Brocklebank v Telwater Pty Ltd [2005] QIRC 99 (2005) 179 QGIG 666

[Extract from Queensland Government Industrial Gazette, dated 5 August, 2005, Vol. 179, No.16, pages 666-668] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Stanley Brocklebank AND Telwater Pty Ltd (No. B631 of 2005) DEPUTY PRESIDENT BLOOMFIELD 20 July 2005 Application for reinstatement – Extension of time – Application filed 20 days late – Witness evidence – Case law – Relevant principles considered – Explanation for delay – Explanation plausible – Prejudice to applicant if extension not granted will be significant – Prejudice to respondent (although considerable) less than that of applicant – Extension of time granted. DECISION Background On 21 April 2005 Mr Stanley Brocklebank lodged an application for reinstatement in which he alleged he was unfairly dismissed by Telwater Pty Ltd (the Respondent) on 11 March 2005. The application was lodged 20 days outside the statutory time limit specified at s. 74(2)(a) of the Industrial Relations Act 1999 (the Act). Mr Brocklebank asks the Commission to exercise its discretion pursuant to s. 74(2)(b) of the Act to grant him an extension of time within which to lodge the application. The Respondent opposes the application for the extension of time. Relevant principles In Rich v Chubb Protective Services (2001) 167 QGIG 159 President Hall said in relation to the Commission’s power to extend time that: “It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed). Subject to the above, the Act gives no direct guidance as to the basis upon which the power at s. 74(2)(b) is to be exercised. Notwithstanding the omission of the facilitative verb ‘may’, it seems to me that like s. 218(3) of the Workplace Relations Act 1997 the power has to be approached upon the basis that the power to extend time is a ‘full and unlimited’ discretionary power, compare Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. It is useful to marshall up the cases in which the power has been exercised (or not exercised) and distil ‘principles’ or ‘guidelines’ for the disposition of other cases in which the power at s. 74(2)(b) is invoked. However, any such set of ‘principles’ or ‘guidelines’ may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the ‘principles’ or ‘guidelines’ become a substitute for the exercise of the power itself.”. The parties are ad idem that the major principles traditionally considered in extension of time applications are those set out in the decision of then Chief Commissioner Hall in Breust v Qantas Airways Limited (1995) 149 QGIG 777 and by Vice President Linnane in Erhardt v Goodman Fielder Freight Services Limited (1999) 163 QGIG 20. In Breust (supra) Chief Commissioner Hall identified 5 key factors as follows:  the length of the delay;  the explanation for the delay;  the prejudice to the applicant if the extension of time is not granted;  the prejudice to the respondent if the extension of time is granted; and  any relevant conduct of the respondent. In Erhardt (supra) Vice President Linnane said the following matters should also be taken into account:  s. 74(2)(b) of the Act vests an unlimited statutory discretion in the Commission which must always be exercised;  the time limit of 21 days provided for in s. 74(2)(a) of the Act must be respected; and -- 1 of 3 -- 2  the applicant’s prospects of success at the substantive hearing is always a relevant matter, i.e. where it appears that an applicant has no, or very limited, prospects of success the Commission should not grant an extension of time. The applicant’s contentions Mr Brocklebank commenced employment with the Respondent on 25 October 1995. He was born in June 1945 and recently turned 60 years of age. He said he was induced to resign his employment on 11 March 2005 after being given one hour to make a decision on whether he would accept certain cash incentives to leave employment or would remain in employment in which case his life would be made difficult by both management and the other workers with the offer of the cash incentive no longer being available. Mr Brocklebank said that at the time of his termination, and for a few weeks afterwards, he was in a state of disbelief, he was disoriented and he was uncertain about his future. He was also concerned about how he would meet his financial commitments, including mortgage and credit card payments. In this state of mind he accepted an offer from a friend to travel to north Queensland and the Northern Territory on a business trip which commenced on 22 March 2005. He arrived back to his home on 14 April 2005. Mr Brocklebank said the decision to go on the trip was also motivated by the thought that he would be away from his troubled environment as well as the possibility that he might be able to join his friend’s business as a paid employee. However, this latter possibility did not bear fruit. On his return home on 14 April 2005 Mr Brocklebank made contact with Mr Sahay, of Stephens & Tozer, Solicitors, and briefly discussed his termination. It was at that stage that he found out about the 21 day time limit. Because of Mr Brocklebank’s desire to attend the funeral of a very close friend on Friday 15 April 2005 and Mr Sahay’s unavailability on 18 or 19 April 2005, arrangements were made for them to meet at Stephens & Tozer’s Southport office on Wednesday 20 April 2005. The application for unfair dismissal was lodged on the following day, viz. 21 April 2005. The 40 days between termination and lodgement of the application can be broken down into 3 separate and distinct periods:  11 March 2005 to 21 March 2005 (inclusive) = 9 days (excluding 11 March 2005)  22 March 2005 to 13 April 2005 = 