Industrial Relations Commission New South Wales Medium Neutral Citation: Kanta v NSW Police Force [2011] NSWIRComm 1022 Hearing dates: 11 May 2011 Decision date: 13 May 2011 Jurisdiction: Industrial Relations Commission Before: Ritchie C Decision: Appeal is struck out on the basis of lack of jurisdiction. Catchwords: Public servant promotional appeal . Jurisdictional objection. Claim application filed outside 21 day time limitation. Applicant unaware that interviews had taken place and that appointment had been made and published. Applicant received correspondence from employer stating incorrect future date of publication. Publication had already taken place. Applicant filed appeal outside of expressed time limitation. Commission found that the expressed time limitation was mandatory and that there was no discretion. Appeal application dismissed. Legislation Cited: Industrial Relations Act, 1996 Government and related Employees Appeal Tribunal Act, 1980 Cases Cited: Secretary of the Department of Health v Harvey (1990) 34 IR 58. Category: Procedural and other rulings Parties: Chandra Kanta (Appellant) NSW Police Force (Respondent) Representation: Mr Shaw for PSA & POA (Appellant) Mr Fanning J for NSW Police Force (Respondent) File Number(s): IRC 357 of 2011 DECISION 1Ms Chandra Kanta filed an appeal with the Industrial Relations Commission against the appointment of Ms Kelly Rees to the position of Administration Co ordinator/Clerk Grade 5/6 Shared Services, Position No. 10/373. This appeal was received by the Industrial Relations Registry on 11 April 2010. 2On receipt of the Application for Appeal the NSW Police Force responded by advising that they wished to raise jurisdictional grounds with respect to the application. 3Standard Directions were provided to the parties and the matter was heard on 11 May 2010. At the completion of submissions the Decision was reserved. Case for the NSW Police Department. 4The advocate for the NSW Police department stated that the vacant position was advertised internally on 20 December 2010 and the applicant applied. Whilst stating in written submissions that the applicant was interviewed, this was corrected during proceedings and conceded that she in fact did not receive an interview. 5Interviews took place and the decision to offer a Ms Kelly Rees the position was made by the appropriate Department Head on 2 February 2011. 6Letters to unsuccessful applicants were advised of the appointment in correspondence dated 21 February 2011. This correspondence indicated that the appointment of Ms Rees would be published in the Public Service Notices( that is the Jobs.NSW website) with the anticipated date being 1 March 2011. 7It should be noted here that this letter directed to Ms Kanta was incorrect with respect to the anticipated date of publication. In actual fact the date of publication had already taken place on 16 February 2010. 8It was the submission of the NSW Police Force that the application by Ms Kanta to appeal the appointment of Ms Rees was lodged out of time and therefore she was not eligible to appeal the appointment. 9Whilst Ms Kanta stated that she had originally filed by fax her appeal documents to the Industrial Relations Registry on 18 March 2011, it was the submission of the NSW Police Force that she would have still be outside the 21 day period to file. They also submitted that it is the responsibility of each employee to check the internet site to be aware of the publication of the appointment about which they applied. 10The Commission was taken to a number of cases that in the submission of the NSW Police Force upheld their submission with respect to the adherence to the 21 day appeal period. 11The NSW Police Force sought that the appeal lodged should be dismissed as section 100 of the Industrial Relations Act (the Act) does not allow discretion and the Commission is statute barred from allowing this appeal, because it was lodged outside of the 21 day appeal period. Case for Ms Kanta. 12The advocate for Ms Kanta stated that Ms Kanta applied for the vacant position and did not hear anything until she received the correspondence( dated 21 February 2011) on 23 February 2011. Acting on this correspondence that stated that the anticipated date of publication would be 1 March 2011, she duly filed her application for appeal on 18 March 2011 by fax to the Industrial Relations Registry. A copy of a Transmission Verification Report dated 18 March 2011 showing two pages were transmitted to the Registry's fax was attached to Ms Kanta's submission. Another Transmission Verification Report of five pages was dated 11 April 2011. 13Ms Kanta followed up this appeal application to the Industrial Registry on 11 April 2011 to be advised that they had not received her appeal papers. She therefore refiled her appeal papers on that day by fax. 14At all times Ms Kanta was unaware that the appointment of Ms Rees had been published on 16 February 2011. 15The advocate for Ms Kanta stated that there was an obligation under section 93 of the Act that employees being notified correctly and that section 100 of the Act provides for a level of discretion in that the Commission may or may not allow an appeal. Consideration and Decision. 16Section 93 (1) Publication of notices states: (1) A public sector employer who decides to appoint or recommend the appointment of a person to fill a vacant office or position in the establishment of the employer must cause particulars of the decision to appoint or recommend the appointment of the person to be published in a notice( an appointment notice) in accordance with this section. 17The reading of section 93 of the Act states that the appointment notice is to be published not later than 14 days after the acceptance by the person of the appointment and the notice is to be distributed to the employees of the employer (section 93 (3)). 18Such distribution can be via the website ( section 93(5)). 19The appointment of Ms Rees was published on 16 February 2011 and therefore advised to employees (section 93(1) ). 20The appointment website for 16 February 2011 shows that the" Date of Decision" made by the appropriate Department Head was 2 February 2011. 21The Commission was not advised what date Ms Rees accepted the position but one can safely assume that it would have been between the dates of 2 February 2011 and 15 February 2011. In that case section 93(3) is satisfied. 22Section 100 B of the Act Time for lodging appeal states: (1) Notice of a promotion appeal must be lodged: (a) within 21 days after the date of the notice of particulars under section 93(1), or (b) within 21 days after receipt by the public sector employee of a notice under that subsection that bears no date. 23As expressed earlier in this Decision the Commission was taken to a number of cases which covered the issue of out of time lodgement. 24All three cases quoted the case of Supreme Court of New South Wales Court of Appeal , Secretary of the Department of Health v Harvey(1990) 34IR58, which stated in consideration of the Government and Related Employees Appeal Tribunal Act 1980 that: " The Act does not enable the time for appealing to be extended. Moreover the Tribunal has held that the time limit fixed by s29(2) is mandatory and goes to the jurisdiction of the Tribunal to hear the appeal. The respondent did not contend otherwise and this view is supported by the decision in Patterson v The Public Service Board (1984) 1NSWLR237 where it held that the time limit fixed by s 55 for appealing to this Court from a decision of the Tribunal was mandatory and there was no power to extend." 25In reference to section 100B of the Act, I do not believe that this provides the Commission with any discretion with respect to the lodging of an appeal outside of the 21 days as contended by the advocate for Ms Kanta. 26I draw the parties attention to section 85(3) of the Act which provides the Commission with certain discretion having regard to particular expressed reasons for the delay in lodging an unfair dismissal claim. 27The publishing of the appointment of Ms Rees on 16 February 2011 via the web site in my finding, satisfied the requirement of section 93(1). 28Such a finding must lead to this appeal being struck out as the Commission does not have jurisdiction and I so do. 29Before concluding this decision I must express sympathy for Ms Kanta. She advised that this was the first promotion she had applied for in over twenty years of working for the NSW Police Force. 30That she received formal correspondence dated 21 February 2011 which contained incorrect information was extremely unfortunate. That her appeal documents sent to the Industrial Relations Registry on 18 March 2011 somehow were not registered is again most unfortunate. I do recognise that even if her appeal documents were received on 18 March 2011, her appeal would still have been outside of the mandatory 21 day time limitation. 31In conclusion this appeal is struck out on the basis of lack of jurisdiction. D.Ritchie 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. Decision last updated: 13 May 2011