Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173 PARTIES: Bingham, Cassie (Applicant) v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) (Respondent) CASE NO: TD/2019/46 PROCEEDING: Preliminary Hearing DELIVERED EX TEMPORE ON: 13 August 2020 HEARING DATE: 13 August 2020 MEMBER: HEARD AT: Industrial Commissioner Dwyer Brisbane ORDER: 1. The application to extend time is refused; 2. The unfair dismissal application TD/2019/46 is dismissed. CATCHWORDS: INDUSTRIAL LAW – Application for reinstatement – application made out of time – preliminary hearing - length of delay -- 1 of 9 -- 2 – explanation for delay – prejudice to parties – merits. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 316, s 317 Breust and Qantas Airways Limited [1995] QGIG 777 APPEARANCES: Ms C. Bingham, Applicant self-represented. Ms C. Laird of Providence HR directly instructed by the Respondent. Reasons for Decision The following reasons are taken from the transcript of the decision delivered ex tempore on 13 August 2020. The reasons have been subjected to minor editing. [1] Following the hearing of evidence in this matter this morning, I now provide reasons for my decision. On the 10 June 2019, Ms Cassie Bingham made an application to the Queensland Industrial Relations Commission in relation to the termination of her employment with the Department of Communities and Disability Services, hereafter referred to as 'the Department'. [2] In earlier proceedings in this matter, the Department raised an issue with compliance by Ms Bingham, in relation to the 21-day time limit prescribed by the Industrial Relations Act,1 and the Department asserted that Ms Bingham's application had been filed out of time. The basis for the Department's objection was that a termination letter, delivered to Ms Bingham by email on the 24 April 2019, had put into effect the termination of her employment, and that as a consequence, in filing her application on 10 June 2019, she was some 26 days outside of the prescribed time limit. [3] Ms Bingham asserts that she received the letter of termination, which was delivered by registered post, when she collected it from the post office on 20 May 2019. In her view, having received the letter on that date, the time limitation had been complied with and she had filed within the 21-day time limit. [4] Relevantly, the letter of termination contains a sentence at the bottom of the first page which says: 1 Section 317. -- 2 of 9 -- 3 Your employment will therefore cease at close of business on the date on which you receive this registered letter. [5] The central question for determination in this preliminary application is the date upon which Ms Bingham received the termination letter. By way of background, in respect of Ms Bingham's application, she has provided an affidavit with her application in respect of unfair dismissal on 10 June 2019 and sets out her history of employment. Relevantly, she commenced employment with the department in or on 22 August 2011. It seems apparent that Ms Bingham demonstrated some promise in that she was made permanent after three months service in a temporary role, in an AO5 position, which, I note, is a relatively senior position within the public service. [6] For that reason, it is clear to me that Ms Bingham was certainly, at that time, a capable person in respect of the nature of the duties she would have been required to perform, and she continues to impress me to this time, as someone who is capable of and able to perform high level work. [7] In her affidavit of 10 June 2019, Ms Bingham sets out significant difficulties that she began to encounter from 2014. She sets out that she experienced significant domestic violence from a partner she was with from about 2014 which led to the development of psychiatric illnesses in the form of post-traumatic stress disorder and other conditions. In the aftermath of the relationship in which she experienced this significant domestic violence, she became involved with another person which then led to her becoming embroiled in criminal proceedings which, in turn, led to the disciplinary processes that brought about the termination of her employment with the department. [8] I think it appropriate to note that I sympathise with Ms Bingham in terms of what she has been through. I note however, to the Department's credit, that Ms Bingham has expressed gratitude to the great deal of support and assistance that she received from the department in various forms throughout the course of her struggles at that relevant time. [9] Whilst I appreciate it is something that occurs in the aftermath of that domestic violence, the subsequent embroilment in criminal proceedings and the non-disclosure of those matters to the Department are a sequel in respect of those matters. [10] I turn now to the evidence that was given this morning in this matter. The central focus is around the telephone conversation that took place between Ms Bingham and Mr Scott Finlay from the Department on 24 April. [11] By way of background, the show cause