APPEAL AGAINST THE DECISION TO DISMISS GIVEN ON 20 MAY 2024 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2024 WAIRC 01051 CORAM :PUBLIC SERVICE APPEAL BOARD SENIOR COMMISSIONER R COSENTINO – CHAIRPERSON MR N CINQUINA – BOARD MEMBER MR M FINNEGAN – BOARD MEMBER HEARD : ON THE PAPERS DELIVERED : WEDNESday, 18 December 2024 FILE NO. : PSAB 17 OF 2024 BETWEEN : Brent Cass Appellant AND Director General, Department of Communities Respondent CatchWords : Industrial Law (WA) – Public Service Appeal Board – Appeal lodged out of time – Whether to grant an extension of time within which to appeal – Out of time application refused Legislation : Industrial Relations Commission Regulations 2005 (WA) Industrial Relations Act 1979 (WA) Result : Appeal dismissed Representation: Counsel: Appellant : Mr B Cass on his own behalf Respondent : Mr M McIlwaine of counsel Solicitors: Appellant : Respondent : State Solicitor’s Office Case(s) referred to in reasons: Chan v The Nurses Board of Western Australia [2007] WASCA 123 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Howle v Best [2012] WASC 62 JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA Maureen Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310 Michael Christian Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817 Simonsen v Legge [2010] WASCA 238 Stephen Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 === REASONS FOR DECISION === ¶1 These are the unanimous reasons of the Public Service Appeal Board dismissing Mr Brent Cass’s application for an extension of time to appeal, and consequently also dismissing his appeal. ¶2 Mr Cass was employed by the Department of Communities as a Level 6 Business Improvement Analyst until 20 May 2024, when his employment was terminated following three allegations of breach of discipline. The decision to terminate the employment was made on 20 May 2024. ¶3 On 27 June 2024, Mr Cass filed an appeal to the Board against the termination decision. The appeal is out of time. The time within which an appeal to the Board can be lodged under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA) (IRC Regulations) is within 21 days after the date of the decision appealed against. The time, therefore, expired on 10 June 2024. ¶4 Originally, the Board was minded to deal with Mr Cass’s application for an extension of time at the hearing of the substantive appeal. Accordingly, on 25 July 2024 we made programming directions to progress the matter to a substantive hearing, including directions for Mr Cass to file any documents, outlines of witness evidence and submissions on which he sought to rely at the hearing by 27 September 2024: [2024] WAIRC 00723. The parties later agreed to extend this time by one week: [2024] WAIRC 00767. ¶5 A hearing was listed for 11 November 2024. ¶6 Mr Cass did not file any documents, any outline of witness evidence, nor any submissions. We were concerned that the matter was not ready to be heard, or could not be fairly determined, without Mr Cass having filed any evidence or submissions. The Board therefore vacated the hearing, and instead convened a directions hearing on 11 November 2024. ¶7 Mr Cass did not attend the directions hearing on 11 November 2024. We provided him with the opportunity to participate by video or telephone. He declined, advising simply that he was unable to attend, and acknowledging that the hearing would proceed in his absence. ¶8 At the directions hearing on 11 November 2024, we made orders granting Mr Cass an opportunity to apply for an extension of time to comply with the directions previously made for filing documents, witness outlines and submissions. We also directed that if Mr Cass made no such application, the Board would proceed to determine his application for an extension of time to appeal as a preliminary issue on the papers having regard to the information filed in the proceedings to 11 November 2024. ¶9 On Mr Cass’s request, the time for Mr Cass to make any application for an extension of time to file documents, witness outlines and submissions was extended to 16 December 2024. ¶10 That time has now passed and Mr Cass has made no application. In effect he has failed to prosecute his appeal. In accordance with the 11 November 2024 orders, we have proceeded to determine the application for an extension of time only. ¶11 The Board has the power pursuant to s 27(1)(n) of the Industrial Relations Act 1979 (WA) (IR Act) to extend the prescribed time in which to institute an appeal: see Maureen Dehnel v Dr Neale Fong, Director General, Department of Health and Others [2006] WAIRC 05677; (2006) 86 WAIG 3310 at [71]-[73]. ¶12 The principles that apply in relation to the exercise of the discretion to extend time within which to appeal under s 80I of the IR Act were considered by the Board in Michael Christian Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817. In that case