Industrial Relations Commission New South Wales Medium Neutral Citation: Greg Roseman and Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice NSW [2013] NSWIRComm 1016 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Out of Time. Claim dismissed. Catchwords: ITAP Workplace Review; Applicant scored lower than acceptable standard; Alleged Unfair Dismissal; Anti-Discrimination Board complaint; Out of time Legislation Cited: Industrial Relations Act 1996 Anti-Discrimination Act 1997 (NSW) Category: Principal judgment Parties: Greg Roseman (Applicant) Unrepresented Representation: Ms E Brus, Counsel (Respondent) Ms A Cain (Juvenile Justice) File Number(s): IRC 450 of 2013 DECISION Background 1Mr Greg Roseman, the Applicant, was employed by the Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice from June 2008 until his dismissal on 21 February 2013. 2He was employed in the capacity of casual night shift Youth Officer pursuant to the terms and conditions of the Crown Employees (Public Service Conditions of Employment) Award 2009. He was offered hours at both Cobham and Emu Plains Juvenile Justice Centre. 3On 2 July 2012 the Applicant lodged a complaint pursuant to the Anti-Discrimination Act 1997 (NSW) with the Anti-Discrimination Board of NSW (the ADB) alleging that he had been discriminated against by the Respondent on the grounds of age and disability by not being provided with a full-time position. The Applicant would have been just short of 56 years of age at the time and suffered from arthritis. 4On 27 August 2012, the ADB received a further complaint from the Applicant alleging that he had been victimised for having complained lodged the first complaint with that Board by not being provided with shifts. 5During the period 6 September 2012 to 14 November 2012, consultation was undertaken by the Respondent on a draft policy which led to the introduction of the Guidelines for the Management of Casual Youth Officers in Juvenile Justice Centres (the Guidelines). The Guidelines provided for quarterly reviews of casual employees. 6On 11 October 2012, the Applicant lodged his third complaint with the ADB regarding, what appears to be, the results he anticipated to receive from the quarterly reviews. 7Ms Anita Cain, Employment Relations Officer, responded to and attended the conciliation conferences convened by the ADB in relation to those three complaints. No further correspondence was received from the ADB following those responses and conferences. It can only be assumed that the Board was satisfied that the allegations had not been substantiated given the time lapse. 8The first review, conducted in accordance with those Guidelines, was held on 2 November 2012. The Applicant performed poorly. He achieved a score of 20 out of a total of 50 points and received "Not satisfactory" results in five criteria. A meeting was held between Mr Rob Ferguson, Assistant Manager (Generalist) Cobham JJC, Kevin Dowse, Assistant Manager, and Mr Roseman during which the Managers discussed with the Applicant the results, the general areas of concern, and the process of the Guidelines to ensure that he, as a casual, understood the new policy and the implications of not reaching a better outcome. Mr Roseman refused to sign the Casual Performance Review Interview Outcome Report. 9A second review was conducted on 7 February 2013. Once again, Mr Roseman was among a number of casuals who did not meet the minimum requirements. A number of recommendations were approved by Mr Gary Head, Manager Learning and Development, on 12 February 2013 to terminate the services of casual employees who had failed the review, including the Applicant. 10Mr Roseman was not be able advised of his termination, as he was absent from work, until 21 February 2013. He did not lodge his section 84 claim until 30 May 2013 - which meant that his claim was some 77 days out of time. 11Conciliation proceedings before Newall C failed to settle the claim and standard directions were issued. 12It is necessary, given the manner in which the claim has been pursued, to set out the contents, in part, of the Standard Directions issued to the parties on 28 June 2013: The applicant is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 19 July 2013; The respondent is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 9 August 2013; The applicant is to file and serve any reply to the respondent's documents by 16 August 2013; In the absence of any period of reasonable notice being fixed by the Commission, cross examination of a witness shall not be allowed unless, at least 7 days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination. 13The matter was listed for a 2-day hearing commencing on 12 September 2013. 14On 24 July 2013, the Applicant filed a 4.5 page hand-written letter dated 17 July 2013 and addressed to the Respondent to which was attached a reference from a fellow employee and proof of posting from Australia Post. 15On 7 August 2013, a formal request was made on behalf of the Respondent to the Acting Registrar for a 2-week extension of time to file its evidence "due to the difficulty in clarifying Mr Roseman's claim". The extension was granted to 13 August 2013 and the Applicant's reply was delayed to 6 September 2013. 