process to which Ms Bingham was subjected to unfolded through the early part of 2019. On 12 April 2019 Ms Bingham had submitted a written response to a show cause letter. The show cause letter that had been issued to her and to which she was responding, had invited her to show cause why her employment should not be terminated. There can be no doubt then that, as at 24 April 2019, Ms -- 3 of 9 -- 4 Bingham must have been cognisant of the fact that the termination of her employment was very much a potential outcome to the process which she had just participated in. [12] The evidence of the parties that is relevant to the matters that I must determine, around the conversation on 24 April 2019, is largely consistent. For the purpose of these proceedings I make these observations in respect of that evidence. There is no dispute that on 4 April Mr Finlay informed Ms Bingham, on the telephone, that a decision had been made in relation to her show cause process. Ms Bingham acknowledges in her affidavit of 12 March 2020 that she became very emotional and was crying throughout the conversation. The relevance of that I will come to in a moment. [13] However, conversation ensued between Mr Finlay and Ms Bingham, around the decision. It is accepted by Ms Bingham that Mr Finlay told her that it was 'not good news'. It is further said by Ms Bingham in her affidavit of 12 March 2020, that she asked whether a meeting would change the outcome, to which Mr Finlay said "No". [14] Ms Bingham conceded in her evidence today (whilst not acknowledging a reference to an email) that Mr Finlay would be sending her some correspondence to the effect of what they had been talking about. [15] I am satisfied in all the circumstances having regard to the evidence of the parties this morning and the affidavit material that has been filed that Ms Bingham must have been aware, as a result of that conversation, that a decision had been made to terminate her employment. I come to that conclusion based on acknowledgements made by Ms Bingham herself: namely that she was informed that it was not good news. This can only have meant one thing in the context of a show cause process where the outcome to which she was showing cause was the termination of her employment. [16] Secondly, her own evidence is that she asked whether a meeting might change the outcome. She can only have been, in my view, of a clear understanding of what the outcome was having asked that question. [17] Thirdly, Ms Bingham has said that she was emotional and crying throughout the course of the conversation and I can reasonably presume on that basis that she understood that she was receiving particularly bad news in relation to her employment. [18] Further, in relation to my conclusion about the conversation that took place, Ms Bingham has given some evidence in the form of an affidavit and an outline of argument, which would suggest to me that she was aware of the outcome in respect of her employment, prior to May of 2019. In her affidavit of 10 June 2019, at paragraph 34, she makes the following statement: Following the advice of termination, I received approximately 220 paid into my bank account. -- 4 of 9 -- 5 [19] It appears, having prepared that affidavit prior to being aware of the Department's objections, that the notice of termination or the date of termination may not have been entirely on Ms Bingham's mind. In any event, in my view, that confirms that she had some knowledge of the decision before May. [20] Finally, in respect of her outline of argument, she refers to that payment again in early May, and says it was not what she was expecting. She had clearly contemplated the amount that she expected to receive in terms of the termination of her employment and was surprised not to receive that money in early May. [21] For all of those reasons, as I said, I am satisfied that as a result of the telephone conversation with Mr Finlay on 24 April 2019, Ms Bingham was aware that her employment had been terminated. [22] If I am incorrect in respect of that, I then turn to the effect of the email correspondence sent from Mr Finlay on 24 April 2019. In my view, the email (if received) would serve as the formal notification of termination in writing. Mr Finlay says that following the telephone conversation, he emailed the letter of termination to Ms Bingham. Ms Bingham denies that she received any such email. [23] In the course of giving her primary evidence in these proceedings, in response to questions that I asked Ms Bingham, she freely acknowledged that the email address to which Mr Finlay's letter had been sent was her email address, was her current email address as at 24 April 2019 and I believe she may have even said that it was still her email address. [24] Further, in response to questions from me, she denied that she had experienced any difficulties with receipt of other emails and had no difficulties, at that time, in relation to services from her provider in respect of emails. There is no evidence available from Ms Bingham, who contends that she