Siavash Khorramdel and Sydney South West Area Health Service [2010] NSWIRComm 1018 (16 April 2010)

Last Updated: 23 April 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Siavash Khorramdel and Sydney South West Area Health Service [2010] NSWIRComm 1018



FILE NUMBER(S):
IRC 1801

HEARING DATE(S):
10 and 17 March 2010

DATE OF JUDGMENT:
16 April 2010

PARTIES:
APPLICANT
Siavash Khorramdel

RESPONDENT
Sydney South West Area Health Service

CORAM:
Bishop C


CATCHWORDS: Unfair dismissal - out of time application - filed 256 days after termination and after relese from gaol - terminated due to 18 months gaol sentence - alleged employer denied leave causing unavailability for work - union representation re leave and resignation - rejected by employer - union declined to take legal action - applicant alleged agreement re resignation reason for delay - alleged representative error.
HELD - no representative error - applicant seeking leave then resignation - applicant had not made out sufficient reason to exercise discretion and grant extension - limited chance of success due to frustration of the contract - application dismissed.


LEGAL REPRESENTATIVES

APPLICANT
Mr S Khorramdel
RESPONDENT
Mr N Rudd,
Sydney South West Area Health Service

CASES CITED:
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Director-General of Education and Training v Bond [2008] NSWIRComm 40
Green v Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109
Hare v Murphy Brothers Limited [1973] 3 All E.R. 940
Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17
Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139
John Ninness and ors v Miller Bulk Haulage Farming Co Pty Ltd (now Miller Farming Co Pty Ltd) [2008] NSWIRComm 183
Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 132
Moore v Metropolitan Local Aboriginal Land Council [2005] NSWIRComm 325
Syed Rizvi v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084
Stephen Wendt v Peace Birk and ors [2004] NSWIRComm 275

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 56 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

16 April 2010

Matter No IRC 1801 of 2009

Siavash Khorramdel and Sydney South West Area Health Service

Application by Siavash Khorramdel re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2010] NSWIRComm 1018

1 This matter concerns an application by Siavash Khorramdel against the Sydney South West Area Health Service ("SSWAHS") for a remedy pursuant to s. 84 of the Industrial Relations Act 1996.

2 Mr Khorramdel was dismissed from his position of Intel Server Support Officer with SSWAHS on the 7 February 2010. He filed his s.84 application on the 16 November 2009. He sought reinstatement, re-employment or monetary compensation in lieu thereof.

3 The matter was listed for conciliation and directions before Commissioner Tabbaa on the 7 December 2009 at which time conciliation took place. Further conciliation was conducted on the 14 December 2009. However as no settlement could be reached and as the respondent pressed the issue that the application was out-of-time, directions were issued as to the filing and exchange of witness statements pursuant to Practice Direction 17.

4 The matter was re-allocated to the Commission as currently constituted and listed for hearing to deal with the out-of-time issue on the 10 March 2010.

5 On the 27 January 2010, Mr Khorramdel issued Summonses to Give Evidence pursuant to s.165(3)(b) upon on the following persons:

Michael Williamson, HSU, General Secretary,

Peter Mylan, HSU, Assistant Secretary,

Julie Cowdrey, HSU Organiser and

Debbie Neumann, HSU Councillor.

6 On the 3 March 2010, a Notice of Motion was filed by the Health Services Union ("HSU") seeking that Michael Williamson and Peter Mylan be exempted from attending the Commission as required by the Summonses.

7 The Notice of Motion was set down for hearing before me on the 9 March 2010.

8 At the hearing Mr Cocquillon appeared on behalf of the HSU together with Mr Morgan whose affidavit was attached to the Notice of Motion (Exhibit 1).

9 After hearing from the parties, the Commission granted the exemption from further attendance sought on behalf of Mr Williamson and Mr Mylan, on the basis that they had no direct involvement with the applicant's case. Mr Cocquillon advised that Ms Cowdrey and Ms Neumann would, however, attend in response to the Summonses issued.

10 The hearing was conducted on 10 and 17 March 2010.

11 At the hearing Mr Khorramdel appeared on his own behalf and had filed a witness statement (Exhibit 6). He called as a witness his wife, Mitra Zahraei, who had also filed a witness statement (Exhibit 2).

12 Mr Rudd, Senior Human Resources Officer - Industrial Relations, appeared on behalf of SSWAHS and called following witness who gave oral evidence in addition to the witness statement filed:

Judith Neville - former Area Manager, Human Resources,

SSWAHS (Exhibit 7).

13 Ms Julie Cowdrey, HSU Organiser, and Ms Debbie Neumann, HSU Councillor attended, and gave evidence in accordance with the Summonses issued.

Background and Chronology based on the evidence filed and the transcript.

14 Mr Korramdel is aged 47 and is married with 2 small children. He commenced employment with the SSWAHS on the 8 October 2001.

15 His employment was covered by the terms and conditions of the Health Employees Computer Staff (State) Award and the Health Employees Conditions of Employment (State) Award.

16 On the 20 May 2008 Mr Khorramdel pleaded guilty in the District Court to two charges of "dishonestly causing loss" by defrauding Centrelink of some $60,000 by claiming Newstart allowance and Disability support payments whilst working full-time for SSWAHS during the period 2001 to October 2006.

17 In or about June 2008 Mr Khorramdel deposed that, accompanied by Ms Neumann, he met with Mr Nick van Domburg, Chief Information Officer, SSWAHS, "....and fully informed them about my circumstances."

18 About one week prior to this meeting Mr Khorramdel deposed that he had submitted his annual leave/long service leave form for a three months period and left it in his Director's pigeon hole.

19 On the 17 October 2008, the District Court sentenced him to 18 months gaol, with a non-parole period of 12 months.

20 On 25 October 2008, this information was communicated by letter to Mr van Domburg by the Solicitor who had acted on Mr Korramdel's behalf (Exhibit 7 - JN1). It was also advised that a "notice of intention to appeal had been lodged", it would be six months before the appeal would likely be heard, appeal bail could be applied for and, if granted, Mr Khorramdel would be released within two weeks.

21 In late October 2008 Ms Neville received a telephone call from Mr Korramdel, made from Silverwater Correctional Centre, seeking payment of his annual leave and long service leave whilst he was in gaol.

22 Following enquiries made by Ms Neville of Mr van Domburg confirming his situation, a copy of the Solicitor's letter was forwarded to her. She subsequently met with Ms Jan Whalan, Director of Corporate Services, around 29 October 2008, to discuss the matter and, following this discussion, prepared a brief concerning Mr Khorramdel's circumstances, which was provided to Ms Whalan, as well as to the Chief Executive of SSWAHS (Exhibit 7 - JN2).

23 On the 6 November 2008, Ms Neville sent a letter to Mr Khorramdel's Solicitor advising that "SSWAHS intends to terminate his employment as he is unable to fulfil his employment obligations to the Area Health Service." Mr Khorramdel was given until 17 November 2008 to advise why he should not be terminated, with any response from him to be considered before a final decision was made (Exhibit 7 - JN3).

24 On the 13 November 2008, Ms Neville received a phone call from the Solicitor advising that he no longer represented Mr Khorramdel and that the letter had been forwarded to Mr Khorramdel's wife. Ms Neville subsequently contacted Mrs Zahraei who advised her that he had applied for Legal Aid but nothing had been decided and she sought that her husband's annual and long service leave be paid. Ms Neville advised that the Area Health Service was reviewing the matter and would communicate with her husband.

25 Ms Neville extended the time for Mr Khorramdel to make a reply as to why his employment should not be terminated until 19 December 2008, and wrote a letter to this effect on 13 November 2008, sending it to him at Silverwater Correctional Centre (Exhibit 7 - JN4).

26 Ms Neville deposed that on 17 November 2008, she received a phone call from Mrs Zahraei advising that her husband had been moved to Parramatta Correctional Centre and was now requesting leave without pay for the period of his incarceration. Ms Neville advised that as he may not have received her letter she would send another one to Parramatta and that in relation to his request for leave without pay, it would not be approved.

27 Ms Neville further extended the date by which Mr Khorramdel was to reply to the Area Health Service as to why his employment should not be terminated until 19 December 2008 and sent him a letter to that effect to the Parramatta Correctional Centre on 17 November 2008 (Exhibit 7 - JN5).

28 On 9 December 2008, Ms Neville received a letter from Mr Matthew McGrouther, Welfare Officer, Silverwater Correctional Centre, advising that Mr Khorramdel's earliest date for release was 16 October 2009 and that on approximately 16 April 2009, when he had completed half of his custodial sentence, "he may be eligible to apply for a reduction to his inmate classification, which may permit him to engage in full-time work within the community and days/weekend leave" (Exhibit 7 - JN6).

29 Ms Neville deposed that in early December 2008, she received a telephone call from Ms Cowdrey, the HSU organiser, ringing on Mr Khorramdel's behalf and requesting annual leave whilst he was in prison. Ms Neville advised that the Chief Executive was considering his termination as he could not perform his role while in gaol. Ms Neville was asked if the Area Health Service would consider allowing him to apply for any vacancies as an internal applicant when he was released from gaol. She advised that he would only be able to apply for jobs as an external candidate and that his application would be based on merit.

30 It was Ms Cowdrey's evidence that this conversation took place in early January. However there is no dispute that such a conversation took place.

