Bakhit v Brisbane City Council [2015] QIRC 45

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bakhit v Brisbane City Council [2015] QIRC 045 PARTIES: Bakhit, Osman (Applicant) v Brisbane City Council (Respondent) CASE NO: TD/2014/79 PROCEEDING: Application for Extension of Time DELIVERED ON: 10 March 2015 HEARING DATE: 5 March 2015 MEMBER: Industrial Commissioner Fisher ORDER: The Commission extends the time for filing the application for reinstatement to 6 August 2014. CATCHWORDS: INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application for extension of time - whether employment finalised on grounds applicant repudiated his employment contract by abandoning his employment - whether Commission should exercise its discretion to extend time for filing - length of delay - explanation for the delay - whether prejudice caused to applicant if not granted - whether prejudice caused to respondent if granted - applicant's prospects of success at substantive hearing - Commission accepted explanations by applicant for delay - exercised discretion to extend time for filing application for reinstatement. CASES: Industrial Relations Act 1999, s 74(2), s 78(3) Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127] J Boag and Son Brewing Pty Ltd v Allan John Button (2010) FWAFB 4022 Ashley Paul Savage v Woolworths (1999) 162 QGIG 353 APPEARANCES: Mr D.G. Pratt, Franklin Athanasellis Cullen Lawyers -- 1 of 5 -- 2 and with him Ms A. Richards, Caxton Legal Service for the Applicant. Ms A-M. Treston, Brisbane City Legal Practice, Brisbane City Council. Decision [1] Osman Bakhit has filed an application for reinstatement to his former position of Cleaner with the Brisbane City Council. Mr Bakhit's application was filed outside the 21 day time period permitted by s 74(2)(a) of the Industrial Relations Act 1999. Mr Bakhit seeks that the Commission extend the time for filing the application. [2] The Council notified Mr Bakhit by letter dated 5 June 2014 that his employment had been finalised on the grounds that he had repudiated his employment contract by abandoning his employment. [3] Mr Bakhit last worked for the Council on or around 17 April 2014. Shortly after that date, he travelled to Sudan as he had learnt that his family were confronted with a dreadful situation. Although Mr Bakhit notified his supervisor of his intention to travel to Sudan, he did not advise of the period of his intended absence nor complete any paperwork. He says his supervisor did not require any paperwork to be completed. [4] The Council paid Mr Bakhit his annual leave until it was exhausted on 13 May 2014. An officer of the Council attempted, unsuccessfully, to call him on his mobile telephone on 16 May 2014. One week later the Council wrote to Mr Bakhit advising that because of his failure to contact the Council, it was considered that he was repudiating his employment. Mr Bakhit was given until 30 May 2014 to contact the Council. [5] Mr Bakhit did not receive the correspondence. He says that no reliable telephone or internet connections were available in Sudan. He returned to Australia on 22 June 2014 and contacted his supervisor to advise of his return. He was subsequently informed the Council had been trying to contact him to ascertain his intentions in relation to his employment. Mr Bakhit says it was only on 22 June 2014 that he received the Council's letter of 5 June 2014 advising of the finalisation of his employment. [6] Following advice that his employment had been terminated, Mr Bakhit contacted The Australian Workers' Union of Employees, Queensland for assistance. Between 23 June and about 21 July 2014, the AWU contacted the Council but was unable to make progress with Mr Bakhit's complaint. [7] Mr Bakhit then contacted the Caxton Street Legal Centre seeking an appointment. The first available appointment was on 30 July 2014. Mr Bakhit attended that appointment and was notified the following day that the Centre would provide assistance in completing the application for reinstatement. Mr Bakhit attended the Centre on 1 August 2014 and the application for reinstatement was filed on 6 August 2014. Consideration -- 2 of 5 -- 3 [8] In determining whether to exercise its discretion to extend the time for filing, the Commission typically has considered the following factors as set out by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited:1 (i) the length of the delay; (ii) the explanation for the delay; (iii) the prejudice caused 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. [9] However, Linnane VP placed three caveats on the above: (i) that s 74(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.2 [10] Mr Pratt, who appeared for Mr Bakhit, concedes that although the application was filed beyond the 21 day time period, time only commenced to run on receipt of the Council's letter of termination. Support for this proposition was found in the decision Commonwealth of Australia (Australian Taxation Office) v Wilson where a Full Bench of the Australian Industrial Relations Commission held: "Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received."3 As such, the application was only filed 23 days late. [11] Mr Pratt, without being critical of the Council, notes that the application was delayed because discussions were occurring between the AWU and the Council. This is not a factor relevant to this application. [12] The Council does not oppose submissions in relation to the length of the delay; the reason for the delay and the prejudice to the respective parties. In the circumstances the Commission does not find it necessary to formally determine when time commenced to run. On any view, the application was filed outside the 21 day time limit. 