Hilton Mtanda and New South Wales Health, Nepean Blue Mountains Local Health District [2016] NSWIRComm 1002

Industrial Relations Commission New South Wales Medium Neutral Citation: Hilton Mtanda and New South Wales Health, Nepean Blue Mountains Local Health District [2016] NSWIRComm 1002 Hearing dates: 22 October 2015 Decision date: 04 February 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Out of Time Claim rejected Catchwords: Unfair Dismissal-Out of Time claim-Applicant not aware that 21 day time limit referred to consecutive days-Applicant believed it referred to 21 business days plus allowance for public holidays-Applicant had consulted Solicitors-Applicant had union representation up until his dismissal-no satisfactory reasons provided for late application-no evidence of hardship provided-no evidence provided as to the conduct of the Employer relating to the late filing-no sufficient reasons for the Commission to exercise its discretion to accept the out-of-time claim-rejected. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Hurrell v Queensland Cotton Corporation [2003] NSWIRComm 139; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Category: Principal judgment Parties: Hilton Mtanda (Applicant)

NSW Health, Nepean Blue Mountains Local Health District (Respondent) Representation: Mr H Mtanda (Applicant)

Mr D Gardner, Maddocks Lawyers (Solicitor for the Respondent) File Number(s): IRC 379 of 2015 | 2016/35366

DECISION

Background 1. Mr Mtanda Hilton (the Applicant) has worked with NSW Health since he came out from England in 2006. 2. He commenced employment with NSW Health, Nepean Blue Mountains Local Health District, as a full-time After Hours Nurse Manager on 4 August 2014. He was classed as a Nurse Manager Grade 2 Year 1 pursuant to the Public Health System Nurses' & Midwives' (State) Award. 3. In correspondence dated 13 February 2015, the Applicant was provided with two written complaints against him. He was required to respond to Investigators by 20 February 2015. 4. Two further complaints were received on 1 March 2015. Following completion of a formal risk assessment, the Applicant was suspended from duty effective 6 March 2015 pending a thorough investigation of the allegations. The Applicant received correspondence from the Respondent outlining the reasons for his suspension. As it turned out 6 March 2015 was the Applicant's last day at work. 5. The Applicant was represented by the Nurses and Midwives' Association (the NMA) during the investigation process and had the benefit of advice from a number of union personnel. 6. The Applicant received a copy of the investigation report on or about 24 April 2015. The report recommended that his employment be terminated due to substantiated allegations of serious misconduct made against him. He was invited to provide a response in relation to the findings. Once again, the NMA assisted the Applicant in preparing a written response setting out mitigating circumstances for consideration by the Respondent. 7. The Chief Executive decided to proceed with the recommendation to terminate the Applicant's employment on the grounds of substantiated allegations of serious misconduct. Ms Nambier, Senior Human Resource Consultant, wrote to the Applicant on 18 May 2015 advising of his termination effective immediately and of the fact that an administrative decision had been made to record his name on the Service Check Register (SCR) for NSW Health. The Applicant sought an electronic copy of his dismissal letter which, upon receipt, he forwarded to Ms Carolyn Gill of the NMA. 8. Ms Gill advised the Applicant on 2 June 2015 that she had not been able to secure a resignation result for him in lieu of his dismissal and that the Respondent was not accepting any further offers. He discovered that conversion to resignation would not have resulted in any event in the removal of his name from the SCR. 9. The Applicant advised Ms Gill that he would be seeking legal advice. He stated that, although he is still a member of the NMA, he believed that it did not have his best interests at heart and he could do better by getting private legal counsel. 10. The Applicant was dismissed on 18 May 2015. The 21 day time limit fell on 8 June which was the Queen's Birthday public holiday and therefore the application ought to have been lodged by 9 June 2015. The Form 7A (s 84 Unfair Dismissal) application was not lodged until 17 June 2015 - which means that the claim was lodged 8 days' out of time. 11. The Applicant noted on his application that the claim was late because he erroneously believed that the deadline for lodging a claim was 21 "business" days after dismissal. Even using the Applicant's reckoning the claim was lodged one day out of time. 12. Conciliation proceedings on the merits of the claim listed before Newall C on 24 July 2015 failed to settle the claim and the matter was allocated to the Commission as currently constituted for the purpose of determining the threshold issue as to whether the Commission would exercise its discretion to allow the out of time claim.