16Despite the fact that there was no obligation on the Respondent to do so, correspondence was forwarded to the Applicant, dated 3 September 2013, by Express Post asking whether he wished to cross-examine any of the Respondent's witnesses. No response was received from the Applicant. 17Once again, on 9 September 2013, the Respondent wrote to the Applicant asking him to advise by no later than 3 pm on 11 September 2013 if he wished to cross-examine their three witnesses. No response was received from the Applicant. 18A telephone call was made to the Applicant on 11 September 2013, after the deadline had passed. The Applicant stated that he had not received the correspondence. He did not indicate that he wished the witnesses to be available for cross-examination. The Evidence 19At the commencement of the proceedings on 12 September 2013, the Applicant was provided by the Commission, as currently constituted, with an outline of how the proceedings were to be conducted. Once again, he was invited to respond to the question as to whether or not he required the witnesses for cross-examination. He did not provide a straight answer but ultimately let it be known that he did not intend on cross-examining their witnesses. 20He had turned up to the proceedings without a copy of his own statement and did not bring with him the Respondent's witness statements although he confirmed that he had received the three folders. He indicated that he had left them behind because they were too cumbersome. 21The Applicant confirmed that he intended to rely on the 4.5 page letter pointing out that the matter would not finish today because there was another officer/s filing separate claims against the Respondent and therefore this matter will be on-going, will not conclude with a decision in these proceedings as evidence will be forthcoming about the Respondent's behaviour at Cobham during hearings of other claims involving other employees. He would be relying on their evidence in these proceedings. 22Finally, when it was raised on behalf the Respondent that there was a threshold issued to be determined, that is, the claim had been filed out of time, the Applicant submitted that his statement addressed the out of time issue only. 23During cross-examination, the Applicant gave evidence that he had attempted to mitigate his losses by undertaking a fork lift course, he has been working for cash money as a Trades Assistant with Precise Automatics - on and off since about 1.5 months after his dismissal. He was extremely reluctant to discuss his earnings except to say that the hourly rate was a little bit less than what he had been earning. 24The Applicant stated that he had contacted the ADB on the afternoon of the 21 February 2013, to lodge a verbal complaint about his dismissal and ask for forms to be provided to him. He provided a time line of how long it took ADB to respond to him before he gave up and decided to pursue the matter in another jurisdiction. He then set about informing himself about the Industrial Relations Commission. He was not a member of a Union and had not obtained legal advice in relation to his dismissal. 25In response to questions from the Bench, the Applicant agreed that the time line in his statement would indicate that he contacted the ADB on the afternoon he received advice of his termination (on 21 February 2013) and he estimated that it had taken about 1 to 1.5 months before he decided to pursue another avenue for relief. Yet the total delay was 77 days - not an insignificant amount of time. 26When asked what he was doing during the remainder of the period prior to filing his claim, the Applicant indicated that he was undertaking "building work" - "I had a lot more to deal with than sacking issues" - he was "finishing up one house and helping with another". 27In response to further cross-examination from Ms Brus, the Applicant stated that he did not earn any money from the building work, it was "not paid", it was "love jobs". 28The statements provided by Messrs Head, Ferguson and Ms Cain were tendered into evidence without any objections. Submissions 29The Commission informed the Applicant of the provisions of Section 85 (3) of the Act and asked for submissions in relation to those matters. 30The Applicant stated that the reason for the delay was that he was not aware of the Industrial Relations Commission and had to make inquiries to find out. He complained that the ADB had not advised him of the existence of the Commission and of the jurisdiction in relation to Unfair Dismissal. It is noted that in his statement he had attributed part of the delay to the complaint he had filed with the ADB. 31In relation to the question of hardship, the Applicant stated that he had been turfed out of a job in which he had been employed for many years without sustenance; he had to rely on his wife's weekly income of $300; and the restrictions of his age. 32Finally, in relation to the conduct of the Respondent, he confirmed there was no conduct in that regard that affected his ability to lodge the claim on time. 33Ms Brus pointed out, on behalf of the Respondent, that it was questionable whether the Applicant had indeed lodged a complaint with the ADB. It was pointed out that, unlike the previous three occasions, the Respondent had not received any communication from the ADB. In addition, the Applicant had not provided any evidence to the Commission of having lodged such a complaint. 