CFMEUQ v Moreton Bay Regional Council [2014] QIRC 212

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: CFMEUQ v Moreton Bay Regional Council [2014] QIRC 212 PARTIES: Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (Applicant) v Moreton Bay Regional Council (Respondent) CASE NO: TD/2014/90 PROCEEDING: Application for Extension of Time DELIVERED ON: 3 November 2014 HEARING DATE: 3 November 2014 MEMBER: Deputy President Kaufman ORDERS : 1. Application for Extension of Time is dismissed. 2. Application for Reinstatement is struck out. CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – extension of time – Commission's unfettered discretion - lack of evidence – discretion to extend time not exercised. CASES: Industrial Relations Act 1999, s 74. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. APPEARANCES: A. Cousner on behalf of the Construction, Forestry, Mining and Energy Industrial Union of Employees. D. Williams, Minter Ellison, for the Respondent. Decision Background [1] On 2 September 2014 the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEUQ) (the applicant) filed an application -- 1 of 2 -- 2 for reinstatement under s 74 of the Industrial Relations Act 1999 (the Act) on behalf of its member Mr Gary MacPherson. [2] The application was made some 112 days after the dismissal, or thirteen weeks after the statutory 21-day time limit prescribed by s 74(2)(a) of the Act. [3] The application for reinstatement sought an extension of time in which to file. [4] Section 74 of the Act provides: “74 Application for reinstatement (1) If it is alleged 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 chapter. (2) The application must be made within— (a) 21 days after the dismissal takes effect; or (b) a further period the commission allows on an application made at any time.” [5] The sole question to be determined in this application is whether grounds exist for the Commission to exercise its unfettered discretion, contained in s 74(2)(b) of the Act, to allow a further period of time for the applicant to file his application for reinstatement. [6] The burden rests upon the applicant to establish that the justice of this case requires an extension of time. 1 Decision from Bench [7] In delivering my decision from the Bench on 3 November 2014, I said (as edited): "… I need some evidence that Mr MacPherson did something to pursue his claim. There’s no evidence… I have no evidence whatsoever from Mr MacPherson as to what attempts, if any, he made to pursue this matter [after the date of his termination]. I dismiss his application to file out of time." 1 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554 (McHugh J). -- 2 of 2 --