Erian v State of Queensland (Department of Agriculture and Fisheries) [2019] QIRC 86

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Erian v State of Queensland (Department of Agriculture and Fisheries) [2019] QIRC 086 PARTIES: Erian, Ihab v the State of Queensland (Department of Agriculture and Fisheries) CASE NO: TD/2018/127 PROCEEDING: Jurisdictional Objection DELIVERED ON: 7 June 2019 HEARING DATE: 20 May 2019 MEMBER: HEARD AT: Pidgeon IC Brisbane ORDER: 1. The Jurisdictional Objection is dismissed and the matter will proceed to hearing CATCHWORDS: INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application for extension of time - length of delay - whether prejudice caused to applicant if not granted - whether prejudice caused to the respondent if granted - prospects of success at substantive hearing - exercised discretion to extend time for filing application for reinstatement. LEGISLATION: Industrial Relations Act 2016 (Qld), s 317. Industrial Relations Act 1999 (Qld), s 74. -- 1 of 9 -- 2 CASES: Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20. Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Lloyd v Department of Communities, Child Safety and Disability Services (TD/2013/54-2 September 2013). Clark v Ringwood Private Hospital (1997) 74 IR 413. APPEARANCES: Mr S Iskander of Alexander Law for the Applicant Ms C Laird with Ms Faux both of Providence HR for the Respondent Decision [1] Ihab Erian (the Applicant), formerly Senior Inspector – Biosecurity (Fire Ant Project), Department of Agriculture and Fisheries, filed an application for reinstatement with the Industrial Registry on 23 November 2018. [2] The State of Queensland (Department of Agriculture and Fisheries) (the Respondent) notified the Applicant of its decision to implement an ill health retirement by letter on 3 October 2018 to take effect on 10 October 2018. [3] The Respondent raised two objections to the application: (a) The application was lodged 44 days after the Applicant's ill health retirement (23 days out of time); and (b) That as the Applicant had not objected to the proposed ill-health retirement, it was implemented by consent and not at the initiative of the Respondent. [4] Following a mention held on 1 April 2019, it was determined that the first matter regarding the out of time application would be considered by way of a jurisdiction -- 2 of 9 -- 3 hearing. The second jurisdictional objection, if proceeded upon, will be dealt with should the matter proceed to a substantive hearing.1 [5] Extensive written submissions have been received from the parties and a hearing took place on 20 May 2019 to enable evidence to be given by a witness for the Applicant who the Respondent wished to cross-examine. Legislation [6] The relevant legislation is s 317 Industrial Relations Act 2016 (IR Act) which relevantly provides: s 317 Application for reinstatement (1) If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part. (2) The application must be made within – (a) 21 days after the dismissal takes effect; or (b) If the commission allows a further period on an application made at any time – the further period. …. [7] The matters to be considered regarding extension of time were set out by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd2 In ordinary circumstances the key factors to be considered in the construction and operation of provisions such as s74(2)(b) [current s 317(2)(b)] are to be found in the decision of Chief Industrial Commissioner Hall (as he then was) in Breust v Qantas Airways Limited (1995) 149 QGIG 777. These factors will be: (i) the length of the delay; (ii) the explanation for the delay; (iii) the prejudice to the Applicant if the extension of time is not granted; (iv) the prejudice to the Respondent if the extension of time is granted; and (v) any relevant conduct of the Respondent. 1 Transcript of Proceedings, Erian, Ihab v State of Queensland (Department of Agriculture and Fisheries) (QIRC, Pidgeon IC, 1 April 2019) page 2. 2 (1999) 163 QGIG 20. -- 3 of 9 -- 4 [8] Her Honour then went on to express the following three caveats expressed in Patterson v Medical Benefits Fund of Australia Limited (Patterson):3 (i) that s 74(2)(b) (current s 317(2)(b)) vests an unlimited statutory discretion which must always be exercised; (ii) that the time limit of twenty one (21) days provided for in s 74(2)(a) must be respected; and (iii) that the Applicant's prospects of success at the substantive hearing are always a relevant matter i.e. that where it appears an Applicant has no, or very limited prospects of success the Commission should not grant an extension of time. [9] Further, the onus to demonstrate that an extension of time is appropriate rests with the Applicant.4 Length of Delay [10] The Application was filed in the registry 23 days out of time. Considering that issues relating to the Applicant's employment and absence from work due to illness date back to January 2017, I consider 23 days to be a reasonably short delay. However, in considering whether the delay is reasonable, I must turn to the other factors which need to be considered. Explanation for the delay Applicant's submissions [11] The Applicant's essential argument as to why the application for reinstatement was lodged 23 days out of time is that the dismissal was not known to the Applicant's representative. The following is a reproduction from the Chronology of Events in relation to Mr Ihab Erian as provided by Applicant on 8 April 2019: 8 August 2018 Director General [DG] writes to Mr Erian advising that she is considering an ill health retirement, and provided an opportunity for Mr Erian to respond to this proposed action. The DG also invited Mr Erian to apply for a VMR [Voluntary Medical Retirement] in recognition of his length of service and the medical information which had been provided to the Department. Mr Erian was provided with an estimate of the payment this option would afford him. An offer of 4 hours of vocational counselling/assistance was also offered. 