Bakon v Quirk Bros. Pty Ltd [2003] QIRC 121 (2003) 173 QGIG 866

866 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 July, 2003 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Robert Graham Bakon AND Quirk Bros. Pty Ltd (No. B2318 of 2001) COMMISSIONER BROWN 26 June 2003 FURTHER DECISION This matter relates to an application by Robert Graham Bakon (the applicant) for reinstatement to his former position of field hand with Quirk Bros. Pty Ltd (the respondent). The Commission released a decision on 15 April 2003 relating to the threshold matter of whether or not the application was lodged out of time. Put briefly, the submissions and evidence before the Commission at the time were insufficient to confidently determine the matter therefore the decision on the threshold matter was reserved pending the hearing of the remainder of the evidence and submissions. This decision is to be read in conjunction with the decision dated 15 April 2003. The argument of the respondent was that the applicant abandoned or resigned his employment on 10 December 2001. The applicant represented himself and in doing so claimed in evidence and submissions that he was terminated on 28 November 2001 or on 3 December 2001. If that is correct, the applicant does require an extension of time to allow the application to be properly before the Commission as the application should have been lodged by close of business on 24 December 2001 (if 3 December 2001 be the termination date) and was actually lodged on 27 December 2001. In the view of the Commission, the principles to be applied in determining the question are those set out in Jacqueline Brodie-Hanns v MTV Publishing Limited Industrial Relations Court of Australia, VI 1725R of 1995, Marshall J, 31 October 1995: “ 1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by the delay will go against the granting of the extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”. Despite the short extension required and having considered the submissions and evidence of the applicant, the Commission is of the view that the tests listed above must be applied. Regarding 1. The explanations given by the applicant for the delay were a lack of funds necessary to lodge the application and the difficulty in travelling to and from town – Amiens to Stanthorpe. On his evidence the applicant, within the 21 days following the termination, travelled to Stanthorpe to – • visit a doctor; • attend to Workcover details; and • arrange for parenting allowance. Alleged difficulty caused by the need to travel to Stanthorpe is not, in the view of the Commission, an acceptable reason for the delay. The argument regarding the lack of funds, on the other hand, is worthy of consideration. At the time $46.50 was the sum required for the lodgement fee and it was claimed by the applicant that his financial circumstances prior to 27 December 2001 were dire. When questioned by the Commission as to why it would be that the problem of insufficient funds existing up to 24 December abated on 27 December 2001. The applicant claimed that money must have been credited to his bank account over Christmas Day and Boxing Day by Centerlink. No documented evidence of this was provided. The applicant acknowledged having been paid $239.78 soon after his dismissal but said this was spent on pressing necessities. -- 1 of 3 -- 11 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 867 Whilst I have some sympathy for this argument, it appears that it relies on an assumption that the Commission should allow an extension of time because an applicant, in establishing financial priorities, placed higher importance on matters other than his reinstatement application. In the opinion of the Commission, the 21 day limitation for the lodging of an application such as this should not be disregarded for such a reason. Regarding 2. The actions of the applicant are not, in the view of the Commission, the actions of a person actively seeking to correct the injustice of an unfair termination. The 15 April 2003 decision records relevant events as they occurred, for completeness I list the significant events: • 27/12/2001 – application lodged; • 29/01/2002 – conference scheduled (applicant failed to attend); • 25/07/2002 – the applicant contacts the Commission; • 16/08/2002 – the applicant participates in a conciliation conference – no agreed outcome was reached; • 16/08/2002 – Certificate pursuant to s. 75(3)(a) issued; • 16/01/2003 – Letter from applicant dated 28/11/2002 received by Registry, prompting Registry to contact applicant; • 21/01/2003 – further letter from applicant; and • 07/02/2003 – matter proceeds to call-over. Repeated attempts to contact the applicant between 29 January and 25 July 2002 failed. The applicant (transcript page 20, lines 50 to 52) acknowledged receiving in February 2002, a notification from the then Commissioner Administrator that his application could be struck out if he did not respond to the Commission. No response was forthcoming. The applicant did not diligently apply himself to pursuing his application. The applicant fails the test in 2 as, in the view of the Commission, the challenge to the decision to terminate