Beutel v Amarc Realty Pty Ltd [2005] QIRC 151 (2005) 180 QGIG 849

[Extract from Queensland Government Industrial Gazette, dated 4 November, 2005, Vol. 180, No. 14, pages 849-851] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for extension of time Janine Beutel AND Amarc Realty Pty Ltd (B/2005/929) COMMISSIONER FISHER 25 October 2005 Application for extension of time – Industrial Relations Act 1999 s. 74 – Lengthy delay – Reason for delay not fully explained – Explanation of diary not plausible – Prejudice to applicant – No prejudice to respondent – Merits arguable – Further evidence – Whether remedy would be available – Whether availability of remedy should be taken into account in determining an extension of time – Application for extension refused. DECISION On 20 April 2005 while recuperating at home from back surgery, the applicant, Janine Beutel, was handed a letter dated 18 April 2005 from her employer, Shayne Gordon, terminating her employment, effective immediately. Ms Beutel’s application for reinstatement was not filed until 22 June 2005. Accordingly, Ms Beutel seeks an extension of time in which to file her application. Section 74(2) of the Industrial Relations Act 1999 provides that: “(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.”. In Rich v Chubb Protective Services (2001) 167 QGIG 159 Hall P outlined the policy behind s. 74(2) of the Act and said that “[I]n exercising the power the legislature’s choice of a 21 day limitation period must be respected however the limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature’s judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case.”. The Commission has generally taken into account the following five factors when considering whether an extension of time should be granted: (i) the length of the delay; (ii) the explanation of the delay; (iii) the prejudice to the applicant if the extension is not granted; (iv) the prejudice to the respondent if the extension is granted; and (v) the general merits of the case. These factors are not exhaustive (Rich) but shall be considered initially and against the policy background outlined above. On commencing the preparation of this decision three issues emerged that had either not been raised or pursued in the substantive hearing. Those issues were:  when Ms Beutel first became aware of the time limits for filing the application;  whether a remedy would be available in the event an extension of time is granted and the application is successful at trial; and  whether the availability of a remedy should be taken into account in determining whether an extension of time should be granted. When these matters came to light the Commission reconvened the proceedings in order that the parties might be apprised of the issues, to allow Ms Beutel to give further evidence on the issues and for the parties to make further submissions on the points raised. (i) Length of the delay Ms Beutel was given notice of her dismissal on 20 April 2005. Mr Bryce, who appeared for her, argued that the dismissal took effect on 27 April 2005 because she was entitled to one week’s notice. -- 1 of 4 -- 2 On this point the letter of termination is clear. Ms Beutel was dismissed on 20 April 2005 “effective immediately”. It seems then that the dismissal was summary as no mention is made of the provision of a notice period. (Whether the dismissal ought to have been summary is another question). Because of the summary nature of the dismissal the 21 day period provided by s. 74(2)(a) of the Act commences to run from the time the notice was given, i.e., 20 April 2005. The 21 day period expired on 11 May 2005 and the length of the delay is calculated from that date, and not from the date of dismissal as contended by the respondent. The application was filed on 22 June 2005. It was thus filed 42 days beyond the 21 day statutory period. The 21 day statutory period in which to file an application must be respected but it is not an arbitrary cut-off point. The Commission will consider applications made after that period. However, the length of the delay is one factor that ordinarily bears on whether the Commission should exercise its discretion to extend the time for filing. In Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543 de Jersey P commented that “six weeks is a substantial delay in the context of a statutory requirement that a reinstatement application be lodged within 21 days of the dismissal.”. In this case, as in Petruch, the delay is six weeks. Because the delay is substantial, Ms Beutel must show that good reasons exist to warrant the Commission’s exercise of discretion. (ii) Explanation for the Delay There is no disputing that the months of April and May 2005 were dreadful for the applicant. On 3 April 2005, while visiting friends in Northern New South Wales, Ms Beutel suffered severe back pain. She was diagnosed with having a ruptured disc. When back in Brisbane on 4 April 2005, Ms Beutel consulted the Specialist who had been treating her for her back condition since November 2004. The doctor scheduled her for surgery on 12 April 2005. She was given three weeks’ sick leave commencing that day. On 11 April 2005 Ms Beutel met with Mr Gordon who advised her that he had received a letter of complaint about her from another staff member. On Ms Beutel’s evidence Mr Gordon told her that her only alternatives were to resign or be sacked. She notified head office on 15 April 2005 that she would not resign. Ms Beutel was admitted to hospital on 12 April 2005 and was discharged two days later. She said she was not permitted to drive for one month after the surgery and was thus reliant on others for