31 On 18 December 2008, Ms Neville received a letter from Mr Khorramdel dated 10 December 2008. The letter referred to his eligibility for work release in April 2009 - "which I can work as normal employee with SSWAHS". He sought three months annual/long service leave and requested annual leave forms so he could fill them in and return them (Exhibit 7 - JN7).

32 It is not contested that on SSWAHS' calculations Mr Khorramdel had 42 days long service leave accrued and 258.40 hours of annual leave accrued.

33 Mr Khorramdel subsequently telephoned Ms Neville who advised him that his reply had been received but that he had not addressed the issues raised. He undertook to provide a further response.

34 In early January 2009, Ms Neville deposed that she and Ms Whalan, met with Mr Wallace, the SSWAHS Chief Executive, to discuss Mr Khorramdel's response and it was agreed that he did not address the issues of his incarceration. It was considered that the letter from Mr McGrouther only suggested that he "may" be eligible for a reduction in his inmate classification and this was not guaranteed.

35 On the 18 January 2008, Ms Neumann sent an email to Ms Cowdrey reporting on her involvement with Mr Khorramdel to date (Exhibit 3). The email in part said:

After Simon had told me what he had done, I realised that this was nothing to do with the Union but a civil matter. I then suggested he go to Nick van Domburg, who was Chief Information Officer, Information Management and Technology Division, Sydney South West Area Health Service Health Service, and inform him of what was happening so that Nick as his boss knew the situation. As Simon could be facing gaol time for what he had done, which would affect his employment here at SSWAHS, I went into the meeting with Simon and Nick as a support person.

36 The report went on to indicate that she had been requested to write a character reference for him but had declined as he was a work colleague only and other than that she did not know him outside of the work environment and therefore could not write something she did not believe in. She received a number of phone calls following the meeting, from Mr Khorramdel, and then his wife, concerning writing a reference and attending court. After he was sentenced they both asked her to save his job while he was in gaol. The report then went on:

I informed both Simon and his wife that I could not do that as this was a civil matter and had nothing to do with the Union.

She had not heard anything further from them.

37 On 20 January 2008, Mr Wallace, the Chief Executive SSWAHS, forwarded a letter of termination to Mr Khorramdel (Exhibit 7 - JN8) advising that his response of 10 December had been considered and that it had been decided to proceed with a recommendation to terminate his services within 14 days of the date of the letter for the following reasons:
i. as a result of your gaol sentence you are unable to fulfil your employment obligations to the Area Health Service;
ii. you have not provided information about the charge and subsequent gaol sentence;
iii. you have not provided an explanation as to how your sentence may impact upon your future employment with SSWAHS.

38 Ms Neville deposed that in late January she was again phoned by Ms Cowdrey who requested that if the Area Health Service proceeded with a termination would they allow him to be re-employed when he was available for release. Ms Neville advised that he could only apply as an external candidate and Ms Cowdrey indicated she would let the member know.

39 In late January Ms Cowdrey sought advice from Mr Morgan (Acting Manager Industrial Services, HSU) as to the position concerning Mr Khorramdel and received the following email in reply on 27 January 2009 (Exhibit 5):

I have reviewed the correspondence that you forwarded to me this morning.

On the basis of the letters dated 13 November and 17 November indicate that the South West Area Health Service considers terminating his employment important because he is "unable to fulfil (his) employment obligations" I believe that any challenge to the Area Health Service's decision would be unlikely to be successful.

The letter dated 20th January possibly could be challenged on the basis that the allegations (ii) that he had not provided information about the charge and goal sentence, and (iii) that he did not provide an explanation about how his sentence may impact on his future employment with SSWAHS may be factually wrong, but the primary problem is the doctrine of "frustration" where the employment contract can be considered terminated if an employee is unable to fulfil the obligations contained within the contract of employment (such as not turning up for work for extended periods of time.)

Typically the "frustration" described in the case law is caused by long-term illness/incapacity, or imprisonment.

Unless Mr Khorramdel has appeal proceedings currently under way (as implied in Mr Hodge's letter dated 25th October,) I don't consider it likely that it would be possible to have SSWAHS reverse its decision, and equally unlikely that the Industrial Relations Commission would overrule that decision.

40 On 29 January 2008, Ms Neville received a 2 page letter from Mr Khorramdel (dated 28 January and with Silverwater Correctional Centre given as the address) that had been forwarded to her by Mr McGrouther (Exhibit 7 - JN 9). The letter provided the history and background of his situation and addressed the reasons for termination.

41 In the letter Mr Khorramdel indicated as follows:
· that he would be eligible for work release on 17 April 2009 and can work as "a normal employee" with SSWAHS and was "confident to fulfil my employment obligations",
· he had three months annual/long service leave which he had not used which would allow him to remain an employee until mid-April 2009,
· he was in a minimum security gaol and Corrective Services had progressed him one step closer to work release, with the next step being work release,
· he indicated that he had provided sufficient information to Mr van Domburg at every point and did not realise he had to provide that information to Ms Neville, he also presumed the information was passed on to her by Mr van Domburg,
· he further indicated that Mr van Domburg had not expressed any concern in regards to his duties; his work was IT support solving technical problems; he did not have any connection with financial transactions or handling money, and had not dealt with any financial transaction or handled money during his seven years of employment with SSWAHS.

He concluded by indicating that Ms Cowdrey from the HSU was acting on his behalf.

42 On 29 January 2009, Ms Neville provided a further brief to Mr Wallace summarising the key issues concerning the employment of Mr Khorramdel (Exhibit 7- JN10). She advised inter alia that he had requested that he be paid his annual long/service leave until he would be eligible for work release on 17 April 2009. Ms Neville indicated he was still unable to fulfil his employment obligations to the Area Health Service and recommended that his termination proceed as advised.

43 On 7 February 2009, Mr Wallace forwarded a termination letter to Mr Khorramdel indicating that his second letter of the 28 January 2009 had been received and considered, but that after "due deliberation" it had been decided to proceed with a recommendation to terminate his services, as previously advised, for the following reason:

"as a result of your gaol sentence you are unable to fulfil your employment obligations to the Area Health Service".

44 Mr Khorramdel's termination took effect from 7 February 2009. He was paid all annual and long service leave entitlements on termination. He was not paid for the period covering his incarceration from 16 October 2008 to 7 February 2009.

45 Later in February 2009, Ms Neville left SSWAHS to take up her current position as the Director Workforce for Justice Health.

46 Mr Khorramdel deposed that he left messages on Ms Cowdrey's mobile phone in February 2009 and requested HSU to take "legal action" against SSWAHS. In early March he spoke to her on the phone and asked her to take "legal action" against SSWAHS but she "declined" to talk about that and promised on his release to get SSWAHS to accept his resignation and help him find a job within New South Wales Health Department.

47 Mr Khorramdel phoned Ms Cowdrey on the 3 September 2009 and asked her to go back to SSWAHS to fulfil the promise. She agreed to talk to SSWAHS Human Resources. He repeated that if their agreement was not fulfilled then the Union should take "legal action".

48 On the 23 September 2009, Mr Khorramdel sent the following email message to Ms Cowdrey (Exhibit 6):

Hi Jodi,

how are you. I now have internet access so I thought to send you an email to get any updates or news you have for me. I do not know what steps you have taken or what stage you are with SSWAHS but they need to understand my unfair dismissal case will not go away. I will fight this because I believe I do have a strong case for it. Looking forward to hear from you.

He then provided his home phone number and his wife's name.

49 He did not receive a reply to that email.

50 On 16 October 2009, Mr Khorramdel was released from gaol.

51 On the 26 October 2009, Mr Khorramdel deposed that he spoke to Ms Cowdrey on the phone and she told him that SSWAHS were not going to accept any resignation.

52 On 27 October 2009 Mr Khorramdel wrote to both Mr Michael Williamson, and Mr Peter Mylan of the HSU requesting a written report from them concerning his matter. He did not receive any written report.

53 Mr Khorramdel was subsequently referred by the HSU to the Union Solicitors, Slater and Gordon. He attended their offices and received advice from them on Friday, 13 November 2009.

54 Mr Khorramdel filed his s.84 application on Monday, 16 November 2009, some 256 days out-of-time.

The Evidence

55 Mrs Zahraei's evidence was that during November and December 2008, she spoke to both Mr van Domburg and Ms Neville and repeatedly requested her husband's annual leave/long service leave and asked for the annual leave forms so that he could apply again if the original one had been lost or misplaced. No one ever provided her with a clear answer for the annual leave application. She didn't receive any forms. She also contacted Ms Cowdrey in early December 2008 and asked her to do "whatever she can to get my husband annual/long service leave". Ms Cowdrey told her she would try, but because he was in gaol, that it was hard.

56 Mrs Zahraei also said that she contacted Ms Cowdrey in November/December 2008 and told her that her husband was in Parramatta gaol and asked if she could help him write the letter for Ms Neville's response. She didn't provide "any clearance there".

57 In January 2009, she again contacted Ms Cowdrey to tell her Mr Wallace had decided to terminate her husband's employment and "could you please help him to get his annual leave" . Ms Cowdrey told her that because her husband was in gaol it was hard for him to get his annual/long service leave. Mrs Zahaei told her that if SSWAHS terminated her husband's employment then "union must take legal action to take SSWAHS to court". But Ms Cowdrey did not provide her with any answer to the request.

58 Mrs Zahraei also indicated that in September 2009 her husband asked her to contact Ms Cowdrey to pursue SSWAHS management to fulfil the HSU and management agreement about her husband resigning from his position so that he could apply for internal positions within the New South Wales Health Department. She left messages for Ms Cowdrey explaining her request.