was not actively pursued. Regarding 3 and 4. Prejudice to the respondent. According to the submissions of Ms Lindsay, for the respondent, the respondent’s business has suffered greatly because of the drought. Consequently the respondent’s circumstances have changed greatly between December 2001 and the first conference in August 2002 and even more to the present. All delays from the original delay in filing were caused by the applicant. The circumstances of the respondent deteriorated rapidly from November 2001 and by the date of the first conference and until the date of hearing, according to the unchallenged submissions of the respondent, the respondent was “in extreme drought conditions and all employees – including family members have been made redundant” (Transcript page 14, line 15) and the farm has been approved for drought relief at a Federal level. In my view the respondent was not prejudiced by the passage of time in relation to the ability to defend the action. There was no mention of crucial material being unavailable or other barriers to the mounting of a proper defence. However, I believe the respondent would be severely prejudiced in the event that the applicant was successful. Had the application been lodged and finalised in a timely fashion, any compensation payable would have been the responsibility of the then viable, Quirk Bros. Pty Ltd. As it stands now an award for compensation would have a much greater impact on the respondent. The Commission’s view is that serious potential exists for the respondent to suffer or be prejudiced by the late lodgement and the subsequent tardiness in pursuing the matter. Regarding 5. This relates to the merits of the case in so far as it has been held that it is not in the public interest to grant an extension of time to enable a matter to be heard, where that matter is doomed to fail. (See Chief Commissioner Hall (as he then was) in Teresa Gamellaro v. Catholic Education Office, Townsville (1997) 154 QGIG 86) The substantial matter to be determined is whether the applicant abandoned or resigned his employment on 10 December 2001 as contended by the respondent or whether as the applicant argued, he was dismissed on an earlier date (3 December or 28 November 2001). In that neither the applicant nor the respondent claimed to have witnesses to their version of events and the evidence of each is in direct conflict, it falls to the Commission to reach a conclusion based on the plausibility of the evidence, the consistency of the evidence and the demeanour of the witnesses. The evidence of the applicant lacked consistency. At various stages in his evidence the applicant claimed to have been terminated on 28 November 2001 and at other times on 3 December 2001. Further, as mentioned in the decision of 15 April 2003, the applicant conceded that he lied to his employer regarding an absence from work just prior to his termination. This was not known by the respondent at the time and is mentioned only in relation to the reliability of the applicant as a witness. I accept the submissions of the respondent that the action of the applicant in presenting a doctor’s certificate to the respondent after the date that the applicant alleged that he was terminated, is not consistent with a belief that the employment had ended on 3 December 2001 or earlier. I further accept the submissions for the respondent and the evidence of Mr Quirk that the applicant resigned on 10 December 2001 and that he (Quirk) back dated the Separation Certificate to 3 December 2001 in an attempt to assist the applicant. The applicant’s application, in the view of the Commission, would fail. I adopt the view of Chief Commissioner Hall (as he then was) in Teresa Gamellaro v. Catholic Education Office, Townsville (1997) 154 QGIG 86. The relevant parts of that decision are produced hereunder: “The Commission has of course always been prepared to dismiss an application for an extension of time in cases where it is clear that a substantive application cannot succeed. An example is Marston v Ocean Sky. The justification for the approach is that it cannot be appropriate to exercise the statutory discretion to revive a statute barred action in order that it may fail.”. And further – “Ordinarily of course the state of evidence on an application for extension of time will not permit formation of a view so adverse to the applicant as to justify dismissal of an application on this ground. This, however, is the rare case in which it seems to me it is possible to form such a view.”. This is also a case where all of the evidence and submissions are before the Commission and considering them, I find that there would be no prejudice to the applicant should the extension required be refused in that the application would fail. -- 2 of 3 -- 868 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 July, 2003 I am not prepared to grant the extension sought. The application is dismissed. D. K. BROWN, Commissioner Appearances: Hearing Details: 2003 23 May Mr R. Bakon on her own behalf. Ms S. Lindsay for the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers on behalf of Quirk Bros Pty Ltd. Released: 26 June 2003 -- 3 of 3 --