Daniels v North Burnett Regional Council [2014] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Daniels v North Burnett Regional Council [2014] QIRC 066 PARTIES: Daniels, Paul (Applicant) v North Burnett Regional Council (Respondent) CASE NO: TD/2012/98 PROCEEDING: Application for Reinstatement DELIVERED ON: 10 April 2014 HEARING DATE: 8 April 2013 29 April 2013 (Applicant's written submissions) 13 May 2013 (Respondent's written submissions) 17 May 2013 (Applicant's written submissions in reply) MEMBER: Industrial Commissioner Knight ORDERS : 1. Application for Extension of Time dismissed. 2. Application for Reinstatement struck out CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - Dismissal - Reinstatement - Application filed beyond statutory time limit - excluded employee - short term casual - Commission's unfettered discretion - Discretion to extend time not exercised. CASES: Industrial Relations Act 1999, s 74, s 73, s 74(2)(b), s 72(c), s 74(2), s 74(2)(a), s 335 APPEARANCES: Mr C. Agnew on behalf of Agnew Legal, for the Applicant. Mr D. Broanda on behalf of Sharpe Workplace Solutions, for the Respondent. -- 1 of 3 -- 2 Decision [1] On 9 November 2012 Mr Paul Daniels (the Applicant), filed an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the Act) alleging he had been unfairly dismissed by North Burnett Regional Council (the Respondent). [2] The matter was initially set down for a hearing commencing on 8 April 2013, but a subsequent amended order dealing with the hearing of jurisdictional matters arising out of the application was subsequently issued. [3] The jurisdictional matters to be determined involved:  whether Mr Daniels is an excluded employee under s 73 of the Industrial Relations Act 1999; and  whether an extension of time pursuant to s 74(2)(b) of the Industrial Relations Act 1999 should be granted. [4] Section 72(c) of the Act excludes a short-term casual, unless the reason for the dismissal is an invalid reason, from the Operation of Chapter 3 - Dismissals of the Act. [5] Section 74(2) of the Act requires that an application for reinstatement be made within 21 days after the dismissal or a further period the Queensland Industrial Relations Commission (the Commission) allows. [6] The application was made some 49 days after the dismissal, or four weeks after the statutory 21-day time limit prescribed by s 74(2)(a) of the Act. [7] The Respondent submitted Mr Daniels is a short-term casual employee and therefore excluded from making a reinstatement application. In this regard Mr Daniels commenced employment in a position titled Casual Labourer with the North Burnett Regional Council at the Monto Works Depot on 9 January 2012. Mr Daniels was subsequently dismissed at the conclusion of a council disciplinary process on 21 September 2012. [8] The Respondent further contends the application was filed significantly out of time and no extension of time should be granted in all the circumstances. [9] During the course of the hearing, evidence and submissions relating to the jurisdictional arguments including the circumstances leading up to and the reasons for Mr Daniel's dismissal were also provided to the Commission. [10] Having carefully weighed all the evidence and considered the matters that the Commission is required to consider, I find the Applicant is an excluded employee under s 73 of the Act. [11] I have also decided not to exercise my discretion to extend time to the Applicant within which to lodge his application for reinstatement. -- 2 of 3 -- 3 [12] Regrettably, in the period between the filing of written submissions by the parties with respect to this matter and the issuing of a decision, Mr Daniels passed away suddenly in the Royal Brisbane Hospital. [13] Out of respect to Mr Daniels and his family, the reasons for my decision will not be published. [14] In finality of the matter I order that no costs are to be awarded to either party of these proceedings. Pursuant to s 335 of the Act, I am satisfied this application was not made with vexatious intent or unreasonable cause. -- 3 of 3 --