1 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20. 2 Ibid. 3 Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127], [11]. -- 3 of 5 -- 4 [13] Where the Council takes issue with an extension of time being granted is in relation to Mr Bakhit's prospects of success. The Council contends that the remedies of reinstatement and re-employment are not open to Mr Bakhit. This is because Mr Bakhit's substantive role is that of a Grade 4 Team Member, Drainage, Construction Branch. That role is essentially one of a labourer. However, Mr Bakhit was placed in a temporary role with Urban Cleansing when, based on a vocational assessment, he was unable to perform the inherent requirements of his substantive position. The Council submits this position is borne out by documents on Mr Bakhit's personnel file. [14] Further, reinstatement means reinstatement to the employee's former position. In support of this proposition, the Council relies on the decision of the Full Bench of Fair Work Australia in J Boag and Son Brewing Pty Ltd v Allan John Button where the following was said: "When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered."4 [15] The Council also contends that re-employment is also not available. The temporary role was not an indefinite arrangement. In addition, the vocational assessment identified Mr Bakhit's language limitations and a lack of literacy, computer and numeracy skills. Section 78(3) of the Act only applies where an employee has the necessary skills and fitness to be placed in an alternative existing role. The Commission does not have power to determine suitability and to order the creation of a new position. [16] In response to these arguments, Mr Pratt submits that Mr Bakhit had been made redundant from the Construction Branch role and had accepted redeployment to the Urban Cleansing role. In his submission the question of whether, and to which, role Mr Bakhit could be reinstated was a matter to be determined at a substantive hearing and not in these proceedings. [17] Mr Pratt also submits that although Mr Bakhit has physical and other limitations, a position should be able to be found within a large organisation into which Mr Bakhit could be re-employed. [18] The Commission accepts the explanations as provided by Mr Bakhit as to his explanation for the delay in filing the application. In particular, the Commission is satisfied that Mr Bakhit acted with alacrity on his return to Australia to seek to challenge his dismissal. It was appropriate for him to await the outcome of the AWU's representations to the Council before seeking legal advice. [19] In addressing the prospects of success neither party made particular submissions about the merits of the case, including the proper characterisation of the manner in which Mr Bakhit's employment with the Council ended. 4 J Boag and Son Brewing Pty Ltd v Allan John Button (2010) FWAFB 4022, [22]. -- 4 of 5 -- 5 [20] The critical issue in this matter is the submission made by the Council that Mr Bakhit has negligible prospects of being reinstated or re-employed and thus the extension of time should not be granted. The Commission notes that relevant documents on Mr Bakhit's personnel file have not yet been provided to him through the disclosure process nor were they provided in these proceedings. In the circumstances the Commission accepts the submissions made by Mr Pratt that the position to which Mr Bakhit could be reinstated, if any, and the question of re-employment, are issues properly to be determined at a substantive hearing. [21] The Council further submits that any compensation that might be awarded would be at the low end and for this reason the parties should not be put to the cost of a trial. However, and as Mr Pratt submitted, compensation is an available remedy should the dismissal be found to be unfair. Further, given the parties' respective circumstances, I do not consider that in this particular case it is a factor that should deny Mr Bakhit the opportunity of having his case heard. [22] The case law in this jurisdiction is that the prospects of success must be clear cut.5 Poor prospects of obtaining relief is a matter that the Commission can consider in deciding whether to extend time for filing.6 Although Mr Bakhit's case is not without its difficulties, based on the status of the material before me, I am unable to be satisfied that Mr Bakhit has such poor prospects of success in obtaining relief that the request for an extension should be refused. [23] The Commission therefore exercises its discretion under s 74(2) of the Act and extends the time for filing the application for reinstatement to 6 August 2014. [24] Order accordingly. 5 Ashley Paul Savage v Woolworths (1999) 162 QGIG 353; Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20. 6 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20, 24. -- 5 of 5 --