transport. Ms Beutel met again with Mr Gordon on 18 April 2005 and was given a letter referring, amongst other things, to the allegations against her. On 20 April 2005, Mr Gordon attended Ms Beutel’s home, by prior arrangement, and handed her the letter of dismissal. At this time Ms Beutel was still covered by medical certificates as she was recuperating from the surgery. On 3 May 2005 Ms Beutel was asked to attend the Yamanto Police Station without advice as to the reasons. When she attended the next day she was questioned about matters relating to her previous employment and was then arrested and charged. Ms Beutel was taken to the Ipswich Watch House where she was fingerprinted, photographed, orally swabbed and threatened with strip search. Not surprisingly, Ms Beutel described the experience as being “totally demoralising”. The matter was listed for mention in the Ipswich Magistrates Court on 8 June 2005. Because of difficulties encountered with the Solicitors she had engaged, she was subsequently forced to alter her legal representation. At the time of the hearing of this application, the criminal matters remain unfinalised. On the day that Ms Beutel was contacted by Police, her son lost the top of one of his fingers in an accident. She spent some time with him in hospital over the next couple of days. In addition to this series of unfortunate events, Ms Beutel was forced to move house twice. It seems that one relocation occurred towards the end of April but it is not clear on the evidence when the second occurred. The relocations were said to result directly from the dismissal and the financial constraints caused by not receiving outstanding bonuses and commissions that were alleged to be owing. (Ms Beutel was employed on a commission only basis). Ms Beutel provided a medical certificate from her General Practitioner dated 18 July 2005, which primarily related to the back injury. However, Dr Sundram said: “The stress she has been under since she lost her job has slowed her recovery. She is tired and lacks motivation. This is due to the depression. She was not depressed prior to this.”. Ms Beutel was prescribed antidepressants from at least 1 June 2005. -- 2 of 4 -- 3 The doctor’s certificate was tendered without objection from the respondent until the closing submissions. Mr Richards was correct in submitting that evidence should have been called from Dr Sundram. Oral evidence would have carried greater weight. But in the absence of any objection to the tendering of the medical certificate, it is accepted. The weight that attaches to it is another matter. It is clear that from 20 April 2005 until early May 2005 Ms Beutel was incapacitated and then distracted by the other proceedings. However, there are some periods which have not been fully explained. Certainly, Ms Beutel moved house twice but one of these relocations occurred before the end of April and before the police issue arose. Her son’s injury would not have helped her frame of mind but again this occurred in early May. I accept that Ms Beutel would naturally be worried about the forthcoming mention in the Magistrates Court on 8 June 2005 but these few intervening weeks are not fully accounted for. Her diary entry on 16 May 2005 records “need to contact Wageline & unfair dismissal”. On the basis that the dismissal took effect on 20 April 2005, this is five days after the 21 day time limit had expired but is still one month prior to her contacting Mr Bryce. Ms Beutel is required to give a reasonable explanation for this delay also bearing in mind the series of events that were said to have distracted her had happened by this time. In her later evidence Ms Beutel said that the diary entry referred to another employee who was claiming an underpayment of wages. She said an officer of Wageline had been attempting to contact her about the matter as an issue existed over who was the correct employer. Had the entry stopped after “Wageline” I might have been more inclined to accept Ms Beutel’s explanation. The addition of the words “& unfair dismissal” makes the evidence of Ms Beutel implausible. The matter concerning the other employee did not relate in any way to a claim for unfair dismissal. The only dismissal from this employer that the evidence puts to as being on foot was that of Ms Beutel. In my view Ms Beutel recorded a reminder to contact Wageline about her own unfair dismissal but did not act on it. When the diary entry was presented to confirm that she had thought about pursuing the matter shortly after the expiration of the 21 day time period (or within it on the basis contended for by her representative) she then had to search for an explanation. That explanation is not credible. It may be that Ms Beutel was unaware of the time period for filing an application for reinstatement but the evidence shows that she had contemplated action in relation to her dismissal within a reasonable time frame after it had occurred. The other period that is not full explained is the period between 8 June 2005 and 21 June 2005, when Ms Beutel first consulted Mr Bryce. I accept that in this period Ms Beutel needed to arrange alternative legal representation for the charges against her but it does not explain the whole of the period. I accept that it would be difficult for redress for a dismissal to be the priority when other problems of the type experienced by Ms Beutel kept raining down and required immediate attention. However, I am not satisfied that all of the delay has been satisfactorily explained, particularly given her diary entry of 16 May 2005 and the unconvincing explanation attaching to it. (iii) Prejudice to the Applicant