23 days  14 April 2005 to 21 April 2005 = 8 days --------- 40 days --------- On behalf of Mr Brocklebank it was argued he would suffer more than most if he was not granted an extension of time within which to pursue his application. This was said to be because of his age, his previous length of service with the Respondent, his intention to remain in the Respondent’s employment until he retired and the relative merits of his application given his evidence about the circumstances by which he came to cease employment with the Respondent. It was also argued that Mr Brocklebank acted quickly, and that the application was lodged expeditiously, as soon as he decided to seek legal advice. The slight delay between seeking that advice and lodgement of the application was minor and easily explained. Mr Brocklebank attended the funeral of a very close friend on the first available day and his solicitor was unavailable the next 2 days. Once Mr Brocklebank consulted his solicitor the application was lodged on the following day. The Respondent’s contentions The Respondent’s representative filed a detailed outline of contentions which not only dealt with the relevant authorities but also sought to advance argument about the circumstances under which the employment relationship came to an end. Although this latter material was at odds with the information contained in Mr Brocklebank’s affidavit, it is not material which I can consider. It is not direct evidence and its veracity has not been tested by cross-examination. This is in direct contrast to the evidence provided by Mr Brocklebank. The Respondent also argues it will suffer prejudice in a number of respects. Firstly, Mr Brocklebank was paid pro-rata long service leave entitlements at the time of his departure notwithstanding that he was not entitled to such payment. Secondly, this financial outlay will be compounded by the lost production and costs associated with bringing a substantial number of witnesses to a hearing. Finally, the Respondent replaced Mr Brocklebank in its employ given the (alleged) agreed circumstances of his departure and Mr Brocklebank is now, belatedly, seeking to be reinstated. This will cause significant disruption. Conclusions -- 2 of 3 -- 3 After considering the competing submissions and the evidence of Mr Brocklebank – especially his evidence concerning the reasons for the delay in lodging his application – I have decided that this is an appropriate case in which I should exercise my discretion to extend the time within which to lodge the application. I extend time until 21 April 2005. After hearing Mr Brocklebank’s evidence I can well understand that someone of his age and apparent educational background might well be in a state of disbelief and disenchantment after their termination and anxious about their immediate and reasonable term future. I also accept that an appropriate reaction in such circumstances was to grasp the opportunity to leave the immediate environment by embarking upon a business trip with a friend. In this regard, I do not think it unreasonable that Mr Brocklebank held out some hope that his participation in the trip might lead to the prospect of some paid employment. When this was not forthcoming it was not surprising that he, then, turned his mind to the issue of what he could do about his termination and the perceived unfairness of it all. Having decided upon that course of action Mr Brocklebank lodged the application very quickly. After considering Mr Brocklebank’s evidence I have decided that the 40 day delay was entirely explainable. It was also broken down into 3 separate and distinct periods. The initial 9 days was a period of disbelief, disenchantment and concern about the immediate and reasonable term future. The second period involved a decision to “flee” from the immediate environment accompanied by some hope (albeit forlorn) that the business trip might lead to some paid employment. The third period involved making contact with a solicitor to challenge the termination and waiting for a few days before a meeting could be arranged to progress the matter. Taken together, the first and third periods total less than 21 days. The bulk of the 40 day delay is explained by the 23 day trip to north Queensland and the Northern Territory where it would have been reasonably impracticable for Mr Brocklebank to seek advice or to arrange for the preparation of any application. Whilst the Respondent will suffer some prejudice, in that it acted to replace Mr Brocklebank and will incur some costs in its defence of the application, that prejudice is minor compared to that which would be suffered by Mr Brocklebank if he were not allowed to pursue his application. Finally, whilst the employer has attempted to argue – through its statement of contentions – that Mr Brocklebank’s application lacks merit this is disputed by Mr Brocklebank in his affidavit. Ultimately, it will be up to another Member of the Commission to determine where the truth lies. If it is established that Mr Brocklebank’s recollection of events is false the Respondent will be able to seek to recover any costs it incurs in its defence of the application. However, that is a matter for the future. In summary, it is the Commission’s decision that the time limit for filing application number B631 of 2005 be extended to 21 April 2005. I order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2005 18 July Appearances: Mr R. Sahay, of Stephens & Tozer, for the Applicant. Ms L. Vanderstoep, of Australian Industry Group, Industrial Organisation of Employers (Queensland), for the Respondent. Released: 20 July 2005 Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --