Australia, April 14 -- New South Wales Land and Environment Court issued text of the following judgement on March 14:

1. For determination is whether an application pursuant to s 213 of the Industrial Relations Act 1996 (IR Act) should be accepted out of time. The question is before the Commission because the respondent asserted the application was late and objected to the Commission accepting the application.

2. Pursuant to 213(3) of the IR Act, an application for an order pursuant to s 213 must be made within 21 days of the relevant contraventions alleged.

3. Pursuant to s 213(4) the Commission may accept an application made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:

1) the reason for and length of the delay,

2) any hardship to the applicant or any other party from rejecting the application or for not rejecting it,

3) the conduct in relation to which the order is sought.

4. In the respondent's written submission, the respondent submitted:

"1) On 5 November 2024, Mr Wright lodged an application for relief from victimisation (the application) under section 213(1) of the Industrial Relations Act 1996 (NSW) (IR Act).

2) In the application, Mr Wright asserts that he suffered purported detrimental action on two occasions:

(a) on 8 October 2024, he received an email from the Department of Primary Industries and Regional Development (Department), which he asserts was a written warning. A copy of the email is attached to the application; and

(b) on 9 October 2024, he was no longer assigned to the acting position of Program Leader North East (PLNE) from 18 November 2024 to 5December 2024.

3) Section 213(1) of the IR Act empowers the Commission to enforce the provisions of Ch 5 Pt 1 of the IR Act on the application of an industrial organisation or by any person affected by a contravention of those provisions. Section 213(3) requires an application to be made within 21 days after the contravention concerned. ... 5) As the claimed detriments occurred on 8 and 9 October, the application was lodged more than 21 days after the purported detrimental action and is 6 and 7days out of time pursuant to section 213(3) of the IR Act." [Emphasis in original.]

5. The respondent's written submission then set out why the events occurred on 8 and 9 October 2024, and that any ongoing effects do not extend the relevant dates for the purposes of s 213(3) of the IR Act:

"10. ... The Respondent asserts that section 213 addresses the act of victimisation at the time it occurred, not its ongoing effects, so that the statutory time limit in section 213(3) runs from the date of the act of the victimisation which is complained of i.e. 8 and 9 October: Prehen v Department of Environment and Conservation [2006] NSWIRComm 222; Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 at [6]; Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 at [17].

11. If Mr Wright contends that the content of the Department's email of 8 October means that the detriment runs into the future and therefore extends past 8 October 2024, this type of submission was rejected in Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195a223518e5e48871b0ae9d)

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