Booth v Department of Transport and Main Roads [2011] QIRC 53

CITATION: Juell Elizabeth Booth AND Department of Transport and Main Roads (TD/2011/8) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Juell Elizabeth Booth AND Department of Transport and Main Roads (TD/2011/8) DEPUTY PRESIDENT BLOOMFIELD 8 August 2011 DECISION [1] On 3 March 2011 Ms Juell Elizabeth Booth filed an application for reinstatement, pursuant to s. 74 of the Industrial Relations Act 1999 (the Act), in the Industrial Registrar's Office. In her application Ms Booth recorded the date of her dismissal as being 30 June 1999. On the basis her application was filed more than 21 days after her dismissal took effect Ms Booth applied for an extension of time in which to file her application pursuant to s. 74(2)(b) of the Act. [2] The extension of time application was opposed by Ms Booth's former employer the (now) Department of Transport and Main Roads (DTMR). Principles - extension of time applications [3] The principles governing an extension of time application under s. 74(2)(b) of the Act are widely regarded as having been set out by (as he was then) Chief Commissioner Hall in Breust v Qantas Airways Ltd1, and further developed by Vice President Linnane in Erhardt v Goodman Fielder Food Services Limited2. In Erhardt supra, Vice President Linnane, after referring to Breust supra, said that in ordinary circumstances the critical factors to be considered in the construction and operation of s. 74(2)(b) of the Act are as follows: 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. [4] The Vice President also identified three caveats to the approach set out by Hall CC in Breust supra, as follows:  that s. 74(2)(b) vests an unlimited statutory discretion which must always be exercised;  that the time limit of 21 days must be respected; and  that the applicant's prospect of success at the substantive hearing is always a relevant matter in that where it appears an applicant has no, or very limited, prospects of success, the Queensland Industrial Relations Commission (the Commission) would not normally grant an extension of time. [5] Notwithstanding that Ms Booth's application for reinstatement included detailed grounds in support of her application for an extension of time, a Directions Order was issued on 18 May 2011 inviting her to file any further material she wished to rely upon. In addition, to assist Ms Booth (as an unrepresented applicant) to understand the issues involved in an application of this type, she was provided with a copy of the decision in Breust supra as a courtesy. [6] As it turned out, Ms Booth took the opportunity afforded to her and supplied a considerable amount of additional information (including copies of emails, medical certificates, medical reports and correspondence) which was in addition to the material contained within her original application for reinstatement. Evidence [7] When the matter came on for hearing Ms Booth, who continued to be self-represented, was provided with the opportunity to address the Commission and to (further) develop her request that the extension of time she sought, namely 11 years, eight months and three days, should be granted. 1 Breust v Qantas Airways Ltd (1995) 149 QGIG 777. 2 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20. -- 1 of 5 -- 2 [8] Without being exhaustive, Ms Booth's evidence (written and oral) covered the following points:  she still did not understand why, and how, she had been terminated pursuant to the provisions of s. 85 of the Public Service Act 1996 (the Public Service Act);  at the time of being referred to medical practitioners for assessment, in early 1999, she understood it was in relation to a work-related injury she had suffered in (or around) 1996;  she had not consented to a psychiatric examination under s. 85 of the Public Service Act;  she was wrongly diagnosed with a psychiatric condition;  she had "appealed" the decision to terminate her employment in 1999 and lodged that appeal at the offices of DTMR in Spring Hill;  in the initial period she was informed that her appeal was being processed but, later, DTMR refused to discuss the appeal with her;  she had involved her Local Member in the prosecution of her appeal and her Local Member had taken the matter up with the Premier;  the only copy of her appeal documentation had been given to the Local Member who, in turn, forwarded it to the Premier;  acting on advice given to her by Members of Parliament she sought details about her termination and her appeal through Freedom of Information (FOI) applications. However, these were only partially responded to, with certain documentation withheld from her;  over the years she lodged many additional FOI applications but it wasn't until November 2010 that the bulk of the information was released to her;  it was at that time that she discovered that she had the capacity to lodge the present application in the Commission;  in earlier times she had regularly written to a variety of Government Departments, and