Industrial Relations Commission New South Wales Medium Neutral Citation: Denis James Dominguez v Industrial Relations Secretary (No.2) [2019] NSWIRComm 1003 Hearing dates: 16 March 2018 Date of orders: 16 March 2018 Decision date: 21 January 2019 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC; Commissioner Stanton; Commissioner Newall Decision: Leave to appeal is refused Catchwords: APPEAL – leave to appeal – unfair dismissal application lodged out of time –principles to apply – whether appeal raises substantial issues of principle or law or issues having any wider application than to the parties themselves - Commissioner's determination to refuse an extension of time at first instance was correct – appeal dismissed Legislation Cited: Industrial Relations Act 1996 Government Sector Employment Act 2013 Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Denis James Dominguez and Department of Finance, Services and Innovation [2017] NSWIRComm 1053 Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336 House v The King (1936) 55 CLR 499 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Category: Principal judgment Parties: Denis James Dominguez (Appellant) Industrial relations Secretary (Respondent) Representation: Counsel: M Seck (Respondent) Solicitors: File Number(s): 2017/275344 Decision under appeal Court or tribunal: Industrial Relations Commission Citation: 2017 NSWIRComm 1053 Date of Decision: 16 August 2017 Before: Commissioner Seymour File Number(s): 2017/137586 Judgment 1. This is an application for leave to appeal and, if leave is granted, an appeal against the decision of Commissioner Seymour in Denis James Dominguez and Department of Finance, Services and Innovation [2017] NSWIRComm 1053 brought pursuant to s 84 of the Industrial Relations Act 1996 ('the Act'). 2. The application was filed out of time. The application was opposed by the respondent on jurisdictional grounds. The Commissioner subsequently determined the appellant's reasons for filing the application out of time were insufficient to permit the exercise of discretion in favour of the appellant and allow the application to be heard. 3. The appellant claimed that he had been constructively dismissed. The appellant's employment was governed by the Government Sector Employment Act 2013. 4. The appeal raised six questions of law and dealt with 18 grounds. Viewed together, they represent a very broad sweep of grounds and reasons seeking to rebut the Commissioner's decision and in a sense, re-agitate the case as presented by the appellant below. Much of that material was either unrelated or partly unrelated to the key questions to be determined in relation to the tests for the grant of leave to appeal that the Full Bench is required to apply. 5. The appellant was self-represented and so did not have the benefit of legal representation in preparing his appeal. Accordingly, his application for leave to appeal, notice of appeal and submissions, both written and oral, were more convoluted and less direct than might be the case if they had been prepared by experienced legal representatives. That said, we have given full and detailed consideration to all of the appellant's material and the submissions that he made before the Full Bench. 6. After hearing the parties on the questions of leave to appeal and to appeal, the Full Bench determined that leave to appeal should be refused. The Full Bench announced that reasons would be published in due course. Our reasons follow. Principles on leave to appeal 1. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised by the Full Bench in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, 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) 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) 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) 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) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 1. Moreover, in Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: [12]. Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. [13]. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. 1. The principles outlined above have been cited with approval in numerous decisions of the Full Bench. We propose to apply the same principles. Statutory scheme 1. Section 85 of the Act relevantly provides: 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. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (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. Background 1. The factual background leading to the alleged dismissal of the appellant was summarised by the Commissioner in her decision at [8] to [15]: [8]. On 24 March 2017, Mr Dominguez received a letter from the Secretary of the Department Mr Martin Hoffman dated 8 March 2017. The letter advised that the Department was terminating his employment, after giving him the opportunity to resign. The letter stated that Mr Dominguez had seven days from the date of receipt to provide any such resignation. [9]. The Department submitted that it was exercising its authority under section 68(2)(a) of the Government Sector Employment Act (2013) ('the GSE Act') to terminate the employment of an employee after giving the employee an opportunity to resign, following a determination of unsatisfactory performance. [10]. On 28 March 2017, Mr Dominguez sent an email to Mr Cherry inquiring what his 'severance pay' would be if he resigned as proposed in Mr Hofffman's letter or if he did not resign. Mr Cherry advised that the payment would be the same in either scenario because the payment consisted of accrued leave entitlements only. Mr Dominguez responded, noting that 'the only difference then is that the record will indicate I either resigned or was dismissed'. [11]. On 29 March 2017, Mr Dominguez sent an email to Mr Cherry stating 'Please find attached my letter of resignation'. A letter of the same date was attached which stated 'I resign from my role as Senior Valuer grade 7/8, Valuation Services, as per Martin Hoffman's 8 March 2017 letter'. The resignation letter was signed by