34Even if it was accepted that he had filed a claim with the ADB, on the most generous reading of the time line he provided in his statement and in his oral evidence, there was a gap between the end of March 2013 and 30 May 2013 when he filed the claim. 35Ms Brus noted that the only reason offered by the Applicant for that gap was that he was busy doing other things, including building work and would get round to filing a claim at some point in time. 36It was submitted that the onus rests on the Applicant to provide the Commission with the necessary evidence to indicate why the Commission should exercise discretion in his favour. Ms Brus took the Commission through relevant authorities. 37In conclusion, Ms Brus submitted that no sufficient reason has been provided to the Commission as to why the applicant should be accepted out of time and, for that reason, the application must be rejected. Consideration 38Section 85 (1) of the Act provides that an application made pursuant to Chapter 2, Part 6 of the Act must be made not later than 21 days after the dismissal of the employee. 39However, section 85(3) of the Act provides Members of the Commission with a discretionary power to 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. 40In Kent Gorrell v. Uwatec Pty. Ltd1, Sams DP summarised the relevant principles as follows: (a) The Commission's power to accept out of time applications is discretionary; (b) The onus rests on the Applicant to convince the Commission of a "sufficient reason" to accept an out of time application; (c) 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; (d) 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; (e) There is a public interest in the prompt institution and prosecution of litigation before the Commission; (f) The discretion to allow out of time applications is directed to ensuring that justice is afforded to both parties; (g) 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; (h) Ignorantia legis neminem excusat (ignorance of the law excuses no one). 41The claim was at least 77 days out of time. 42I accept the submission that there was not a skerrick of evidence that would confirm that the Applicant had indeed lodged a complaint with the ADB prior to discovering that he was in the wrong jurisdiction. 43Even if that contention was accepted by the Commission, there is an unexplained gap of at least 1.5 months which the Applicant initially variously explained that he did not know about the jurisdiction, was not a member of a union and did not obtain legal advice. When pushed to explain further, he indicated that he was undertaking building work and had better things to do than deal with sacking issues. 44The Respondent's conduct, as confirmed by the Applicant, had nothing to do with the delay in lodging the Application. 45The Act requires that the Application be filed within 21 days of the dismissal. Even if the Commission were to accept that special circumstances existed for the delay, as can be seen from the above, no acceptable reason exists for the exercise of the Commission's discretion. 46There was no conduct of the respondent demonstrated to me as being a contributing factor to the delay in the applicant lodging his claim. 47The primary remedy under the Act is for reinstatement or re-employment to the applicant's former position unless the Commission considers that it would be impracticable to make an order for reinstatement or re-employment in which case compensation may be awarded. 48At the proceedings today, the Applicant confirmed, during cross-examination, that he was seeking re-instatement to a previous position but in a full-time capacity. He also confirmed that he was only seeking night shift work. He stressed that he was not available to work day shifts. He further confirmed that he was seeking compensation, presumably for the period that he has been off work. 49The Applicant obviously cannot be reinstated to a position he did not hold in the first place. He cannot use these proceedings to obtain full-time employment through the back door. 50In addition, the fact that the Applicant only accepts night shifts means that he cannot meet the requirements of the review criteria. That is because there is very limited staff interaction involved with detainees on that shift. Therefore, other than in attendance, the Applicant was not meeting the requirements for the position. DECISION 51Having regard to the provisions of Section 85 (3) of the Industrial Relations Act 1996, I do not regard that there is sufficient reason for the delay and hereby decline to accept the out-of-time application. 52The application for acceptance of the out-of-time claim is hereby dismissed. I Tabbaa AM 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: 12 September 2013