The allegations made by other staff members against Ms Beutel relate to bullying. Ms Beutel was not given the opportunity before she was dismissed to be fully informed of the allegations against her nor was there a proper opportunity for her to respond. If an extension of time is not granted, then Ms Beutel will lose the last opportunity to address the allegations. (iv) Prejudice to the Respondent Based on Mr Gordon’s evidence on this aspect, Mr Bryce characterised the prejudice as inconvenience. Mr Gordon made it clear that he did not wish to spend the time and money that would be required in defending the application. In his closing submissions Mr Richards acknowledged Mr Bryce’s characterisation of Mr Gordon’s evidence as correct but clarified that further proceedings would be inconvenient because of the strength of the respondent’s case. The respondent should not be put to further cost in having the matter proceed to a hearing when the respondent considered the case against the applicant was compelling. That argument goes more to the fifth factor involved in the consideration of whether to grant an extension of time. The types of issues that the Commission takes into account when considering whether the respondent would suffer any prejudice if time was extended for filing the application generally go to whether any witnesses might not be available given the lapse of time or whether the passage of time since the dismissal was so great that memories could be dimmed. None of these types of factors are present here. While the respondent may incur cost were an extension granted, it is not a relevant factor in determining prejudice. -- 3 of 4 -- 4 General Merits of the Case Much more evidence was presented to the Commission than was necessary in an extension of time case. In general, in these types of proceedings, the Commission focuses on the period from the dismissal until the date of filing of the application. Here, a great deal of pre-dismissal evidence was included in the witness statements. From that the Commission obtained a general sense of the parties’ respective cases. The Commission is unable to express any view about the veracity of the allegations of bullying. All I can conclude is that Mr Gordon accepted the truth of the complaints from his staff while Ms Beutel denies them. Clearly, these matters would be ventilated fully at any hearing. The question of procedural fairness would also need to be explored. If the prospects of success are to form the basis of the refusal to exercise discretion to extend time, the assessment must be clear cut: Savage v Woolworths (Qld) Ltd (1999) 162 QGIG 353. Where the decision on the merits is not clear cut then the Commission should exercise caution. On the basis of the material before me I am unable to safely conclude that Ms Beutel has limited or no prospects of success. Other Factors In Rich Hall P said that the guidelines or principles, herein referred to as factors, were not exhaustive and the testing of a case against them could not become a substitute for the exercise of the power to grant an extension of time. In this case another issue emerged which is unrelated to any of the other factors. This is whether any remedy would be available in the event that Ms Beutel was successful at trial. Whether this should be a factor taken into account was also raised with the parties for their submission. In my view I very much doubt that reinstatement would be practicable given the extent and nature of the allegations and the degree of animosity that was displayed by the respondent’s witnesses towards Ms Beutel. However, Ms Beutel seeks the remedy of reinstatement or alternatively, re-employment into the new office of the respondent on terms no less favourable than her previous position. The respondent advised no such position was available. If reinstatement were found to be impracticable then the remedy of compensation would be left. Ms Beutel gave evidence that she had sought work and continues to seek work despite having medical certification that she is totally unfit for work until the end of October 2005. In her later evidence she explained the medical certificates as providing for her temporary unfitness for work. Although that is the box nominated on the form I think the medical certification is describing her condition as not being permanent, another option on the form. I consider that the evidence points to Ms Beutel being unfit for work until the end of October. Of course, she may be able to get a medical clearance sooner than that. In any event that affects the remedy of compensation rather than the primary remedy. Conclusion In matters such as this, the determination rests on weighing and balancing the relevant factors. The most relevant ones are the lengthy delay in the context of the Act that has not been fully explained. Part of that explanation has been found to be implausible. The merits are arguable. On balance, for the reasons relating to the length of the delay and the lack of a credible explanation for part of it the Commission has decided to exercise its discretion and not to extend the time for filing. In the particular circumstances of this case that I hold reservations about whether a remedy would be available at trial adds to the decision but is not of itself a reason not to extend time for filing. Dated 25 October 2005. G.K. FISHER, Commissioner. Hearing Details: 2005 16 September 14 October Appearances: Mr R. Bryce (Mateside Pty Ltd) for the applicant. Mr L. Richards (Payservice Department) and with him Mr S. Gordon for the respondent. Released: 25 October 2005 Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --