Industrial Relations Commission New South Wales Medium Neutral Citation: Singh v NSW Police [2011] NSWIRComm 1047 Hearing dates: 14 September, 2011 Decision date: 16 September 2011 Before: Macdonald C Decision: Appeals are disallowed on the basis of lack of jurisdiction Catchwords: Public servant promotional appeals. Jurisdictional objection by NSW Police Force. Claim applications filed outside 21 day time limitation. Public servant applied for particular job vacancy. Public servant notified by NSW Police Force incorrectly as to his unsuccessful job application. Public servant made one appeal based on this incorrect advice and later lodged two further appeals when correctly advised of outcome of his job application. HELD: The later two appeals lodged out of time and therefore the Commission lacked jurisdiction to consider those two appeals. The two appeals disallowed for lack of jurisdiction. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Kanta v NSW Police Force [2011] NSWIRComm 1022 Category: Procedural and other rulings Parties: Andrew Singh (Appellant) NSW Police Force (Respondent) Representation: Andrew Singh (Appellant) Angella Whitton for NSW Police Force (Respondent) File Number(s): IRC 1382 of 2011 and IRC 1385 of 2011 DECISION ON JURISDICTION 1Mr Andrew Singh ("the appellant") filed appeals with the Industrial Relations Commission of New South Wales ("the Commission"), against the appointments of three persons to the position of Adjudication Officer, Clerk Grade 5/6, Security Licensing & Enforcement Directorate, State Crime Command, Specialist Operations ("the appointed positions"). 2Dur to circumstances set out in this Decision, the three appeals lodged by the appellant, were lodged on two different days. 3One appeal was lodged within the twenty-one day time limit in which an appeal may be lodged (IRC 1146/2011). That appeal was made against the decision of the NSW Police Force to appoint a Andrew Vezos to one of the appointed positions. That appeal is not the subject of this Decision. 4The other two appeals lodged by the appellant are the subject of this Decision. They are appeals against the decision of the NSW Police Force to appoint Shani Gergi and Glenn Moffatt (IRC 1382/2011 and IRC 1385/2011 respectively) to the appointed positions. 5Those two appeals are the subject of this Decision, following the NSW Police Force jurisdictional objection that the appeals could not be further considered by the Commission because the appeals had been filed after the 21 day time limit for the filing of an appeal. 6The Standard Directions were issued to the appellant and the NSW Police Force for the filing of evidentiary material and a hearing date was set down to deal with the jurisdictional objection. The NSW Police Force did not file any material and did not appear on the day of the hearing (7 September 2011). My office made enquiries as to this non-attendance and the hearing was re-scheduled to 15 September to suit the convenience of the appellant. Subsequently, the appellant advised of that date's unsuitability and the hearing was altered to 14 September, being also the date by which the Commission had issued a direction for the NSW Police Force to file and serve its material as to jurisdictional objection. 7The hearing did take place on 14 September 2011. The appellant represented himself. Ms Angella Whitton, Senior Industrial Officer represented the NSW Police Force. She apologised on behalf of that organisation for the non-attendance of 7 September. 8At the completion of submissions from the appellant and Ms Whitton, the Commission reserved its Decision. CASE FOR THE NSW POLICE FORCE 9The NSW Police Force provided a Response on Jurisdiction document to which Ms Whitton spoke. That document set out a chronology of events from the advertising of the job position (Adjudication Officer, Clerk Grade 5/6, Security Licensing & Enforcement & Directorate, State Crime Command) to the appeals by the appellant. The document also set out the legal argument (based on legislative interpretation) as to why the appellant's two appeals could not be further considered by the Commission, given that they were filed out of time. CASE FOR THE APPELLANT 10The appellant referred to the chronology of events, the relevant legislation and case law, to support his claim that the Commission should process his two appeals. On the one hand, he submitted that the appeals had not been lodged out of time in the context of section 100B(3) of the relevant legislation, being the Industrial Relations Act 1996 ("the Act"). In the alternate, he submitted that even if the two appeals had been lodged out of time, then the Commission should allow the two appeals to proceed on the ground of industrial fairness, given the circumstances surrounding the error by the NSW Police Force in its written advice to him that his job application was unsuccessful. CONSIDERATION 11The facts of this case support the appellant's claim that he has suffered an unfairness (and for which Ms Whitton apologised to the appellant before the Commission), but on the Commission's reading of the relevant legislation and case law, the Commission is unable to remedy that inadvertent unfairness as the Commission does not have the legislative power to exercise any discretion in favour of the appellant to allow him to proceed with his two out of time appeal applications. 12The circumstances surrounding that inadvertent unfairness are set out below. 13The NSW Police Force advertised the position in question on 25 March 2011. A selection committee was established to examine the 101 job applications. The appellant was one of those job applicants. Interviews were undertaken by the selection committee but the appellant was not offered an interview. 14Verbal offers were made and accepted by three successful applicants on 9 June 2011 - Andrew Vezos, Shani Gergi and Glen Moffatt. 15The appellant was advised by letter of 15 June that his job application had been unsuccessful and named only one of the three successful job applicants: Mr Vezos. The appellant lodged an appeal against the Vezos appointment and lodged within the 21 day time limit. He awaited further advice. 16Of legal relevance to the issue of jurisdiction, the NSW Police Force advertised the successful appointments (along with other irrelevant appointments) on 20 July 2011 on the NSW Government's Recruitment Website ("the website"). The Act states, on the Commission's reading, that the 21 day time in which to appeal runs from the date of this website publication. Thus the appellant had 21 days to file any appeal from 20 July: section 100B(1). 17The appellant advised that he received a telephone call from the NSW Police Force advising him of its inadvertent error in the letter of 15 June - that is, the letter should have named the three successful appointments and not just the one. This telephone call took place on either 3 or 4 August. The appellant also submitted that he was told in this telephone conversation that any other appeals he might wish to lodge could be "piggy-backed" on the appeal already lodged by him. This particular submission was made from the bar table. That is, it was not made within a witness statement that was served on the NSW Police Force so that the latter organisation could challenge (if thought necessary) with its own witness statement to the contrary. 18In any event, the appellant subsequently received a letter, dated 5 August, from the NSW Police Force advising him of the three successful appointments: Vezos (as already advised) Gergi and Moffatt. 19The appellant appealed the latter two appointments on 16 August 2011. This date is beyond the 21 day time limit that begun on 20 July with the website successful appointments publication. 20Although, the appellant was given incorrect advice in the letter of 15 June as to the Vezos appointment only and he awaited further advice as to the other successful appointments as to lodging any appeal, the Commission takes the view that his two appeals against the appointments of Gergi and Moffatt can not proceed further for jurisdictional reasons. That reasoning is based on the Commission's reading of the relevant provisions of the Act dealing with appeals: Part 7 Public sector promotion and disciplinary appeals. 21Section 100B of the Act sets out the time for lodging an appeal for promotional and disciplinary appeals. The appellant lodged promotional appeals and relevantly section 100B(1) states as to the timing for lodging promotional appeal as follows: "(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 received by the public sector employee of a notice under that subsection that bears no date." 22Not only does section 100B(1) stipulate a 21 day time limit but more than that, it stipulates that the appeal must be lodged within 21 days. The term "must" is mandatory language and requires strict adherence. Further, this section 100B does not contain any provision stating that the legislature is giving a discretion to the Commission to accept late filed appeals. 23There is case law to support the foregoing interpretation as to the mandatory requirement to file within 21 days: Secretary of the Department of Health v Harvey (1990) 34 IR 58 (Supreme Court of New South Wales, Court of Appeal). The Commission notes that Commissioner Ritchie of the Industrial Relations Commission of New South Wales also came to the same view that s100B(1) sets a mandatory time limit with no discretion in the Commission to extend the 21 day time limit beyond 21 days for lodging an appeal: Kanta v NSW Police Force [2011] NSWIRComm 1022. 24Section 100B(1) (a) and (b) advise to the reference date for reckoning the running of the 21 day time limit. In this case, the NSW Police Force published the decision on a website as to the names of the successful appointees pursuant to section 100B(1)(a) as opposed to not advising on the website but advising by way say a letter to a job applicant that their application was unsuccessful (section 100B(1)(b)). 25Section 100B(1)(a) explicitly refers to section 93(1) of the Act as to notification of particulars. The meaning of "notification of particulars" is contained in s.93(1) which deals with publication of notices and 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." The foregoing quote shows that the NSW Police Force is to publish an "appointment notice" as to which person(s) has been appointed or recommended for appointment. 26Section 93(5) then advises that the NSW Police Force may publish such "appointment notice" on the recruitment website. This was the approach adopted by the NSW Police Force for advising which persons had been successful job applicants. The "appointment notice" was published on 20 July 2011. Accordingly, the reference date for reckoning the date for lodging an appeal is 20 July. The appellant failed to lodge his other two appeals within 21 days of this date and given that section 100B(1) makes it mandatory for filing within 21 days only, then the appellant has filed his other two appeals out of time. The Commission has no discretion to accept out of time appeals. 27The appellant submitted that the Commission should accept his late filed appeals on the ground of unfairness because of the inadvertent incorrect advice given to him in the letter of 15 June 2011 by the NSW Police Force. The latter organisation, commendably, apologised for this error. However, the mandatory requirement for filing within time does not give the Commission the discretion to correct this error. In any event, there is still a requirement on public servants, who have lodged a job application, to maintain a look-out for the result(s) of their job applications on the website. 28The appellant also submitted an argument that he had filed within time given his reading of section 100B(3) which refers to the situation where there was no notification of the particulars (naming who had been successful) of a decision by the NSW Police Force. In that regard he was referring to the 15 June 2011 letter which only named one successful appointee and not all three. In not naming all three, the appellant submitted that the letter was defective in not giving all particulars and therefore his appeal time should run from a later date, presumably the letter of 5 August 2011 which named the other two successful appointees. 29The Commission rejects this reading of section 1090B(3). This particular sub-section, when read in context of the entirety of section 100B, refers to the situation where the NSW Police Force does not give notice on the website of its decision(s) as to successful appointments but still appoints persons without making those appointments known to the unsuccessful job applicants. If that scenario occurred, then when an unsuccessful job applicant became aware of those appointments, then that applicant(s) could still lodge an appeal, pursuant to section 100B(3). 30For the reasoning set out above, the Commission disallows the appeals by the appellant in IRC 1382 of 2011 and IRC 1385 of 2011, on the basis that the Commission lacks jurisdiction to consider those appeals any further. A Macdonald 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: 16 September 2011