Butler v Leeson Pty Ltd; Leeson Pty Ltd v Butler [2002] QIRC 173 (2002) 171 qgig 772

772 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 2002 ########################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Carole Butler AND Leeson Pty Ltd (No. B1947 of 2001) Industrial Relations Act 1999 – s. 331 – application to strike out Leeson Pty Ltd AND Carole Butler (No. B1499 of 2002) COMMISSIONER THOMPSON 21 November 2002 Application for reinstatement – Application to strike out/costs – Extension of time dealt with primarily – 119 days out of time – Application dismissed – Application for costs denied. DECISION Background An application (No. B1947 of 2001) for reinstatement was filed on 6 November 2001 by Ms Carole Butler seeking reinstatement to her former position as a children’s nanny by her employer Leeson Pty Ltd (Leeson). The application identified 17 June 2001 as the date in which the employment relationship ceased, and gave a number of reasons as to why the application was outside the twenty-one (21) day time limit as provided in s. 74(2) of the Industrial Relations Act 1999 (the Act). The period in which the application was out of time was of some 119 days. Conciliation conferences, in respect of the application, were held before Commissioner Brown on 29 November 2001 and 10 July 2002. A certificate, in accordance with s. 75(3)(a) of the Act was issued by Commissioner Brown on 20 August 2002, in which he made, amongst other comments, the following observation in respect of the application being out of time: “However, the application was filed out of time. The applicant was advised that the extension of time required would unlikely to be granted for the reasons offered – Upset following dismissal – Suffering from Carpal Tunnel Syndrome.”. -- 1 of 7 -- 6 December, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 773 On 20 September 2002, an application was filed (No. B1499 of 2002) by Mr Trevor Lee, a director of Leeson, seeking: “(a) That Case No. B1947 of 2001 in this Commission, being an Application for Reinstatement by Carole Ann Butler, be dismissed under Section 331(b)(ii) of the Industrial Relations Act 1999 on the basis that those proceeding[s] before [the] Commission are not necessary or desirable in the public interest; (b) That Carole Ann Butler pay to Leeson Pty Ltd its costs of and incidental to defending the proceedings referred to in paragraph (a) above, and of these proceedings, on the basis stated in Section 335(b) of the said Act, that is, that those proceedings for reinstatement caused costs to be incurred by Leeson Pty Ltd, because of an unreasonable act committed by the Applicant Butler, that is, the act of brining those proceedings and allowing those proceedings to remain on foot, when the application was not made within the time prescribed by Section 74(2)(a) of the said Act.”. At the commencement of the hearing of application No. B1499 of 2002 on 13 November 2002, Mr John Merrell, of Counsel, representing Leeson, in speaking to the application, sighted the absence of any action by Ms Butler since the issuing of Commissioner Brown’s certificate on 20 August 2002 as the reason behind the application, and went on to suggest that a circumstance existed where it could be argued that there was a reverse onus on Ms Butler to put forward evidence and submissions as to why an extension of time should be granted. Mr Stephen Royce, appearing on behalf of Ms Butler, upon consideration of Mr Merrell’s proposition, indicated a preparedness to accept and proceed along the line suggested by Mr Merrell. The Commission accepted the agreed position of the parties as to the conduct of the proceedings on the basis that it made “good sense”. Carole Butler In support of the case for the granting of an extension of time in matter No. B1947 of 2001, evidence was adduced from Ms Butler, the applicant in that matter. Her evidence was that she commenced employment with Leeson on 8 December 2000, and that on 17 June 2001 she made a decision to take a break from her employment due to problems with her hands and a “general feeling of shear tiredness”. She denied that, at any time, she had tendered her resignation to the employer. The outline of submissions tendered by Mr Royce in accordance with directions orders, was the subject of lengthy cross-examination by Mr Merrell of the witness, and brought into evidence a chronology of events from the cessation of employment on 17 June 2001, until the filing of the application for reinstatement on 6 November 2001. That chronology taken from the submission, in the exact form, was as follows: • “19th June 2001, Carol from Australian Nannies Work Wide called Ms Butler and advised she would arrange a meeting with Mr [and] Mrs Lee and call Ms Butler back. This did not occur. • On the or around the 20th June 2001 Ms Butler received a letter from Leeson which sets out to show Ms Butler had resigned. Attachment 1 to document B filed by the Applicant. • 21st June went to Centrelink. • 26th Went to Work Cover. • 28th June 2001, Appointment