other bodies, seeking help and advice in an attempt to find out what had been done to her and to have it reversed;  from January 2004 she started sending daily emails to the Government, including the Premier;  in May 2004 the Clerk of the Parliament put a block on all of her emails;  she attempted to have this decision reversed through mediation attempts and by lobbying other persons - including the Prime Minster, the Governor-General and the Queen;  one of the directions she received (in around 2008) was that she should try to go through the Commission. However, when she attempted to do that, she was informed by the Queensland Industrial Registry (the Registry) that she did not have the ability to come through "this process" and was directed to the Public Service Commission;  the Public Service Commission re-directed her towards the Commission;  even the Attorney-General's office could not tell her what she should be doing. That office told her to contact the Public Service Commission and the Commission;  although she sent daily correspondence to a variety of Government Departments and other bodies (such as the Queensland Law Society) no one informed her that she could lodge an application for reinstatement;  many Departments simply did not respond to her inquiries;  other Departments took six to nine months to reply. Many of them sympathised with her plight but did not tell her who she needed to contact;  she did not see DTMR as her opposition, and neither did her psychiatrist. It was necessary for her recovery, and her mental well-being, to find out what had been done to her, and why; and  it was necessary for her future recovery to regain the job security she previously held. [9] Following the presentation of her oral evidence, Ms Booth was cross-examined by Dr Spry, of Counsel, who appeared for DTMR by consent (see transcript 2-9 to 10). Under cross-examination Ms Booth gave the following evidence:  she had no memory of her attendance at the psychiatric assessment conducted under s. 85 of the Public Service Act by Dr Byth;  she did not understand any of the s. 85 process she had been subjected to. In particular, she did not understand what had been done to her and did not understand why she had not been provided with the (psychiatric) help she required;  between 1999 and 2002 she had a number of contacts with an officer of the Queensland Public Sector Union, who informed her he was in negotiations with the Government concerning her reinstatement. However, the Union had suddenly stopped all contact with her in around 2002;  she contacted solicitors in relation to what had taken place and how she might get job back. One solicitor she saw in Mooloolaba told her about how she might seek a settlement for her workplace injuries. However, when she said that her reason for seeing him was to seek reinstatement he informed her that if she wished to pursue that remedy she was "better off going through the processes of the Government". When she asked him what the processes were he told her to "contact the Government"; -- 2 of 5 -- 3  this happened before 2002 when she was in a completely confused state of mind - "confused in not knowing what had been done to me, or why it had been done to me, or how it had been done to me ...";  she contacted other solicitors in regard to reinstatement, as well as the Queensland Law Society. However "nobody knew the process that I had to go through; either that or nobody wanted to tell me what the process was.";  it was only in late 2010, after material was supplied to her under FOI and after searching on the Internet, that she found out that it was possible to pursue an unfair dismissal claim;  although a letter to her psychiatrist dated 15 December 2008 was headed "Unfair dismissal application" she was subsequently told that she could not come through the Commission;  she sent an application into the Commission, by email, but was told that she had to go through the Public Service Commission; and  from January 2004 she was sending "applications" to everybody - even the Premier. However, there was a big difference in submitting something and having it returned to you and being told that this wasn't the office that you had to send your application to, you had to send it to another area. When you sent it to that other area they returned it to you and told you to send it to yet a third area. "… If you contacted any Government Department, most Government Departments would have an application from me.". The length of the delay [10] The length of the delay is 11 years, eight months and three days. In Piggott v State of Queensland3, President Hall described the length of delay in that case, over two years, as "extraordinary". Given that description, it is difficult to find an adjective to describe a delay of in excess of 11 years. The explanation for the delay [11] The primary explanation for the delay in lodging the application for reinstatement is said to be that Ms Booth did not find out until late 2010 that she could insist that her