Mr Dominguez. On 30 March 2017, Mr Cherry responded to Mr Dominguez's email and letter, apologising for not replying the previous day, and advising 'I will process this ASAP for you and send it to payroll'. [12]. There was no further correspondence between Mr Dominguez and the Department for a month, until on 1 May 2017 Mr Dominguez sent an email to Mr Cherry stating 'Centrelink requires that you send to me an employment separation certificate'. On 5 May 2017, a payroll officer sent Mr Dominguez his Employment Separation Certificate as requested. [13]. On 8 May 2017, Mr Dominguez filed two unfair dismissal applications with the Commission. Both were signed by him on 5 May 2017. Effective termination date [14]. Both applications filed by Mr Dominguez stated his last day worked was 24 March 2017. In response to question 15 on the application form about the date of dismissal, Mr Dominguez answered that dismissal was first threatened on 10 November 2016, the final decision was 8 March 2017 and the decision was notified to him on 24 March 2017. [15]. The Department submitted that the termination date was 29 March 2017, being the date Mr Dominguez submitted his resignation letter by email. This is the date that appeared on the Employment Separation Certificate as the date employment ceased. The Department also submitted that Mr Dominguez ceased being paid by the Department after 29 March 2017. The decision at first instance 1. It can be said at the outset that the Commissioner undertook an orthodox consideration of the issues arising in an out of time application. The Commissioner first determined that the application was indeed out of time and required an exercise of the Commission's discretion in favour of the appellant if the application was to proceed. Prior to determining whether to exercise the discretion available under s 85 of the Act, Commissioner Seymour carefully considered the evidence in respect of each of the appellant's reasons for filing the application out of time and the other statutory requirements set out in s 85(3) of the Act. 2. A brief summary of the challenged decision follows. Effective date of termination 1. Commissioner Seymour considered the appellant's submissions concerning his effective date of termination and at [18] she determined that the effective termination date of his employment was 29 March 2017. The appellant's unfair dismissal application was therefore 19 days out of time. 2. In relation to the provisions of s 85(2)(a) of the Act, the Commissioner found at [20] that the appellant had not lodged an application with the Fair Work Commission. Length of delay 1. The Commissioner considered at [32] – [33] that an application 19 days out of time in circumstances where a relatively short limitation period of 21 days is prescribed was "not a trivial or negligible period of time": [32]. The Commission must have regard to the length of the delay (section 85(3)(a)). The application is brought 19 days out of time in circumstances where a relatively short limitation period of 21 days is prescribed. [33]. It is not a situation of a few days' delay due to, for example, misapplication or misunderstanding of filing procedures. It is almost the same period again as the 21 day limitation period. It is therefore not a trivial or negligible period of time. However it is the actions of Mr Dominguez during the limitation period and 19 day period thereafter until he filed his application that are significant in the circumstances of this matter." Whether sufficient reasons exist to accept out of time application 1. Commissioner Seymour subsequently considered whether sufficient reasons existed so as to enable her to exercise the discretion available to her under s 85(3) of the Act. Reasons for delay The appellant's state of mind 1. The appellant contended that the reason for his delay in making the application within time was that he was depressed and "mentally drowned" which rendered him incapable of filing his application within 21 days of the "resignation" date. 2. Commissioner Seymour determined at [46] – [47] that the appellant had delayed bringing his unfair dismissal claim because he believed alternative employment had been secured with the National Australia Bank. The Bank subsequently withdrew its offer of employment on or around 26 April 2017 which was outside the 21 day limitation imposed by the Act. Shortly thereafter, the appellant sought redress before the Australian Human Rights Commission and later this Commission: [46] … the reason Mr Dominguez delayed bringing his unfair dismissal claim in the period that he was eligible to do so was because he had sought, and believed he had obtained, alternative employment. [47] I find that Mr Dominguez did not intend to pursue an unfair dismissal claim, or indeed any claim in relation to his employment with the Department, until after the National Australia Bank withdrew its offer of employment to him on or around 26 April 2017, which was by that time outside the 21 day limitation period under the Act. He then commenced taking steps to seek redress against the Department in respect of the cessation of his employment with them – firstly in the Australian Human Rights Commission, then in this Commission. Access to advice 1. Commissioner Seymour rejected at [48] the appellant's submission that a further reason for delay was that events occurred around the Christmas/New Year period making it difficult for him to talk to lawyers who could assist him. The Commissioner further determined that the "key period" for the appellant was on and from 24 March 2017, being the date the Department advised him of its decision to terminate his employment: [48] Mr Dominguez submitted that another reason for his delay was that events occurred around Christmas and New Year, making it difficult to talk to lawyers who could assist. I reject this submission. The key period was on and from 24 March 2017, being the date the Department advised Mr Dominguez of its decision to terminate his employment, well after the Christmas and New Year period. Representative