59 In cross examination Mrs Zahraei clarified that what she was seeking in asking for the annual leave was so that her husband could keep his job. She didn't know how much annual leave he had.

60 Ms Neumann is a HSU Councillor and President of the HSU Sub-Branch at Liverpool Hospital. She knew Mr Khorramdel as a work colleague only. She confirmed that she attended a meeting with Mr Khorramdel and Mr van Domburg about the possibility of gaol time. She also confirmed that she was subsequently contacted by Mrs Zahraei. She did not recall having any conversation with anybody regarding possible legal action by the Union on behalf of Mr Khorramdel. She recalled being contacted by Mr Khorramdel's wife and being asked as a Union Councillor to help save his job and she informed her that she could not do that.

61 Ms Neumann clarified that in relation to the reference in her email to - "this being a civil matter and nothing to do with the Union" - she was saying that that was in regards to saving his job while he was in gaol because the charges he was on were not related to him working at their department or in the Hospital. There was no reason for the Union to be saving his job. It wasn't a matter that they should have been involved in. It was her understanding when he was asking her, that it was as a HSU representative. It was her understanding that it wasn't a Union matter, it did not concern the HSU or the sub-branch at the Hospital. She told him from the day he came to her and told her he was in trouble and going to court that it was a civil matter and wasn't a union matter.

62 Ms Neumann further clarified what she meant by a civil matter as being that he had been arrested and charged for defrauding Centrelink and for him to do that and go to gaol had nothing to do with his work employment or the Union keeping his job, it was something outside of work which had nothing to do with the work itself. She was asked to save his job while he was in gaol but she considered that a civil matter and not something that HSU could embark upon.

63 Ms Cowdrey indicated that she had written her report (Exhibit 4) after she had received a phone call from Mr Khorramdel on the 26 October 2009, and possibly in November/December 2009. The report had not been written from memory. When dealing with a member she had a file with all the evidence she had placed on the file and when she spoke to Mr Khorramdel and other people she made a note of that in her file. She further indicated that basically the notes were exactly what she would have written, the only thing was that they were in handwriting and she typed them up.

64 Ms Cowdrey had been on leave over Christmas 2008 and returned to work on the 20 January 2009. She confirmed the phone contacts she had with Mr Khorramdel. The request to go to Parramatta gaol to help him write a letter came from his wife. Ms Cowdrey said that she didn't see it as her role to go and visit someone in gaol.

65 Mrs Cowdrey maintained that Mr Khorramdel did not get in contact with the Union until after 20 January 2009. They did not know anything in relation to any of the issues prior to that. When she was first contacted by Mr Khorramdel from Silverwater gaol she thought it was a joke and initially hung up. The phone call indicated that she was receiving a phone call from the Silverwater Detention Correctional Service and the next minute Mr Khorramdel came on the line. He also informed her in the conversation that he was being transferred to Parramatta gaol.

66 She had no way of contacting Mr Khorramdel so she asked Ms Neville if she could provide her with all the details she had in relation to the case. Ms Neville subsequently faxed her copies of the letters that had been sent to him.

67 Ms Cowdrey maintained that she did not have any contact with Ms Neville in 2008 nor did she have any contact with Mr Khorramdel in 2008 regarding his matter. In 2008 she was not the organiser for the Western cluster of Sydney South West. She only became the organiser of all of Sydney South West in 2009.

68 Ms Cowdrey had written no official letters to the Area Health Service because there wasn't the time. He was facing termination and it had to be acted upon quickly to get to the Area.

69 She understood that the reason he was being terminated was because of his inability to perform his duty. They were able to get one of the original points in the termination letter removed, that being that the Area Health Service had not been informed of what the issue was and they were able to prove that was incorrect.

70 She had not written any report at this time nor had she spoken to Mr Williamson or Mr Mylan. Her line of reporting was to the Lead Organiser, Mr Gerard Hayes. She also had to discuss the matter with the HSU Industrial Officer to seek advice, she didn't make decisions on her own. As soon as she received the information from the Area it was scanned and emailed to Mr Morgan for his opinion and then she received the email back.

71 Ms Cowdrey confirmed the HSU Call Centre log (Exhibit 5) which was created by the Call Centre Operator (with details of the member listed) and showed three entries concerning Mr Khorramdel as follows:

10/12/2009 2:34 PM

member rang re unfair dismissal he has taken to IRC wanting union to appear in commission 13/12/09 at 10:30 a.m. saying the Commissioner had directed HSU to attend refereed (sic) matter to GH and BC who are following up

26/10/2009 10:51 AM

member has been in Jail for the last 12 months and the the (sic) AHS sacked the member in January for abandonment of duty as the member had not informed the AHS of the fraud charges against the member. JC told me that the EX member should be referred to GH please see below email.

The email sent by Mr Morgan to Ms Cowdrey on 27 January 2009 then followed (see Background and Chronology above).

23/09/2009 12:54 PM

Member returned phone call that was made by call centre. Member has left POE. Have resigned membership. ms

72 Ms Cowdrey indicated that whether the Union took a matter up when a Union member was terminated depended on the reason why the person was terminated. What normally happened was once the member was notified they discussed it with their "Leads" and then it would go to industrial.

73 Ms Cowdrey confirmed that the letter that had been sent to Mr Khorramdel on 20 November 2009 (which was not in evidence) although signed by Mr Williamson, had actually been written by Mr Gerard Hayes, Ms Cowdrey's Lead Organiser.

74 Ms Cowdrey indicated that there was no obligation on the Union to write a report when a member was terminated. She had spoken to Mr Khorramdel and his wife and his sister-in-law who kept ringing her from Melbourne. She had spoken to Mr Khorramdel and he had accepted what she had said to him. She was never asked to put it in writing.

75 She had asked the Area Health Service if they would accept his resignation but they indicated that no, they wouldn't. She believed anybody who left the Area Health Service had the right to re-apply for the position when they chose to. There was no deal done between the Union and the Area Health Service that Mr Khorramdel would resign and then re-apply for the position. That was incorrect. She had only spoken to Ms Neville in relation to getting a resignation to make it easier for him to get a position when he was released from gaol.

76 She did not tell Mr Khorramdel that she would get him a resignation and help him to get a job within the New South Wales Health Department, she only said she would try and get the Area to give him a resignation so it would make it easier for him to get a position back within Health or in the outside world. She denied that she gave any confirmation to Mr Khorramdel that he was asking for an internal position and she said yes.

77 On questioning from the Commission, Ms Cowdrey indicated that she was never asked to file an unfair dismissal application for Mr Khorramdel.

78 Ms Cowdrey indicated that when it became certain that there was no chance for Mr Khorramdel to get a resignation or apply internally, she did not provide any legal option to him because the advice given by their industrial was that there was none because of him being in goal.

79 Ms Cowdrey maintained that she gave him all the advice that she was given in relation to his case in February 2009 by telephone and even spoke to his wife in relation to it and relayed it to her and also spoke to his sister-in-law who rang from Melbourne on numerous occasions. HSU considered that all they were able to do was to seek a resignation from the Area so as to make it easier for him to find a position once he was released.

80 Ms Cowdrey denied that in every conversation she had with Mr Khorramdel she was asked to take legal action against the Hospital and declined to talk about it.

81 Ms Cowdrey denied that she declined to provide Mr Khorramdel with a written report because she said the matter was not finalised because she was going to get him a resignation and he could apply for internal positions.

82 Ms Cowdrey confirmed that she received a phone call from Mr Khorramdel in September 2009 where he stated he was getting out of Silverwater Correctional Centre in October and could she get his job back, and if the Area would find him another job. She said that yet again she informed him that there was no way he could have his job at the Area and that she was not going to find him a job as she was not an employment agency. He kept emphasising to her on the phone that she had promised him that she would find him a job and she clearly stated to him on a number of occasions she was not an employment agency.

83 Ms Cowdrey did not recall the email that Mr Khorramdel sent to her on 23 September 2009. She said she always replied to her emails but received over 200 a day. She could not recall this email.

84 In cross-examination Ms Cowdrey confirmed that the report (Exhibit 3) was a true and accurate reflection of the events regarding Mr Khorramdel and her involvement to the best of her knowledge. The advice that she received in the email from Mr Morgan was given to Mr Khorramdel in early February and was also given to the applicant's wife and his sister-in-law. She further agreed that she told him that the HSU would not be running an unfair dismissal case based on the advice that she had received. She didn't hear from him again until September 2009. She reiterated the previous advice that she had given in February 2009.

85 Ms Cowdrey was asked whether Mrs Zahraei ever asked the HSU to take legal action on behalf of Mr Khorramdel.

86 She responded that her first contact with Mrs Zahraei was to actually get his annual leave and long service leave. It was about 20 to 25 minutes into the conversation before she actually informed her that he was in goal and that was the reason for the leave. Ms Cowdrey just thought he was away somewhere and needed the leave.

87 Once Ms Cowdrey ascertained from her that he was in goal Mrs Zahraei informed her they didn't have any solicitors and that they needed help from the Union. Ms Cowdrey informed her that was unlikely that the Area Health Service would approve any leave in relation to why Mr Khorramdel was actually in gaol because it was not normally the Area Health Service's policy to grant annual leave or long service leave while someone was doing a sentence in gaol. Not in her 21 years in health.

