Industrial Relations Commission New South Wales Medium Neutral Citation: Ary v Sydney South West Area Health District [2013] NSWIRComm 96 Hearing dates: 31 October 2013 Decision date: 08 November 2013 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: The application by Ms Ary to extend time to appeal in this matter is refused. I so order. Catchwords: APPEAL - Application for leave to appeal and appeal from decision of Commissioner Tabbaa - EXTENSION OF TIME - Whether Appellant should be granted an extension of time in which to appeal - Whether explanation for filing application was satisfactory - Prospects of success on appeal - Extension refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Ary v Sydney South West Pathology Service [2013] NSWIRComm 1010 Samimi v Seyedabadi; Samimi v Seyedabadi [2013] NSWCA 279 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Procedural and other rulings Parties: Tazra Ary (Appellant) Sydney South West Area Health District (Respondent) Representation: Tazra Ary - Appellant - self-represented Mr S Bull (Senior Industrial Relations Officer) - Respondent File Number(s): IRC 676 of 2013 DECISION 1Tazra Ary has sought leave to appeal and, if leave were to be granted, to appeal from a decision of Tabbaa C in which the Commissioner declined to grant Ms Ary relief in relation to an unfair dismissal claim and dismissed the claim: see Ary v Sydney South West Pathology Service [2013] NSWIRComm 1010. 2The application for leave to appeal and appeal, however, was filed out of time and so Ms Ary has necessarily sought an extension of time in which to appeal. This decision concerns the extension application. Background 3Ms Ary had been employed on a part time basis since August 2009 as a Technical Assistant within the Pathology Department of Liverpool Hospital. Ms Ary had applied for promotion on two occasions in 2010, but had been unsuccessful. She was apparently disappointed by these failures. However, that disappointment appears to have been particularly heightened by a co-worker convincing Ms Ary that the work environment was corrupt because people could pay to progress their careers. 4This disappointment triggered complaints by Ms Ary in December 2010 of bullying by co-workers and of corrupt recruitment and management practices in the Biochemistry Laboratory on the basis of her belief that one was required to offer bribes to staff members in order to obtain promotions. Ms Ary's complaints were apparently investigated and in September 2011 she was advised that the investigation found no evidence to substantiate the allegations she had made. Ms Ary was advised that the respondent considered the matter closed and encouraged her to continue to access the Employee Assistance Program (EAP), which she was already utilising having been referred there, as it was considered that she was in need of psychological assistance. 5From there things seemed to spiral downhill for Ms Ary. On 15 September 2011, she developed severe acute anxiety with shortness of breath, chest pains, nausea and a burning tongue after eating her lunch at work. Ms Ary believed she had been poisoned. Tests proved negative, although Ms Ary claimed the test were inadequate. Ms Ary made various claims and pleas for help to amongst others, the police, the Prime Minister, the New South Wales Minister for Health and the Anti-Discrimination Board. 6In January 2012, Ms Ary lodged a workers' compensation claim, citing psychological injuries as a result of her alleged poisoning in the workplace. That claim was declined on the basis of a factual investigation and independent medical examination which found that the applicant was suffering from an underlying mental health disorder not related to her work. 7In March 2012, following a further investigation into her allegations, Ms Ary was advised the allegations were unsubstantiated. 8On 21 August 2012, the Applicant attended an independent clinical evaluation by Dr Stephen Allnutt, Forensic Psychiatrist, who provided a report on the same day. Tabbaa C recorded at [36] of her decision what Ms Ary had told Dr Allnutt: * On or about 16 September 2011, while she was at work and after eating her lunch, her tongue started tingling and she was unable to breath, and experienced palpitations and shortness of breath. She thought someone within the organisation had put chemicals or poison in her food. She had a blood test later that day and the result was negative. She thought that it was probably a chemical that did not show up in blood but would have shown up in urine had she been required to provide a sample on the day; * She was later admitted to the Emergency Department at Liverpool Hospital. She became very anxious because she had put her Manager on notice that she was going to make a complaint outside of the hospital and