Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37

Industrial Relations Commission New South Wales Medium Neutral Citation: Stephen York v NSW Department of Education and Communities [2015] NSWIRComm 37 Hearing dates: 28 September 2015 Date of orders: 19 November 2015 Decision date: 19 November 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Harrison DP; Tabbaa C Decision: The Full Bench makes the following orders:

1. Leave to appeal is granted; 2. Appeal dismissed. Catchwords: APPEAL – alleged unfair dismissal from accepted offer for employment – unfair dismissal application lodged out of time – application opposed due to being out of time and no sufficient reason to extend time – application also opposed on jurisdictional grounds since there was said to be no dismissal – both issues addressed by Commissioner - decision of Commissioner not to extend time – application to bring further evidence in these proceedings – further medical evidence adduced – principles as to granting leave to appeal – leave to appeal granted to consider the further evidence as to the appellant's psychological condition, the impact of delay in making the impugned decision, whether the appellant's prior knowledge or experience of out of time unfair dismissal applications and the manner in which the Commissioner addressed the jurisdictional question – appropriate and sufficient to address the out of time question in these proceedings without final decision on jurisdictional question – limited evidence before Commissioner did not disclose that psychological condition prevented or impeded the appellant from filing his application within the statutory time limit – further evidence in these proceedings did not disclose that, by his condition, the appellant was prevented or impeded from filing his application within the statutory time limit – evidence was contrary – Limitation Act 1969 did not suspend the running of time for the duration of appellant's disability – refusal to extend time was not indirect disability discrimination pursuant to Disability Discrimination Act 1992 – provisions of Anti-Discrimination Act 1977 do not assist appellant – delay did not affect the validity of the impugned decision – the appellant's previous experience in bringing out of time applications in the jurisdiction does not result in a greater burden being placed on an applicant possessed of the experience or knowledge than that placed upon any other applicant seeking an extension of time – parties did not advance full argument on jurisdictional question – jurisdictional question impacts upon exercise of discretion as to out of time question - Commissioner erred by failing to address the appellant's case thesis on the jurisdictional question in his decision - Commissioner did not resolve controversy as framed by the parties – appellant's contention that conduct of respondent, including procedural unfairness, resulted in application being filed late was not accepted – public interest does not warrant the extension of time in this case – conclusion as to hardship at first instance was open - whilst the appellant suffered hardship as a result of the decision not to extend time, that hardship does not represent a sufficient reason to extend time – despite finding error in the decision below, no error in the ultimate conclusion - errors at first instance should not result in appeal being upheld - Commissioner's ultimate conclusion re refusal of extension of time at first instance was correct – appeal dismissed. Legislation Cited: Anti-Discrimination Act 1977 Disability Discrimination Act 1992 Industrial Relations Act 1996 Limitation Act 1969 Teaching Service Act 1980 Cases Cited: Bimalananda Maity and Express Publications Pty Ltd [2001] NSWIRComm 169 Birkett v James [1978] AC 297 Brady v Kennedy (t/as Sardines) (1999) 91 IR 258 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CCH Australia Ltd v Bowen (1998) 79 IR 206 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Fox v Australian Industrial Relations Commission (2007) 161 FCR 263; (2007) 166 IR 85 Gardner v Secretary of Treasury (Department of Justice – Corrective Services NSW) [2014] NSWIRComm 52 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 House v The King (1936) 55 CLR 499 Hurrell and Others v Queensland Cotton Corporation [2003] NSWIRComm 139 Lee v Ausgrid (No 6) [2013] NSWIRComm 62 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855 McDonald's Australia Holdings Ltd & Anor v Industrial Relations Commission of NSW & 2 Ors [2005] NSWCA 286 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2003] NSWIRComm 143 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 Re Nursing Homes, & Nurses' (State) Award and Others Awards [2001] NSWIRComm 298 Sarah Lunn v Department of Justice [2006] AIRC 756 Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011 T D Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285 USU on behalf Paul Parker & Newcastle City Council re dismissal [2014] NSWIRComm 1012 Category: Principal judgment Parties: Stephen York (Appellant) Secretary, Department of Education and Communities (Respondent) Representation: Counsel: Appellant in person Mr P Ginters (Respondent)