didn't receive the email from Mr Finlay, to suggest that there would be any reason from a technological perspective, why she would not have received that email. [25] Mr Finlay gives evidence that he sent the email and has produced copies as exhibits to his statement. He also said in evidence this morning, that he received no notification from either his email provider or Ms Bingham's, that the message had not been delivered, or any what is referred to as a 'bounce back' in respect of emails that failed to be delivered. [26] I am confronted with a contested account. Mr Finlay says he sent the email. Ms Bingham denies that she received the email. I should say, as an aside, under cross-examination Ms Bingham, to some extent, contradicted her earlier evidence, and began to allude to uncertainties around whether she had received emails. And I note that that is different to the answers that she gave me when she was giving her primary evidence. -- 5 of 9 -- 6 [27] In all of the circumstances, it is my view that it is implausible that the email was not delivered to Ms Bingham. It may be the case – and I do not need to go anywhere with this, but it may be the case that Ms Bingham declined to look at the email or declined to check it to see whether the email had been received. But there is no reason, on the facts that I have before me, to conclude that the email was not delivered to her on 24 April. And so, in my view, even if the conversation that had preceded the delivery of the email, was open to some ambiguity as Ms Bingham suggests, the email that she received on that day was not. [28] For those reasons, I would conclude that the email would have been delivered to her on 24 April 2019. [29] The only remaining correspondence between the parties is the hard copy of that letter which was sent by registered post. The evidence from Ms Bingham is that she did not check her mailbox from 24 April until 20 May 2019. She gives this evidence notwithstanding that she was aware, as she asserted in her evidence, that Mr Finlay was going to be sending her correspondence. [30] It is entirely impossible, in the circumstances, to identify when the certified mail card from Australia Post was delivered to her post box and date the letter would have been available for her collection. However, Ms Bingham's deliberate avoidance of collecting mail that she knew was coming and carrying this important information, does not give rise, in my view, to some de facto extension of the termination notice period. That is a failing on her part, and ought not to provide her with any benefit with respect to extending the period in which she should react to the termination of her employment. [31] I turn now to the explanation. Ms Bingham has given evidence that she was not checking her mail and, effectively, disconnected with society during the period 24 April to 20 May 2019 because she was depressed. I accept, as I have said, that the effects of the psychiatric and psychological effects arising from a significant violent relationship can be severe and can be long lasting. However, the only evidence before me of a medical nature is a medical certificate that is attached to Ms Bingham's affidavit of 12 March 2020. It is a medical certification from the Clayfield Medical Centre from a Dr Deborah McAlister, and it is dated 22 February 2019. It outlines and confirms the significant history of domestic violence and the medical consequences for Ms Bingham, which appear to be quite severe. However, it concludes, in the following words: At present, in 2019, she is a vastly different individual. She has improved mentally. Her PTSD is in remission. She is a good mother and is ready to go back to work and put everything behind her. [32] I have no difficulty accepting those observations about Ms Bingham, as at that date. In giving her primary evidence this morning I asked Ms Bingham about whether she sought medical treatment in the relevant period between 24 April and 20 May 2019, and my -- 6 of 9 -- 7 recollection of her evidence is that she had regular contact with her doctor. Regrettably, Ms Bingham has not provided any medical evidence to support her assertions that she was so effected by depression that she was unable to check her mailbox. In the absence of such evidence I cannot make any conclusion that she was so effected. I therefore put the explanation associated with the depression to the side. [33] In respect of out of time applications there are some well recognised considerations. They are set out in the Department's submissions that were filed on 8 May 2020 and I refer particularly to paragraphs 11 and 12, and the reference to the authority of Breust and Qantas Airways Limited [1995] QGIG 777. The recognised relevant considerations in the exercise of a discretion to extend an application beyond the nominated statutory time limit are to consider: • the length of the delay; • the explanation for the delay; • prejudice to the applicant if the extension of time is not granted; • prejudice to the respondent if the extension of time