Cox (for Martinez) v Photograve Pty Ltd; Photograve Pty Ltd v Cox (for Martinez) [2008] QIRC 57 (2008) 188 QGIG 234

[Extract from Queensland Government Industrial Gazette, Dated 4 July 2008, Vol. 188, No. 10, pages 234-237] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278(1)A - power to recover unpaid wages David Francis Cox (for Fabiola Del Carmen Martinez) AND Photograve Pty Ltd (B/2007/58) and Photograve Pty Ltd AND David Francis Cox (for Fabiola Del Carmen Martinez) (B/2007/70) DEPUTY PRESIDENT BLOOMFIELD 25 June 2008 Application for unpaid wages - Proportionate long service leave on termination - Jurisdiction of the Commission to consider application - Whether application out of time - Meaning of provisions at s. 43(4)(c) of the Act - Held application within time and Commission possesses jurisdiction. DECISION Background In a decision now published at 187 QGIG 127, Hall P resolved a jurisdictional point raised by Photograve Pty Ltd (the Respondent) in relation to whether the Queensland Industrial Relations Commission (the Commission) possessed the ability to hear and determine an application for a proportionate payment of long service leave pursuant to s. 43(4)(c) of the Industrial Relations Act 1999 (the Act) where the former employee: a) was employed by a constitutional corporation; and b) has not pursued an application for reinstatement on the basis of the termination of employment being unfair in either the Australian Industrial Relations Commission or the Queensland Industrial Relations Commission. In doing so, the President held that an employee asserting an entitlement to payment in respect of proportionate long service leave in reliance on s. 43(4)(c) of the Act may launch proceedings in the Commission under s. 278(1)(a), or permit comparable proceedings to be launched on their behalf by a duly authorised Industrial Inspector under s. 278(3)(e). Respondent's Submissions The Respondent has now raised several other jurisdictional points, as well as a procedural issue, in relation to an application lodged by Mr David Francis Cox, an Industrial Inspector, on behalf of a Ms Fabiola Martinez. These points can be summarised as follows: (a) the interpretation to be applied to paragraphs (i) and (ii) at s. 43(4)(c) of the Act, respectively, and whether the "or" between them should be read disjunctively or conjunctively; (b) the criteria the Commission might use in assessing "unfairness" as that word is used in s. 43(4)(c)(ii); and (c) whether the delay in lodging the application, outside 21 days of termination, prevents the application proceeding either on the basis that it offends the intent of the Legislature or unduly prejudices the Respondent's ability to defend any allegation of unfair dismissal, given the lapse of time. Relevantly, s. 43 of the Act states: "43 Entitlement ... (3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if- (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of - (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer - (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or (d) ...". -- 1 of 3 -- 2 At the outset, the Respondent contended that the "or" between s. 43(4)(c)(i) and s. 43(4)(c)(ii) is disjunctive and submitted that the intention of s. 43(4)(c)(i) was to allow a lesser test in the determination of a proportional payment of long service leave than that of an unfair dismissal. The Respondent also argued that where the employee agreed that their employment was terminated for reasons of conduct, capacity or performance then the Commission should only consider whether this was the reason for termination, at the exclusion of any question of fairness. The Respondent went on to submit that if the Commission accepted this submission then it should refrain from further hearing the application on the basis that both Mr Cox and Ms Martinez have sworn that the Respondent did terminate Ms Martinez's employment for reasons associated with her conduct, capacity or performance. In the event the above submission was not accepted, the Respondent submitted that for the purposes of determining fairness, at s. 43(4)(c)(ii), the Commission should be bound to observe the relevant elements at Chapter 3 - Dismissals of the Act, except where there is a reference to a remedy of reinstatement. In particular, it was argued, the Commission should be bound by Chapter 3 as it relates to: (a) s. 73(1)(a) of the Act - the harsh, unjust or unreasonable test (and case law and jurisprudence attached to this); (b) s. 73(1)(b) of the Act (should any invalid reason be alleged), which is not the Respondent's understanding in this matter; (c) s. 74(2) - matters pertaining to out of time applications; (d) s. 77 - matters to be considered when deciding an application; (e) Part 3 - s. 83(1) and (2) (matters relating to serious misconduct); and (f) other sections the Commission deems appropriate. The Respondent especially highlighted the 21 day time limit at s. 74(2) and argued that at the time of its proclamation s. 43(4)(c)(ii) was intended to be exercised only after a hearing of an unfair dismissal application pursuant to Chapter 3 of the Act. The Respondent also argued that it was the Legislature's expectation that any question of fairness regarding a termination would be applied for within 21 days, or such later time as the Commission might consider reasonable. However, no authority was referred