3 (1998) 159 QGIG 232. 4 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547. -- 4 of 9 -- 5 Mr Erian was provided with 14 days to respond. 10 August 2018 Mr Erian's lawyer requested a copy of the Independent Medical Report. The department responded that it would only be provided to Mr Erian's treating doctor. Mr Erian sought an appointment with Dr Theodoros in order to review the report and seek Dr Theodoros's advice in order to provide a reply to the Department. 13 September 2018 Mr Erian was unable to see Dr Theodoros until 24 September 2018 as this was the earliest available date that he had for an appointment. 3 October 2018 As a result, Mr Erian was unable to respond to the Director General's letter of 8 August. On 3 October 2018, the Director-General wrote to Mr Erian via Mr Thomas Browning's email and not copied to Sam Iskander nor the main email of the firm which appears on all letterhead as being [email protected] was sent advising that the time provided to respond to her proposal of 8 August has lapsed. The Director- General advises (sic) Mr Erian he will be retired on grounds of ill- health on 10 October 2018. The letter was not seen by Sam Iskander or anyone in the firm until 22 November. 17 October 2018 Mr Erian receives a separation certificate in the mail and it is backdated to 10 October 2018. 2 November 2018 Alexander Law sends an email to the QIRC registry seeking to reconvene the dispute as no resolution and thus had received a separation certificate. 8 November 2018 The QIRC writes to the parties seeking clarification regarding the dispute. 9 November 2018 Alexander Law writes to the commission seeking to contest the alleged dismissal as a result of the receipt of the separation certificate. 22 November 2018 Dispute heard at a formal conference before Deputy President Bloomfield at the QIRC under s 261. Recommended to file a Notice of Unfair Dismissal. 23 November 2018 Notice of Unfair Dismissal lodged. [12] At hearing, Mr Tom Browning, owner of the email address the Respondent's email of 3 October 2018 was addressed, gave evidence that while he had a practice of forwarding on emails related to the matter given that he no longer had carriage of the Applicant's file, he does not recall seeing the email of 3 October 2018 and did not open it or forward it to the person who took over the file. [13] The Applicant states that: The notice advising of termination was sent to one solicitor and not the main email of the firm. The sender did not bother copying other solicitors that are involved in the matter as has been the practice by the firm to the Department to ensure that the letter was received. Even when the documents were sent to the Director General, the Department and its representative were copied. -- 5 of 9 -- 6 It is therefore unacceptable that the department can hide behind the fact that it has discharged its obligations in that it has sent it to one email address and knowing full well that when the firm sends emails, it sends them to all related persons that are involved in the matter. Respondent's submissions [14] The Respondent states that the Applicant required that all correspondence be sent to his solicitors and that this arrangement had been in place since at least 3 March 2017. [15] On 8 August, the Applicant was advised, through his solicitors, that the department proposed to ill health retire him. There is no doubt that the Applicant's solicitors received this correspondence. This correspondence was sent to [email protected]. [16] The solicitors for the Applicant, on 10 August 2018, requested a copy of the Independent Medical Examination (IME) report. On the same day they were advised that the report needed to be sourced through the treating Psychiatrist. The IME Psychiatrist had indicated it was a risk to release the report to the Applicant other than through his treating Psychiatrist. [17] No response to the proposal for ill health retirement was ever sent to the Respondent. [18] The solicitors on behalf of the Applicant, were advised on 3 October 2018 that the proposal to ill health retire the Applicant was confirmed and the ill health retirement would take effect on 10 October 2018. This letter was sent to the same email address that the initial letter of 8 August 2018 was sent, that being [email protected]. [19] No communication at all was received by the Respondent in response to the notice of ill health retirement (Respondent's emphasis). [20] The Applicant was provided with an Employment Separation Certificate. This was mailed to his home. This certificate clearly identified that the employment had ceased on 10 October 2018. [21] No communication at all was received by the Respondent in response to the Employment Separation Certificate (Respondent's emphasis). [22] The representative error in not opening the correspondence of 3 October 2018 does not adequately explain the delay. The Employment Separation Certificate was received by the Applicant on 17 October 2018 (as confirmed by the Applicant's solicitors in their submissions). The certificate clearly identifies that the date of termination was 10 October 2018. The Applicant therefore, at the very least had a further 14 days prior to the expiry of the statutory 21 day time limit for filing an unfair dismissal. However, he did nothing. -- 6 of 9 -- 7 Consideration regarding explanation for delay [23] While the reason given for the delay relates to the Applicant's representative stating that the email was not opened and so they were unaware of the termination of employment, I have taken into consideration the communication between the parties which occurred in the weeks prior to the ill health retirement. [24] I accept the Respondent's submission that they could reasonably expect that correspondence delivered to the Applicant's representative in the way previous correspondence had been delivered and received would be opened and considered in a timely way. [25] In any case, the separation certificate was received by Mr Erian and