88 She did not know whatsoever that he had been to Court or that he had been charged until January 2009.

89 Mr Khorramdel acknowledged in cross-examination that he had submitted the forms for three months annual/long service leave before he met with Mr van Domburg. At that stage he knew he could be facing goal but didn't know for how long. He wanted to use his leave so that his wife could receive that money to support her. He needed the money. It was his entitlement. He clarified that he was not seeking a lump sum but fortnightly payments into his bank in the eventuality that he went to gaol.

90 He also acknowledged that his wife contacted Mr van Domburg and Ms Neville in November/December 2008 repeatedly requesting his leave as he wanted to use his leave for as long as he could while he was in incarceration.

91 Mr Khorramdel denied that he misrepresented what the letter from the Welfare Officer at Silverwater said about work release. He had had a verbal conversation with Corrective Services and they had said he would get it. However he acknowledged that as at the 9 December 2008, the letter only described the situation as being that he was eligible to apply for a reduction in his inmate status which "may" permit him to engage in full work within the community and that was all that was known.

92 Mr Khorramdel was cross-examined on what his contact with Ms Cowdrey was and what she had told him and what he wrote about that in his subsequent 27 October 2009 letter to Mr Williamson of the HSU. Relevant extracts from the transcript are as follows:

Q. Now, you say that "On 12 December 2009 until the end of February 2009, I left a few phone messages on Ms Jodie Cowdery's mobile phone and requested the Health Services Union to take legal action against SSWAHS"?

A. Mm-hmm.

COMMISSIONER: Q. You'll need to answer a yes.

A. Yes, I'm sorry.

RUDD: Q. So you still say that?

A. Yes, yes, I did it, I said it in the cross-examination of Ms Cowdery too and I stand by it. I did leave those phone messages on her mobile.

Q. You then go on to say that she declined to talk about it. So are you saying that she doesn't say anything in response?

A. Yes, she just didn't want to talk about it, as Mrs - sorry, I don't want to talk about something. Yes, she declined to talk about it. When I asked her, she just didn't want to talk about it and talked about something else. She talked about, you know, you're in gaol, be happy with your termination, go away, I'm not going to bother myself.

Q. Okay. Well, I'll just jump forward then to paragraph 15 of your affidavit where you talk about a letter that you forwarded to Mr Williamson dated 27 October 2009, which is attached to your affidavit.

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RUDD: Q. Now, if I can take you to the third sentence, which reads, "I immediately contacted Ms Jodie Cowdery and insisted to pursue the matter to Industrial Relations Commission for unfair dismissal case or any other legal avenue for public servants. She declined to do so."

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Q. Now, what I just asked you a moment ago, what was the response given by Ms Cowdery when you made your request. That's not consistent with what you've put in your letter, this is your letter dated 27 October 2009 to Mr Michael Williamson, is it?

A. I'm sorry, I just was writing a summary of the evidence, not to go through and say on this date I left one phone message, on the second day - a few days later I left a second and third. No, I did not have such intention. But what I'm trying to say is after I received it, I tried to contact her and left a message on her voice message to say take legal action, take legal action, take legal action. So the contents of it is right, because I left a voice message on her mobile. Immediately I contacted, I left a message on her voicemail.

Q. This is your letter, isn't it, Mr Khorramdel?

A. Yes, it is.

Q. You say, "she declined to do so", don't you?

A. Yes, that's right.

Q. She declined to do so?

A. That is right.

Q. So that's not consistent with what you've previously said, is it?

A. What is it?

Q. You said in your letter, and I'll quote it again--

A. That is right.

Q. --"I immediately contacted Ms Jodie Cowdery and insisted she pursue the matter to Industrial Relations Commission for unfair dismissal case or any other legal avenue for public servants". And then you write, this is your letter, you start off, "She declined to do so".

A. That is right.

Q. So she's declined to do so, this is in February of 2009?

A. No, this is March when I had the conversation.

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RUDD: Q. Well, what I put to you then, Mr Khorramdel, is that if you say in March that you speak to her, it's in March that she declines to take that matter for you, doesn't she?

A. That is right.

Q. Now, I put it to you, you've been told then in March - which you have accepted - that the Health Services Union are not going to advance this matter for you--

A. On legal grounds.

Q. On legal grounds, yes.

A. That is right.

Q. You just don't accept the answer though, do you?

A. (No verbal reply)

Q. I'll rephrase the question. They've told you, on your own evidence, your evidence is that in March of 2009 they've told you they will not pursue the matter for you on legal grounds, that's correct, isn't it?

A. That is right.

Q. You don't accept that answer though, do you?

A. No, I did not, because she told me she is going to do that, that I finish my sentence, she's going to get my resignation so I can apply for that internal position. That's a kind of a deal, she explained to me. It came across to me as a deal, that's what I'm going to do. If you are going to do that, so we are not going to take legal action, that was the implication. So I just had to agree with and I trusted her and I trusted her, she said that's what she's going to do. And I said, well, union is doing her best and I trusted and instead of going down the legal avenue, she's trying to approach a reconciliation and that was exactly my own thought during my gaol sentence and every time I talked to her, she is approaching reconciliation, trying to reconcile things and find a solution which both sides are happy. That was all the conversation and the impression and the thoughts I had and all I had to do before I finished my gaol sentence, I call her again, start the process and that's what exactly I did in September.

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Q. Now, what you've just then put, Mr Khorramdel, is an either/or option, but that's not what you just said a moment ago. What you agreed with me is that in March 2009, the Health Services Union have told you that they are not going to take legal action for you. That is correct?

A. That is right.

Q. Right. And you accepted that?

A. Yes, I agreed with what she's agreed to do. That's what I said.

Q. No, you--

A. Yes, all right, I said, well, if that's what you are going to do that for me, then well, okay, so we don't take legal action, we just stick to that deal and we just go on happy with that. I resign and then I can apply for internal position. That's what I agreed. I said, well, she's doing something for me.

93 The following exchange took place concerning the "deal" Mr Khorramdel maintained Ms Cowdrey had made with SSWAHS as follows:

Q. I'm sorry, what deal? What deal?

A. The one she explained to me.

Q. How can there be a deal? You've just told me that they've told you in March 2009 that they're not going to take legal action for you and you accepted that. How is that a deal?

A. No, they had agreement with the Area to do that, so there was no need to take legal action. If I agree with - can I explain it?

COMMISSIONER: As I explain it, Mr Rudd, to cut to the chase, Mr Khorramdel is saying that because he understood Ms Cowdery to be saying that the Area - and this is just what Mr Khorramdel understands, not that Ms Cowdery did it - but Mr Khorramdel understood that Ms Cowdery had some sort of agreement with the Area Health Service that when he was released, he would resign and then he would be able to apply for an internal position.

Q. Is that what you understood?

A. Exactly.

94 Mr Khorramdel agreed that he contacted the HSU again in September 2009, and all the conversation was to go back and pursue them to fulfil their agreement. She told him it would be difficult and he told her it was her job and if they don't want to fulfil their agreement then perhaps take legal action but again she declined to talk about that and said that she was going to go and talk to them again.

95 He also sent her the e-mail to see how she was going and he was hoping that she would at least send back to him to tell him what she'd done. He acknowledged that she declined to talk about legal action but was only going to pursue the agreement about the resignation and applying for internal positions.

96 Mr Khorramdel was again referred to his letter to Mr Williamson and said that he took the actions he outlined in the letter which read as follows:

In early September 2009, I contacted Ms Jodie Cowdrey and asked her about what I needed to do to seek re-employment with the Area. As usual, she brought lots of excuses for not doing work and eventually agreed to talk to the Area. I also instructed her if the Area is not willing to do so then she must pursue legal avenues to get my employment to be reinstated.

97 He went on to say that he sent one more email but she did not reply to him and the second time he could talk to her was on the 26 October and that was the last time he ever had a conversation with her. She told him they were not going to take legal action.

98 He agreed that in March 2009 she declined to talk about legal action. He maintained that until September there was no need to take legal action because getting the resignation was what they were going to do.

99 Mr Khorramdel rejected the proposition that if he was dissatisfied with the HSU's representation he could have filed an unfair dismissal application, but chose not to. He maintained that he was relying on the agreement on what the Union was going to do.

100 He didn't know about the 21 day threshold or even what institution he had to go to. He only realised that was what he needed him to do after he spoke to the Union Solicitors that he was subsequently referred to.

101 In response to questions from the Commission about just how he could have applied as an internal applicant once he had resigned, he indicated that he couldn't answer on the technicalities, but that during a telephone conversation with Ms Cowdrey (in March 2009) he specifically asked her, and she confirmed that he could do that.

102 Mr Khorramdel rejected the proposition that he could have contacted SSWAHS to ascertain whether such an agreement was in place because the Union was working on his behalf and he trusted Ms Cowdrey on that one. His previous experience with Ms Neville was that she never wanted to talk about these things with him, he tried twice and she declined to talk about that.

103 Mr Khorramdel acknowledged that the onus was on him for the delay but he had to explain his circumstances.

104 Mr Khorramdel also indicated that he could only talk on the telephone from gaol for a maximum of about 6 minutes.

105 Ms Neville's evidence is substantially as set out in the Background and Chronology above.

106 In cross examination Ms Neville indicated the reason annual leave forms were not sent to Mr Khorramdel was that the issue was not about his request for annual leave, the issue had become bigger than that and was in relation to him being in prison.

