Dabelstein v Dowding and Mills (Australia) Pty Ltd [2002] QIRC 175 (2002) 171 QGIG 779

6 December, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 779 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – extension of time Lewis Dabelstein AND Dowding and Mills (Australia) Pty Ltd (No. B1325 of 2002) COMMISSONER BECHLY 26 November 2002 DECISION An application by Mr L. Dabelstein for reinstatement as manager of the respondent was made on 20 August 2002 following his retrenchment on 8 July 2002. The application was filed some 22 calendar days beyond the date on which the Act requires that such applications be made. This application seeks extension of the time within which an application may be made. -- 1 of 2 -- 780 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 2002 The applicant sought advice from a solicitor almost immediately after he was retrenched and was advised that an application to this Commission for reinstatement was required to be filed within twenty-one days. He was referred to an Advocate, Mr R. Steinitz, who at 3:00 p.m. on Wednesday, 10 July, also informed him that an application to the Commission was required to be filed within twenty-one days. The applicant had planned a camping holiday of some four weeks to commence on 13 July 2002. The holiday, to be taken with another couple, was to progress through remote parts of Australia where there was limited or no communication available with Brisbane. Rather than delay the departure to enable contact with the respondent or the taking of such other steps as may be necessary, the applicant advanced the commencement of the holiday to 6:00 a.m. on Thursday, 11 July. The reason for this advancement was a desire to get away from the unpleasantness that the redundancy had entered into his life. The applicant, as a result of the remoteness of his travel, was able to gain only limited contact with Mr Steinitz. However, some arrangements were made for correspondence which might be directed to his residence to be opened and the contents be made known to him by a member of his family. The applicant states that on the day he was advised of the redundancy by the Managing Director Mr J. Dickson he requested a reconsideration of the eight weeks’ salary paid as a redundancy payout and was advised that the request would be considered. No response to this request was given and on 19 July a letter was sent to the respondent by Mr Steinitz indicating that instructions had been given to file an application for reinstatement and that an authorisation had also been given to negotiations to endeavour to resolve the matter without litigation. There was also a telephone communication on 25 July between Mr Steinitz and the respondent’s representative, Queensland Chamber of Commerce and Industry Limited (QCCI). QCCI replied by a letter dated 29 July, the last day within which an application could be filed, and advised that in the absence of instructions by the applicant to his representative no benefit could be seen in a meeting to discuss the matter. The applicant returned from holidays on the afternoon of 9 August but did not contact Mr Steinitz until 15 August when he was advised that private negotiations were no longer available. It was not until 20 August that he signed the application for reinstatement prior to it being filed. An authority for Mr Steinitz to act as Agent was signed on the same day. The decision by Mr Dabelstein to proceed on a month’s holiday within a few hours of his first consultation with Mr Steinitz has been the prime cause of the delay in the filing of this matter. The ability to bring forward the departure date suggests some flexibility in travel arrangements. A delay of a few days would have enabled a period of seven days to elapse to receive a response from the Managing Director about the request for a better redundancy package. Seven days was the period agreed between the applicant and Mr Steinitz to await the reply. Had the departure been so delayed appropriate instructions could have been given to Mr Steinitz as to representations to be made or action taken. Both parties touched only briefly upon the merit of the application. No evidence was advanced by the respondent. A number of employees were made redundant at the same time as the applicant. He had played a part in selecting the other employees for redundancy upon the instructions of the respondent. He states that he was unaware until 8 July that his position was to be made redundant. He has been paid all accrued entitlements for annual leave and long service leave, the salary due for July, five weeks’ salary in lieu of notice and eight weeks’ salary as a redundancy payment. It is this last mentioned payment and the suddenness of the redundancy which is in contention. Some time in October 2002 the applicant entered into a business partnership which is providing an income marginally less than that which he received from the respondent. While it was contended that this should not be relied upon in determining the matter before me because the future success of the partnership was not known, it is a factor which should be taken into overall consideration in the determination of the matter. The partnership is in the same type of business previously managed by the applicant and is producing a roughly equivalent income. The applicant is experienced in the particular business environment and presumably is capable of making a reasonable assessment of prospects of success for the enterprise. On a consideration of all the factors put by the parties I have concluded that an extension of time should not be granted. While the length of the delay is not exceptional the explanation for the delay is not acceptable. On the material put I consider it was not reasonable, in the full knowledge that there was a specific time within which the application had to be filed, to advance the commencement of a holiday which took the applicant out of contact with his representative. The only prejudice the applicant will suffer is the inability to institute an application with, in my view, a problematic outcome. If the extension is granted the respondent will be put to the cost of defending the matter where a redundancy payment has been made and the applicant has been in reasonably comparable employment which commenced within the period that the final payments for annual leave, termination and redundancy appeared to have covered. There does not appear to have been any conduct of the respondent subsequent to the termination which has prevented the applicant from reasonably pursuing the matter. As to the argument that the respondent was aware at all times that the applicant was intending to dispute aspects of the termination it is the responsibility of the applicant to take all reasonable steps to ensure that the statutory time limits are complied with. President Hall in Schostakowski v Australian Meat Holdings Pty Ltd (2002) 169 QGIG 284 commented “I entertain a clear view that the 21 day period should be seen as an assessment by the legislature that in the ordinary category of cases justice will best be served by adhering to a 21 day limitation period, that an applicant for an extension of time within which to appeal has a positive burden of demonstrating that the justice of the case requires the indulgence of a further period, and that it is not the position that once an application for extension of time is made the Court is to exercise a broad discretion on the basis that all parties are equally placed.”. The application is refused. R.E. BECHLY, Commissioner. Appearances: Released: 26 November 2002 Mr. R. Steinitz, of RH Steinitz & Associates, for the Applicant. Mr. J. Dwyer, of Commerce Queensland, for the Respondent. -- 2 of 2 --