Robert Graeme West and Western Sydney Local Health District [2014] NSWIRComm 1027

Industrial Relations Commission New South Wales Medium Neutral Citation: Robert Graeme West and Western Sydney Local Health District [2014] NSWIRComm 1027 Hearing dates: 17 April 2014 Decision date: 28 October 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Out of Time claim dismissed Catchwords: UNFAIR DISMISSAL - Out of time Application- Applicant had legal representation from the outset - Pursued Part 7 claim with the benefit of legal advice - Respondent advised of jurisdictional hurdle - Respondent offered not to raise jurisdiction argument if the Applicant discontinued Part 7 proceedings and lodged Part 6 claim - Applicant made informed decision to pursue Part 7 claim to finality stating it was his preferred jurisdiction - Decision in favour of the Respondent - Out of time claim lodged by Applicant pursuant to Part 6 - Applicant claimed that he would have lodged a Part 6 claim if the Respondent had advised him of the appeal processes available to him at the time of the dismissal - Applicant was not aware of the existence of a Memorandum of Understanding with the HSU that removed his appeal rights pursuant to Part 7 - Respondent obliged to advise of internal appeal processes - Respondent not obliged to advise of litigation options - Application was lodged out of time - Delay did not result from ignorance or incapacity - No positive demonstration of hardship before the Commission - No demonstration of Respondent contributing to the delay in lodgement of the claim - Applicant failed to discharge the onus of proof to establish a sufficient reason for the exercise of discretion. Legislation Cited: Industrial Relations Act 1996 Cases Cited: West v Director-General NSW Ministry of Health in respect of Western Sydney Local Health District [2014] NSWIRComm 1001; Paul Thomas and Repco Auto-tech, a division of the Distribution Group, [1999] NSWIRComm 108 (23 March 1999); Category: Principal judgment Parties: Mr Robert Graeme West - (Applicant) (Self-Represented) Western Sydney Local Health District (Respondent) Representation: Mr O Fagir (Respondent) Mr D Gardner Maddocks Lawyers (Respondent) File Number(s): IRC 16 of 2014