107 The Area Health Service and New South Wales Health Service's policy states that any employee charged or convicted of an offence that warrants more than 12 months imprisonment is regarded as a serious offence and that must be notified to the Director of Corporate Services for consideration. Mr Khorramdel had not done that and this was the issue that overrode his request for annual leave. She had not been advised by Mr van Domburg about the matter. The policy stated that it was the employee's responsibility to notify the Director of Corporate Services.

108 Ms Neville acknowledged that the failure to notify the Director of Corporate Services wasn't the reason for Mr Khorramdel's dismissal.

109 When she wrote to Mr Khorramdel on 17 November 2008 she did not give a reason why his annual leave was not approved. That was not the result of her investigation. His request for annual leave had been superseded by the fact that they had ascertained he was in prison and it wasn't relevant at that stage because they were writing to him to advise that they were going to terminate his services. That exceeded his request for annual leave.

110 In response to questions from the Commission, in an attempt to clarify the position as to whether it was the policy of the Area Health Service to grant leave to employees whilst they were in gaol, Ms Neville indicated that she had never had this experience in all of her professional career.

111 Ms Neville agreed that staff did not have to indicate on their annual leave application where and how they wanted to spend their holidays. However she went on to say that approval of annual leave was not automatic, the employer could say no. The Awards required that the employer allocate when annual leave is required to be taken and in general circumstances, a manager will say to staff, you can organise amongst yourselves who was going to take annual leave and when, as long as there is a requirement that a certain amount of staff be at work to provide the service.

112 She went on to say that whilst Mr Khorramdel was in prison, based on the Service's requirement and the continuing needs of the Service, the employer could turn around and say that he couldn't take his annual leave at this time because so many people were off on annual leave at the same time, that is, if he was working. He was not working, he was in prison and he was charged with, and sentenced to 18 months. He couldn't fulfil the obligations for which he was employed.

113 She did not believe his annual leave would have taken him up to April in any event. The Chief Executive Officer had examined the letter from the Welfare Officer and it said he "may be" eligible. There was no guarantee, and it was on that basis that the Chief Executive made the decision.

114 Ms Neville rejected the proposition that if he had been granted his annual leave, as at the date of his termination, that would have taken him up to the suggested date in April and because he was denied his entitlement that made him unavailable for the work and then he was terminated because he was unavailable. Ms Neville indicated that he made himself unavailable by being in prison. The issue was not about granting annual leave.

115 In response to further questions from the Commission, she indicated that if annual leave had been granted on day one, when it was asked for, it would not have helped him because that leave would have been exhausted by the date of termination.

116 Ms Neville agreed that she was contacted by Ms Cowdrey about Mr Khorramdel being able to resign but could not remember the details. Ms Cowdrey raised the issue about his annual leave. She raised the issue that could he apply for positions as an internal applicant once he got out of prison and Ms Neville told her that no, once he was terminated he was ex-employee and he could only apply for positions externally. They were not considering his annual leave because they were considering his termination. She did not recall any discussion about allowing him to resign.

Submissions

117 Mr Khorramdel submitted that Ms Cowdrey, who represented the HSU, knew about the intention of his termination from November 2008 to February 2009. Further, Ms Neumann was confused about whether unfair dismissal is a civil or a criminal proceeding.

118 There were two witnesses pointing to the agreement about him resigning and seeking employment again, while Ms Cowdrey denied the subject at all.

119 The HSU did not seek any legal advice, and even their own internal advice pre-empted the situation by ignoring the facts. They did not provide him with any legal or industrial information and he had no knowledge of 21 days threshold time and didn't even know he had to go to the New South Wales Industrial Relations Commission. He was always told public servants have their own tribunal.

120 Mr Khorramdel submitted that Mr Williams, HSU General Secretary, wrote a report on 20 November 2009 about his case, but never send it to him. They sent it to Liverpool. He had to summons the documents to get them.

121 Mr Mylan made a referral for the Union Solicitor on 5 November 2009 and he had legal advice from the Union Solicitor on Friday, 13 November 2009 and lodged his application on Monday, 16 November 2009.

122 Mr Khorramdel submitted that he was sent to see the Union Solicitors and he was holding the HSU responsible for this out of time application.

123 He further submitted that the HSU did not practice any transparency in their work. On the Unfair Dismissal Application form, in the Information part, it said that union members need to approach their union to act on their behalf or get industrial relations advice. He paid the HSU almost $550 to $600 per year for so many years to act on his behalf and provide him advice once he needed them.

124 He submitted that Ms Cowdrey didn't care less about handling his case. She gave him endless amounts of empty promises and misleading information just to make it to go away and be happy with his termination.

125 He submitted that the Union could afford to spend time to sit in court during this case when their staff was in the witness box but they could not afford to send someone come to gaol and see him and provide him with legal advice. They couldn't even write to him.

126 Mr Khorramdel then referred the Commission to the provisions of s.85(3) and submitted that this allowed the Commission to exercise its discretion about extending on the out-of-time application.

127 He went on to submit that to arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues such as the reasons and circumstances as to the ignorance of the relevant time limitation. Personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempt to lodge an application.

128 Mr Khorramdel submitted that he believed he had an arguable case with reasonable prospects of success on merit of his case.

129 He had been out of work for almost one and a half years. Since he have made his application he had tried to look for a job and there had not been any success. One of his major obstacles was the explanation of being out of work from October 2008 to October 2009 in his resumé.

130 This unfair dismissal had brought him considerable hardship but there was no hardship on the respondent.

131 He submitted that the Commission should exercise its discretion and extend the time for his application.

132 Mr Khorramdel cited the following cases involving the granting of extensions of time of varying periods ranging from 5 weeks to 3 years and for various circumstances viz. John Ninness and ors v Miller Bulk Haulage Farming Co Pty Ltd (now Miller Farming Co. Pty Ltd) [2008] NSWIRComm 183; Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 132; Moore v Metropolitan Local Aboriginal Land Council [2005] NSWIRComm 325 and Stephen Wendt v Peace Birk and ors [2004] NSWIRComm 275.

133 Mr Rudd for SSWAHS indicated that whilst those case citations had not been provided and he understood that, two of them were probably not relevant, being the CIM matters, unless they were going to general principles of filing applications out of time.

134 Mr Rudd also noted that it was his recollection that the 20 November letter from Mr Williamson, referred to by Mr Khorramdel in his submissions, was not actually part of the evidence. He did not recall that actually being attached to his affidavit.

135 Mr Rudd submitted however, that that letter actually detailed the HSU position, and that was different to the characterisation that Mr Khorramdel put on the letter. In summary, that letter went on to state:

In early February, you requested an update on this matter. You were advised that despite the representations made on your behalf by the Union, the Area Health Service would not approve any type of leave and that the decision to terminate your employment would be maintained. At this time you were advised of the industrial advice. I understand while you were not happy with the situation, you were happy for the local organiser to make representations into securing a resignation. Upon your release in October 2009, you wrote to the Union and following this communication, the Union referred you to Slater and Gordon for legal advice relating to your concerns."

136 It was submitted that the correct characterisation of this letter, whilst it was accepted that it was not in evidence, but it was put in submissions by Mr Khorramdel, was that it reiterated the HSU's position, that he has raised some concerns and as a result of concerns, they had referred him to an external law firm. It could not be taken any higher than that.

137 It was submitted that with respect to the legislative requirements of s.85(3), the Commission must be satisfied that there is a sufficient reason for the matter to be accepted out of time. The obstacle the applicant had to overcome was that he had to show that the Commission could be satisfied that there is a sufficient reason. When the evidence was examined that was clearly not the case. The applicant has not been able to demonstrate that there is a sufficient reason.

138 Mr Rudd summarised the relevant evidence relied upon by the applicant as follows:
· The evidence of Mrs Zahraei did not go towards any of the real issues that are fundamental in this matter. Primarily she was asking for Mr Khorramdel's annual leave and long service leave to be given to him. It was not denied that that request was been made. Ms Neumann's evidence was clear and concise. She was talking in her role as a HSU Sub-Branch President. From at least January 2009, she had told him that the HSU were not going to advance that matter for him. This was specifically stated in her email to Ms Cowdrey (Exhibit 3). Mr Khorramdel had known from that time, on Ms Neumann's evidence, that the HSU were not going to advance that matter for him.
· Ms Cowdrey appeared to be a very reliable and a very credible witness. Her narrative of the events in her dealings with Mr Khorramdel should be preferred, given the consistency in which she was able to answer the questions put to her in a "robust manner".
· Her version of the events was summarised in her report (Exhibit 4). Her report and her evidence demonstrated that she had acted reasonably in the circumstances.
· Acting in her capacity as union official she initially received contact from Mr Khorramdel some time after 20 January. Following that contact she spoke with Ms Neville in relation to the matter and was told that the Area Health Service were going to terminate his employment. Following on from that, Ms Cowdrey explained the circumstances and the conversations that she had with Mr Khorramdel. She specifically told him the Area would not approve any type of leave and that the decision to terminate him was not changing. She also informed him of the industrial advice that she had been given. That was confirmed in cross-examination. She told him the HSU were going to take any legal action with regards to any dismissal of Mr Khorramdel. The Commission also put to him whether he actually asked for any unfair dismissal application to be made and Mr Rudd's recollection was that he said no, he didn't.
· Ms Cowdrey was acting in the usual way as a union official would. She received contact from a member, she went and sought advice. She said that he was not happy with that, but accepted it. Further, she also told the same position to Mrs Zahraei and also Mr Khorramdel's sister-in-law from Melbourne.
· She said she would contact the Area to see if they would accept his resignation so it would be easier for him to gain employment upon his release and also informed him that any leave entitlements would be paid out to him.
· She did exactly that and discharged, from her point of view, her responsibilities as a union official.
· There was a further contact from Mr Khorramdel in September 2009 where she reiterated what she had already said back in February 2009.

