Bakon v Quirk Bros. Pty Ltd [2003] QIRC 60 (2003) 172 QGIG 1949

2 May, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1949 ######################################################################################################################### ## 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 15 April 2003 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). At the outset of the hearing, the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), representing the respondent opposed the granting of any extension of time required to enable the matter to be heard and further, after hearing certain sworn evidence from the applicant, sought that the matter be struck out on the basis, that in the view of the respondent, the applicant stood so little prospect of success that the Commission should refuse the extension of time application. The matter was first scheduled for a conciliation conference on 29 January 2002 before Bloomfield C as he then was. The conference was abandoned because of the failure of the applicant to comply with the directions order issued on 4 January 2002 which stated inter alia: -- 1 of 3 -- 1950 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 May, 2003 “That a conference be held by way of a teleconferencing facility before Commissioner A. L. Bloomfield, on the twenty-ninth day of January, 2002, commencing at 10:oo am and to facilitate this the Applicant is to advise of a telephone number to be available on and the Respondent is to be available on telephone number 4683 3158.”. Specifically the applicant failed to advise the Commission of his contact number. The Commission wrote to the applicant on the same day (29 January 2002) stating inter alia: “You are now required by the Commission to provide reason(s) for your non-compliance with the Directions Order. If you still intend to proceed with your application a request can be made for a new conference date. You may provide those reason(s) for non-compliance, and any request for a new conference date, to the writer at the undermentioned phone or fax numbers. If there is no response from you by close of business on Thursday 14 February 2002 your application may be struck out in accordance with the Industrial Relations Act 1999.”. This correspondence was addressed to the applicant at PO Box 103, Amiens, Q. 4352. The applicant in submissions recalled receiving something from the Commission about this time. However, according to the material held on the file, this correspondence was returned to the Registry on 21 February 2002. Further correspondence in similar terms to the letter of 29 January 2002 was dispatched to the applicant on 21 February 2002 at the only other address, 246 Quirks Road, Amiens. This was also returned with the stamped date of receipt in the Registry being 26 February 2002. Neither the Registry, Commission nor respondent had any contact from the applicant until 25 July 2002, when the following unsigned note arrived: “To: Mr Bloomfield I am writing a short note explaining the reason this claim has taken so long to get to you. I have been suffering severe financial hardship. It took Work Cover 5 months to pay me the money which I was entitled. In that period, my car, I was paying off while working at Quirks Bros was repossessed after 2 and a-half years of payment. I would still have it today if I hadn’t of been sacked on a medical certificate as I should still have my job. Thank you.”. Because of this correspondence the parties were given notification that the matter was set down for a conference before the Commission on 16 August 2002. On this occasion the applicant participated, however, the parties were unable to reach agreed outcome. A Certificate pursuant to s. 75(3)(a) was issued on 16 August 2002 advising inter alia that the applicant had 6 months from 16 August 2002 to take some action in relation to the application, otherwise it would lapse. On 16 January 2003, the Registry received a letter from the applicant dated 28 November 2002 which indicated that the applicant still had concerns over his termination. The Deputy Industrial Registrar contacted the applicant to ascertain the purpose of the correspondence and was told by the applicant that: 1. he had only gotten around to posting the letter yesterday; and 2. he would send in a request for the matter to proceed to hearing. On 21 January 2003 the Registry received a further letter from the applicant dated 16 January 2003 which, despite a lack of clarity as to the purpose of the letter, was taken to be a request for the matter to proceed to hearing. At the Callover of 7 February 2003 the matter was set down for hearing on Friday, 4 April 2003. Directions for the conduct of the matter were subsequently issued on 11 February 2003, requiring the applicant to provide witness statements by 4 p.m. on Friday, 7 March 2003 and statements in reply by 28 March 2003. The applicant failed to comply with time frames contained in the Directions. The witness statement from the applicant and supporting witness statements from Ms Kerri Austin were eventually received between 17 March and 4 April 2003 (the hearing date). As a result of the delay in the lodgement of the materials, the respondent sought an adjournment of the hearing. The