believed that someone was trying to either threaten or kill her because of her knowledge of the corruption at the workplace. Despite the fact that she was told all the tests were negative, she had collected her urine which was tested by the nurses. Someone told her that there was blood in her urine but when she accessed the hospital records she discovered that the urine test results were not noted. Instead, she found two letters included in her record - one stating the belief that she had poisoned herself and the other indicating that she was not admitted; * She had collapsed and was experiencing palpitations. A defibrillator was used on her. As it was not being used by a doctor, she interpreted it as further evidence of collusion between the Emergency Department and her Manager to either kill her or threaten her so that she will run away from the hospital; * When she left the hospital in September 2011, she took some of the hospital food in her bag for testing. She drove to the Police station noting that she was being followed by another car. The Police advised that they could not assist her and advised her to contact the Ombudsman. She believed that the hospital had influenced the Police to consider her as a "mental" case; * The Ombudsman's office also advised her that it could not act on her complaints; * She had taken steps to bring the matter to the attention of Parliament and was provided with telephone numbers to help her find alternative employment. She had booked an appointment to see the Prime Minister. * Finally, she told Dr Allnutt that she was feeling much better and her health was improving because, as a result of her whistle-blowing and bringing matters to the attention of organisations outside of the service, the hospital was now aware that other people knew of the danger she was in and therefore had ceased harassing her. 9According to the Commissioner's decision at [37], Dr Allnutt made the following findings: * the Applicant was manifesting a number of beliefs relating to a conspiracy involving members of the Pathology department (led by her Manager) and the hospitals associated with it and the Mental Health team conspiring against her to prevent her from disclosing corruption within their workplace; * * the belief was triggered after the disappointment of not achieving a position she had applied for and a co-worker convincing her that the environment was corrupt because people could pay to progress their careers. She had become more vigilant of others' behaviours, she had began to perceive the behaviours of others as evidence for, initially, corruption and later, conspiracy. * * the Applicant would qualify for a diagnosis of a delusional disorder persecutory type. * * the subjective stress she experienced was likely to have caused the symptoms she developed which were consistent with depression and panic attacks. It was probable that the panic attacks were interpreted by the Applicant as evidence of attempts by the Respondent to poison her, a view she maintained up to the time of her consultation with him. * * she maintained the ongoing delusional belief of persecution within her prior workplace which was very psychologically distressing for her. * * her functioning, in particular with regard to interpersonal relationships and occupational capacity, was impaired. 10At [38] of the decision Tabbaa C stated: [38] Dr Allnutt concluded, as at 21 August 2012, that a return to her workplace would not be in her best interest as it would exacerbate her health problems: "as a consequence of her incorporating various staff members....into her delusional system, I do not believe she is currently fit to perform the inherent requirements of technical assistant as outlined in the position statement because she is prone to perceive, what to others would appear to be usual activities, as possible evidence for a conspiracy and is at risk of coming into conflict with her co-employees and employers. Thus, at this stage I do not believe it would be prudent for her to return to her pre-existing work environment; it would be difficult to provide opinion on the expected amount of time that she would be restricted from these duties and I would suggest a further assessment occur in six months' time." A copy of Dr Allnutt's report was provided to Ms Ary. 11At a meeting in September 2012 with Departmental officers and others, including persons supporting Ms Ary, she continued to allege that her colleagues had tried to poison her and that there were conspiracies within Liverpool Hospital regarding her medical treatment and to hide the alleged poisoning. 