139 It was submitted that Ms Cowdrey's version of the events should be accepted. This was a situation of a union official conducting their duties and responsibilities in the usual way. There was nothing unusual in Ms Cowdrey seeking advice from the industrial section of the HSU and, based on that advice, telling Mr Khorramdel that they are not prepared to take any legal action on his behalf.

140 It was submitted that with respect to whether or not Ms Cowdrey then sought a resignation, it was quite possible, on her evidence, that that may have occurred. That was not unusual. A union official was saying essentially - we're not going to run this matter for you, you accept that advice, however, we will try and get you resignation. And it appeared as though, on Ms Cowdrey's evidence, that Mr Khorramdel had accepted that.

141 It was difficult for SSWAHS to understand exactly what particular ground Mr Khorramdel relied upon for the delay, but it appeared that he had formed the view that in relation to the HSU, and in particular Ms Cowdrey, there had been some form of representative error which had, in turn, caused his delay in filing any unfair dismissal application.

142 Mr Rudd submitted that based on Ms Cowdrey's evidence, in no way, shape or form could there have been any error that the HSU had caused that could have led Mr Khorramdel to have not filed his application within the jurisdictional time period. Ms Cowdrey's evidence, being evidence of a witness brought by Mr Khorramdel, did not support any basis for establishing that there should be a sufficient reason as to why the application should be heard out of time.

143 Mr Rudd further submitted that the evidence of Ms Neville was reliable. It was brief in terms of her involvement in the circumstances which he summarised as follows:
· Upon receiving information that Mr Khorramdel was in gaol, she went through a process of establishing the facts around the matter and ultimately the Chief Executive formed a view and the termination of employment was effected upon Mr Khorramdel.
· Ms Neville did receive contact from Ms Cowdrey but couldn't say absolutely whether or not she asked for a resignation, but there definitely was that contact. There was representation made on Mr Khorramdel's behalf.

144 It was submitted that that there had been no conduct of Ms Neville that in any way could have impacted on the ability of Mr Khorramdel to lodge his application. Rather, Ms Neville's evidence went to the prospects of success and whether or not there was an arguable case.

145 It was submitted that the evidence of Mr Khorramdel, with respect, should not be relied upon. It was not credible. There were a number of occasions where Mr Khorramdel would be evasive and rather than answering a question, would volunteer information. It was accepted that that occurs from time to time, but where it was significant was that it went to demonstrate the credibility of the witness as opposed to other witnesses. As previously noted, the other witnesses were clear and concise on all the main relevant parts to this matter, whereas Mr Khorramdel, it was submitted, had difficulty in recalling specific events and would often change his version of those events.

146 In particular it was submitted that Mr Khorramdel gave evidence that in March 2009 he said that Ms Cowdrey had told him that they were not going to take any legal action on his behalf with respect to his termination of employment. Then today when asked that question again, he said no, he didn't say that.

147 Mr Rudd further submitted that Mr Khorramdel was taken to paragraph 12 of his affidavit where he said in effect that Ms Cowdrey declined to talk about the matter. It was also put to him that this seemed inconsistent with the version of events in his letter of 27 October where he said that he wants an unfair dismissal case run and in his own words - referring to Ms Cowdrey - "she declined to do so".

148 Mr Khorramdel had submitted that he was seeking annual leave/long service leave that he had accrued to take him to a time in April when he said in his letter of 10 December that he would be eligible for work release. It was put it to Mr Khorramdel that that was a misrepresentation of the situation. Quite clearly the letter stated that he "may" be eligible and that he was not entitled to it.

149 It was also put to Mr Khorramdel that even if it was accepted that he had three months annual and long service leave - and that was not in issue - and was given that leave, it could not cover the period of his absence. Even if he did get work release - and there was no evidence actually led that he did get work release - it could not cover that period of that absence. It certainly could not cover the period of 12 months.

150 It was also pointed out that the actual sentence was for a period of 18 months and that at the time these events were being raised with SSWAHS, as far as they were aware, it could well be a period of incarceration of 18 months, because looking at the Solicitor's letter attached to Ms Neville's affidavit, that explained the period of absence. Mr Khorramdel had a non-parole period of 12 months, that was not necessarily guaranteed. It was subsequently the case that he did get the period of parole for that extra six months. But at the time, SSWAHS was faced with a situation where they had an employee who was to absent for a period potentially of 18 months with a minimum absence of 12 months.

151 It was put to Mr Khorramdel, and he did concede, that the leave entitlements he did have could not have covered that period of time. That stood to reason when comparing the leave entitlements with the length of absence.

152 It was submitted that the evidence of Mr Khorramdel did not demonstrate any sufficient reason as to why the application should proceed to a hearing.

153 The Commission was also referred to the other factors in s.85 (3) (a), (b) and (c), that needed to be considered.

154 With respect to 85(3)(a), the reason for and the length of delay in making the application, it appeared as though the reason for the delay as alleged by Mr Khorramdel was representative error by the HSU. It was submitted that based on the evidence of the HSU witnesses, the Organiser, Ms Cowdrey, and the Sub-Branch President, Ms Neumann, that was not correct. There had been no error on the part of the HSU.

155 It was also put to Mr Khorramdel that even if his version of events was accepted, that there was some agreement that he would have a resignation sought and then apply for internal positions upon his release - he agreed that it was his conscious decision to accept that, he made that choice. He also accepted that was his fault that he had not been able to file an application within the time period. If his version of events was accepted, it was his choice.

156 It was submitted that the evidence of Ms Cowdrey as to events should be preferred. But either way there did not appear to be any reason as to why Mr Khorramdel did not file his unfair dismissal application within the time period.

157 It was submitted that the length of the delay was at the upper end, if not at the highest point, and also included 31 days since the actual release from gaol of Mr Khorramdel. It was a substantial delay and that ought be taken into consideration.

158 It was put to Mr Khorramdel in cross-examination, and acknowledged, that he did have the opportunity to make an unfair dismissal application or seek further advice at any time. Certainly he could have made his application upon his release but waited a further 31 days. It was submitted that he was told by the HSU in February and in September, based on Ms Cowdrey's evidence, that they were not going to run an unfair dismissal for him or rather not take any legal action in respect to his termination, but he didn't accept that answer. It was submitted that that was not a reasonable basis for him to say error on the part of the HSU. On the evidence of Ms Cowdrey there had been no error. They had acted in the way that an industrial organisation would in these circumstances.

159 It was submitted that with respect to the 85(3)(b), any hardship that may be caused to the applicant or the employer if the application is or is not rejected, it was conceded that in most, if not all unfair dismissal applications, there has to be an element of hardship to an applicant, given that the matter doesn't proceed. But there was no evidence led by Mr Khorramdel as to his specific circumstances regarding work. He made submissions that he has looked for work but had put on no evidence to explain his circumstances.

160 It was submitted that with respect to s.85(3)(c), the conduct of the employer relating to the dismissal, the conduct of the employer in no way, shape or form had contributed to any basis for Mr Khorramdel not lodging his application within time. Indeed in cross-examination of Mr Khorramdel, it was put to him that he could have contacted SSWAHS with regards to this alleged agreement and he never did that. There has been nothing to suggest that SSWAHS could have contributed to any basis for Mr Khorramdel not lodging his application within time.

161 Mr Rudd took the Commission to the following relevant authorities

and in particular in some detail to Syed Rizvi v South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084, a somewhat similar case involving an employee who initially sought an alternate resolution with the employer through the HSU to making a s.84 application. In that matter I traversed the following authorities, to which Mr Rudd also referred, as follows, Green and Yum! Restaurant Pty Ltd [2004] NSWIRComm 1109; Director-General of Education and Training v Bond [2009] NSWIRComm 40 and Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139.

162 Mr Rudd also relied on Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 as to the burden of proof necessary in such applications.

163 Mr Rudd submitted that Rizvi arguably paralleled the situation with Mr Khorramdel and the reconciliation method undertaken on his behalf by the HSU as to why the application was late and that there was implied representative error by the HSU. Mr Rudd submitted that on the evidence of Ms Cowdrey that that ought not be accepted and that if Mr Khorramdel's version of events was accepted, then based on Rizvi, the application should not be accepted applying the reasoning in that decision.

164 It was submitted that the reasoning adopted and followed by the Commission in Rizvi was the correct approach to take in determining whether or not applications should be heard out of time in this context. Mr Rudd also took the Commission to the extract in Rizvi taken from Kent Gorrell v Uwatec, as the correct approach to take and specifically addressed the eight numbered points referred to by Sams DP.

165 It was also submitted, applying Hurrell, that the Mr Khorramdel did not have an arguable case. It was submitted that he had not just low prospects of success, but no prospects of success. The reason being that on the evidence the employee was away from his workplace for a minimum period of 12 months and that was not in contention. In those circumstances it was hard to understand how the employer could have acted any differently than what it had. Quite clearly the contract has been frustrated. Mr Khorramdel was unable to fulfil his employment obligations with SSWAHS. Ms Neville's evidence was that SSWAHs had to react to the circumstances which had been thrust upon them. He was absent from the workplace for a period of 12 months and there were no leave entitlements that could cover that period.