error 1. Commissioner Seymour at [53] determined there was no evidence to support the appellant's contention that the PSA had failed to advise him there was a time limit for making an unfair dismissal claim and the absence of such advice had caused or contributed to his failure to file within time: [53] Mr Dominguez considered he was not 'getting the right support' and that the PSA did not have 'New South Wales experience in particular'. He was entitled to hold this opinion and decide not to use the PSA's services. However the evidence does not support a submission that the PSA failed to advise Mr Dominguez there was a time limit for an unfair dismissal claim and that this caused or contributed to him failing to file within the 21 day limitation period. Hardship to appellant 1. Commissioner Seymour determined the hardship that would be suffered by the appellant in the event his application was rejected was that he would not be able to pursue his application. In making that determination, the Commissioner observed that hardship was suffered by every applicant whose out of time application was rejected. 2. The Commissioner accepted the appellant's submission that he had suffered financial hardship as a result of his dismissal and his inability to find comparable alternative employment. The appellant ultimately found alternative work albeit at reduced remuneration. At [55], Commissioner Seymour considered the appellant had not demonstrated hardship beyond that suffered generally by a dismissed employee or one whose application seeking redress was filed out of time. Hardship to employer 1. Commissioner Seymour considered the question of hardship to the employer was a neutral consideration in the exercise of her discretion in considering the appellant's application. At [71], the Commissioner observed that the respondent acknowledged the only hardship it would face would be the preparation of its case in defending the application: [71] The Department acknowledged the only hardship it would face would be preparing for and conducting a case in response to the unfair dismissal application. Consideration of hardship to the employer is therefore a neutral consideration in the exercise of discretion in this matter. Prospects of unfair dismissal claim 1. The respondent opposed the appellant's contention that he had been constructively dismissed and was "forced and coerced" to resign. At [60], Commissioner Seymour considered there was some prospect of the appellant establishing that the respondent was the true initiator of the termination of employment: Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336. 2. However, on the evidence put before the Commission with respect to the jurisdictional objection, Commissioner Seymour at [68] considered the appellant "would face challenges in establishing the dismissal was harsh, unreasonable or unjust": [68] I am not persuaded that Mr Dominguez's claim is so meritorious that it justifies the exercise of discretion in his favour when weighed against the other considerations, particularly the length and reason for the delay. In any event, an applicant with an arguable or even a good case is not, for that reason alone, guaranteed admission of a late application: Brisbane South Regional Health Authority v Taylor at 553. Conduct of employer relating to dismissal 1. Commissioner Seymour determined the respondent's conduct had no bearing on the appellant filing his unfair dismissal claim out of time. The respondent's conduct was therefore a neutral issue in the exercise of her discretion: [73] The Department's conduct had no bearing on Mr Dominguez lodging out of time. From the time Mr Dominguez tendered his resignation on 29 March 2017, the Department had no interactions with him until the Employment Separation Certificate was requested on 1 May 2017, which was duly provided on 5 May 2017. [74] Consideration of conduct of the employer is therefore a neutral consideration in the exercise of discretion in this matter. Appellant's grounds of appeal 1. There is no doubt that the appellant has spent a great deal of time preparing his appeal. 2. It must be stated at the outset that the appellant's grounds of appeal were convoluted and in the main, directed towards the relative merit of his unfair dismissal application rather than the requirements imposed by the New South Wales Parliament upon the Commission that applications filed out of time must be tested and assessed against the criteria to which s 85 of the Act directs particular attention. 3. The appellant's grounds and reasons pressed on appeal were interposed with a litany of grievances and a series of emotive pleas seeking Full Bench intervention so as to afford him justice and restore his employment with the respondent, rather than the necessary identification of error by Commissioner Seymour. The appellant's grounds of appeal can be broadly distilled down to four key questions concerning the identification of legal error: 1. Did the Commissioner Seymour misapply s 85 of the Act? 2. In determining the application was 19 days out of time, did Commissioner Seymour establish the correct effective date of the appellant's termination? 3. Is an application made to the Australian Human Rights Commission "a similar application" made application under a Commonwealth Law as provided by s85 (2)(a)? 4. Did Commissioner Seymour commit error in not exercising the discretion available under s 85(3) of the Act to accept the appellant's application out of time? Case for the appellant on leave to appeal 1. The appellant filed a 27 page written submission which traversed his vehement opposition to the determination made by Commissioner Seymour below. 2. We have considered those submissions. 3. The bulk of the appellant's submissions on appeal deal with reasons unrelated to the key questions that were required to be determined by Commissioner Seymour pursuant to s 85 of the Act or the principles governing the granting of leave to appeal that the Full Bench is required to apply. 