Efu v Chubb Protective Services Pty Ltd [2003] QIRC 65 (2003) 173 QGIG 146

146 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 May, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Tafuaupolu Efu AND Chubb Protective Services Pty Ltd (No. B1865 of 2002) COMMISSIONER BLADES 1 May 2003 Unfair dismissal – Extension of time hearing – Delay in the order of four months – Contract for employment in Nauru – Contract of employment with respondent ongoing – Specific provision for continuation of employment contract while working in Nauru under Nauru contract – Nauru contract terminated – Continued work for respondent under original ongoing contract – Held no dismissal – Extension of time refused. DECISION By an impassioned plea for justice, Mr Efu seeks an extension of time within which to lodge his application for reinstatement due to unfair dismissal from the employ of Chubb Protective Services Pty Ltd. Mr Efu had been employed on Nauru as a Security Officer from 18 October 2001. He had been originally employed as a casual Security Officer in Brisbane from 9 December 2000, and as part-time Security Officer from 29 June 2001. In October 2001, he was selected to participate in Chubb’s operations in the Republic of Nauru. Various contracts then governed his employment at Nauru. -- 1 of 3 -- 16 May, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 147 The application for reinstatement, prepared by a Solicitor, was a little unusual in that it alleged firstly that the dismissal occurred on 10 June 2002 but then in the annexure of material facts, alleged that if the dismissal had not occurred on 10 June, 2002, it occurred on 13 November 2002. This allegation understandably caused confusion. It came about because, as revealed by the employee’s work history, Mr Efu alleged he was demoted to a train guard at Brisbane from 10 June 2002 to 13 November 2002. The application for reinstatement was not lodged until 21 November 2002. At a directions hearing, an order was made that an extension of time application be heard in relation to the allegation that there was a dismissal on 10 June. The application was over four months out of time. Section 74(2) of the Industrial Relations Act 1999 (the Act) provides that an 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. The cases show that matters to be taken into account include the length of the delay, the explanation for the delay, the prejudice to the applicant if the extension is not granted, the prejudice to the respondent if the extension is granted and any relevant conduct of the respondent. The dispute between Mr Efu and his employer first came before the Commission, differently constituted, by way of a dispute notification under s. 229 of the Act, lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees on behalf of Mr Efu. It was alleged that the contract of employment had been unlawfully terminated. After a compulsory conference on 8 August, the Commissioner issued a statement to the parties that he considered there had been no termination but that the transfer to other duties was simply part and parcel of the nature of Chubb’s operation to move its employees around. Because of the Union’s action in lodging the dispute notification rather than an unfair dismissal application, it might be inferred that the Union was in two minds about whether there was a dismissal. However, the Commissioner in the statement he issued, drew attention to the fact that if it be alleged there was a termination, an unfair dismissal application was required. None was forthcoming. Meanwhile, Mr Efu continued to be employed at Chubb’s operation in Brisbane. Mr Efu explained that the statement by the Commissioner was not received by him until approximately 13 September 2002. On 30 September he sought independent legal advice from a Solicitor. On 4 October, he contacted the Union seeking his file which was not received by the Solicitor until 28 October. Mr Efu alleges that on 1 November he telephoned Chubb seeking his roster for the coming week and was told that there was no more work available. He signed an application for reinstatement on 14 November and which was subsequently lodged on 21 November. The material produced at the hearing indicates that Mr Efu knew that he had been redeployed as a guard on the trains on 14 June although he says that the letter of termination was not presented to him until 25 June. The respondent has submitted that an extension of time should be refused. The delay has been unexplained and the applicant must have intentionally delayed filing the application until it became obvious in November that he was to be offered no more work with Chubb. It is pointed out that between 10 June and mid November, Mr Efu received 715 hours of work and received $10,679.82 in wages, indicating that the employment relationship was not broken. The respondent relied upon Rich v Chubb Protective Services (2001) 167 QGIG 159 and cited Hall P in a number of respects, including that an applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period. The