to to support either of these submissions. Finally, the Respondent argued that the Applicant's failure to pursue the claim within 21 days of termination denied it a key pillar in its protection against unfair dismissal claims. This was later clarified to refer to the prejudice which the Respondent would suffer because of the impact that the lapse of time would have on the memory of witnesses and the potential loss of other information that would have been more readily available had the matter been pursued in a timely manner. In this regard, it was generally argued that the Commission should exercise its discretion under s. 331 to dismiss, or refrain from hearing, the application on public interest grounds. Conclusion The controversy about the meaning to be ascribed to s. 43(4)(c) of the Act can be easily resolved if the words in the provision are read in their proper context rather than by focusing on one or two words in isolation, as the Respondent appears to have done. Section 43(4) of the Act sets out those circumstances where an employee with between 7 and 10 years of service is entitled to proportionate long service leave on termination. On my reading, the focus is on prescribing who is entitled to proportionate long service leave on termination rather than prescribing who is not so entitled. Read that way, s. 43(4) provides that an employee with between 7 and 10 years' continuous service is entitled to proportionate payment of long service leave only if: (i) the employee's service is terminated because of the employee's death; or (ii) the employee terminates the service because of the employee's illness or incapacity; or (iii) the employee terminates the service because of a domestic or pressing necessity; or (iv) the employee's service is terminated because the employer dismissed the employee for a reason other than the employee's conduct, capacity or performance; or (v) the employee's service is terminated because the employer unfairly dismissed the employee. (My emphasis) Accordingly, where an employee with between 7 and 10 years' continuous service is terminated for reasons of conduct, capacity or performance it is necessary to go beyond such words and look at whether the employer unfairly dismissed the employee in order to determine whether such employee is entitled to proportionate long service leave. Such interpretation is consistent with the explanatory notes to the Industrial Relations and Another Act Amendment Bill 2001 introduced into Parliament by the then Minister on 22 March 2001 (recourse to such material is permitted by s. 14B of the Acts Interpretation Act 1954 for the purposes of confirming an interpretation). The Explanatory Notes relevantly provide: -- 2 of 3 -- 3 "... an employee who is dismissed by the employer between 7 and 10 years continuous service does not have an entitlement to a proportionate payment if dismissed for reasons of conduct, capacity or performance, provided it was not an unfair dismissal.". (My emphasis) As to how "unfairness" might be assessed, the parties are ad idem that the body of case law established by the numerous cases considered by the Commission under Chapter 3 of the Act have established the broad criteria to be considered by the Commission in determining whether the Respondent unfairly dismissed Ms Martinez. In this respect, it would be my expectation that the usual processes associated with the conduct of an unfair dismissal application would generally be followed although the associated legislative provisions would not have been slavishly observed. Naturally, it would be up to the Applicant to prove, on the balance of probabilities, that Ms Martinez was unfairly dismissed. Finally, there is nothing in either s. 43 of the Act, nor in s. 278, to suggest that an application seeking proportionate payment for long service leave, on the basis that an employer unfairly dismissed an employee, has to be made within 21 days of the employee's dismissal. Indeed, the provisions of s. 278(4) completely cut across such a suggestion, in that the section permits an application to be made within 6 years after the amount claimed became payable. Given such limit, there is also no substance to the Respondent's submission that the Commission should exercise its discretion under s. 331 to dismiss, or refrain from hearing, the application on public interest grounds on the basis of the prejudicial effect that the lapse of time would have on the memory of witnesses and the like. Had the Legislature intended that such matters be relevant to any particular application under s. 278 then it could have so provided. For the foregoing reasons, I dismiss Matter No. B/2007/70, being an application by the Respondent for the Commission to dismiss or refrain from hearing, or further hearing, Matter No. B/2007/58. I shall list Matter No. B/2008/58 for mention at 9.30 a.m. on Monday 7 July 2008 for the purpose of issuing directions for the conduct of the application by Mr Cox for payment of proportionate long service leave in reliance on s. 43(4)(c) of the Act. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2008 20 May Released: 25 June 2008 Appearances: Mr D. Cox of the Department of Employment and Industrial Relations, Southport, the Applicant (for Fabiola Del Carmen Martinez). Mr M. Heffernan of The Employment Advisor for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 3 of 3 --