Industrial Relations Commission New South Wales Medium Neutral Citation: Sholo v Secretary, Department of Education [2019] NSWIRComm 1059 Hearing dates: Jurisdictional question determined "on the papers" Date of orders: 28 August 2019 Decision date: 28 August 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: (1) The application for extension of time pursuant to s 85 refused (2) The application is dismissed Catchwords: UNFAIR DISMISSAL - application made out of time – principles – matters to be considered in exercise of discretion – significant delay – ignorance of the jurisdiction - no sufficient reason advanced for significant portion of delay – hardship to employee and employer considered – application refused Legislation Cited: Industrial Relations Act 1996 (NSW) ss 84, 85 Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 Isaac v Department of Family and Community Services [2018] NSWIRComm 1008 Lucic v Nolan (1982) 45 ALR 411 Xiao v Secretary, Department of Justice [2018] NSWIRComm 1034 York v NSW Department of Education and Communities [2015] NSWIRComm 37 Category: Procedural and other rulings Parties: Yemma Christine Sholo (applicant) Secretary, Department of Education (respondent) Representation: Applicant in person M Seck of counsel (respondent) File Number(s): 2018/342099 decision 1. Yemma Christine Sholo, the applicant, was employed by the Secretary, Department of Education at the Conservatorium High School, at the Conservatorium of Music, Sydney ("the Conservatorium") as a School Administration Officer from August 2016 to May 2017 and as a Learning Support Officer from June 2017 to May 2018. 2. On 7 May 2018 the applicant sent an email to Dr Robert Curry, Principal of the Conservatorium tendering her resignation "effective immediately". However, the applicant asserts her employment came to an end on 5 July 2018. 3. The applicant filed in the Office of the Industrial Registrar an application for relief pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("the Act") on 7 November 2018, ("the Application"). 4. Sub-section 85(1) of the Act provides that an unfair dismissal application under Pt 6 of the Act must be made not later than 21 days from the dismissal of the employee. The Application was commenced 184 days from the date the applicant tendered her resignation and 125 days from the date the applicant asserts her employment came to an end. At a minimum, the Application was made 101 days out of time and if the resignation date is taken as the termination date then the Application was made 163 days out of time. 5. Pursuant to s 85(3) of the Act, the applicant seeks that the Commission accept the Application made out of time. 6. The applicant is self-represented and the Commission regards itself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 ("Hamod") including that set out at [309]: Courts have an overriding duty to ensure that a trial is fair… In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. Procedural matters 1. The respondent initially notified two jurisdictional objections to the Application: the Application was filed out of time; and there was no dismissal because the applicant had resigned. The respondent notified his willingness to conciliate before pressing the jurisdictional objections and I determined pursuant to cl 6 of Practice Note 17A that I would conciliate the matter prior to dealing with the jurisdictional matters. 2. The matter was conciliated by me on 4 December 2018, unsuccessfully. Following the conciliation, I set the matter down for a hearing on the question of whether the Commission will accept the Application pursuant to s 85(3) of the Act and made directions for the filing of evidence and short summaries of the parties' cases. I also directed that if the respondent intended to press his jurisdictional objection on the basis that there was no dismissal that he file a notice of motion by 25 January 2019. 3. The respondent elected not to press his objection on the basis that there was no dismissal until after the Commission determined whether to accept the Application out of time; this was notified to the applicant on 7 January 2019 and to the Commission on 30 January 2019. The hearing on the question of whether the Commission would accept the Application pursuant to s 85(3) was set down for hearing on 22 March 2019. 4. On 7 February 2019 the applicant filed an unsigned document in her name headed "statement" which attached a number of documents which were a mix of evidence, authorities and submissions ("the Applicant's February Statement"). 5. On 8 March 2019, the respondent issued a summons to produce to the applicant requiring her to produce various documents relevant to matters she asserted in the Applicant's February Statement ("the Summons to Produce"). On 14 March 2019 the applicant filed a notice of motion and a supporting affidavit seeking to set aside the summons on the basis that the documents sought were irrelevant and in breach of her privacy. In the notice of motion the applicant said she would provide a copy of her ticket and a video of her mother's funeral. On 14 March 2019 the applicant produced a USB to the Commission containing, amongst other things: an electronic ticket receipt indicating that the applicant travelled from Sydney to Perth to Johannesburg, South Africa to Ndola, Zambia, on 3 and 4 September 2018 and returned on 17 and 18 September 2018. 6. On 21 March 2019, the applicant provided a medical certificate to the Commission stating that she "will be unfit for attending court from 21st March 2019". The Commission contacted the respondent to ask if the respondent consented to the vacation of the hearing on 22 March 2019. The respondent agreed to vacate the hearing on the basis that the matter proceed by way of written submissions and the determination be made in chambers "on the papers". The Commission notified the applicant of this proposal and sought her response that afternoon. In the absence of a response from the applicant the Commission determined to proceed as suggested by the respondent and the Commission directed: the applicant to file submissions on the out of time question by 26 April 2019; the respondent to file submissions on the out of time question by 16 May 2019; and if either party wished to file further evidence they were to confer with the other party before seeking leave from the Commission. 7. On 23 April 2019 the applicant filed a document headed "statement" signed by her which attached five pages of submissions ("the Applicant's April Statement and Submissions"). 8. On 27 May 2019 the respondent sought an extension of time for the filing of his submissions on grounds including that the applicant's submissions disclosed that the applicant "has on foot a current and overlapping complaint in the Australian Human Rights Commission" ("the AHRC") and that this had not been previously disclosed by the applicant. An extension was granted. 9. On 30 May 2019 the respondent filed written submissions ("the Respondent's May Submissions"). 10. On 3 June 2019 the applicant sought leave to file by 10 June 2019 additional material in reply to the Respondent's Submissions. Leave was granted. 11. On 11 June 2019 the applicant filed: further submissions ("the Applicant's June Submissions"); evidence in the form of: letters from: Dr Maria Li dated 7 June 2019; Kathryn Humby dated 5 June 2019; and Karina Alouisa dated 11 May 2019; and a copy of Visa Fee receipt from the Republic of Zambia dated 4 September 2018. Included in the Applicant's June Submissions was an assertion that she had delivered a USB to the "IRC office on 14 March 2019" containing copies of her "airline ticket, travel insurance, photos and videos of [her] Mum's funeral". This material was produced to the Commission in response to the summons issued by the respondent on 8 March 2019 but had not been filed with the Commission for the purposes of determining whether the Commission would accept the Application out of time. 12. On 11 June 2019 the applicant provided to the Commission by email, copying the in-house legal representative of the respondent, a copy of a letter from the AHRC stating that the Delegate of the President "granted leave for [the applicant] to withdraw the complaint and [her] complaint has been finalised". 13. On 15 July 2019, in accordance with my duty set out above at paragraph [6], I notified the parties of the following: In determining the question of whether there is a sufficient reason to extend the time for making an application pursuant to Pt 6 of Ch 2 of the Act, the Commission intends to consider the material which was produced to the Commission in response to the summons issued by the respondent on 8 March 2019. This material includes an electronic ticket receipt dated 1 September 2018. As this matter is being determined in chambers "on the papers" and the parties have not had the benefit of making oral submissions, and because the Commission intends to accept material from the applicant that has not been filed or served in the usual evidentiary form, the Commission considers that procedural fairness requires that the respondent be notified of the Commission's intention to accept this material and be given an opportunity to make submissions on this matter before the Commission formally accepts this material for an evidentiary purpose. Accordingly, the Commission makes the following directions: 1 The respondent notify the Commission by 4.00pm on 18 July 2019 if he wishes to make any submissions on the acceptability of the material produced in response to the summons issued on the request of the respondent on 8 March 2019, or on the relevance or otherwise of this material, and any such submissions should be filed and served by 4.00pm on 1 August 2019. 2 If the respondent does not notify the Commission that he wishes to make any submissions on the acceptability of this evidence or on its relevance or otherwise by 4.00pm on 18 July 2019 then the matter will be determined on the material presently before the Commission, including the material produced in response to the summons issued on the request of the respondent on 8 March 2019. This notification and the directions contained within are not intended to be an indication of the Commission's intentions regarding the determination of the question of whether there is a sufficient reason to extend the time for making an application pursuant to Pt 6 of Ch 2 of the Act. 1. On 2 August 2019, the respondent filed further submissions ("the Respondent's August Submissions"). On 5 August 2019 the applicant responded to the Respondent's August Submissions by email to the Commission ("the Applicant's August Submissions"). 2. The documents filed by the applicant were a mixture of evidence and submission. Much of the evidence was largely inadmissible under the rules of evidence as to form and substance and much of the material contained in the Applicant's February Statement and the Applicant's April Statement and Submissions addressed the substantive issues and not the matters to which the Commission is to have regard pursuant to s 85(3) of the Act. However pursuant to s 163 of the Act the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. In the circumstances of this matter, I have considered all of the material filed by both parties and the material produced by the applicant to the Commission in response to the Summons to Produce issued at the request of the Respondent on 8 March 2019 and determined the appropriate weight that should be afforded. The legislation 1. Section 85 of the Act is in the following terms: 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. Consideration 1. The Act makes it mandatory that applications pursuant to s 84 be made within 21 days of the dismissal. Subsection (2) then provides for circumstances where an application that is made outside the required time must be accepted by the Commission. These circumstances do not arise in this matter. 2. Subsection 85(3) of the Act provides that the Commission "may", as a matter of discretion, accept an application which is made out of time. 3. The applicant for an extension of time pursuant to sub-s 85(3) has the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. 4. The Commission's exercise of discretion requires the formation of the view that there is a sufficient reason for an extension of time having regard in particular to the factors in sub-s 85(3) (a) to (c): Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054 at [25]. It is not appropriate to formulate any definition of what constitutes a "sufficient reason": Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186 at 190 as cited in Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 ("Hurrell") at [13]. 5. In order to determine if sufficient reason exists for the Commission to exercise its discretion to accept the Application out of time the Commission must consider the applicant's stated reasons for the delay in filing; hardship that may be caused to the applicant and/or the respondent; and the conduct of the employer relating to the dismissal. The applicant's stated reasons 1. The applicant gives as her reasons for the Commission accepting the Application out of time: 1. her mother, who lived in the Democratic Republic of the Congo, was of ill-health and her condition deteriorated quickly by the end of June 2018 and passed away on 28 August 2018 (noting that the applicant has provided different dates for her mother's passing and this is set out at paragraphs 31 and 32 below); 2. her trip to the Democratic Republic of Congo from 4 – 19 September 2018; 3. she was not aware of the Industrial Relations Commission, its powers and her right to make an application under Pt 6 of Ch 2 of the Act until 5 September 2018 or 19 September 2018. It was while she was out of Australia for her mother's funeral, when the applicant was informed of the existence of the Commission; 4. she resigned from the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") on 6 May 2018 (noting that the applicant has provided different dates for her resignation from the PSA and this is set out at paragraphs 37 and 38 below); and 5. she was suffering a debilitating medical condition of anxiety and depression. The applicant's mother's illness and death and the applicant's trip to the Democratic Republic of Congo 1. I accept the applicant was grieving for her mother from the date of her mother's death which I accept is 28 August 2018, (see below at [30] – [33]) and that prior to that time the applicant was concerned about her mother's health. However, as the applicant did not have the responsibility of caring for her mother during her time of illness, these events, on their own, do not explain why the applicant did not file the Application prior to her mother's passing. 2. On the applicant's evidence contained in the documents provided in response to the Summons to Produce: the applicant remained in Australia until 3 September 2018 and departed Australia on that date to travel to the Democratic Republic of Congo after her mother passed away on 28 August 2018; and the applicant returned to Australia on 18 September 2019. 3. The applicant asserts in the Applicant's February Statement that her mother passed away "last year on 28th September". 4. In the Application, filed 7 November 2018, the applicant states: Sadly, my mother pass away last month. Had a known about the commission, I would have most definitely seeked help much earlier and lodge the complaint. 1. The applicant has not explained the discrepancies in the documents as to the date of her mother's passing. I have accepted that the correct date is 28 August 2018, which is the date given in the Applicant's June Submissions and is the date consistent with the dates of the applicant's travel. I accept that the applicant made an error in stating "28th September" in the Applicant's February Statement, and I have drawn no inference from this error. 2. As the applicant has not addressed why, in the Application she stated that her mother passed away "last month", which was October 2018, a number of inferences are available to the Commission. The inference I consider to be most probable is that the Application was prepared in September 2018 on the applicant's return to Australia, but not filed until November 2018. As this matter was dealt with on the papers neither party was provided with an opportunity to address me as to this inference, and I have taken this into account when determining the weight given to this inference at paragraph [44]. Ignorance of the 21 day time limit and resignation from the PSA 1. Following a consideration of the Full Bench's decision in Hurrell, a different Full Bench in York v NSW Department of Education and Communities [2015] NSWIRComm 37 ("York") accepted that "true ignorance of the law may be a factor to be taken into account in the exercise of the discretion to accept a late application": at [85] 2. Relevantly, in Hurrell, the Full Bench said: 12. …a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s 256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13 Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 1. In the Applicant's February Statement, the applicant says that she resigned from the PSA on 6 May 2018 the day before she sent an email to Dr Curry tendering her resignation effective immediately. The applicant says in the Applicant's February Statement: When I release the school principals were not taking any necessary steps to ensures that workplace was free from harassment, bullying and unlawful discrimination that when I joined the PSA (Public Service Association of New South Wales early April 2017. The association never help me or talk to the school on my behalf about what was happening regarding the discrimination, bullying and denied access to the LMB art training to further my career. The PSA did not help me, all they did is by taking fortnight payment from my account without been supported, after a year and half with PSA I was not getting anywhere and the issues at workplace were getting works on 6 May 2018 I did and my membership with them. 1. However, in the Application, the applicant states: On 4/06/2017, I terminated my membership of the association, as their communicational assistances was not facilitating a mediative resolution to my discrimination and bullying matter with the school. 1. The applicant has not provided any documentary evidence supporting the date of her resignation from the PSA. Nor has the applicant filed any specific evidence on the nature and content of the advice she received from the PSA regarding her legal rights. The PSA is a large and well-resourced trade union well experienced in the Commission and in respect of the Act. In the absence of evidence about the advice sought and given by the PSA the respondent submits that an inference is available to the Commission that the applicant asked the PSA about the circumstances of her resignation and her rights to challenge her "constructive dismissal" and consequently cannot rely on an argument that she was ignorant of the 21 day time limit. 2. I have considered the applicant's assertion that the PSA did not provide her with advice about her right to commence an unfair dismissal claim. The inconsistency in the applicant's evidence about the date she ceased to be a member of the PSA strongly supports an inference that the applicant has not provided complete details about her interactions with the PSA, which then allows for an inference, as submitted by the respondent, that the applicant asked the PSA about the circumstances of her resignation and her rights to challenge her "constructive dismissal". 3. Although I consider that it is open to me to infer that the PSA informed the applicant of her right to make an unfair dismissal claim and the requirement to do so within 21 days, I have not done so. Nevertheless, there is a discrepancy in the applicant's evidence regarding the time when she became aware of her right to make an unfair dismissal application. 4. In the Applicant's February Statement, the applicant asserts she became aware of her rights on the flight back from her mother's funeral in the Democratic Republic of Congo after speaking to an unidentified passenger. The applicant did not give a date for this flight but on the basis of the material produced in response to the Summons to Produce this would be 17 or 18 September 2018. In the Applicant's April Statement and Submissions the applicant states that she returned from the Democratic Republic of Congo on 19 September 2018 but became aware of her right to make an unfair dismissal application on 5 September 2018. 5. The inconsistency in the applicant's evidence as to the date on which she was informed of the existence and powers of the Commission undermines the reliability of her evidence on this point. 6. Further, the applicant has not explained why, other than her evidence about her medical condition which is addressed below, even after she became aware of her right to make an unfair dismissal application on 5 September 2018 or 19 September 2018, her claim was not made until 7 November 2018. The applicant has not given any evidence about steps she took after her return to Australia to have been informed of her right to make an unfair dismissal application. She has provided no evidence about whether she contacted the Commission or viewed the Commission's website or the Act or spoke with a solicitor or industrial advocate about her rights. The applicant has not presented sufficient evidence to demonstrate that she acted reasonably and appropriately to ascertain and prosecute her rights after being informed while in Africa of her ability to make an unfair dismissal claim. As set out above at paragraph [34] an inference is available that the applicant prepared the Application in September 2018 and did not file it until November 2018; however, I have not given this inference any weight. The applicant's medical condition 1. In the Applicant's April Statement and Submissions she states: (h) I was not aware at all prior to the 5th September 2018 that I could seek help through the IRC when face with a work related dismissal issues. (i) During this time, I was feeling fatigue, having difficulty concentrating, unable to properly care for even myself or my daughter, I worried, anxiety and in a dark place. (j) During this time, my condition did not permit me to reasonably to prepare a claim. 1. From the context, it is not apparent whether the applicant is referring to the period before 5 September 2018 or before 7 November 2018. In an effort to comply with my obligations set out at paragraph [6] I have used the interpretation most favourable to the applicant, being the period until 7 November 2018. 2. The original medical evidence filed by the applicant was a medical certificate from her treating General Practitioner, Dr Maria Li dated 23 November 2018, a letter from Dr Li dated 22 January 2019 and a letter from the applicant's treating psychologist, Ms Kathryn Humby dated 14 November 2018. This material does not support the applicant's assertion that she suffered from a medical condition during the period from 7 May 2018 to 28 May 2018 or 5 July 2018 to 26 July 2018 which explains the applicant's delay in filing the Application. 3. The applicant filed additional letters from Dr Li dated 7 June 2019 and Ms Humby dated 5 June 2019 and a letter from Karina Alouisa dated 11 May 2019. 4. The letter from Dr Li dated 7 June 2019 states: Ms Yemma Sholo has suffered acute anxiety disorder as described in the letter dated 23rd November 2018 and her condition escalated at the end of 2018 and into early 2019. In October 2018, she was commenced on medication in addition to having psychological therapy. When someone is unwell with anxiety disorders, they do not have the mental capacity to be able to process and make decisions in the normal manner and hence the delay with lodging her applications. She is still suffering anxiety and continues her medication and therapy today. 1. The evidence from Dr Li from June 2019 must be considered together with the letter from Dr Li dated 23 November 2018 which states: Ms Sholo did seek professional therapy from a psychologist in May 2017 and has continues [sic] to see them to this day. There was a delay in her seeking help from Industrial Relations as she was not aware that this issue is under their jurisdiction, and despite joining the union (Public Service Association of NSW) and seeking help from them, none was forthcoming. It was only by chance that Ms Sholo was informed by a fellow plane passenger on the way back from her mother's funeral (in Congo) that she can seek help through the Industrial Relations Commission. Hence, her plea now. 1. Dr Li did not identify the applicant's condition amongst the reasons for the applicant's delay in filing the Application in her letter of 23 November 2018, and as Dr Li asserts that the condition escalated at the end of 2018, the evidence from Dr Li does not support the applicant's assertion that her medical condition during the period between 7 May 2018 and 28 May 2018 or 5 July 2018 and 26 July 2018 was the reason for her not filing within the statutorily defined period of 21 days. 2. The additional letter from Ms Humby does not support the applicant's assertion that she suffered from a medical condition which explains the applicant's delay in filing the Application. 3. The letter from Ms Alouisa states that the applicant was referred to Ms Alouisa on 16 April 2019. Ms Alouisa's assessment has been based on information given to her by the applicant during the assessment which took place: 12 months after the applicant notified her resignation; over 10 months from the date the applicant asserts her employment with the respondent ended; and, at best, over nine months from the relevant date pursuant to s 85(1) of the Act that would have seen the Application filed in time. 4. Ms Alouisa states that the applicant's "reported symptoms are suggestive of the presence of a Major Depressive Disorder and Generalised Anxiety Disorders outlined in Diagnostic and Statistical manual of Mental Disorders". Ms Alouisa does not offer any opinion as to whether this suggested disorder was a cause of the delay in the applicant filing the application in May, June or July 2018. 5. The applicant has not satisfied the Commission that her medical condition was the, or a, reason for her not filing the Application within 21 days from either 7 May 2018 or 5 June 2018. 6. Further, there is insufficient independent medical evidence to support the applicant's claim that she suffered a medical condition which precluded her filing the Application in the period after her return from the Democratic Republic of the Congo until 7 November 2018. Hardship to the applicant and/or the respondent 1. In the Applicant's April Statement and Submissions the applicant claims a variety of hardships may be caused to her if the Commission does not accept the Application: (a) Defamation of my professional character; (b) Loss of confidence and zester about life and work; (c) It will affect my mental state as I am already suffering from anxiety and depression. (d) Financial loss (e) Loss of my dignity and reputation (f) Fearful for my future (g) Poor quality of my life following this psychological injury (h) It will leave me under skilled and in a disadvantaged position to advance further in my career in future. 1. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ("Taylor") Toohey and Gummow JJ observed as follows at 459: … in one sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. 