applicant has alleged ignorance of the time limit and delays caused by the respondent, the Commission, the Union and his own Solicitor as a justification for the extension. The claim about ignorance is easily made and is hard to counter. There is no evidence that the applicant was ignorant of the time limitation but that might be inferred. However, it can also be inferred that the Union knew of the limitation period, the original notification to the Commission was itself out of time and there was a 3 month delay between the dispute conference on 8 August when the Commissioner said “I propose to take no further action” and the lodgement of the application. The applicant has not sought to obtain any explanation from the Union about these matters. I would have thought it important for some evidence of the advice he received from the Union to be placed before the Commission. The applicant certainly pursued his Union and the employer about the matter with meetings on 19 June and 25 June. There was the compulsory conference on 8 August, a further phone call to the Union on 23 August until he sought independent legal advice on 30 September. He sought the file from the Union on 4 October and it was not his fault it was not received by his lawyer until 28 October. It may be that the Union believed also that there had been no dismissal and that this was the cause of the inaction. In fact, Mr Efu indicates in his affidavit that the Union advised him on 8 August to accept redeployment back in Brisbane while the matter was being investigated further. I would have thought that the onus being on the applicant to demonstrate that the justice of the case required the extension, there was an onus to call some evidence from the Union. While ignorance may well be a reasonable explanation for some delay and the default of advocates and representatives is not normally visited upon applicants, these failures to produce any explanation at all from the Union do not sit comfortably with the applicant’s onus of positively demonstrating that the justice of the case requires the indulgence of an extension of time. This inaction does not provide an adequate explanation for the delay. While the applicant was unrepresented at this hearing, he had the benefit of legal advice for it and a Solicitor appeared for him at the directions hearing. It was also the submission of the respondent that there was no dismissal at all. That issue, I think, can be addressed on the material provided. It is not a case of considering whether there is or is not a case for arguing that the dismissal was unfair because of inconsistent reasons or because of natural justice breaches and/or the absence of warnings. If there was no dismissal, there can be no relief under the provisions of the Act. Under the terms of the latest Nauru contract dated 4 April 2002, Mr Efu was employed “for the period the Company is engaged to perform the security services to which your work in Nauru relates.”. The contract also provides for termination on giving one week’s notice. The letter of 10 June reads: “This is in relation to your current work contract in Nauru as a Safety Officer. There has been a client request that we reduce our staff size on Nauru due to a decrease in the asylum seeker population. As a result your Nauru contract has been terminated. I have advised the Chubb Pay Office to ensure all monies owing to you are paid immediately. I would like to thank you for your contribution and wish you all the best in the future.”. -- 2 of 3 -- 148 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 May, 2003 Viewed in isolation, that letter indicates a termination of employment. However, there is also the following clause in that written contract: “(For those currently employed by Chubb only) You agree that the work performing (sic) in Nauru is separate from your existing contract of employment with the Company. You and the Company mutually agree that you are not required to perform work under your existing contract of employment with Chubb, for the period during which you work in Nauru. You agree that, during the period of operation of this agreement for you to work in Nauru, you will not be paid under your existing contract of employment with Chubb. The Company confirms that continuity of your employment with Chubb will not be broken by you agreeing to work in Nauru under this agreement.”. Mr Efu alleges that the redeployment meant a substantial reduction in remuneration. That is a demotion and a demotion can constitute a dismissal – see Advertiser Newspapers Pty Ltd v Industrial Relations Court of South Australia and Anor (1999) 90 IR 211. The South Australian Legislation, the subject of that case, is somewhat similar to the Act. It was recognised that there can be a termination of employment notwithstanding that there has been a subsequent re-engagement under a fresh contract of employment (at p. 219). But it depends on whether there has been an agreement or a continuance to work in a lower paid position without protest. At page 220 Bleby J said: “Depending on the original contract, there may also be a term of that contract that the employer reserves the right to direct the performance of higher duty for such period as the employer shall determine and to pay the employee at the higher rate for only so long as such duty is performed. If in those circumstances the employer determines that there will be no more higher duty performed, the employer will be acting within the terms of the contract. There will be no termination of the contract by the employer and no repudiation, because the employer was acting within the terms of the contract.”