166 It was submitted that in those circumstances SSWAHS had quite appropriately and reasonably terminated the employment of Mr Khorramdel, the contract had been frustrated. The doctrine of frustration is that when it occurs, the contract comes to an end and arguably, if it goes to a hearing, there may be no ability for the Commission in any event to intervene, given that the contract is frustrated from the day that Mr Khorramdel went to gaol, which was 16 October 2008.

167 It was submitted that Mr Khorramdel has not been able to meet the legislative requirements of section 85(3). He has not been able to provide any sufficient reason for the delay and subsections (a), (b) and (c) of 85(3) mitigated any possibility of Mr Khorramdel having his application heard out of time. On that basis the application should be dismissed.

168 No order as to costs was sought.

169 Mr Khorramdel, in reply, submitted that the turning point for him was when he got released from gaol and Ms Cowdrey could not do it and she denied all these things and no, she never said it, she never did it.

170 Mr Khorramdel took the Commission to both the evidence of Ms Cowdrey and Mr Rudd's submissions about that evidence as well as his letter to Mr Williamson and Mr Mylen. He submitted that on the evidence Ms Cowdrey did not contact Ms Neville in February 2009.

171 Mr Khorramdel also submitted that in the industrial relations advice from Mr Morgan, there was nothing about the 21 day threshold or going to the New South Wales Industrial Relations Commission. It did not say that say that if Mr Khorramdel wants to take his own action, you, Ms Cowdrey are obliged to tell him about the 21 days. Mrs Cowdery said she just told him what Mr Morgan told her. Her report did not mention legal action anywhere or spoke to him about that. No inside knowledge was provided to him that if he wanted to take his own course of action, then there was a way and procedure he had to go.

172 Mr Khorramdel still maintained that Ms Neumann was confused as to whether unfair dismissal is a civil or a criminal proceedings

173 Mr Khorramdel also submitted that "in this is we deal with the facts and the realities, we don't deal with the hypothesis if and then, what would be the results. We don't say, if Mr Khorramdel was given at that point his annual leave, then it will take him to this point, then that will be the result and what would be the course of the action hospital would take. We don't follow hypothesis, we look at the facts and the reality. The facts of the matter is from 17 October when he went into incarceration until he was terminated, he was employee of the hospital, he was not receiving pay. He was employee of the hospital until terminated and at that point the Hospital owed him his annual leave, which they denied him to make him unavailable at work and then terminated him because he was unavailable at work".

174 Mr Khorramdel submitted that his arguable case was that it was unreasonable to deny his entitlement of annual leave. If it wasn't denied, he would be available at work. They made a decision to deny his entitlement and to make him unavailable.

Consideration

175 I have carefully considered the evidence and submissions of the parties in this matter.

176 Mr Khorramdel filed his s.84 application on the 16 November 2009, some 256 days after he was terminated. This represents a significant period in excess of the prescribed 21 day filing limit permitted by the Act.

177 I acknowledge however that it was filed 21 days after he was told by Ms Cowdrey (by phone) that SSWAHS were not going to allow him to resign and the next business day after he received legal advice from Slater and Gordon.

178 SSWAHS seeks that the Commission not exercise its discretion to accept Mr Khorramdel's application outside the 21 day limitation set by s.85(1) and that the application be dismissed.

179 S.85(3) gives the Commission a broad discretion to allow an applicant to depart from the strict requirements of legal form, if fairness so demands. However in exercising its discretion the Commission must be satisfied that a "sufficient reason" has been made out and may accept an application out of time "having particular regard 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 all the employer is the application is or is not rejected, and
c. the conduct of the employer relating to the dismissal".

180 In Green & Yum! Restaurant Pty Ltd the Commission, as currently constituted, cited with approval the general principles applying in s.85(3) proceedings as originally expounded by Sams D P in Kent Gorrell v Uwatec Pty Ltd ( unreported, IRC 1700/99, 5 July 1999) (with appropriate and relevant cases cited under each principle) and applied in numerous decisions since, as follows:
1 The Commission's power to accept out of time applications is discretionary.
2 The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application.
3 It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances.
4 There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing.
5 There is a public interest in the prompt institution and prosecution of litigation before the Commission.
6 The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties.
7 Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised.
8 Ignorantia legis neminem excusat (ignorance of the law excuses no one).

181 In Director-General of Education and Training v Bond [2009] NSWIRComm 40, the Full Bench observed at para. 14 that, ..."The law applicable to applications such as the present is well settled", citing with approval Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR at [12] - [15] as follows:

[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 Ltd v Federated liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 52 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 (NSW)) 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 2.564(4) (a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1954) 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".

[14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual soap and stands is giving rise to late lodgement, including any attempt to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.

182 In this matter Mr Khorramdel has said that he was not only ignorant of the 21 day limitation but in what institution legal action could be taken.

183 As I observed in Rizvi at para.67:

67. The 21 day time limit is there for a reason. To ensure that applications are dealt with expeditiously and an outcome, one way or another, determined. This is in both the interests of applicants and employers (and it should be said the public interest) and will not be lightly departed from, as has been enunciated in the decision after decision of this Commission.

68. An application should be filed promptly and then discussions and negotiations can be pursued with an employer. The industrial unions that participate in the New South Wales industrial relations system fully understand and accept that position and operate accordingly.

69. Indeed, it is clearly mandated by Part 6 that the Commission plays a significant and integral role in that process pursuant to s. 86 :

86. The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation.

70. Further, an application cannot proceed to arbitration, (pursuant to s.87), unless " in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation had been made but have been unsuccessful".

71. It is not unusual for unions to take up matters concerning the possible dismissal or known dismissal of their members by way of a s.130 dispute notification, prior to either a decision being made to dismiss, or the dismissal being effected. The Commission can clearly go on to arbitrate such a matter pursuant to s.137 (1) (b) and (c). However this was not the course of action that the HSU embarked upon.

184 I agree with Mr Rudd that there are clear parallels that can be drawn between this matter and Rizvi. Both matters concerned an applicant who contacted his Union, the HSU, and sought assistance through their representations on his behalf. In both matters however neither reinstatement nor re-employment with the employer were being sought as a consequence of that representation, either at the time it was made, or, after termination.

185 In this matter Mr Khorramdel was initially seeking assistance with obtaining his annual/long service leave and he first contacted Ms Neumann of the HSU, as did his wife.

186 However he also sought assistance from Ms Neumann, on her evidence which I accept, with his court case (the District Court matter) and then to help him save his job. Ms Neumann told him that because it was a "civil" matter, that is, a private, non-work related matter (as in "civilian") the Union would not get involved. Contrary to what Mr Khorramdel asserted, Ms Neumann was not confused about his matter in the District Court involving a criminal charge, far from it, she merely sought to distinguish it as not being related to work where it would be a legitimate issue to take up by the HSU. For example if SSWAHS had taken Mr Khorramdel to the District (or Local) Court for an alleged fraud committed in the workplace and in the course of his employment, then as a work related matter the HSU may have been in a position to offer some assistance to him through their Solicitors or their Industrial Officers in any disciplinary proceedings (but clearly, even in such a scenario, they may have declined to act on his behalf after assessing relevant circumstances).

187 However, after he had received Ms Neville's letter in late November advising that termination was being considered (to which he replied in early December from Silverwater) and after Ms Neville advised him on the phone (mid to late December) that his response was inadequate, Mr Khorramdel then contacted Ms Cowdrey. Again the initial issue was the leave but it was also assistance with writing a response to Ms Neville and visiting him in Parramatta Gaol.

188 There was some confusion between all the witnesses about just when this contact was made, Mr Khorramdel and his wife assert this was in November/December (and even early November) and Ms Neville (in replying to Mr Khorramdel's statement it seems to me) also "adopts" early December as the point in time. Ms Cowdrey was very clear and indeed insistent that this contact did not happen until after she had returned to work on 20 January 2008.

189 I also note that Mrs Zahraei contacted Ms Neumann around that period and I am not comfortable in accepting her evidence as to the timing of her contacts with Ms Cowdrey as being evidence completely independent of her husbands.

190 It is clear that at some stage Mr Khorramdel was transferred from Silverwater to Parramatta. This seems to have been for a short unspecified period (no dates were in evidence). But it also seems clear, from the addresses on the letters he sent to Ms Neville and the correspondence on his behalf from Mr McGrouther the Welfare Officer (at Silverwater), that he went back to Silverwater at some point. That was his address as noted by him on his letter of 28 January to Mr Wallace (via being faxed to Ms Neville by Mr McGrouther from Silverwater).

191 It was the evidence of both Ms Neville and Ms Cowdrey that both the leave issue and possibility of an application for an internal position on his release was raised in the phone contact between the two. Although Ms Neville could not recall the issue of a resignation being raised, it must logically follow that it was, given that the context of the conversation was that consideration was being given to the termination of Mr Khorramdel. This would also support Ms Cowdrey's evidence about when this occurred as she could not possibly have known about the termination issue and assistance being needed with a further response until after Mr Khorramdel had spoken to Ms Neville mid, or more likely, late December. That is further supported by the fact that notwithstanding when Ms Neville spoke to him in December, he did not provide any further response until 28 January.

192 It really does not matter (except to Mr Khorramdel in seeking to raise doubts about the credibility of Ms Cowdrey) exactly when the contact occurred. I accept that Ms Neville is probably wrong, after all she is trying to recall phone contacts only from over 12 months ago and in relation to a matter with a former employee of her former employer.