12The respondent continued to offer assistance to Ms Ary through the EAP. At [43]-[44] of her decision, Tabbaa C recorded that: [43] Undated correspondence was received from the Applicant on 16 November 2012 providing reasons why her employment should not be terminated. She advised that she was sent back from Parliament House Canberra with advice to meet and sort the matter out with the Respondent. Ms Ary continued alleging corruption and cover up and offered, on a confidential basis, to assist Mr Timmins by pointing out where the corruption lay. [44] The Respondent did not receive any assurance from that response that the Applicant's mental state had improved or that she was able to undertake the inherent requirements of her position or that she was seeking treatment in accordance with Dr Allnutt's advice. On that basis, the Applicant was dismissed in correspondence from the Acting Chief Executive, Ms Tracey McCorker, dated 19 November 2012. The Applicant was advised that the Respondent was prepared to assist her in accessing treatment through the EAP. 13At [48]-[50] of her decision Tabbaa C referred to a further report by Dr Alexandra Vrjosseck, Consultant Psychiatrist, who confirmed that the conspiracy beliefs held by Ms Ary were of a delusional nature precipitated by a combination of events: the disappointment and frustration she felt by the failure to secure a higher paid position on three occasions; the aggravation of her distress by the comments allegedly made by co-workers about what was required of her to secure a promotion; the subsequent hyper vigilance and observation with increased sensitivity; and what she perceived as failure of management to take appropriate action was considered by her to be confirmation of her conspiracy theory. 14According to the Commissioner, Dr Vrjosseck found that Ms Ary was currently functioning well and showed no signs of depression, psychosis or cognitive impairment. He held the belief that she was capable of resuming work for which she was trained. Nevertheless, it was not considered appropriate that she return to her previous environment with its accompanying stresses. 15In refusing Ms Ary's application for relief the Commissioner considered there was an absence of evidence supporting the applicant's allegations; that the respondent had sought to provide Ms Ary with appropriate assistance; that the termination of Ms Ary's employment was not unfair, unjust or unreasonable; that the working relationship could not be restored in any event; and that: [109] The Respondent had no other choice available to it. I accept that the Respondent went above and beyond the call of duty to assist the Applicant to obtain assistance. Obtaining assistance with a matter that is preying on one's mind does not make one a "mental case" as the Applicant seems to think. If the Applicant had agreed to obtain assistance to deal with the issue that was preying on her mind since missing out on the promotions, the parties may not have reached the point where cessation of the employment relationship was the only option. Grounds of appeal 16Noting Ms Ary is a self-represented litigant, as best as I am able to interpret the appeal grounds they are: (a) that Tabbaa C was biased against Ms Ary and favoured the respondent; (b) that Ms Ary was not given a proper opportunity to present her case, which included a failure to allow Ms Ary a reasonable opportunity to cross-examine a witness for the respondent having only been provided with a 26 page document on the day of the hearing. Grounds in support of extension application 17The application for leave to appeal and appeal was filed on 12 August 2013. That is, 55 days after the date of the decision against which Ms Ary seeks to appeal. The ground upon which Ms Ary relied for an extension of time to appeal was that following the decision of Tabbaa C Ms Ary sought to make appointments "to see a few parliament members in my local area" and "to get legal advice". Ms Ary was aware of the time limit for filing an appeal, namely 21 days after the date of the decision appealed against. Relevant statutory provision 18The relevant statutory provision regarding extension of time to appeal is s 189(2) of the Industrial Relations Act 1996: 189 Time and procedure for making appeals (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21-day period. Legal principles 19In Samimi v Seyedabadi; Samimi v Seyedabadi [2013] NSWCA 279 McColl JA considered the relevant principles applicable to an application to extend time to appeal. At [29]-[32] her Honour stated: [29] In Nanschild v Pratt [2011] NSWCA 85 I observed in relation to an application to extend time to file a notice of appeal that: "38 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458(at 459) per McHugh J. 39 The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) 'at any time' recognises that 'the respondent to the application has a vested right to retain the judgment' proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)." [30] In Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61(at [55]) Basten JA referred to the following factors as relevant to the question as to whether to grant extension of time to appeal as being the length of delay, the reasons for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent. [31] Hodgson JA said (Tomko v Palasty (No 2) at [14]) that: "... there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable." [32] I am acutely conscious of the Court's overriding purpose to ensure that litigation is resolved in a timely fashion and, in particular, that applications to extend time should be considered in the framework constituted by ss 56-60 of the Civil Procedure Act 2005 and, too, against the background of the modern approach to despatch of litigation and the need for reasonable expedition: Richards v Cornford (No 3) [2010] NSWCA 134 (at [98], [110]) per Allsop P (McColl JA agreeing). Section 58(1) requires the court, in considering whether to make any order of a procedural nature, to seek to act in accordance with the dictates of justice. That includes the effect of s 56 and s 57 of the Civil Procedure Act (s 58(2)(a)) as well as such matters as the court considers relevant as set out in s 58(2)(b). The latter matters include the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: s 58(2)(b)(iv). 20I respectfully adopt the principles referred to by McColl JA in Samimi. Consideration 21The application for leave to appeal and appeal was 34 days out of time. That is not a lengthy period. However, I note that Ms Ary was aware of the time limits imposed by the Act for the filing of such applications. Notwithstanding that knowledge Ms Ary proceeded to make appointments with local members of parliament, and to seek legal advice. The delay, Ms Ary said, was caused by the time it took to arrange the appointments. As to advice received from parliamentary members it appears Ms Ary was told it was "a matter for the court." There was no indication Ms Ary did, in fact, seek and obtain legal advice. 22I do not consider Ms Ary's explanation for not filing in time is a reasonable one. Ms Ary knew of the opportunity to appeal and of the time limit and it was clearly open to her to file the application to appeal before the 21-day period expired. Ms Ary could still have sought advice from parliamentarians having filed the appeal notice, although I must say a reasonable person could have had no other expectation than that the advice would have been to exercise the option of an appeal if Ms Ary was dissatisfied with the outcome at first instance. 23That brings me to the question of whether Ms Ary's case on appeal has "more substantial merit than merely being fairly arguable": Tomko v Palasty (No 2) at [14] per Hodgson JA. 24Ms Ary's claim was initially the subject of conciliation proceedings before Bishop C, but these were unsuccessful. The file indicates that Bishop C urged Ms Ary to seek legal advice about how to "run a case" in arbitration and the need for witness statements. Directions were made for the filing and serving of evidence, which included a direction to each of the parties to file written statements to be relied upon for each witness together with relevant documentation by a certain date. 25Ms Ary filed various documents on 12 March and 16 April 2013. The documents consisted of correspondence between herself and various departmental officers, a medical report of Dr Vrjosseck, the results of medical examinations and invoices, a letter from the Health Minister, a one page handwritten document (difficult to decipher) alleged to have been placed in Ms Ary's handbag by an unknown person during Ms Ary's admission to Liverpool Hospital on 17-18 September 2011, evidence of Ms Ary's academic qualifications and a letter to Tabbaa C dated 30 May 2013 (the day of the hearing) indicating the relief she sought, including: analysis of food; test results of blood and urine samples; attendance at the Commission of Mr Anthony Schembri General Manager, Liverpool Hospital; attendance at the Commission of Wyndham Timmins, Business Manager, Sydney South West Pathology Service (Mr Timmins did, in fact, attend and gave evidence for the respondent); attendance at the Commission of Dr Allnutt; and testing of the pain in Ms Ary's chest. 26Ms Ary was self-represented in the proceedings before Tabbaa C. She was sworn in and provided with an opportunity to give her evidence that was in addition to the documentary material earlier described. There was some brief cross-examination of Ms Ary. The proceedings were hindered by a degree of lack of cooperation on Ms Ary's part with directions from the Commissioner trying to maintain an orderly process. However, I do not think it was Ms Ary's intention to be deliberately uncooperative; she simply wanted to get her story across. 