Industrial Relations Commission New South Wales Medium Neutral Citation: Malik v Industrial Relations Secretary [2016] NSWIRComm 1 Hearing dates: 26 October 2015 Date of orders: 18 February 2016 Decision date: 18 February 2016 Before: Walton J, President; Tabbaa C; Stanton C Decision: The Full Bench makes the following order: 1. Leave to appeal is refused. Catchwords: APPEAL - application to extend time at first instance - application refused - earlier unfair dismissal proceedings - agreement reached in conciliation subject to verification of fitness - later change recruitment policy - claimed unlawful dismissal in 2005 - claimed failure to give effect to agreement - neither basis for demonstrating error below - grounds of appeal not substantiated - leave to appeal refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186 Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10; (2015) 248 IR 298 Kelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Lucic v Nolan (1982) 45 ALR 411 Director-General of Education and Training and Bond [2009] NSWIRComm 40 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 Category: Principal judgment Parties: Aftab Ahmed Malik (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: Solicitors: Corrective Services NSW (Respondent) File Number(s): 2016/18005 (formerly IRC 457 of 2015) Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Jurisdiction: Industrial Relations Commission of New South Wales Citation: Ex tempore decision Date of Decision: 11 June 2015 Before: Newall C File Number(s): IRC 922 of 2014 DECISION 1. By way of an application filed on 25 June 2015, Mr Aftab Ahmed Malik ('the appellant') sought leave to appeal and, if granted, appeal against an ex tempore decision of Commissioner Newall given in matter number IRC 922 of 2014 on 11 June 2015 ('the decision') pursuant to s 187(1)(a) of the Industrial Relations Act 1996 ('the Act'). The Commissioner refused an application by the appellant for an extension of time to permit him to make an application under s 84 of the Act. 2. The respondent to the appeal was nominated as 'Corrective Services NSW' and an appearance entered in those terms (this reflects the title of the proceedings below). The correct description, in law, of the respondent in these proceedings is 'Industrial Relations Secretary': Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10; (2015) 248 IR 298 at [2]. The title of this decision will reflect that consideration. The 'Industrial Relations Secretary' shall henceforth be described in this decision as 'the respondent'. BACKGROUND 1. The Commissioner had before him evidence from both the appellant and the respondent. He noted there were no substantial differences in the evidence of the parties and determined to proceed on the basis of acceptance of the appellant's evidence in the event of any conflict. He found: 1. The appellant's employment with the respondent came to an end in December 2005 when he was dismissed; 2. The appellant, who was overseas at the time, made an application under s 84 of the Act in respect of that dismissal; 3. The claim was settled in August 2006 following conciliation by the Industrial Relations Commission of New South Wales ('the Commission'); 4. The settlement provided for the re-employment of the appellant subject to certain conditions, including satisfying the Government Medical Officer of his fitness to undertake the duties of the position; 5. The appellant did not return to Australia from Pakistan until two and a half years after the settlement was reached; 6. During that period the respondent made numerous appointments for the appellant's medical examination, each of which was cancelled at his request; 7. In 2008 the respondent changed its recruitment policy, employing casual rather than permanent employees; and 8. In 2010 and 2014 the appellant sought but did not obtain casual employment with the respondent. The Commissioner's Decision 1. The Commissioner correctly observed that the Commission's jurisdiction in relation to unfair dismissals depended on there being a dismissal. In that regard he held the dismissal in December 2005 to be the only relevant dismissal. He noted the Act required such applications to be made within 21 days. He held, therefore, that the appellant was seeking an extension of time of around nine years. 2. Newall C then identified the correct statutory provision (s 85(3) of the Act) governing such applications. The provision is as follows: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. … (3) The Commission may 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. 1. The Commissioner considered the application of that provision in light of relevant authorities including: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Lucic v Nolan (1982) 45 ALR 411; Director-General of Education and Training and Bond [2009] NSWIRComm 40; Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186; and Kelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3. It is sufficient to note that we identify no error in the Commissioner's analysis or application of these authorities. 2. The Commissioner considered the principles emerging from those authorities and determined there was insufficient reason to warrant the exercise of the Commission's discretion to accept the out of time application in the matter below. 3. In considering any hardship that may be caused to the appellant or the respondent if the application was or was not rejected, the Commissioner made, in summary, the following findings commencing at page 12 of the decision: 1. The fact that the appellant moved to Pakistan voluntarily in 2006 cannot be identified as a hardship of a kind that may persuade the Commission to exercise the discretion to admit the application; 2. There was no identifiable hardship to the appellant arising from his 2005 dismissal, save for the hardship that every person who loses their job suffers; 3. There was no evidence of conduct by the respondent that may have caused the appellant's delay in making his application; and 4. In the event the Commission exercised a discretion in favour of the appellant, hardship would be caused to the respondent who would be required to conduct a case nine years after the appellant's s 84 application was settled. 1. Notwithstanding this last finding, the Commissioner expressly set that consideration aside in weighing the balance of hardship. While that may have been an error it does not militate against the appellant, rather it is in his favour. 2. The Commissioner also correctly observed, indeed he was at pains to make clear, that the Commission does not have jurisdiction to enforce agreements. Enforcement is a matter for a court and the Commissioner was not sitting as a court. Grounds of appeal 1. Mr Malik was self-represented. Although an educated and intelligent man, he did not, as he submitted, have experience in legal representation. Accordingly his application for leave to appeal, notice of appeal and submissions, both written and oral, were more discursive than would be the case were they prepared by experienced legal representatives. The essence of his challenges on appeal were, however, distilled in the following exchange with the President, Walton J: PRESIDENT: It seems to me Mr Malik that there are two principle points to the appeal. I'm going to the main points, not all of them. The first one, the one you just mentioned, is the lawfulness of the dismissal. And the second one is that the agreement which you reached in 2006 in the proceedings before Commissioner Murphy was not given effect to and in turn 2009 or at any time. Am I correct in understanding those two? APPELLANT: Yes and they accepted it too in first in three conciliations and directions legal representatives of the department … … PRESIDENT: Mr Malik, you've said that on a number of occasions. The only proceedings before me was a directions proceeding and in that directions proceeding we set a programme for the hearing of the appeal. Just so that you understand this. And the procedures adopted there were to bring the matter before the Full Bench so that the Full Bench understood the arguments of the parties by receiving their written submission and enabled them supplement them. Now, there was no decision in your favour one way or the other at the directions hearing, merely saying that you can have a chance to bring your case which you are now doing. APPELLANT: Yes, so I have highlighted my two points in 2005 I was dismissed unlawfully. And in 2009 I didn't came here because they never give me any indication that I should consider myself dismissed. They never provided me any letter in 2009 of dismissal, a notice of dismissal even in 2009. 1. In the context of an appeal, Mr Malik was therefore contending that Newall C fell into error in: 1. Finding that the relevant dismissal occurred in December 2005; and 2. Failing to recognise that the 2006 agreement had not been honoured. 1. The latter is without foundation. As we have noted, the Commissioner was at pains to point out that questions of enforcement of that agreement were beyond his jurisdiction. It is implicit in those observations that he was alert to Mr Malik's argument about the agreement. As he correctly noted, he simply did not have power to enforce the agreement. 2. The first point is equally without merit. As we have observed, the Commission's jurisdiction in relation to unfair dismissals depends upon a dismissal. Absent the dismissal there is no jurisdiction to extend time. Newall C correctly stated that proposition and held the 2005 termination (or purported termination) of employment was the only relevant dismissal. The claim brought in relation to that matter was settled. The appellant disavowed, on appeal, any reliance on the failure to obtain employment in 2010 or 2014 as providing a basis for dismissal. His only reliance upon those events related to his claims of victimisation and hardship. The Commissioner considered them in that light. Leave to Appeal 1. The principles in relation to the granting of leave to appeal a decision of the Commission were recently canvassed in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 where the Full Bench observed at [10] and [11]: 10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5] . (See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17.) Conclusion 1. In conclusion, for the reasons we have set out above, the appellant has not made out an arguable case for intervention by the Full Bench. All relevant matters have been properly considered and determined by Newall C. No error has been disclosed. The matters raised on appeal by the appellant are not matters in respect of which, in the public interest, leave should be granted. Nor is there any other basis warranting the grant of leave Orders 1. The Full Bench makes the following order: 1. Leave to appeal is refused. ********** 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: 18 February 2016