he informed his representatives about it. This is what sparked the attempt to re-enliven the original dispute which Deputy President Bloomfield ultimately determined could not be heard as employment had concluded and any further consideration of the matter by the Commission would need to be by way of an application for reinstatement. [26] If the Applicant's representatives had undertaken a search of their email system upon finding out that the Applicant had received a separation certificate, they would have found the email informing them of the ill health retirement and the application for reinstatement could have been filed in time. [27] Previous decisions of the Commission have considered whether representative error constitutes a valid explanation for filing an application. [28] In Lloyd v Department of Communities, Child Safety and Disability Services,5 Commissioner Thompson considered the following principles adopted by a Full Bench of the Australian Industrial Commission in the matter of Clark v Ringwood Private Hospital:6 1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged. … 2. A distinction should be drawn between delay properly apportioned to an Applicant's representative where the Applicant is blameless and delay occasioned by the conduct of the Applicant. … 3. The conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the Applicant left the matter in the hands of the 5 (TD/2013/54-2 September 2013). 6 (1997) 74 IR 413. -- 7 of 9 -- 8 representative and took no steps to inquire as to the status of their claim. A different situation exists where an Applicant gives clear instructions to heir representative to lodge an application and the representative fails to carry out those instructions, through no fault of the Applicant and despite the Applicant's efforts to ensure the claim is lodged. 4. Error by an Applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8). [29] In circumstances where the Applicant had engaged his representatives over a lengthy period of time in relation to his employment matters and where arrangements were being made on his behalf to seek an appointment with Dr Theodoros to review the Independent Medical Report being relied upon in implementing his ill health retirement, I consider that it was reasonable for the Applicant to rely on his representative regarding these matters. [30] While in retrospect, the action which should have been taken by the representative was to file an application for reinstatement in the first instance, the fact remains that the Applicant's representative chose to take the step of attempting to re-enliven the original dispute. [31] I consider that representative error is the reason for the delay and while I find it difficult to be convinced that the representative has behaved reasonably in relation to the correspondence and handling of the application, I believe the fault lies with the representative and not the Applicant and therefore representative error is an acceptable explanation for the delay in filing the application. Prejudice to the Applicant [32] Should the discretion not be exercised in favour of the Applicant, the prejudice to the Applicant would be that he would be unable to have his application for reinstatement heard and determined. Prejudice to the Respondent [33] The Respondent states that the prejudice to them exceeds that of the Applicant given that the Applicant had ample opportunities to raise issues and did not do so. [34] In their submission, there has been no fault on the employer's behalf and the cost of defending an unfair dismissal application both in human resources and financial resources should not be forced upon the Respondent by extending the time for the application to be made. -- 8 of 9 -- 9 Applicant's prospects of success [35] As explained at paragraph [4] above, the matter concerning the second jurisdictional objection of the Respondent, are matters to be considered at the substantive hearing. [36] However, as per Patterson at paragraph [8] above, namely that the Applicant's prospects of success at the substantive hearing are always a relevant matter i.e. that were it appears an Applicant has no, or very limited prospects of success the Commission should not grant an extension of time. It is necessary to consider whether there is a contest to be had regarding the claim for reinstatement. [37] There is a clear difference of opinion between the Applicant and the Respondent regarding the prospect of success of the Applicant. [38] The Applicant submits that there are "…high prospects of success as there is nothing wrong with Mr Erian as per Dr Theodoros report. It therefore warrants that Mr Erian has high prospects of success at a final hearing." [39] The Respondent sets out a history of the relevant events leading up to the decision to implement the ill health retirement and states that in its view the proper process was conducted and the Applicant was provided with Natural Justice "albeit that he did not take the opportunity available to him". [40] While the extensive submissions of the Respondent deal with prospects of success, the process followed and the conduct of the Applicant throughout the process, the purpose of this decision is not to determine the outcome of the substantive application but to consider whether it is appropriate to extend time. [41] In considering the submissions outlined in paragraphs [11] to [22] above, relating to an extension of time, I specifically focused on the timing of the application for reinstatement, not the exchange, or lack thereof of other correspondence. [42] While the Applicant's case is by no means clear cut, based on the materials before me, I am not of the view that the Applicant has such poor prospects of success that an application for extension of time should be refused. [43] Having considered all of the submissions before me, I have decided to exercise my discretion to extend time to the Applicant to lodge his application. [44] The Jurisdictional Objection is dismissed. -- 9 of 9 --