REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00321

DELIVERED : THURSday, 27 June 2019

FILE NO. : APPL 11 OF 2019, APPL 13 OF 2019, APPL 14 of 2019

Applicant

AND

Department of Education

Respondent

CatchWords : Applications pursuant to s27(1)(a) Industrial Relations Act 1979 to dismiss three applications brought by teacher - Not in the public interest for matters to proceed - One application barred by settlement deed - Two applications not brought in reasonable time

Legislation : Industrial Relations Act 1979 s27(1)(a)

Result : APPL 11 of 2019: Application filed 18 March 2019 granted –

APPL 11 of 2019 dismissed;

APPL 13 of 2019: Application filed 18 March 2019 granted –

APPL 13 of 2019 dismissed;

APPL 14 of 2019: Application filed 18 March 2019 granted –

APPL 14 of 2019 dismissed.

Representation:

Counsel:

Applicant Respondent : Ms R Hartley (of counsel)

Respondent Applicant : In person

Solicitors:

Applicant Respondent : State Solicitor’s Office

Reasons for Decision

1         These matters were heard together.

2         On 11 September 2015 the Director General, Department of Education disciplined Mr Leslie Magyar in relation to an incident that occurred in February 2015.

3         Mr Magyar challenged that action taken by the Director General, Department of Education but ultimately the application brought to the Western Australian Industrial Relations Commission was settled.  Mr Magyar was represented by a solicitor in the application he brought.  The disciplinary action taken was not disturbed by the settlement.

4         On 24 May 2017 the Director General, Department of Education disciplined Mr Magyar in relation to an incident that occurred in October 2016.

5         On 18 August 2017 the Director General, Department of Education disciplined Mr Magyar in relation to an incident that occurred in May 2016.

6         Mr Magyar now, by applications 11, 13 and 14 of 2019, challenges the actions taken by the Director General, Department of Education set out above and seeks that the findings and penalties imposed by her be quashed.

7         None of the previous actions taken by the Director General, Department of Education, as set out above, brought Mr Magyar’s employment to an end.

8         The Director General, Department of Education brings three applications, each of which seek that an order be made under section 27(1)(a) Industrial Relations Act 1979 dismissing applications 11, 13 and 14 of 2019 respectively.  This decision relates to those applications.

9         The Director General, Department of Education contends that it is not in the public interest that these matters proceed because, in relation to the matter the subject of application 13 of 2019, it is barred by a settlement deed freely executed by Mr Magyar, and, in relation to the other matters, Mr Magyar has taken too long to pursue his challenge to the findings and penalties.

10      Application 13 of 2019, and the application of the Director General, Department of Education to have it dismissed, was dealt with at the hearing of the application of the Director General, Department of Education.  Mr Magyar reluctantly, but in my view conclusively, accepted that he had entered into a deed of settlement which barred his application. 

11      Mr Magyar was at pains to explain the terms of the settlement to me, because he thought they were relevant to another matter, but he will have his opportunity to make that argument in that other matter when it is heard.

12      In relation to the other two matters, I decided at the end of the hearing of the applications of the Director General, Department of Education that her applications would succeed over Mr Magyar’s continued opposition, resulting in the dismissal of applications 11 and 14 of 2019.

13      My reason for so deciding is that, as a matter of public interest, employers and employees who remain in an employment relationship after disciplinary processes have been completed must be entitled to proceed on the basis that that relationship continues on a certain factual basis or with a certain factual background after a certain period of time.  Where an employee has been fined or reprimanded and does not challenge such actions within a reasonable time, that person’s employer is entitled to deal with the employee on the basis that they are an employee who has been reprimanded or fined and that those outcomes are set and beyond review.

14      What is reasonable may depend on the circumstances but here the challenges were certainly not brought in a reasonable time.

15      Application 11 of 2019 was brought more than 1 year and 5 months after the penalty was imposed.

16      Application 14 of 2019 was brought more than 1 year and 8 months after the penalty was imposed.

17      These periods are far too long, unless a very good explanation is given for the delay, and there is no prejudice, real or presumptive, to the employer.

18      Here, Mr Magyar was aware of his entitlement to challenge the matters in the Western Australian Industrial Relations Commission at the time the findings were made and the penalties imposed. 

19      Mr Magyar explained to me that he had not brought challenges because he considered it too expensive to do so through a lawyer at those times and he considered he could not competently represent himself at those times. 

20      In relation to those reasons I accept, of course, that legal representation is expensive, especially where there is no hope of a costs order if successful.  However, ultimately a decision to not pursue a matter for that reason is a matter of tactical and personal choice and not a good reason for delay. 

21      In relation to Mr Magyar’s submission that he could not competently represent himself in the past but feels better able to represent himself now, employers, and the statutory system, cannot be asked, fairly, to wait to see if, and when, a person considers themselves able to represent themselves.

22      The respondent did not point to any prejudice, actual or presumptive, but, as I say, she is entitled to treat Mr Magyar as a person who had been fined and reprimanded in the ways he had, without possibility of disturbance, by the time he brought the applications which I have dismissed.