1. The respondent submits that none of the hardships that the applicant claims are different to the vast majority of unfair dismissal claims. To a great extent this is true. However, I have given weight to each of the matters asserted by the applicant, in particular the applicant's psychological condition and the evidence of her treating practitioners. I have also given weight to the fact that the applicant has now withdrawn her complaint to the Australian Human Rights Commission. The Commission must balance these hardships against other factors, including the hardship to the respondent. 2. The respondent says that he will be put to hardship as: he is entitled to regard himself as free from unfair dismissal application once the time limit has passed; the applicant did not put him on notice that she contested the dismissal or even that she considered herself dismissed rather than having resigned until the Application was filed on 7 November 2018; as a result of the significant delay in bringing the Application, a number of witnesses may no longer be associated with the Department of Education and their memories may have faded. 3. In the Applicant's April Statement and Submissions, the applicant says: (f) From the time that I cease working at Conservatorium High School until 7th of April 2017, I had discussion in attempt to resolve my employment issues with Ian Barker the Principal of School in 2017 and Robert Curry School Principal on 21st of August 2017. 1. This statement refers to attempts by the applicant to resolve issues after she "cease working" with the respondent. It does not contradict the respondent's submission that the applicant did not put him on notice that she contested the dismissal as despite the use of the term "cease working", the dates pre-date the end of the employment relationship. I accept that the applicant did not contest the dismissal at any time from notifying her resignation until 7 November 2018. 2. I accept the other matters that the respondent submits will cause hardship to him. These matters give rise to the usual effects of delay including the oppressiveness which may be caused in allowing an action to be brought long after the circumstances which gave rise to the claim occurred, the proposition that people should be able to arrange their affairs and resources on the basis that claims will no longer be made, and the public interest in the quick resolution of matters. Conduct of the employer relating to the dismissal 1. As Commissioner Newall held in Isaac v Department of Family and Community Services [2018] NSWIRComm 1008: 13. … the 'conduct of the employer' within the meaning of subsection 85(3)(c) is the conduct of the employer so far as it might be relevant to the delay in the applicant filing his application pursuant to s.84. That sub-section does not invite - or allow - an exercise of discretion in favour of an applicant for reason that the Commission regards the dismissal itself as egregiously unfair: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [40]; Ibrahim v Director-General, NSW Ministry of Health in respect of Sydney Local Health District [2013] NSWIRComm 1012. … 14. There is a place within the exercise of the discretion under subsection 85(3) for consideration of the fairness of the dismissal itself, but it is within the consideration of the prospects of success of the application under subsection 85(3)(b), as set out in Hurrell supra. It must be said that this consideration is not the overarching consideration in considering applications of this kind, but rather is one consideration amongst others. 1. There is no suggestion that any conduct of the respondent relating to the applicant's dismissal played any part in the delay in the applicant filing her unfair dismissal application. 2. The applicant has not alleged that the respondent's conduct affected her filing her application out of time. Accordingly this consideration is a neutral factor in the exercise of discretion in this matter. Other relevant matters 1. I consider that it is relevant to the exercise of the Commission's discretion that the applicant tendered her resignation, and for the Application to succeed, the applicant must establish that the termination of employment was a dismissal at the initiative of the respondent, referred to by the applicant as a "constructive dismissal". However, as this jurisdictional issue has been dealt with "on the papers", and the applicant has not had an opportunity to address me on this matter specifically, I have given this consideration little weight. Consideration and decision 1. The essential principle is that in exercising a discretion as to whether to accept proceedings instituted out of time, the requirements of justice in a particular case, considered within the statutory structure, are paramount: Hurrell at [13]. 2. The onus is on the applicant to convince the Commission to exercise the discretion in her favour: Taylor per McHugh J at 554; York at paragraph [114]. 3. The applicant has not discharged her onus to persuade the Commission to admit her application, at a minimum of 101 days beyond the 21 day time limit for the filing of such an application, and 63 days after she says she became aware of her right to bring an unfair dismissal claim pursuant to the Act. Orders 1. I make the following orders: 1. The application made by Ms Yemma Christine Sholo pursuant to s 85 of the Act that her application pursuant to s 84 of the Act be accepted out of time is refused. 2. The application made by Ms Yemma Christine Sholo pursuant to s 84 of the Act is dismissed for reason that it is not brought within time. N J Constant Commissioner ********** 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: 28 August 2019