is granted; and • any relevant conduct. [34] An overall consideration of the merits of the substantive matter are also relevant in my view. I'll deal with those considerations now. [35] The consideration of those matters is a holistic consideration. No single one of those considerations ought to be given greater weight than the other. Each of them is considered in the context of the others. [36] In respect of the length of delay, assuming the notification was 24 April, and I accept that it was, then the application is filed some 26 days beyond the nominated statutory time limit. The number of days ought not to be considered as if it is some type of number game. There is no rule as to what number of days is too little or what number of days is too many. It is something that ought to be considered in the context of the other considerations. [37] However I would observe that 26 days is not an insignificant lapse in respect of the time limitation and by observation I would say that, as recently as two weeks ago, I refused an application for an extension of time and that was in a matter that was eight days out of time. [38] In respect to the question of prejudice to the applicant, it is a given that Ms Bingham will suffer prejudice if she is declined the opportunity to have her application for reinstatement heard. It is understandable that people want to and ought to have their opportunity to have their grievances in respect of termination of employment dealt with by this Commission, subject to the rules and the limitations imposed by the Act. I accept -- 7 of 9 -- 8 that there will be a prejudice to Ms Bingham, but I must consider that prejudice in the context of all the other matters. [39] The respondent submits, in their submissions, that they will suffer prejudice given the amount of time that has elapsed since Ms Bingham's employment terminated. Whilst I acknowledge that there has been a substantial period of time since April 2019 that has passed, somewhere in the order of well over 12 months, not all of that time is attributable to the delay by Ms Bingham in filing. There have been a number of interruptions and delays in these proceedings, not least of which, matters that have been out of the parties' control, including illness and the timetabling of this matter in the context of broader issues around delays arising from the COVID crisis. [40] In any event, the question of prejudice to the respondent, in my view, needs to be contained to prejudice that arises from the 26 days, as opposed to where we are at the moment. I do not accept that there is particular prejudice to the respondent because of the time that has elapsed to today's date because it is not unusual, in my experience, and the general experience of litigation down here, for example, unfair dismissal proceedings, to take somewhere between 12 months and 18 months from the date of termination, to get to hearing. All of the attending problems with memory lapse and loss of evidence and so forth arise in those matters as well. [41] The other consideration is other relevant conduct. There was, as I noted before, a complete failure by Ms Bingham to attend to checking her mailbox. Even if I were to accept everything she says about the telephone conversation on 24 April, and even if I were to accept that she did not receive the email on 24 April, she says that from conversation she was aware that Mr Finlay was sending correspondence to her setting out the decision. It is unacceptable for Ms Bingham to have then failed to check her mailbox diligently, and if she hadn't received it within a reasonable period of time, made further inquiries. The delay is entirely a result of her unilateral actions of neglect in that respect. [42] I would also make an observation with respect to the prospects of Ms Bingham's application. The respondents have said, in their outline of argument, the question of prospects ought to be considered as neutral, and I agree. I similarly agree with the assessment of the prospects as being low to fair and I will say no more about that. [43] Finally I will address the explanation for the delay. I've already expressed my views in relation to the disputed evidence. The explanation for the delay is not accepted. The reason offered is unacceptable. I am satisfied that Ms Bingham knew, or ought to have known, her employment was terminated as and from 24 April 2019, but that she failed to act until 10 June 2019. This inaction was entirely of her own doing, and I find no impediment that would have prevented her from acting within the statutory timeframe. -- 8 of 9 -- 9 [44] In all of those circumstances, I propose to dismiss the application for an extension of time and it follows then that I make these orders. [45] I order that: 1. The application to extend time is refused; and 2. The application filed by Ms Bingham in relation to her alleged unfair dismissal, filed on the 10th of June 2019, is dismissed. [46] Any party wishing to be heard on the question of costs ought to make application within 14 days. -- 9 of 9 --