applicant opposed the granting of an adjournment and the Commission agreed with the applicant that, despite the delays, the hearing should proceed as planned. This decision was taken without the knowledge that the applicant would submit further material on the morning of the hearing. Regarding the application for an extension of time. The application was lodged on 27 December 2001. There is some question as to the actual date of termination. The applicant in his application stated that he was employed until 28 November 2001. The Employment Separation Certificate attached to the application also recorded 28 November 2001 as the date last worked. However, the applicant in his material stated, for reasons unknown to the Commission, that he believed his termination to have occurred on 3 December 2001. In either case the applicant requires leave of the Commission to proceed. -- 2 of 3 -- 2 May, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1951 Then, to complicate the matter further, the respondent in opposing the extension of time stated, and plausibly so, at page 11 of the transcript the following: “Ms Lindsay: In order to assist Mr Bakon to receive financial assistance from unemployment benefits. So we say that it is implied that He’s resigned from the company as of the 10 th of December 2001 and was not terminated on the 28th of November that’s alleged in his application and subsequent statements.”. (lines 46 to 50) and further at page 13 of the transcript: “Ms Lindsay: It seems odd that someone who has allegedly been terminated then fronts with a WorkCover certificate to explain absences from the employer until such time that he seeks an employment separation certificate. We would argue that that in itself suggests that the applicant was not indeed terminated on the 28 th of November and in fact resigned through his request for an employment separation certificate on the 10th of December.”. The lack of understanding the applicant has of the process in which he is involved is palpable. Ms Lindsay (for the respondent) on the other hand has quite a deal of experience in this Tribunal and across a range of industries. If what she submits is supported by evidence, particularly where she stated at page 13 of the transcript: “We’d also had some concerns that if Mr Bakon alleges that he was terminated on the 3rd of December we have some concerns that prior to that date – well, it’s unclear but we would maintain that the date is placed in his application which is the 28th of November 2001. Between that time and up until the time the employment separation certificate was issued Mr Bakon presented MR Quirk with a WorkCover medical certificate which would suggest that he was still employed with the respondent at that time and in fact no termination of the employment relationship happened.” (lines 22 to 31) then, as she says, the applicant stands little or no prospects of success. However, the evidence she relies on is– (a) contested; and (b) not yet before the Commission. Of course the problem for the respondent is that if its version of events is accurate, then the applicant needs no extension of time to have the matter heard and determined. I note that the opposition to the granting of the extension was at two levels – firstly, the alleged tardiness and lack of activity by the applicant in progressing the matter; secondly, that any extension should be refused on the basis that the applicant stands little or no prospects of success. The second issue cannot be determined without first knowing whether or not an extension is required. It seems to the Commission that should the submissions of the respondent be found to be correct then the application would fail for want of jurisdiction i.e. that there was no termination at the hands of the employer. Further, if there was a termination at the hands of the employer whether or not that termination was harsh, unjust or unreasonable would need to be determined by the Commission. There are indications that the applicant may find the task ahead difficult. The applicant has acknowledged (under oath) lying to his employer regarding an absence from work. His subsequent view, expressed in cross-examination was that had he been the employer confronted with similar circumstances, he would “sack that person there and then”. The respondent conceded that this was after acquired knowledge. The Commission is reluctant to discontinue this matter without hearing all of the evidence in order to determine how the after acquired knowledge should be viewed. On the information available to date, the Commission is not prepared to determine the date of dismissal, if indeed one occurred. Therefore the decision regarding the granting or refusal of an extension of time remains reserved. In light of the foregoing, particularly the evidence of the applicant as quoted and the current circumstances of the respondent, the Commission will allow the applicant to consider his position and advise the Commission within 21 days of the date of release of this decision whether he wishes to continue or discontinue the matter. D. K. BROWN, Commissioner Appearances: Hearing Details 2003 4 April 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: 15 April 2003 -- 3 of 3 --