27For the respondent a statement of Mr Timmins was filed on 10 April 2013 attached to which were a number of annexures. This was the 26-page document that Ms Ary said in her appeal notice she had not received, notwithstanding the advocate for the respondent having indicated to Tabbaa C the document had been sent to Ms Ary by post. 28Ms Ary complained that the Commissioner was biased against her and favoured the respondent. This was manifested, it was said, by the Commissioner answering the questions Ms Ary had put to Mr Timmins, rather than allowing Mr Timmins to provide the answer. I have read the transcript at first instance and, in my opinion, the Commissioner's intervention was not improper. Tabbaa C was merely attempting to keep some order and to stop Ms Ary arguing with the witness and turning her questions into submissions. 29Ms Ary said she had not received Mr Timmins' statement until the day of the hearing and had not come prepared to cross-examine on the statement. Ms Ary sought an adjournment, which was refused except to provide Ms Ary with an opportunity to read Mr Timmins' statement. Assuming Ms Ary had not received the statement, there was no indication she did not have a copy of the respondent's written reply to her application for relief. That reply was filed on 3 January 2013 and was substantially similar to Mr Timmins' statement. In any event, there was nothing in the statement that would have caught Ms Ary by surprise. Additionally, in her letter to Tabbaa C dated 30 May 2013, Ms Ary specifically sought to have Mr Timmins attend the Commission. 30Litigation is to be resolved in a timely fashion: Samimi at [32]. In my opinion, even having regard to the fact that Ms Ary was self-represented, Ms Ary had every opportunity to seek legal advice, to prepare for the arbitration proceedings and to be in a position to cross-examine Mr Timmins. There would have been no proper basis for the Commissioner to provide an adjournment to Ms Ary. 31Ms Ary complained that Tabbaa C had "rushed in decision making by saying 'I want to close this case'". Ms Ary misunderstood the Commissioner. Prior to commencing the arbitration Tabbaa C sought to explore the opportunity that might be available for further conciliation giving the respondent's willingness to participate in such proceedings. However, the Commissioner did not wish to get too far involved in the conciliation because she was obviously concerned objection might be taken to her conducting the arbitration and she did not "want to risk losing today", that is, the day the matter was listed for arbitration. 32The basis upon which the respondent decided to terminate Ms Ary's employment was an independent psychiatric assessment of Ms Ary by Dr Allnutt. He concluded Ms Ary was unable to perform the inherent requirements for the job due to a psychiatric disability. The applicant obtained her own report from Dr Vrjosseck regarding her psychiatric condition. That report was essentially consistent with, and broadly supportive of, the assessment of Dr Allnutt. Dr Vrjosseck confirmed that the conspiracy beliefs held by Ms Ary were of a delusional nature precipitated by a combination of events. However, as Tabbaa C observed at [50]: [50] Dr Vrjosseck found that the Applicant is currently functioning well and showed no signs of depression, psychosis or cognitive impairment. He held the belief that she was capable of resuming work for which she was trained. Nevertheless, it was not considered appropriate that she return to her previous environment with its accompanying stresses. 33Ms Ary obtained Dr Vrjosseck's report after the termination of her employment. In the light of the independent assessment of Dr Allnutt, Dr Vrjosseck's report was not a basis upon which the respondent would have been required to re-employ Ms Ary. 34In addition to the reasons for the termination of Ms Ary's employment I have also had regard to the steps taken by the respondent, prior to its decision to terminate the employment, to deal with Ms Ary's complaints. This was not a case where the respondent simply took the view that Ms Ary was a "mental case" and that the expedient solution was to sever the employment relationship. Ms Ary's complaints were investigated and found to be without substance on two occasions, Departmental officers met with Ms Ary on four occasions and she was offered assistance in accessing psychologists and psychiatrists through the Employee Assistance Program. 35In my opinion, Ms Ary does not have an arguable case on appeal. Conclusion 36No case has been made out for an extension of time to appeal. Accordingly, I propose to refuse the application. Orders 37The application by Ms Ary to extend time to appeal in this matter is refused. I so order. ********** 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: 08 November 2013