193 What is beyond doubt is that Ms Cowdrey made representations on Mr Khorramdel's behalf seeking both leave and a resignation, and this was refused by Ms Neville on behalf of the SSWAHS. That is the relevant issue for my consideration.

194 It is also quite clear on the evidence of the HSU that they had always indicated that they were not going to take "legal action" and specifically considered that an application to this Commission would be not be successful due to the frustration of the contract brought about by Mr Khorramdel's incarceration. Even Mr Khorramdel acknowledges in his evidence that Ms Cowdrey declined to discuss the issue of legal action and effectively ignored responding to him. Ms Neumann made it plain that she told both Mr Khorramdel and his wife that she could not do anything to save his job as she considered it a "civil" matter, that is, it was not work related and not a matter for the HSU to take up in those circumstances.

195 I also note that Mr Khorramdel said that he did know about applying to the Industrial Relations Commission but was always told that "public servants have their own tribunal" (meaning obviously the Government and Related Employees Tribunal or GREAT). If that was indeed the case, then there is no evidence that he made any attempt to enquire as to his ability to access such a tribunal.

196 Whilst I concede that the HSU did not provide Mr Khorramdel with any information about the 21 day limitation it is understandable in the circumstances and particularly so when he was pressing for the HSU to secure a resignation so he could (as he thought) apply for internal positions on his release from gaol. That was the main thrust of the assistance he sought apart from securing his annual/long service leave. The HSU were clearly of the view that Mr Khorramdel did not have strong industrial case, nevertheless representations were made on his behalf to SSWAHS firstly about the leave and secondly about the resignation. SSWAHS were not prepared to agree to either matter.

197 I do not accept that Ms Cowdrey could ever have told Mr Khorramdel that he could apply as an internal applicant after gaining a resignation and on his release from gaol.

198 I reject entirely the notion that there was ever any "deal" done between the HSU and SSWAHS. Both organisations and the persons involved (namely Ms Cowdrey and Ms Neville) would be very much aware (as is the Commission), that in the NSW Health Service, as is the case across the public service generally, once a resignation is accepted then an employee can only apply for any advertised position as an external applicant and the filling of such a vacancy must be done on merit.

199 Of course how a union views a matter concerning its member should not determine how the Commission should approach its consideration. Nevertheless it is relevant in this matter as I consider that it goes to establish the absence of any representative error on the part of the HSU.

200 The HSU is fully aware of the provisions of the Act relating to unfair dismissals and the 21 day limitation and has complied with those provision in untold numbers of applications to this Commission. It did not consider that Mr Khorramdel had a case and were not going to take any legal action on his behalf. Mr Khorramdel's own evidence acknowledges that this was their position.

201 I also quite succinctly queried of both Mr Khorramdel and Ms Cowdrey whether a request had been made about filing an unfair dismissal application and was told no by both.

202 For the reasons set out above I therefore find that the delay in filing the s.84 application was not caused by any representative error on the part of the HSU.

203 I have also considered the issue of hardship that might be visited upon Mr Khorramdel per s.85(3)(b) should he not be allowed to proceed with his s.84 application. He has expressed concern as to his ability to get another job because he cannot provide an explanation for the gap in his employment history from October 2008 to October 2009. In Uwatec Sams D P made the following relevant observations at p. 13 in relation to the hardship visited on an applicant if a claim were not allowed:

There is no doubt that every dismissal of employment brings with it some degree of hardship, either personal, emotional or financial. The applicant is not "Robinson Crusoe" in this respect. In my view, s.85 (3) (b) is particularly directed towards any additional or excessive hardship occasioned upon the applicant should the application be rejected. Such hardship should be viewed in the context of the overwhelming majority of applicants, who, while experiencing various varying degrees of hardship, nevertheless, are able to file within time.

204 Mr Khorramdel's difficulty with getting another job does not arise from the mere fact that he was terminated, as is sometimes the case in other matters that come to this Commission depending on the nature of the position held and the reason for termination. Here the difficulty Mr Khorramdel has is in explaining the period he spent in gaol. That has nothing to do with SSWAHS. Whilst I sympathise with Mr Khorramdel in that regard I do not consider that to be a hardship that can be related to the decision by SSWAHS to terminate so as to constitute a "sufficient reason" for the Commission to exercise its discretion and accept his application out of time.

205 It should also be kept in mind that Mr Khorramdel's incarceration was an effective frustration of the employment contract (see below).

206 As far as s.85(3)(c), conduct of the employer relating to the dismissal, is concerned, Mr Khorramdel maintains that the failure of SSWAHS to grant him his leave entitlements meant that he was unavailable for work when eligibility for work release arose thus making him unavailable to work for SSWAHS and resulting in SSWAHS terminating him for this reason. This somewhat circuitous argument has no merit.

207 I also note that on the evidence, he was seeking that leave as far back as July 2008 when he first put the forms in his Director's pigeon hole at work. That was at a stage when he did not know how long his gaol sentence (which appeared likely) would be. Once he was sentenced and in gaol he continued to seek his leave with the stated purpose of ensuring that his wife was provided for financially to the extent possible.

208 Certainly it would perhaps have been preferable had SSWAHS specifically told him in writing that leave would not be approved in the circumstances, (which were quite understandable in my view). Although I do accept that his incarceration and inability to come to work to carry out his job overtook any consideration of the request for any leave.

209 However Ms Neville did say she spoke to Mr Khorramdel's wife and told her he would not be granted leave without pay for the period of this incarceration. It should have been abundantly clear from this, together with the absolute silence from SSWAHS about leave, that this was a clear indication that being able to access such leave was just was not on the cards. In any event there was no obligation on SSWAHS to grant the leave, it was not an absolute unfettered entitlement that Mr Khorramdel could demand to be taken. He was paid the leave on termination. He was entitled to that.

210 There was no evidence as to whether Mr Khorramdel did become eligible for and or undertook work release on or after 16 April 2009, nor indeed whether SSWAHS had any policy about employing persons or continuing to employ persons whilst on work release from gaol.

211 There were no performance or conduct issues raised either prior to, or since the 7 February 2009, that could raise issues of concern as to procedural unfairness. Indeed, on the evidence, SSWAHS extended the time for him to respond to the letter advising him of an intention to terminate on three occasions. SSWAHS made sure he had received a copy of the letter, (which initially went to his Solicitors) and made sure it went to the Parramatta Correctional Facility when he was transferred there from Silverwater. The decision to terminate, on the evidence before the Commission, was based solely on Mr Khorramdel's inability to carry out his job due to his incarceration. SSWAHS also made it clear to the HSU that it would not grant his leave nor allow a resignation.

212 Therefore for the reasons outlined above I find that there was no conduct on the part of the employer that contributed to the delay in filing the s.84 application.

213 Mr Khorramdel made no representations himself to SSWAHS after he was terminated and did not contact the HSU after early March 2009, until September 2009 some six weeks before he was due to be released. He was clearly proceeding on the basis of a resignation only.

214 I should also observe that it is possible to make applications to the Industrial Relations Commission from goal or when a person is on work release. To my knowledge that has happened in the past. Just as prisoners are able to make applications to the courts in relation to their sentences. If he was in any doubt then he could have made an application on his release. Any delay in filing must therefore be attributed to Mr Khorramdel's conscious and deliberate decision to pursue the process of securing a resignation through the HSU rather than filing a s.84 application. Mr Khorramdel acknowledged that he was responsible for the delay but sought essentially to justify the reasons for the delay.

215 A further matter that is relevant to the Commission's consideration of "sufficient reason" is whether Mr Khorramdel has an arguable case and his prospects of success.

216 It is clear on the evidence that he has a considerable hurdle to overcome in establishing that his dismissal was harsh, unjust or unreasonable. He was not terminated because of any issue arising in connection with his work or work performance but because he could not perform his work due to his incarceration. Indeed, on the day he was sent to gaol and commenced his sentence, it could be said that that caused an immediate frustration of the employment contract. See Hare v Murphy Brothers Limited [1973] 3 All E.R. 940, Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17.

217 However SSWAHS management did not take action to immediately terminate Mr Khorramdel on discovering that he was in gaol but acted in accordance with its policies and the relevant Awards in following a procedure which formally advised Mr Khorramdel that termination was being considered; the basis for that consideration; he was given an opportunity to respond, and that response was taken into consideration before a decision to terminate was made and effected. That also goes to establish that procedural fairness was afforded to Mr Khorramdel.

218 Having carefully considered the evidence and submissions of the parties, I consider that Mr Khorramdel's prospects of success are extremely limited if not impossible.

219 I have also considered the cases cited by Mr Khorramdel which indicated that extensions of time have been granted by this Commission. However those cases were each determined on the evidence and submissions made by the parties. I have also determined this matter based on the evidence and the submissions made by the parties in arriving at the conclusion set out below.

Conclusion

220 I find, on the evidence, that Mr Khorramdel has not discharged the onus of establishing a "sufficient reason" for failing to lodge his claim of alleged unfair dismissal within the prescribed time period in the Act. In arriving at that conclusion I have carefully had regard for those matters set out in s.85(3)(a)(b) and (c) as detailed above.

221 It follows that the Commission declines to exercise its discretion, pursuant to s.85(3) of the Act such as to permit the application to be accepted for determination.

222 The application is therefore dismissed and these proceedings are concluded accordingly.

Elizabeth Bishop

Commissioner




LAST UPDATED:
19 April 2010