application be accepted by the Commission. Prior to that date, she claims to have sought advice and assistance from a large number of organisations and individuals about how to seek reinstatement, without success. [12] In particular, she claims:  her Union was discussing reinstatement with DTMR between 1999 and 2002 but refused to communicate with her after that date;  she spoke to a solicitor in Mooloolaba (prior to 2002) about pursuing such an application but he simply told her she had to follow "the Government processes", without being more specific;  she contacted the Law Society but that organisation could offer no advice or assistance; and  she sent daily emails to Government Departments and Members of Parliament in an attempt to find out where to seek assistance but no one provided her with any answers. The prejudice to the applicant if the extension is not granted [13] Ms Booth submits that it is essential to her recovery to understand what has been done to her, why it has been done and how it has been done. Further, she argues it is necessary for her physical and mental wellbeing to regain employment in a secure public service position. [14] Clearly, the opportunity to pursue the latter of the above outcomes will be denied to Ms Booth if her extension of time application is not granted. [15] However, the claimed prejudice in relation to the need to find out what has been done to her, why it has been done and how it has been done is a different matter entirely. Based on her evidence and material, Ms Booth has accessed her employment history and material pertaining to the circumstances surrounding her termination, as a consequence of the s. 85 proceedings under the Public Service Act, under FOI. As such, she is obviously fully aware of the circumstances surrounding her termination. Consequently, she does not need to find out what has been done to her or how it has been done. That material is available to her. What she really seeks from the reinstatement proceedings is to be able to dispute the whole s. 85 process. [16] In that respect, Ms Booth clearly disagrees with the medical diagnosis which led to her termination. It is that diagnosis which she particularly wishes to dispute, some 12 years after the event. The prejudice to the respondent if the extension of time is granted 3 Bruce Anthony Piggott AND State of Queensland (C/2010/45) - Decision http://www.qirc.qld.gov.au. -- 3 of 5 -- 4 [17] Dr Spry submits that DTMR will necessarily be prejudiced if the extension of time is granted given the exceptional length of delay involved in this case. He also submits that it has long be accepted that prejudice can be presumed from the mere passage of time: GCE v Anti-Discrimination Commissioner4. [18] Further, Dr Spry relies upon the statement of McHugh J in Brisbane South Regional Authority v Taylor5 as follows: "The effect of the delay on the quality of justice is no doubt one of the important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. … First, as times go by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing they have no liabilities beyond a definite period. … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.". Any relevant conduct of the respondent [19] Dr Spry submits that Ms Booth has not demonstrated any conduct on the part of DTMR that would explain the exceptional period of the delay or which would otherwise warrant the Commission exercising its discretion in the Applicant's favour. Other considerations [20] In light of President Hall's decision in Piggott v State of Queensland6, Dr Spry submits that the issue of whether the Applicant contested her dismissal is a (new) consideration in the exercise of this Commission's decision as to whether to exercise its discretion to extend time to Ms Booth. In this regard, Dr Spry submits that while Ms Booth has been concerned, and has been for the past 12 years, with setting aside the diagnosis which led to her retirement on ill-health grounds, the evidence does not establish that she was actively contesting her termination of employment prior to lodging the present application on 3 March 2011. [21] Rather, Dr Spry says, the evidence demonstrates that Ms Booth has focussed, over many years, on what she says is a wrong diagnosis of her condition rather than actively contesting the termination of her employment. In Dr Spry's submission Ms Booth is simply seeking an opportunity to challenge what she believes to be a wrongful assessment of her psychiatric condition in 1999 - over 12 years previously. Conclusions [22] The principles governing the exercise of the Commission's discretion under s. 74(2)(b) of the Act to extend time to an Applicant within which to lodge their application for reinstatement have been canvassed above in paragraphs [3] and [4]. [23] Those principles highlight that whilst the decision to extend time involves an exercise of discretion on the part of the Commission Member determining a particular application, that discretion is to be exercised (or not) in light of the