at [13]–[14], the Board applied the principles applied by the Full Court of the Supreme Court of Western Australia and the Court of Appeal, respectively, in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCA 123. See also Simonsen v Legge [2010] WASCA 238 at [8], JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 at [5] and Howle v Best [2012] WASC 62 at [31]. ¶13 These authorities emphasise four (main, but not necessarily exhaustive) factors in considering whether an appeal should be accepted out of time. They are: a. the length of the delay; b. the reasons for the delay; c. the prospects of the appellant in succeeding in the appeal; and d. the extent of any prejudice to the respondent. ¶14 In Stephen Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 at [69], the following observations were made relevant to the determination of the present matter (citations omitted, emphasis added): Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right. The question is whether the circumstances meet the tests for an extension of time… ¶15 (a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour; ¶16 (b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties; ¶17 (c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances; ¶18 … ¶19 Mr Cass’s Form 8B – Notice of Appeal sets out his reasons as to why he believes his appeal should be allowed to proceed out of time. He says: a. He was notified of the letter of 20 May 2024 terminating his employment only on 27 May 2024 when the respondent’s Principal Investigator called his personal phone. b. He acknowledged receipt of the letter on 28 May 2024. c. His child has a rare genetic condition, one of the symptoms of which is epilepsy. His child had suffered severe seizures over the past six weeks resulting in multiple hospital admissions over several days, requiring intensive nursing and care. ¶20 Mr Cass also refers to: a. the detrimental impact the termination has had on his own well-being; b. that he had been spending time following up with the Department on payment of his ‘allocated entitlements’; c. he was preparing for a hearing in the Family Court concerning custody arrangements; and d. he had exhausted his savings and was having to deal with his creditors ‘so [his] time has been scarce’. ¶21 Mr Cass provided the Board with no evidence to elaborate upon or substantiate any of these explanations for filing his appeal out of time. Length of the delay ¶22 In the scheme of the time limit of 21 days imposed by the IRC Regulations, the delay of 17 days is significant. This factor cannot be determinative on its own. However, the significance of the delay weighs against the grant of an extension of time. The other relevant factors may involve counterbalancing considerations which displace the effect of this factor being against the grant of an extension of time. Reasons for the delay ¶23 Mr Cass has not provided any clear or cohesive evidence as to when he was notified of the dismissal. The letter containing the notification is dated 20 May 2024. Mr Cass suggests he was notified of ‘the letter’ on 27 May 2024 by way of a telephone call, and the following day he acknowledged he had received it. But he does not say when he actually received the letter, nor does he say when he was aware of the dismissal decision. ¶24 The letter of 20 May 2024 was the last step in a disciplinary process which had commenced much earlier. Notice of a disciplinary investigation was given to Mr Cass on 15 November 2023. The notice indicated that disciplinary action may include dismissal from employment. This was repeated in a letter to Mr Cass of 21 November 2023. On 26 February 2024, the respondent wrote to Mr Cass advising him that the investigation into the alleged breach of discipline had concluded and a view had been formed that he had committed breaches of discipline. The 26 February 2024 letter also proposed disciplinary action in the form of dismissal from employment. Mr Cass was provided with an opportunity to respond to the proposed sanction ‘prior to a final finding being made’. He took that opportunity by providing his response. He was clearly aware that a decision that would impact his future employment was pending. ¶25 Because we have no evidence from Mr Cass about when he was notified of the dismissal, we cannot conclude that any delay in notification is a reason for his delay in lodging the appeal. ¶26 Mr Cass’s other grounds relating to reasons for his delay are similarly unsubstantiated beyond mere assertions. We do not know what ‘multiple hospital admissions over several days’ means, in the context of the 38 days between the dismissal and the time Mr Cass lodged the appeal. We do not know why these events precluded Mr Cass from filing his appeal within time. ¶27 We do not know the timing of Mr Cass’s Family Court hearing or what issues were involved in that hearing, such that it would