Frank Carroll Solicitors regarding a number of issues including her now apparent termination from employment. Financial[ly] unable to pursue any of the issues. • Over the next couple of weeks the Applicant sought advice from the following bodies: Citizen’s Advice Bureau, Women at Work, Legal Aid, all of which stated they did not fill in forms. They advised Ms Butler “you need to see a Solicitor”. • 16th July 2001, further visit to DR Leslie Harvey re continuing problem with hands and fingers. (Appendix 3 to Ms Butler’s statement) is a copy of Statutory Declaration from Dr Harvey confirming that Ms Butler was seeking attention to the Carpal Tunnel 11 days before the incident on the 17th June. • 6th August Appointment Dr Coleman. (work cover claim). • 7th August Dr Maxwell (work cover claim). • 27th August Dr Leslie Harvey, Specialist had confirmed Carpal Tunnel. • 28th August Work cover refused. • 4th September Nerve test and damage, Dr Maxwell. Appeal of work cover decision. • 6th September went to Sydney stayed with daughter due to stress of past few months. • 8th September fell down stairs injuring left had and right foot, x-rays taken at Holy Spirit. • 11th September I returned to the Gold Coast. • 13th September appointment with Dr S. Colleman [Coleman] regarding my hand and fingers. • 14th September advised of refund of only $185.50 thought [through] health commission if operation was done. -- 2 of 7 -- 774 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 2002 • 30th September Ms Butler’s daughter (Natalie) arrived from England. • 9th October Dr Leslie Harvey regarding damage to hand and foot in fall. • 10 October saw social worker at Centrelink. Advised to make an appointment with Legal Aid. Appointment made for 16th October. • 16th October Appointment with Legal Aid. Ms Butler was told to go to Industrial Relations and seek an extension of time and lodge an Application for reinstatement. Leagl [Legal] aid officer Daphnne said “this letter was serious”. (attachment 1 to item B) • 16th October saw Linley at Industrial Relations picked up forms. • No facility to type up letter of material facts at home, Natalie Ms Butler’s daughter went to the library and typed this for Ms Butler. • 25 October, sent a statement to Bruce regarding no holiday pay, Industrial Relations. • 29th October, saw Dr Colemean [Coleman] • 29th October, more Work Cover information needed. • 30th October, met with legal Aid to request assistance with the forms obtained from Industrial Relations. They would not fill in, Legal Aid sent me to see Solicitor. Adamsons. No money therefore no assistance from Adamsons. • 31st October, more typing of material facts for Application. Tried to complete the forms. • 31st October phoned Women at Work again, they suggested I try Anti-Discrimination Commission. • 31st phoned the Industrial Relations Commission and the girl there assisted with some clarification of details on the form. • 2nd November completed Application form. Document witnessed and posted to the Commission. • 6th November application received and filed in the Commission.”. Ms Butler’s evidence, in essence, was that, due to illness, incapacity and financial hardship, she was not able to file the application for reinstatement prior to the date of filing on 6 November 2001. Cross-examination Mr Merrell conducted a most extensive cross-examination that occupied 42 pages of transcript and traversed a range of issues including: • Remedy sought. • Seeking of legal advice by Ms Butler. • Certificate issued by Commissioner Brown. • Actions by Ms Butler to have extension of time application heard. • Reasons for the delay in filing the reinstatement application. • Completing of Centerlink and WorkCover forms. • Carpel Tunnel injury. • Anti Discrimination Commission – Re Ms Butler’s marital status. • Damage to Ms Butler’s professional and personal reputation. • Legal action initiated against Ms Butler by Ms Kerri Craig-Lee. Leeson Mr Lee, the sole witness for Leeson, in his evidence, specifically focused on the failure of Ms Butler to lodge the application within the twenty-one (21) day period, as prescribed in the Act. He gave the reason for lodging his application under s. 331 of the Act as the inaction of Ms Butler in seeking the Commission to address the extension of time issue. Reliance was placed upon the comments of Commissioner Brown on the “unlikely” granting of an extension of time, should such an application be lodged. Mr Lee, in evidence, stated that some eighteen (18) months had lapsed since the employment relationship had ceased, and from his perspective, there was a need for the matter to be concluded to allow the parties to return to normality. His evidence, in respect of the parting of ways, was that Ms Butler had tendered her resignation and that had been acknowledged in correspondence to Ms Butler, under his signature, on 19 June 2001. At paragraph (m) of his affidavit of evidence, he stated, finally: -- 3 of 7 -- 6 December, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 775 S:\QIRCDEV-BASE\QGIG\2002\VOL 171\NO.14 06.12.02.DOC “In all the circumstances, Butler’s claim for reinstatement is trivial as it was filed out of time by approximately 4 months. Butler does not now have, nor has she ever had, any reasonable prospects of succeeding with an Application to extend the time for the filing of an Application for reinstatement. Notwithstanding this, Butler allows the Application to remain on foot when any reasonable person having received advice from lawyers and also from Commissioner Brown that she had no reasonable prospects of success would have discontinued or withdrawn the Application.”