. By the terms of Mr Efu’s contract, Mr Efu agreed that his employment with the Company under the Nauru contract would be terminated by the Company giving one week’s notice or a payment in lieu. He also specifically agreed that the Nauru contract did not break the continuity of his employment with Chubb. The letter of 10 June 2002 terminated the Nauru contract. That it related only to that Nauru contract is exemplified by the words used in the first paragraph namely, “This is in relation to your current work contact in Nauru as a Safety Officer”. The letter did not purport to terminate Mr Efu’s employment with Chubb. That employment continued on as evidenced by the work that Mr Efu did on the trains and by the payments that were made to him. The protests he made about the changes were really in breach of his initial agreement with Chubb. In other words, he had already agreed to the redeployment. Under s. 78(1) of the Act, there can be no remedy unless the Commission is satisfied that an employee was unfairly dismissed. Where there is no possibility of such a finding, there is no point in proceeding further. In Tarong Energy Corporation Ltd v Campbell (2002) 169 QGIG 132 Hall P said that an application for extension of time should be dismissed if the application has no or only illusory prospects of success. His Honour has said on another occasion that the justification for that approach is that it cannot be appropriate to exercise the statutory discretion to revive a statute barred action in order that it may fail – Gamellaro v Catholic Education Office Townsville (1997) 154 QGIG 86. If, by the failure to give a week’s notice (if that be so) or by some other act, there has been a breach of that Nauru contract, it is not sufficient to give rise to an action for unfair dismissal under the provisions of the Act. There can be a breach of contract without there having been a dismissal. There were time cards annexed to the respondent’s material. Because they reveal that Mr Efu did not actually work between 24 May 2002 and 4 July 2002, I have given consideration to a possibility that the “redeployment” was a recent invention to protect the employer against an allegation of unfair dismissal. However, Mr Efu’s affidavit contains an admission that he was told by a person named Kelly on 14 June 2002 that he was being redeployed as a guard on the trains. This was prior to any dispute having arisen, was the cause of the dispute and the failure to work during that period may have been due to other causes. The respondent alleges that the applicant was on holidays but that is denied. It is irrelevant. The applicant annexed pay slips to his material which indicate he was paid for the period. The respondent also submitted on the authority of Rich that because the applicant had consciously chosen not to act within the 21 days and subsequently had a change of mind, the discretion to grant the extension should not be exercised. That is an inference which can be drawn but I am not convinced it should be drawn because Mr Efu seems to have been fighting his Union as much as the respondent, perhaps because he believed that there had been no dismissal. I have considerable reservations that the applicant has provided a reasonable explanation for the delay. Admittedly, he initially protested about the demotion but there seems to have been no further protest to the employer after 8 August until the filing of the application. It seems that he has misunderstood the difference between a “demotion” authorised by his contract of employment and a “demotion” not authorised and constituting a dismissal. On the material produced to the Commission, there does not appear to have been a dismissal because the “demotion” or return to his Brisbane employment was authorised by his contract and the applicant could not succeed in any claim that the dismissal was harsh unjust or unreasonable. I would therefore refuse the application for the extension of time. The application is dismissed. It has been pointed out that this hearing has related to the allegation that the dismissal occurred on 10 June. If there is to be an allegation that there was a dismissal on 13 November 2002, the applicant will need to file afresh. B.J. BLADES, Commissioner. Hearing Details: Appearances: Mr T. Efu, applicant, on his own behalf. Mr A. Herbert, Counsel, instructed by Mr G. Muir of Employer Services, for the respondent. -- 3 of 3 --