have precluded him filing his appeal within time. ¶28 We have no details of ‘the detrimental impact’ of the termination on Mr Cass’s health or ‘well-being’ or why those impacts precluded him from an ability to file his appeal within time. In any event, the fact that he was dealing with the respondent about his entitlements, and dealing with creditors, permits us to infer that his own health was not preventing him from attending to matters concerning his financial affairs, and therefore, would not prevent him from attending to this appeal. ¶29 The Notice of Appeal’s grounds comprise nine paragraphs. Mr Cass is a Level 6 Government Officer. We would not expect that completing the Notice of Appeal was onerous, difficult, complex or time consuming for a Government Officer at this level. ¶30 Ultimately, Mr Cass has not provided an adequate explanation for the delay. This factor weighs against the grant of leave. Prospects of success in the appeal ¶31 As Mr Cass has not filed any materials in support of his grounds of appeal, we conclude that his prospects of success are not high. ¶32 Mr Cass’s ground of appeal against the first allegation as particularised on 1 August 2024 essentially challenges the respondent’s factual findings made in respect of the allegation. ¶33 Mr Cass’s appeal will be determined on the respondent’s documents and evidence only. The respondent’s documents include Mr Cass’s comprehensive responses to the allegations against him. In his responses, Mr Cass takes issue with the respondent’s version of the facts. But without putting on evidence of his own in these proceedings, it will be very difficult for him to undermine the respondent’s evidence or establish his version as true. ¶34 Mr Cass does not challenge the relevant factual findings concerning the second allegation, that he sent an email from his work email address directly to the Minister in contravention of the Communities Communication Agreement. His appeal grounds simply state that he does not understand why he has been reprimanded for this conduct, and that he sent the email out of desperation to resolve a matter he was involved in. The manner in which the ground of appeal is articulated tends to justify the respondent’s findings, rather than exculpate Mr Cass. The grounds themselves reveal a lack of insight and suitability to continue in employment. The grounds relating to the second allegation cannot be said to have reasonable prospects of success. ¶35 Neither do the grounds of appeal relating to the third and final allegation take issue with any relevant factual findings. The allegation is that he had breached a written instruction to cease email communications with certain named members of the leadership team. Mr Cass contends that he had a reasonable explanation for sending emails to those individuals. It is difficult to see how Mr Cass will be able to establish he had a reasonable explanation without any evidence from him. ¶36 Accordingly, our rough assessment of the merits of the appeal does not weigh in favour of the grant of an extension of time. Prejudice to the respondent ¶37 Prejudice can be inferred from the length of the delay: see D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 per Martin CJ at [16]. However, as the delay is not inordinate, any prejudice is limited. The absence of prejudice to the respondent is, again, not determinative of whether an extension of time should be granted: see City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 at [16]. ¶38 However, we do regard Mr Cass’s failure to proactively prosecute his appeal, by failing to file any documents in compliance with the orders made on 25 July 2024, failing to attend the directions hearing of 11 November 2024 and failing to apply to extend the time for filing documents for a final hearing, is relevant to our discretion. As the then Acting Senior Commissioner Scott observed in Hopkins v Director General of Health (2013) WAIRC 36 at [20], it is not in the public interest that a party initiate proceedings and when given opportunities to do so, fails to prosecute the claim. Mr Cass cannot complain that not granting an extension of time will work an injustice to him, when he has done nothing to avail himself of opportunities to progress his appeal. If anything, it is he who has hindered the fair and efficient administration of justice. This factor weighs against the grant of an extension of time. Conclusion ¶39 Mr Cass has failed to demonstrate he has a reasonable explanation for his delay in bringing this appeal. While the appeal may have some prospect of success, the prospect is not good. Further, he has not demonstrated a willingness or an ability to prosecute his appeal in a timely manner. These factors persuade us that the requirements of justice in this situation do not warrant that the extension of time be granted. The application will be dismissed.