. Cross-examination Mr Royce, in cross-examining Mr Lee, dealt with a number of items including: • Mr Lee’s first hand knowledge of events leading to Ms Butler’s departure from her employment. • Meaning of “hearsay”. • Commissioner Brown’s certificate. • Circumstances relating to the meeting with Ms Butler on 18 June 2001. • Letter written by Mr Lee to Ms Butler on 19 June 2001. • Non-payment of statutory entitlements to Ms Butler on leaving the employ of Leeson. Final Submissions Carole Butler In compliance with directions orders, Mr Royce filed an outline of submissions, which were relied upon, in addition to oral submissions, that reflected the evidence given in the proceedings. The written submissions included the following: • Ms Butler went on sick leave on 17 June 2001. • At no time did she resign her employment. • Ms Butler sought immediate advice from the time of ceasing work, including her attendance at a number of meetings, but her financial position prevented her from having her termination addressed. • Leeson’s failure to meet its statutory obligations under the Act contributed to the application being lodged out of time. • Leeson’s claim of prejudice if the application continues is negligible and, in fact, it is Ms Butler that would be most prejudiced if the extension was not granted. • Twenty-one (21) day statutory period should not be seen as an arbitrary cut-off point. • Authorities relied upon included: • Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353. • Breust v Qantas Airways Limited (1995) 149 QGIG 777. • Lawton v NTG Services Pty Ltd (2001) 169 QGIG 12. • Tarong Energy Corporation v Campbell (2001) 169 QGIG 132. Finally, Mr Royce submitted that the application No. B1947 of 2001 was not without merit and that it had been demonstrated on Ms Butler’s behalf that the necessary criteria needed to obtain an extension of time had been met. In respect of the application No. B1499 of 2002, the Commission should dismiss the said application. Leeson An outline of submissions was filed on 30 October 2002 by Mr Mark Ruddy, a solicitor for Leeson, in respect of the application No. B1499 of 2002, in addition to a further outline of submissions provided to the parties at the hearing on 13 November 2002 under Mr Merrell’s signature. Note: Mr Royce objected to the submissions of Mr Merrell forming part of the proceedings as they had not been filed within the time specified in the directions orders issued on 15 October 2002. In addressing the objections, Mr Merrell acknowledged that directions orders had not be complied with, however it was his contention that the bulk of his submission was in similar terms to that filed by Mr Ruddy. The Commission ruled that the submission of Mr Merrell, where it differentiated from that of Mr Ruddy’s, would not be considered in the determination of the application. The submission relied upon a range of material, including: • Powers of the Commission under ss. 331(b)(i) and 335(1)(b) of the Act. -- 4 of 7 -- 776 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 2002 • Progress of Ms Butler’s application No. B1947 of 2001. • Certificate issued by Commissioner Brown. • Failure of Ms Butler to seek an extension of time hearing date. • Ms Butler’s original application filed out of time. • Ms Butler has the positive burden of demonstrating that the justice of the case requires the indulgence of the extension of time – Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at page 547. • Factors to be considered by the Commission in deciding whether to exercise it’s discretion - Breust v Qantas Airways Limited (1995) 149 QGIG 777: “(i) The length of the delay; (ii) The explanation for the delay; (iii) The prejudice to the Applicant if the extension of time was not granted; (iv) The prejudice to the Respondent if the extension of time is granted; and (v) Any relevant conduct of the Respondent.”. • Linnane VP in Colefax v Jupiters Ltd (2000) 166 QGIG 4 – three caveats added to the approach of Breust: “(i) that s. 74(2)(b) of the Act vests an unlimited statutory discretion in the Commission which must always be exercised; (ii) that the time limit of twenty-one (21) days provided for in s. 74(2)(b) must be respected; (iii) that the Applicant’s prospects of success at the substantive hearing is always a relevant matter i.e. that where it appears that an applicant has no or very limited, prospects of success the Commission should not grant an extension of time.”