4. We do not propose to repeat those submissions in fine detail, suffice to say that the appellant's case on appeal seeks to challenge findings of fact, the interpretation of legal authorities and certain legislation and the discretion exercised by Commissioner Seymour not to accept his out of time application. It is insufficient and unhelpful for an appellant, as was the case here, to generalise rather than clearly identify and articulate the alleged error sought to be remedied in appeal proceedings. 5. In summary the appellant complains that the Commissioner erred in not finding that a sufficient reason existed to extend the time limit for the purposes of ss 85(1) of the Act. The appellant further complains that the Commissioner erred by failing to have proper regard to the requirements of ss 85(3) of the Act. Case for the respondent on leave to appeal 1. The respondent opposed the granting of leave to appeal and appeal. 2. The respondent's submissions focused sharply on the nature of the discretion to be exercised by a member of the Commission under s 85 of the Act and the jurisprudence relevant to the granting of leave to appeal and appeal by a Full Bench of the Commission. 3. The respondent's submissions also developed arguments in support of grounds set out in a Notice of Contention. 4. It was the respondent's case that Commissioner Seymour's decision concerned the exercise of discretion and accordingly, on appeal, the principles in House v The King [1936] HCA 40 should apply. Consideration 1. The prima facie position is that an application made out of time is excluded by ss 85(1). It is mandatory under ss 85(1) of the Act that applications pursuant to s 84 are made within 21 days after the dismissal of the employee. An application can only be accepted by the Commission subject to s 85(2) and (3) 2. Subsection 85(2) identifies particular circumstances where the Commission is required to accept an application that is made out of time. The appellant relied upon an application made to the Australian Human Rights Commission (the AHRC). The only evidence before the Commissioner was the assertions of the appellant that he had made such an application. On the appeal the applicant tendered an email from the AHRC referring to the lack of information connecting his complaint to any of the grounds which the AHRC is authorised to consider. The email also suggested that the appellant may wish to contact the Fair Work Commission, seek free legal advice from legal aid or provide further clarification of his complaint. 3. It is apparent that the evidence in relation to the application and the various factors relevant to the application of s 85(2) of the Act is less than satisfactory. The respondent made several submissions critical of the evidence, or lack of it, and contending in a series of cascading arguments that the appellant had not demonstrated that the requirements of s 85(2) had been met. 4. The appellant's evidence was that he did not make an unfair dismissal application to the Fair Work Commission. Such an application would be "similar" within the meaning of s 85(2). The paucity of evidence in connection with the application to the AHRC and whether it was withdrawn or declined and, if so, the reasons why it was declined mean that this is not a proper occasion to determine whether an application to the AHRC may satisfy the requirements of s 85(2). On the available evidence we consider the conclusion of the Commissioner was open and therefore no error is established. We add that the state of the evidence itself militates against the grant of leave. 5. Subsection 85(3) confers on the Commission the discretion to accept an application under s 84 which is made out of time. That discretion is not unfettered and the Commission may only accept an application that is made out of time where it considers that there is "a sufficient reason" to do so. 6. In considering whether such a sufficient reason exists, the Commission is required to have regard "in particular", but not exclusively, to the matters set out in ss 85(3)(a), (b) and (c) of the Act. There is no definition as to what constitutes a "sufficient reason". Each case must be decided on its own facts and circumstances. 7. As we have noted the Commissioner conducted an orthodox analysis of each of the matters identified in s 85(3). We see no basis to suggest error in any of her findings or conclusions. 8. In order to determine the question of leave, we have considered the questions of law raised by the appellant. We have also considered the appellant's grounds of appeal. It will be apparent that we were not persuaded that the appellant had shown error in any of the four ways identified in [30]. 9. It is impermissible in appeal matters for the appellant simply to seek to re-agitate the factual matters argued below. The appeal seeks, in part, to challenge the exercise discretion by the Commissioner, her findings of fact and interpretation of applicable legislation and various legal authorities. The underlying thread of the appellant's case on appeal was that Commissioner Seymour should have simply drawn a different conclusion based on the applicable legislation and the legal authorities that she relied upon. 10. As set out above we have considered Commissioner Seymour's findings of fact, her interpretation of the relevant legislation and legal authorities. The Full Bench has determined, based on the evidence put below, that it was clearly open to the Commissioner to reach the conclusion that she did. 11. Contrary to the submissions put by the appellant, we have formed the view that the appeal does not raise substantial issues of principle or law. The appellant has failed to identify in the decision under appeal any finding of fact that was not reasonably open to Commissioner Seymour on the evidence before her. Disposition of Appeal 1. The appeal has not identified any error in the decision at first instance. That being so, there is no proper basis on 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 orders: 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: 21 January 2019