John v NSW Health Pathology [2016] NSWIRComm 1042

Industrial Relations Commission New South Wales Medium Neutral Citation: John v NSW Health Pathology [2016] NSWIRComm 1042 Hearing dates: 19 September 2016 Decision date: 18 November 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application for extension of time pursuant to s.85 refused Catchwords: Unfair dismissal - application made out of time - principles - strength of case a consideration - exercise of discretion - application refused Legislation Cited: Industrial Relations Act 1996 s.84, s.85(3) Civil Procedure Act 2005 s.56 Cases Cited: Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Director-General of Education and Training v Bond [2009] NSWIRComm 40 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 Green v Mayne Nickless t/as Armaguard (unreported, Cambridge C, IRC2945 of 1997, 11 February 1998) Rainey v Retirement Solutions Pty Ltd (unreported, Cambridge C, 2494 of 1997, 24 October 1997). Category: Procedural and other rulings Parties: Mr Biju John (Applicant) Director-General, NSW Ministry of Health in respect of Sydney Health Pathology (Respondent) Representation: Applicant in person Mr J Gautray - respondent File Number(s): 2016/213576

Judgment 1. In this interlocutory proceeding the applicant seeks, pursuant to subsection 85(3) of the Industrial Relations Act 1996, ('the Act') that his application for relief pursuant to s.84 I be admitted out of time. 2. The Respondent has filed a Notice of Motion seeking that the application be struck out on the ground that it is out of time; the essential question before the Commission is whether it will admit the application out of time. It is that question that I proceed to address as a preliminary issue. 3. Mr John resigned from his employment with the respondent on 19 April 2016. He claims that he was constructively dismissed by bullying and harassment. He filed the present application on 6 July 2016. The present application is therefore, leaving aside whether there was in fact a dismissal, 27 days out of time.