeks to do so. 51 In any event he was precluded from making an application pursuant to the provisions of s. 83(2)(a) of the Act as he was employed on a fixed term contract for a specific purpose. 52 Ms Leevers also relied on, and drew the Commission's attention to, Green & Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109 and Stratford v Anglican Retirement Villages [2006] NSWIRComm 1166 and the principles enunciated in Director-General of Education and Training v Bond [2009] NSWIRComm 40, in support of her submissions. Consideration 53 I have carefully considered the detailed evidence and submissions of the parties, as well as the cases cited. 54 Dr Rizvi filed his s.84 application on 2 September 2009, some 20 days after the email from Kerrie Seymour on 11 August advising as to the unsuccessful outcome of representations made on his behalf, and some 126 days after he ceased employment with SESIAHS. This represents a significant period in excess of the prescribed 21 day filing limit permitted by the Act. 55 The SESIAHS seeks that the Commission not accept Dr Rizvi's application on the basis that it is made outside the 21 day limitation set by s.85 (1) and determine that the Commission determine that issue as a threshold matter. 56 In this particular application it is also relevant to consider the provisions of s.85(2) [Commission must accept application lodged out of time] as follows: The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under the Commonwealth law relating to the same dismissal and; a) the similar application was made within the time required by that Commonwealth law, and b) a similar application has not been settled or determined, and c) the application under this part is made not later than 21 days after the similar application is withdrawn or is declined because of the existence of an alternative remedy under this part. 57 Dr Rizvi made an application relating to the same dismissal with the AIRC in March 2009. It was determined on the 22 April 2009 by way of Dr Rizvi seeking orders that the matter be dismissed, as it was filed in the wrong jurisdiction (the jurisdictional issue having been pressed by the respondent SESIAHS). 58 The subsequent s.84 application was not however made within 21 days of that date. Therefore I am not obliged to accept the application on the basis of s.85(2). 59 However s.85(3) gives the Commission a broad discretion to allow an applicant to depart from the strict requirements of legal form, if fairness so demands. In exercising its discretion the Commission must be satisfied that a "sufficient reason" has been made out and may accept an application out of time "having particular regard 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 all the employer is the application is or is not rejected, and c. the conduct of the employer relating to the dismissal". 60 In Green & Yum! Restaurant Pty Ltd the Commission, as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as originally summarised by Sams D P in Kent Gorrell v Uwatec Pty Ltd ( unreported, IRC 1700/99, 5 July 1999) (which also cited appropriate and relevant cases cited each principle) and applied in subsequent decisions of Sams D P since, as follows: 1 The Commission's power to accept out of time applications is discretionary. 2 The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3 It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances. 4 There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing. 5 There is a public interest in the prompt institution and prosecution of litigation before the Commission. 6 The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties. 7 Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8 Ignorantia legis neminem excusat (ignorance of the law and excuses no one). 61 In Director-General of Education and Training v Bond [2009] NSWIRComm40. The Full Bench observed at 14 that, "The law applicable to applications such as the present is well settled", citing with approval Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR at [12] - [15] as follows: [12]... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 52 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 ( NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". [14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual soap and stands is giving rise to late lodgement, including any attempt to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights. 62 Of course, in this matter, it must be said at the outset, that Dr Rizvi has acknowledged that he was aware of the 21 day limitation and became so as a result of his March 2009 application to AIRC. 63 He was also in contact with his Union, the HSU, both prior to making that application, and following the dismissal of that application. He indicated his clear intention to file in the NSW IRC and sought their specific advice as to his situation and filing in the NSW IRC. The HSU asked him not to file until they had given consideration to the issues he had raised concerning his situation. They then took the matter up with the SESIAHS, but via the convening of an internal Area Health Service Disputes Committee. 