. • Failure of Ms Butler to provide a satisfactory explanation for the delay: “Ms Butler’s explanation for the delay as set out in her application is ‘delayed Application due to seeking advice for injuries and mental trauma and financial hardship in obtaining Counsel’. Ms Butler has not attempted to expand on these reason[s] for the delay nor has she acted promptly in bringing an Application to extend the section 74(1)(a) period.”. • Ms Butler’s prospects of succeeding with the substantive application – “nil” as she resigned from her employment. In summary, Mr Merrell, at page 110 of transcript, stated: “So for all of those reasons, Commissioner, the extension of time shouldn’t be granted. This is a case that my client would have to fight where the remedies that Ms Butler wants just can’t be provided. The extension of time shouldn’t be granted. If the extension of time shouldn’t be granted, then the application should be dismissed because it’s not in the public interest that it continue. It should also be dismissed because it’s not in the public interest that it continue because Ms Butler hasn’t taken any step to bring the matter on to perfect her application for reinstatement. The reason why we’re here today is because my client gave instructions to his solicitor to bring the matter on. There would be no extension of time hearing today if my client hadn’t done that. For all those reasons, Commissioner, the public interest in Ms Butler bringing her application on for reinstatement is clearly outweighed by the public interest in not allowing a case to go ahead for final hearing where the remedies that the Commission could provide in a reinstatement case can’t be provided to – sorry, where the remedies that Ms Butler wants can’t be provided to her in a reinstatement case. Commissioner, we also make application for costs in respect of the original application for unfair dismissal made by Ms Butler and costs for today. Commissioner, it might be appropriate that you reserve the question of costs depending upon what your decision is in respect of our application today.”. Conclusion The Commission, having accepted the proposition put by Mr Merrell that the conduct of the proceedings would be along the lines that Ms Butler, in effect would, through evidence and submissions, seek the discretion of the Commission in the granting of an extension of time for filing application No. B1947 of 2001, it was unlikely that application No. B1499 of 2002, filed on behalf of Leeson to strike out Ms Butler’s application, would need to be ruled upon. The position of Ms Butler, in respect of the reasons for not lodging the application within the twenty-one (21) statutory timeframe was set out in the application itself. They were: • Seeking advice for injuries. • Mental trauma. • Financial hardship in obtaining Counsel. Significant reliance was placed upon the health of Ms Butler (both physical and mental) and, in particular, the Carpal Tunnel condition, as to reasons as to why she was unable to fill in the application, yet Ms Butler made no effort to provide medical evidence supportive of that position. -- 5 of 7 -- 6 December, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 777 S:\QIRCDEV-BASE\QGIG\2002\VOL 171\NO.14 06.12.02.DOC In terms of financial hardship, it was argued that, due to the lack of funds, Ms Butler was disadvantaged, in that she was unable to engage legal representation. The argument that Ms Butler had not been able to lodge the application in the absence of legal representation is generally considered, in most circumstances, yet as the matter “panned out”, Ms Butler filed the application without having accessed legal advice, lessoning this argument. The difficulty in having the Commission accept the arguments put forward by Ms Butler was that, in cross-examination, Mr Merrell established that Ms Butler had sought legal and industrial advice within the twenty-one (21) day period sufficient for a reasonable person to accept that Ms Butler was more than aware of the twenty-one day limit and the need to comply with the Act. The stated position of Ms Butler that she was unable to fill in the application for reinstatement was brought into question, also through the cross- examination process, where Mr Merrell tendered exhibits 2 and 3 which were WorkCover forms – Claim (20 June 2001) and Appeal (29 October 2001) – which demonstrated Ms Butler’s capacity at different stages between her ceasing of employment and the filing of the reinstatement application. The evidence of Ms Butler that she contacted a number of organisations, including Citizens Advice Bureau, Queensland Working Women’s Service (QWWS) and Legal Aid, all of who advised that they could not help her fill in forms, is not accepted by the Commission for a number of reasons, not least of all the Commission’s own first hand knowledge of the QWWS in representing women in unfair dismissal applications (at no cost) before the Commission. To suggest that the QWWS would, or could, not assist in the filling out of the application form is, in my view, an unacceptable portrayal of an organisation that “does have the runs on board” as a proactive body supportive of women in circumstances similar or the same as those of Ms Butler. In the view of the Commission, the pro-forma reinstatement application is user friendly and in no way any more complicated than the WorkCover forms (exhibits 2 and 3) completed by Ms Butler prior to 6 November 2002, and in the case of exhibit 2, it was filled in by Ms Butler four (4) days after the employment arrangement ceased. The outcome of this matter very much centred around witness credibility and, it is with some regret that I must put the view that Ms Butler did not present to the Commission as a witness of credit. On the other hand, Mr Lee impressed the Commission with his frankness in reply to questions put during the cross-examination by Mr Royce, in that the answers given were, at times, in detriment of his application. He did present as a credible witness. In applying the approach in Breust: Length of delay: The period of 119 days, by most standards, would be considered excessive and the evidence before the Commission failed to justify the lateness of the application. The Explanation for the delay: The reasons given for the delay were identified as both medical and financial hardship, relating to an inability to complete and lodge the application within the twenty-one (21) day time frame. In the view of the Commission, the evidence supportive of the delay failed to meet the test of credibility. The prejudice to the Applicant if the extension of time was not granted: It is obvious that the prejudice to the applicant is that the application would no longer be “live” and, as such, the application would be discontinued should an extension not be granted. The prejudice to the Respondent if the extension of time is granted: A period of almost eighteen (18) months has lapsed since the employment relationship ceased, during which time Leeson has endeavoured to put in place arrangements to fill the role previously held by Ms Butler. It was not until 119 days outside the statutory period that Leeson first became aware of the application and, in the view of the Commission, granting of the extension could not be considered reasonable in the circumstances. Any relevant conduct of the Respondent: The respondent to the application attended two (2) conciliation conferences before Commissioner Brown and, through their legal representative, were parties to further negotiations which, as it turned out, were less than fruitful. The application filed by Leeson to have the application for reinstatement “struck out” acted as a catalyst to have the extension of time consideration dealt with by the Commission. Caveats: In respect of the caveats relied upon in Colefax, Mr Merrell, in his final submission, indicated that reliance was placed upon caveats (i) and (ii), however offered no argument in relation to the prospects of success. Mr Royce submitted that the prospects of Ms Butler in the substantive matter should be considered in a positive light. The Commission is of the view that the twenty-one (21) day period provided for in s. 74(2)(b) of the Act must, at all times, be respected, however, if compelling argument is provided in support of extending the period, then it is proper that the Commission should exercise the discretion vested by way of the Act. -- 6 of 7 -- 778 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 2002 In this matter, no such compelling argument exists. On consideration of the evidence, submissions and materials before the Commission in these proceedings, I find that it would not be appropriate, in accordance with s. 74(2)(b) of the Act to exercise such discretion so as to allow an extension of time in lodging application No. B1947 of 2001, and therefore the extension of time application is denied. In dealing with application No. B1499 of 2002 as it relates to s. 331(b)(ii) of the Act to have application No. B1947 of 2001 dismissed, there is no requirement for the Commission to record a decision as the reinstatement application is extinguished by the refusal to grant the extension of time. On the application from Leeson seeking that Ms Butler meet it’s costs in defending the proceedings, the Commission finds that the matter (subject of this proceeding) was brought on at the instigation of Leeson and, on that basis, the option of choice that was available to Ms Butler to pursue the application or otherwise was overtaken by the Leeson application and, therefore, it is appropriate that each of the parties be responsible for their own costs. The application by Leeson for costs is denied. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: Appearances: Mr S. Royce, of Australian Industrial Reinstatement Services, for Ms Carole Butler. Mr J. Merrell, of Counsel, instructed by Kinneally Miley, for Leeson Pty Ltd. 2002 13 November Released: 21 November 2002 ########################################################################################################################## # Q -- 7 of 7 --