particular facts and circumstances of each case. [24] After considering all of the material presented in these proceedings, in light of the principles governing extension of time applications, I have decided to decline to exercise my discretion to extend time to Ms Booth within which to file her application for reinstatement. I make this decision for a number of reasons. [25] The extent of the delay in this instance is, given that the Act envisages applications will be made within 21 days after dismissal, quite exceptional. A delay of over 11 years is not trivial. It needs to be fully explained and justified. [26] However, the (exceptional) delay in this instance has not been properly explained by Ms Booth. She asserts she corresponded with multiple parties between 1999 and 2010 without anyone informing her that she could pursue a reinstatement application through the Commission. With respect to Ms Booth, I find this claim to be implausible. I cannot, and do not, accept that over a period of 11 years, not one single person - out of the countless persons and organisations she was in contact with - did not inform her of her ability to pursue an unfair dismissal application. Further, her oral evidence is contradicted by her email to her psychiatrist on 15 December 4 GCE v Anti-Discrimination Commissioner [2006] QSC 58 at [30]. 5 Brisbane South Regional Authority v Taylor (1998) 185 CLR 541 at 552. 6 Bruce Anthony Piggott AND State of Queensland (C/2010/45) - Decision http://www.qirc.qld.gov.au. -- 4 of 5 -- 5 2008. In that email, headed "Unfair dismissal application", she refers to the imminent lodgement of her unfair dismissal application. [27] While Ms Booth claims that her application for reinstatement was not accepted by the Industrial Registrar's Office, and she has emails to this effect, she did not provide this material. The only documentation in all of the material she filed which relates to any exchange between herself and the Industrial Registrar's Office appears at pages 6-7 of 89 in her original application. In the extract from this email, dated 10 September 2009, the Industrial Registrar simply draws her attention to the fact that an email directed to the Public Service Commissioner had been emailed to the Industrial Registry instead. The Industrial Registrar went on to inform Ms Booth of the contact details of the Public Service Commission. If this was what Ms Booth was referring to it does not support her contentions. [28] Except for her evidence above (see paragraphs [8] and [9]) about why it took her more than 11 years to lodge her application for reinstatement there was no additional material, out of the voluminous material Ms Booth filed, which would help to explain the delay. There was, for example, no medical evidence to support any contention which might have been advanced that she was not mentally capable of pursuing her application until the beginning of 2011. [29] In any event, Ms Booth's evidence was to the effect that she did not know until late 2010 that she could insist that her application for reinstatement be accepted by the Industrial Registrar's Office. Even then, she did not take any steps to lodge her application until 3 March 2011. No explanation for this delay has been provided either. [30] The events about which Ms Booth complains are now more than 12 years old. While the relevant documentary evidence going to those events might still be available I have considerable doubt about the quality of the recollections of any witnesses who might be called to provide evidence, assuming those witnesses are able to be contacted. [31] Finally, while acknowledging that prosecution of her application is important to Ms Booth, allowing proceedings of this type to be prosecuted over 12 years after the event will impose unfair, even oppressive, burdens on DTMR. While it will not have carriage of the matter, it will, nonetheless, be required to respond to Ms Booth's requests for discovery and will need to attempt to marshal together any witnesses and/or documents which might be relevant to the arguments Ms Booth might advance. [32] Given the lapse of time involved, this will be a monumental task involving the expenditure of considerable time, effort and expense on the part of DTMR. Further, DTMR is likely to (again) seek to engage legal representation in the substantive proceedings. This will add further costs to what I anticipate will be, overall, quite lengthy proceedings. In my view, the taxpayer should not be required to fund the indulgence which Ms Booth requests through her extension of time application. [33] For the foregoing reasons I decline to grant Ms Booth an extension of time within which to file her application for reinstatement. [34] I dismiss Matter No. TD/2011/8. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2011 28 June (legal representation) 25 July (extension of time) Released: 8 August 2011 Appearances: Ms J. Booth appearing on her own behalf. Dr M. Spry of Counsel, instructed by Crown Law for the Respondent. -- 5 of 5 --