64 For some inexplicable reason it does not appear that the HSU were approaching Dr Rizvi's case on the basis of an unfair dismissal but rather as a dispute. There are a number of emails that Dr Rizvi has attached to his Affidavit concerning the setting up of a Disputes Committee to consider his situation (as referred to above). I also note relevantly in that regard an email sent by Kerrie Seymour of the HSU to Collette Murphy of the SESIAHS (and copied to other relevant persons including Ms Hellams) on 25 June 2009 (Exhibit 1 - Annexure 1 - Email 23) seeking advice as to the outcome of the Disputes Committee and concluding as follows: Could you please advise the HSU of the SESIAHS position in relation to this matter or we will have no alternative but to lodge a dispute in the Industrial Relations Commission (IRC) (emphasis added). 65 However Dr Rizvi does not rely on "representative error" for the delay in filing. Indeed Dr Rizvi acknowledges that he made a conscious decision not to file a s.84 application, even though he had all the requisite documentation he needed to file such an application and gives as the reason that he saw filing an application as a "last resort" and wanted to allow the HSU to pursue negotiations on his behalf instead. 66 Unfortunately filing as a "last resort" is not an option contemplated under Part 6, nor in my view should it be. Indeed filing is, and should be, the "first resort". 67 The 21 day time limit is there for a reason. To ensure that applications are dealt with expeditiously and an outcome, one way or another, also determined expeditiously. Practice Direction 17 was introduced with the express purpose of expediting s.84 unfair dismissal matters. This is in both the interests of applicants and employers (and it should also be said, in the public interest) and will not be lightly departed from, as has been enunciated in decision after decision of this Commission. 68 An application should be filed promptly and then discussions and negotiations can be pursued with an employer. The industrial unions that participate in the New South Wales industrial relations system fully understand and accept that position and operate accordingly. 69 Indeed, it is clearly mandated by Part 6 that the Commission plays a significant and integral role in that process pursuant to s. 86 : 86. The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation. 70 Further, an application cannot proceed to arbitration, (pursuant to s.87), unless " in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation had been made but have been unsuccessful". 71 It is not unusual for unions to take up matters concerning the possible dismissal or known dismissal of their members by way of a s.130 dispute notification, prior to either a decision being made to dismiss, or the dismissal actually being effected. The Commission can clearly go on to arbitrate such a matter pursuant to s.137 (1) (b) and (c). However this was not the course of action that the HSU embarked upon. 72 In any event, as indicated above, Dr Rizvi has fully acknowledged that he made a conscious decision not to file a section 84 application pending the outcome of the representations being made on his behalf by the HSU. 73 In my view it would be quite inappropriate and undesirable if applicants and/or unions pursued a course of first negotiating with an employer following a dismissal to see what outcome might result from those negotiations, before then deciding whether or not to lodge an application pursuant to s.84. 74 This could have all manner of unwanted and unnecessary consequences. It could result in considerable and undue delay in finalising the outcome of a dismissal, both for the dismissed employee and employer, thus creating uncertainty and hardship and additional costs to both parties. There is also no certainty that the outcome of any such negotiations that might be acceptable to an employer, would necessarily be acceptable to the former employee (and indeed vice versa) and an employer (and a former employee) could still face a s.84 application in this Commission with all that that involves (including further costs, time and resources). 75 Therefore, I do not accept that the reason proffered by Dr Rizvi in the circumstances is a "sufficient reason" to exercise my discretion and allow the application to be made outside the 21 day time limit. The mere fact that Ms Hellams of the SESIAHS was aware of the ongoing process between the HSU and the local Area Health Service representatives does not automatically mean that it follows that the SESIAHS should known that a s.84 application was likely to be made. Indeed, they were probably more entitled to be of the view that the process embarked upon by the HSU on behalf of its member was designed to bring the matter to a finality of outcome. 76 I have also considered the issue of hardship that might be visited upon Dr Rizvi should he not be allowed to proceed with his s.84 application. He has expressed concern as to his career prospects. In Uwatec Sams D P made the following relevant observations at p. 13 in relation to the hardship visited on an applicant if a claim were not allowed: There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, emotional or financial. The applicant is not "Robinson Crusoe" in this respect. In my view, s.85 (3) (b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing various varying degrees of hardship, nevertheless, are able to file within time. 77 Many applicants would also be in the same position as Dr Rizvi in that a dismissal would have adverse effects on their future career prospects. Whilst I sympathise with Dr Rizvi in that regard, given the circumstances of this matter (and in particular the jurisdictional issue pressed) I do not consider that to be a sufficient hardship so as to constitute a "sufficient reason" for the Commission to exercise its discretion and accept his application out of time. 78 As far as a consideration conduct of the employer relating to the dismissal is concerned, Dr Rizvi maintained in his evidence that "the matter" ( that is the representations made on his behalf between April and August) was delayed "by the HSU or the respondent". 79 The process he referred to may well have taken some time. However I cannot see, on the extensive email evidence filed by Dr Rizvi, that there was any deliberate intent to frustrate that process. Indeed it appears that the SESIAHS participated willingly in the Disputes Committee process. There does not appear to have been any action taken to frustrate the outcome or, more significantly, there does not appear to have been any action taken by the employer that was designed to frustrate or prevent Dr Rizvi from making a timely application pursuant to s.84. 80 At any time, if Dr Rizvi was not satisfied with progress of the representations being made on his behalf, he had the option of filing his s.84 application. After all he had indicated to the HSU right back in April that he was ready to so file and had all his documentation ready to go. Any delay in filing must therefore be solely attributed to Dr Rizvi's conscious and deliberate decision to pursue the process with the HSU rather than filing a s.84 application. 81 A further matter that is relevant to the Commission's consideration of "sufficient reason" is whether Dr Rizvi has an arguable case and his prospects of success, applying the relevant cases. 82 It is clear on the evidence of Ms Hellams, and indeed on the material contained in Dr Rizvi's Affidavits, that he has a considerable jurisdictional hurdle to overcome pursuant to s. 83 (2) (a). He was employed under a specific temporary contract for a specified purpose and for a specific period of time which was due to conclude on the 28 February 2009. He was advised of this in writing. 83 I acknowledge that there were a series of earlier such temporary contracts. However the position occupied pursuant to those contracts was clearly dependent on available funding. Whilst Dr Rizvi maintains that funding still exists and that the research work is still there to be carried out, that is a matter disputed by Ms Hellams who indicated it was SESIAHS management, in consultation with relevant persons and bodies, that determine the allocation of any available funding. Dr Rizvi was advised his contract would not be extended beyond the 28 February 2009 at a meeting prior to that date (and confirmed in writing). 84 There were no performance or conduct issues raised concerning Dr Rizvi's employment, either prior to, or since the 28 February 2009, that could raise issues of concern as to procedural unfairness. The decision on the evidence before the Commission was based on funding availability only. 85 It would also appear on the email evidence of Dr Rizvi that the HSU had also come to the view that they did not consider that Dr Rizvi had a "strong industrial case". I acknowledge that that view seems to have been predicated on the matter being pursued as an issue of obtaining "permanency" through the Disputes Committee process rather than as a reinstatement application. Perhaps this is splitting hairs, but it does seem to suggest that Dr Rizvi's situation, right from the start, was not viewed by the HSU as a reinstatement case per se. 86 Of course how a union views a matter concerning its member should not determine how the Commission should approach its consideration. Nevertheless, it would explain the otherwise apparently inexplicable absence of the usual advice to Dr Rizvi or urging by the HSU to file a s.84 application expeditiously, keeping in mind the 21 day limitation. I agree with Ms Hellams. HSU Officers would be fully aware of the relevant provisions of Part 6. To my own knowledge they have complied with those provisions in an untold number of applications to this Commission. 87 Having carefully considered the evidence and submissions of the parties and mindful of the relevant cases, I consider that Dr Rizvi's prospects of success, given the jurisdictional issue raised, is extremely limited. Conclusion 88 The applicant has not discharged the onus of establishing that there is a "sufficient reason" for failing to lodge his claim of alleged unfair dismissal within the prescribed time period in the Act. 89 It follows that the Commission declines to exercise its discretion, pursuant to s.85(3) of the Act, such as to permit the application to be accepted for determination. 90 The application is therefore dismissed and these proceedings are concluded accordingly. Elizabeth Bishop 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.